Private International Law in Nigeria

Chukwuma Okoli, Richard Oppong

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509911141
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

PART I

Preliminary Matters

1

Introduction

Nigeria is a federal country consisting of 36 States¹ and the Federal Capital Territory, Abuja.² With increased cross-border transactions and investments, the significance of private international law (or conflict of laws)³ – the body of law that aims to resolve claims involving foreign elements – has become more accentuated than ever. Indeed, private international law rules have sometimes been invoked in resolving disputes with inter-State dimensions within the Federation, especially on jurisdiction and choice of law matters.⁴ Conflict of laws has also been used to resolve disputes involving internal conflicts between various customary laws and between customary laws and the Nigerian Constitution or enabling statutes, especially in the area of family law.⁵

Nigerian courts have embraced the important role of private international law in resolving disputes with foreign elements. In the words of Tobi JCA (as he then was):

The basic aim of private international law is to resolve conflicts of municipal or domestic laws at the international law. It is good law that all sovereign nations zealously guide and guard their sovereign status or sovereignty in international law. But because no country can operate in isolation or an island of its own, international diplomacy and international trade and commerce necessitates the formulation of rules of private international law, to resolve any conflict in the different municipal laws.⁶

Unfortunately, to date, there is no comprehensive treatise on private international law in Nigeria.⁷ This book aims to fill that academic void: drawing on over 500 Nigerian cases as well as statutes, and academic commentary, this book examines mainly jurisdiction (in inter-State and international disputes), choice of law, and the recognition and enforcement of foreign judgments and international arbitral awards. This introduction briefly examines the sources of Nigerian private international law and its history. It also provides the reader with a map of how this book is organised.

Regarding private international law, the sources of law in Nigeria are mainly case law, and to a lesser extent legislation and international treaties that have been implemented in Nigerian law. Though the Constitution of the Federal Republic of Nigeria, 1999 is supreme throughout Nigeria,⁸ it does not expressly indicate whether legislation on private international law matters is within the exclusive competence of the federal government or the States. However, the nature of matters constitutionally assigned to the exclusive competence of the federal government suggests that private international law legislation is more likely to emanate from the federal level. To date, there have been only a few such laws, especially to the extent that they address conflict of laws issues in a comprehensive way. Furthermore, the existing statutes address mainly issues of jurisdiction in international matters and enforcement of foreign judgments and arbitral awards. It is, however, not uncommon to find private international law related provisions embodied in legislation dealing with various issues.

Case law plays an important role in Nigerian private international law. Accordingly, this book is foregrounded in Nigerian cases. The judiciary in Nigeria is structured as follows: the Federal Courts are the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja; the Sharia Court of Appeal of the Federal Capital Territory, Abuja, and the Customary Court of Appeal of the Federal Capital Territory, Abuja.⁹ At the State level, there is a High Court, Sharia Court of Appeal and Customary Court of Appeal of each State.¹⁰ Because of the nature of their subject matter jurisdiction, private international law cases are unlikely to emanate from the Sharia and Customary courts.¹¹ Accordingly, this book focuses on the jurisprudence of the Federal and State High Courts as well as the Supreme Court of Nigeria and the Court of Appeal of Nigeria. We focus especially on the jurisprudence of the Supreme Court and the Court of Appeal because of the precedential force of their jurisprudence.¹²

Foreign case law often serves as an important source of persuasive authority because of the relatively underdeveloped nature of Nigerian private international law. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by Nigerian courts. Nigerian courts have, however, cautioned against over-reliance on English cases. Tobi JCA put it with characteristic flamboyance when he once observed:

English is English. Nigerian is Nigerian. The English are English. So also the Nigerian are Nigerians. Theirs are theirs. Ours are ours. Theirs are not ours. Ours are not theirs. We cannot therefore continue to ‘enjoy’ this ‘borrowing spree’ or ‘merry frolic’ at the detriment of our legal system. We cannot continue to pay loyalty to our colonial past with such servility or servitude. After all, we are no more in slavery.¹³

The Supreme Court was less dismissive of foreign cases, and in rejecting and reprimanding the approach of Tobi JCA, has held that there is nothing wrong with borrowing from another legal system.¹⁴ We follow the perceptive stance of the Supreme Court. Accordingly, although this book is foregrounded in Nigerian case law, we have drawn on foreign cases, especially English cases, in areas where we think the law is in need of reforms or there are gaps to be filled.¹⁵

Doctrinal writings are not a source of Nigerian law and lack binding legal force. However, they can influence judicial decisions or serve as the basis of legislative reform. Although there are no academic journals in Nigeria specifically dedicated to private international law issues, the volume of private international law scholarship is growing.

