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AN APPRAISAL OF THE APPLICATION OF THE LAW RELATING TO DOMICILE IN NIGERIA

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 Format: MS WORD ::   Chapters: 1-5 ::   Pages: 56 ::   Attributes: Questionnaire, Data Analysis,abstract, table of content, references ::   2,862 people found this useful
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CHAPTER TWO

CONCEPTUAL CLARIFICATION AND THE DEVELOPMENT OF

DOMICILE IN NIGERIA

                2.1.                                            Introduction

This Chapter will focus on key concepts about Domicile as a connecting factor to an individual personal law. To this extent, therefore, the chapter will consider the definition, form and rules of domicile. In addition, the chapter will look at the historical development of the concept of Domicile to its introduction into Nigerian Law.

 

                2.2.                                    Conceptual Clarification

The attempted definitions of domicile had been so inconsistent that one can only cite a correct definition within the context of a particular legal system. To this extent, the term varies in meaning from one country to another, from one age to another and indeed from the individuals who have attempted to

define it. 

 

The meaning ascribed to the term „Domicile‟ by the layman is a place of residence or ordinary habitation; a house or home.1 However, in the Roman law from which the term was originally taken, the roman word ‘domicilium’translated in English as „domicile‟ indicated permanent residence so as to  

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1. Omidire, K. Domicile: A comparative analysis. A Seminar paper presented at the Faculty of Law, University of Lagos. 1987. p. 1.

become liable to the municipal obligation of that particular district or city.2 At Common Law, the concept is defined in terms of permanent home. Hence in Whicker Vs Hume,3 Lord Cranworth stated thus:  “By domicile, we mean home, the permanent home, and if you do not understand your home, I am afraid that no illustration drawn from foreign writers of foreign languages will very much help you to it.”

 

There is indeed a problem with this definition. While the notion of permanent home can be explained largely in the light of common sense principles, the same is certainly not true of domicile. Domicile is “an idea of Law”4 which diverges from the notion of permanent home in two principal respects.

 

In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country, a person must intend to reside in a country for a number of years. Again, a person cannot acquire a domicile of choice in a country in which he has never been physically present but a person may have a permanent home in a country if he had established his family there  and yet has not acquired a domicile there.

 

Secondly, domicile differs from permanent home in that, the law in some cases say that a person is domiciled in a country whether or not he has

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  1. Odusanya, O. Domicile and Nationality as connecting factors. A Seminar paper presented at the Faculty of Law, University of Lagos. p. 1
  2. (1858) 7 H.L. Cas 124 at 160
  3. Bell Vs Kennedy (1880) L. R. I. SC and Div 307, 320

abandoned one home either because he is permanently vagrant or because he has abandoned one home and has not yet acquired another, but the law nonetheless attributes a domicile to him. Again, a person may in fact have a permanent home in one country but be domiciled in another because the law deprives him or her of the capacity of acquiring domicile in the present home. Thus children under 16 years in England and mentally disordered persons may be domiciled in countries in which they do not have their permanent home.5

 

Furthermore, according to Kolapo Omidire, the English definition of domicile has failed to take into account the fact that the concept of domicile is not uniform throughout the world. Even at the time Lord Cranworth gave his definition of domicile, what constitutes domicile of choice could not be

pointed out without variation.6

 

It may well be that to construct a formula which describes the precise meaning of domicile as understood by English Law is an impossibility. No wonder then that Sir George Jessel stated in Doucet Vs Geoghegan, that “the term domicile is impossible of definition.”7 As pointed out by W.W. Cook,8 the English conception of domicile is “a single conception theory” and by this English Law takes the view that the 

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  1. Collins, L. (1987) Dicey & Morris Conflicts of Law (11th Ed.) London: Sweet and Maxwell Ltd. p. 117.
  2. Omidire, Op. Cit. p. 2.
  3. (1878) L.R. Ch.D 441 at 456.
  4. Cheshire, C. G. & North, P. Op. Cit.  p. 162.

test which determines the place of a man‟s domicile must remain constant no matter what the nature of the issue may be before the court. Cook, however, denied that this was true in practice. He regarded “domicile” as a relative term which varies in meaning according to the different situations to which it is applicable. 

 

One cannot help but agree with Cook on the basis that to hold out one definition of domicile for all purposes will surely wrought injustice and end up not fulfilling the reasonable expectations of the parties involved in the litigation.

 

In the view of the present writer, Domicile is a conception of the law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law so to have because of his dependence on some other person. This is the definition cited with approval by Awogu, J.C.A in the Court of Appeal case Osimabowo Vs Osimabowo9which to date is the only case that any Superior Court of record in Nigeria have attempted the definition of domicile. It remains to be seen whether the Supreme Court, if and when seized of the opportunity will adopt the afore-mentioned definition. 


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Paper Information

Format:ms word
Chapter:1-5
Pages:56
Attribute:Questionnaire, Data Analysis,abstract, table of content, references
Price:₦3,000
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