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AN APPRAISAL OF THE ASCERTAINMENT OF APPLICABLE LAW OF TORTS IN CONFLICT OF LAWS

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 Format: MS WORD ::   Chapters: 1-5 ::   Pages: 56 ::   Attributes: Reviews ::   478 people found this useful

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CHAPTER TWO

CONCEPTUAL CLARIFICATION OF RELEVANT KEY TERMS AND GENERAL CONCEPT OF CONFLICTS OF LAWS 

 

2.1       INTRODUCTION 

This chapter dealt with definition and clarification of the relevant concepts like conflict of laws, lex fori, lex loci delicti, lex domicile, proper law, etc. it further discussed the general concept of conflict of laws, nature and basis for the application of conflict of laws, as well as, the sources of the conflict of laws, particularly, in regard to Nigerian legal system, where many clouded issues in conflict of tort laws, were highlighted.

 

2.2       DEFINITION OF CONFLICT OF LAWS

Conflict of laws is that part of private law of a country which deals with cases having a foreign element. This means a country coming into conflict with some system of laws other than its domestic laws. For instance, where a tort or contract was committed somewhere or a contract entered at a foreign country and there was a breach in the forum country and the forum country is the place where the case is instituted, then conflict of laws could be resorted to, to resolve the dispute. However, if an action is brought in the Nigerian court for a tort committed in Nigeria between two Nigerians, there is no foreign element, particularly, if the tort was committed in the same jurisdiction. The case here is not that of conflict of laws. But, if the tort was committed, say, in South Africa between two South African nationals, and the case was instituted in the Nigerian court, then the case would be a case of conflict of laws and a Nigerian court would apply the South African law. This is a situation of conflict of laws.

Conflict of laws, therefore is the law which comes into play wherever an issue before the court contains a foreign element[1]. Therefore, once there are foreign and local elements in a case, conflict of laws as a subject, is always invoked to solve the problem. That is to determine which of the two laws foreign or local law would be chosen for application in order to determine the case. Furthermore, according to Graveson, private international law in other words, known as conflict of laws, is that branch of law which deals with cases in which some relevant facts have a connection with the system of law on either territorial or personal grounds, and may, on that account, raise a question as to the application of one’s own law or the appropriate alternative law to the determination of the issue, or as to the exercise of jurisdiction by courts of the forum or court of another country[2]. According to this definition given by Graveson, issues in which conflict of laws may arise will include one’s personal law. That is, the law which one carries with him to wherever he goes. For example, it is a well settled Islamic law principle that a Muslim carries his law with him to where ever he goes. For example, if a Muslim leaves Nigeria to United Kingdom, United States of America or Japan; he carries all Islamic law relevant to his conduct of personal life with him. In other words, if he dies in UK or

U.S.A, it is his personal law that will regulate the sharing of his movable assets such as car, radio, television and raw cash left behind. Private international law operates to resolve conflict in this area. 

 

Another area that is connected with the definition of Graveson, is the issue of territorial jurisdiction. This is the aspect which our hypothetical case had already touched, that is the local or the foreign court? All those would be discussed in details in the relevant places.

 

2.3       The Lex Fori (The Law of the Place Where the Court Is).

The lex fori has been defined by Bryan A. Garner[3] as the law of the forum or the court where the suit was brought. According to him, “it is the positive law of the state, country, or jurisdiction of whose legal system the court where the suit is brought or remedy sought is an integral part”[4]. Tetley also gave similar definition of the concept[5], in his recent work[6]. The position that the lex fori determines the connecting factors has two aspects. The first is that, the lex fori defines what it eans, e.g. by domicile at common law. The second is that, it also determines whether the connecting factor links a given issue with one legal system or with another[7].

 

 

2.4                   The lex loci (The Law of the Place.) 

This has been defined as the law of the place where rights were acquired or liabilities incurred[8]. It identifies the contractus, delicti, domicili, solutionis, cerebrationis, etc.

 

2.5                   The Lex Loci Domicili (The Law of the Place Where the Party is Domicile)

This connotes the law of the place of domicile of a legal home. A place where a man has his true, fixed and permanent home and principal establishment and to which whenever he is absent he has the intention of returning. The lex domicile of a person is given much more weight in a question of succession, than in a question of contract[9]. In conflict of laws, the law of one’s domicile is applied in choice of law questions. For example, if a Nigerian who hails from Kaduna State died and left behind a wife, children, father and mother and movable and immovable properties. The question is which law would regulate his movable and immovable properties. In a conflict of law situation, the problem is to be solved by way of determining the connecting factor(s). In this regard the connecting factor in the lex domicili. This means that the law governing the distribution of his estate, movable or immovable would be governed by lex domicile. This is done by reference to Kaduna State and in Kaduna State recourse would be had to his local government e.g Jaba Local Govt. Area. In Jaba Local Govt. Area further recourse would be had to the village or tribe where the deceased belonged. The laws governing the distribution of movable and immovable properties of the deceased village or tribe would be the laws which would govern the distribution of his estates movable and immovable properties.   

 


[1] Agbede, I.O.,  op cit p. 2

[2] Graveson, R.H, Conflict of laws: Private international law, sweet and Maxwell, London, (1974) p.3

[3] Bryan A. G., The Black’s Law Dictionary, (9th Edition), Thompson Business, United States of America, (2004), p. 993.

[4] ibid

[5] Tetley, infra, pp. 306-308

[6] Tetley, A. Canadian Looks at American Conflicts of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems, (1999)  38, No. 2, Columbia Journals of Transnational Law, pp. 309-310.

[7] Dicey and Morris, op cit, p. 30; See Civil Jurisdiction and Judgment Act, 1982,   Shed. 1, Art. 52.

[8] Bryan A. G. op cit.

[9] Abla Mayss, J. op cit p. 3.


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Pages:56
Attribute:Reviews
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