Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.


Conflict of Laws Part 2


The history of conflict of laws can be traced to Greek law. Ancient Greeks dealt straightforwardly with multi-state problems, and did not create choice-of-law rules. Leading solutions varied between creation of courts for international cases and application of local law on the grounds that it was equally available to citizens of all states.127 More significant developments can be traced to Roman law. Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The officers of these specialized tribunals were known as the praetor peregrini (magistrates). The Praetor peregrini did not select a jurisdiction whose rules of law should apply. Instead, they “applied” the “jus gentium.” The jus gentium was a flexible and loosely-defined body of law based on international norms. Thus the praetor peregrini essentially created new substantive law for each case. Today, this is called a “substantive” solution to the choice-of-law issue. The modern conflict of laws is generally considered to have begun in Northern Italy during the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of statuta, whereby certain city laws would be considered as statuta personalia “following” the person whereby it may act, and other city laws would be considered as statuta realia, resulting in application of the law of the city where e.g. the res would be located (ie lex rei sitae; “the law where the property is situated”).

The procedures in a conflict case

The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue.

The court then characterizes the cause of action into its component legal categories.

Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue.

Once the applicable law is decided, that law must be proved before the forum court and applied to reach a judgment.

The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

Choice of law rules

The court will apply the law of the forum (lex fori) to all procedural matters (including the choice of law rules)

127. Juenger, Friedrich K. (1993). Choice of Law and Multistate Justice. Martinus Nijhoff, Kluwer. pp. 6–7.

It will count the factors that connect or link the legal issues to the laws of potentially relevant states and apply the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity; the law of the state in which land is situated (lex situs) will be applied to determine all questions of title; the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.

Conflict of law and matrimonial cases

In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. The case becomes even more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties’ nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage. Each time a spouse invokes the application of foreign law, the process of divorce slows down, as the parties are directed to brief the issue of conflict of laws and provide translations of the foreign laws.

Different jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the relationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, free will, lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context.

Conflict of law works as follows:

In the absence of a valid and enforceable agreement, the rules apply in the cases below –

Movable v. Real Estate – In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has been no subsequent change in the spouses’ domicile.

Mutability Doctrine – property relations between spouses are governed by their latest domicile, whether acquired before or after the marriage.

Immutability Doctrine – the original personal law of the parties at the time of marriage continues to govern all property including subsequently acquired property, regardless of a later change in domicile or nationality. This doctrine applies in Nigeria. In some countries like Israel both doctrines above are subject to the law of domicile at marriage.

Partial Mutability or Mutability of New Acquisition – this is the U.S. approach to conflicts of law in matrimonial property division cases. All movable property acquired during the marriage is subject to the parties’ domicile law at the time of acquisition, and not that of the original or intermediate domicile.

Lex Fori – In many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties’ entire property, even if there is a foreign element. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law applies to all its aspects.

Pre-dispute provisions

Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties’ choice of venue for any litigation (called a forum selection clause). Then, choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. Obviously, this judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors, but it does work well in practice.

The status of foreign law

When the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor on how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. The theoretical responses to this issue are:

(a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome.

(b) that the local court creates a right in its own laws to match that available under the foreign law. This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases.

(c) that the national court, when applying a foreign law, does not give an extraterritorial effect but recognizes, through its own “conflict of laws rule”, that the situation at hand falls under the scope of application of the foreign rule. In order to understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible to two distinct meanings:

On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex fori (local law). On the other hand, it could mean that the rule is being applied to a factual situation that occurred beyond the territory of its state of origin. As an example of this situation (hypothetical), one can think of a Nigerian court applying British tort statutes and case law to a car accident that took place in London where both the driver and the victim are British citizens but the lawsuit was brought in before the Nigerian courts because the driver’s insurer is Nigerian. One can then argue that since the factual situation is within the British territory, where the Nigerian judge applies the English Law, he does not give an extraterritorial application to the foreign rule. In fact, one can also argue that the Nigerian judge, had he applied Nigerian tort Law, would be doing so in an extraterritorial fashion. Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori.

Conflict of laws between English Law and Customary Law

Conflict of laws exist between peoples of the same ethnic grouping, race, nationality and countries sharing similar socio-economic and cultural system; for instance, between the Yoruba community in Nigeria and those in Benin across the border. In Nigeria, there is conflict of laws between the received English law and customary law (i.e. native law and custom). Thus, this is a clash between law from an economically developed system and law from a less economically developed system – with different historical and cultural backgrounds. Where English law comes into conflict with customary law, English law should prevail. This apparent conflict appeared to be settled with section 27 (1) of the High Court of Lagos Act which directed the courts to enforce native law and custom but only if the particular rule passes the ‘validity test’ (see customary law in chapter 5, section 3, Page 171. In the light of this validity test, the supremacy of the English law is established since statutory regulations determine the fate of customary law in Nigeria. (See Adesubokun v. Yinusa (1971) NNLR 77 (197), where the Supreme Court sealed the faith of customary law by declaring inter alia, the supremacy of English law. In resolving the conflict between these two laws, two major things must be identified:

The parties to the conflict

The nature of the transactions

(1) The parties to the conflict

Natives. The natives are those who were born in a particular place and indigenous to that same place with the same language and culture. (E.g. the Yorubas in Nigeria).

Indigenous non-natives. The indigenous non-natives are those born in a particular place and indigenous to that same place with the same language and culture but find themselves within a different political boundary from their fellow natives. (E.g. the Yorubas in Benin as against those in Nigeria and some other Nigerian communities bordering Cameroon and Niger republics).

Foreigners/non natives. The foreigners who are non natives are those who were not born in a particular place though they live in that same place but do not belong to that place. (E.g. Americans and Britons in Nigeria).