With the exception of one notable scholarly work,¹⁶ jurists have largely neglected the history of Nigerian private international law. Their discussion of the subject often starts from the date when English law was received into Nigeria.¹⁷ No serious inquiry has been made into the position before this period. Nigerian writers seem to content themselves with an a priori conclusion that the Nigerian pre-colonial legal regime did not have private international law rules and, by extension, such problems, but this is not entirely accurate. This is because the socio-economic intercourse among people of diverse backgrounds and diversity of legal regimes – two factors that lay the foundation for conflict of laws problems – were present in pre-colonial Nigeria.¹⁸

The kingdoms and tribes that existed in pre-colonial Nigeria had commercial and inter-personal relations with each other and, indeed, with the outside world. As Obilade wrote:

Before the nineteenth century, British and other foreign merchants had started trade with the indigenous people on the coast of West Africa. The trading coastal areas which later formed part of Nigeria included Lagos, Benin, Bonny, Brass, New Calabar (now Degema) and Old Calabar (now Calabar). Attempts were made by the indigenous courts in those areas to settle trading disputes between foreigners and indigenous people. But the customary court system was very strange to the British and other foreign traders. Moreover, although the British traders were aware of the existence, in England, of the common law, a type of unwritten law, that law was, and still is, different in material respects from customary law. It was generally believed by those litigants that they seldom obtained justice in the courts.¹⁹

While such relations could potentially have formed the basis of significant private international law problems there does not appear to have developed a systematic body of rules, at least not as we know it today, to resolve such problems. The common application of Islamic law in Northern Nigeria from about the eleventh century onwards left little room for choice of law problems.²⁰ Another factor reducing the scope for private international law problems was the barter system of trading, which left little room for substantial disputes requiring choice of law considerations.²¹ In general, one can speculate that disputes were generally settled on the basis of local law, ie the lex fori.²²

The influx of Europeans into Nigeria – ultimately culminating in the United Kingdom as the colonial power – gave rise to disputes with private international law dimensions. Such disputes were initially settled through force or diplomacy and, with time, a judicial mechanism was developed for resolving such disputes. The judicial systems introduced in various parts of Nigeria after 1854 entertained problems of private international law dimensions, but this did not lead to the introduction of a full-blown private international law regime. This is because the courts did not decide disputes before them on the basis of choice of law. Furthermore, perhaps more importantly, at this time English private international law was still in its infancy and it was unlikely that the resolution of disputes in the colonies would have been steeped in private international law analysis.

In general, it can be said that the reception of English law – the common law, doctrines of equity and statutes of general application – into the colony of Lagos in 1863 and the rest of Nigeria in 1900 marked the introduction of private international law, as we know it today, into the Nigerian legal system. For example, in 1908 the Foreign Judgment Extension Ordinance was enacted in both Northern and Southern Nigeria, and in 1900 a court grappled with the issue of recognition of a Brazilian marriage between two Nigerians who had been sent to Brazil as slaves.²³ As is evident from this book, a significant body of case law ...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Series Editor’s Preface
• Preface
• Contents
• Abbreviations
• Table of Cases
• Table of Legislation
• PART I: PRELIMINARY MATTERS
• PART II: JURISDICTION
• PART III: OBLIGATIONS
• PART IV: FAMILY
• PART V: PROPERTY, SUCCESSION AND ADMINISTRATION OF ESTATES
• PART VI: FOREIGN JUDGMENTS AND ARBITRATION AWARDS
• PART VII: INTERNATIONAL CIVIL PROCEDURE
• Selected Bibliography
• Index
• Copyright Page