(2)  The nature of the transaction

Transactions unknown to customary law: This brings us to transactions known to the native peoples’ customs and tradition and transactions unknown to the native peoples’ customs and tradition. In a situation where a transaction is unknown to customary law, no party to a dispute is entitled to claim the benefit of such customary law, since customary law cannot govern such relations. Hire purchase and mortgage are transactions unknown to the natives. The advent of the white man’s contract law brought transactions unknown to the natives and they were ‘forced’ to deal and apply them outside their own accepted contractual process – which is steeped in their native law and custom.

Marriage matters: Marriage matters or issues are governed by and according to native law and custom of a particular place. Where a married couple trace themselves from different political territories and the husband dies for instance, a conflict can ensue if the man’s relatives insist on his inheritance to the exclusion of the woman (and her children). Thus, a native man dies and his relatives insist on inheriting his property to the exclusion of his indigenous non-native wife. This conflict is usually resolved by tracing and following the particular custom used when the traditional marriage was contracted ab initio. Where both parties to the marriage are natives, customary law applies as a general rule to the settlement. As a matter of right, the parties to the dispute may decline the application of customary law. Where one party insists on English law and the other party declines the application of English law, the onus is on the second man to show that if the issue is determined by English law, he will suffer substantial injustice.

Land matters: One of the basic requirements of any land matter is that the contract must be written down – a formal contract. However, to the native people, land belongs to the community (communal ownership) and they have always had a system of allocating land for dwelling and farming purposes without actually selling to their kit and kin. With the advent of the ‘white man’s contract law’, animosity over land ownership reared its head. Land was supposed to be fought for and defended by all against neighboring enemies, not a fight within and amongst the same community. With land matters and in the case of a dispute, lex situs is a general rule (i.e. where the land is located). This implies that the laws governing the location of the land or where the land is situated shall prevail in the settlement of the land dispute. If disputants are natives, customary law should prevail in settling the dispute (the nature of the contract might determine the outcome) – [see Griffin v. Talobi, (1948) 12 WACA 371 and Okolie v. Ibe (1958) N.R.N.L.R 89] – the West African Court of Appeal (1948) and the Northern Court of Appeal (1958) independently presumed that the nature of the above contract cases intended that the settlements should (respectfully) be regulated by the principles of English law respectively.

Matters of general inheritance: Over matters of general inheritance, native peoples had their own system of inheritance as embedded in their native laws and custom. This inheritance issues may hover over spousal inheritance where a native man dies and his senior or even junior brother inherits his native wife plus her children (in some communities, it is customary). There might be conflict when the man is a native and the woman is an indigenous non-native. She might insist that her own culture frowns at it which can be set aside by the natives, equally insisting it is always their set tradition whether she is an indigenous non-native or not. This is a contentious issue that might pit the natives and the indigenous non-natives against each other. There is no general rule of resolution on this except if the woman and her relatives resort to English law; prove the failure of the validity test and the impending injustice if customary law is used in settling the dispute. Native law and custom also cover the general inheritance and acquisition of land, farmland, other property etc. The situation changes when one party resorts to English law and he can prove that he will suffer substantial injustice under the usage of customary law.

Intestacy: This is the situation of being or dying without a legally valid will. In Nigeria, majority of the natives prefer to be governed by the rules of customary law (native law and custom). Cases between natives should be subjected to the rules of customary law and not the received English law. The elements of customary law is generally accepted where matters of intestacy arises. Natives are not used to wills – legally valid or not (i.e. transaction unknown to customary law) because customary law has acceptable provisions in its tenets which the natives believe are just and equitable. In some parts of Yorubaland, ‘Idi–Igi’ was the method of distribution of property if a person dies intestate (i.e. among the number of wives). ‘Ori–Ojori’ was the other method (i.e. among the number of children). See Taiwo v. Lawani (1961) ALL N.L.R. 703 where the learned trial judge Udoma J. decided in favour of Idi–Igi (sharing amongst the wives) as not being repugnant but was okay with the maxim that equality is equity. The edict of the former Northern Region (s. 21) deals with the issue of disputes relating to mixed succession cases as applicable. In the Kingdom of Onitsha by the river Niger; according to the native law and custom of Onicha-Ado-N’idu, intestacy is sometimes solved by resorting to the time-worn tradition of ‘Usokwu’ or ‘Usokwu na Usokwu’ which means sharing equally according to the number of wives of the deceased man – as demonstrated by the unreported controversial case: Ebo v. Ebo (2004); by an order made in the Onitsha High Court by the Honourable Court, Coran; C.E. Iyizoba, J, ordered the sharing of the Estate of the deceased Nnabuenyi James Offodile Ebo into five (5) branches (ie no. of wives or Usokwu) in accordance with Onitsha Native Law and Custom. It is pertinent to note that the Honourable Judge Iyizoba applied the law of the forum ie Lex fori (local law); the second branch of the conflict of laws and the choice of law rule nos. 1 & 2 (see above). He also applied the customary law and custom of the Onitsha native people (disputants are natives) instead of the English law. The choice of law; ie the law which he applied to resolve the dispute took cognizance of lex situs (where the estate is situated) ie Onitsha and the occurrence that gave rise to the litigation and the law of the place where an act is done or transaction is completed (lex loci actus). In the case Ebo v. Ebo (2004), a branch (Usokwu) under an erroneous belief, ‘accused’ the other 4 branches of trying to sell a part of the estate without their knowledge.

To be continued . . .
Note: This publication does not contain footnotes.
For footnotes please buy and read the book below.


Legal Method . Book Cover 202x300 INFORMATION TECHNOLOGY LAWCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved