FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END.

Contents
INTRODUCTION: ............................................................................................................................. 1
SOURCES OF NIGERIAN RULES OF CONFLICT OF LAWS...................................................... 2
DIMENSIONS OF THE SUBJECT (CONFLICT OF LAWS) IN NIGERIA. .................................. 3
WHAT IS THE RIGHT NAME FOR THIS COURSE? .................................................................... 4
WHAT EXACTLY IS THE NATURE/AIM OF THIS COURSE? ................................................... 5
QUESTION OF CHOICE OF LAW. ................................................................................................. 6
PROBLEMS ASSOCIATED WITH DETERMINING APPLICABLE LAW. ............................. 9
TORT IN THE CONFLICT OF LAWS. .......................................................................................... 11
LIMIT TO THE APPLICATION OF FOREIGN LAWS................................................................. 14
NON-CHOICE AREAS ................................................................................................................ 15
EXCLUSION OF OTHERWISE APPLICABLE FOREIGN LAW. ............. Error! Bookmark not
defined.
PERSONAL CONNECTING FACTORS. .......................................... Error! Bookmark not defined.
DOMICILE ...................................................................................... Error! Bookmark not defined.
NATIONALITY .............................................................................. Error! Bookmark not defined.
MORE DISCUSSION ON MARRIAGE. ........................................... Error! Bookmark not defined.
REFERENCES. ................................................................................... Error! Bookmark not defined.
CONFLICT IN THE LAW OF CONTRACT. ........................................ Error! Bookmark not defined.
CHOICE OF JURISDICTION................................................................. Error! Bookmark not defined.

Conflict of Laws is a very interesting subject. Initially frustrating… but gets demystified as
the exams approach. What matters most is the understanding of the course.
Pardon my informal approach, failure to reference the cases and notes, typos (where any)
and grammatical inadequacies.
INTRODUCTION:
:: A conflict of laws situation arises where a civil case before the forum court has a foreign
element. Maybe one of the parties is a foreigner or the facts occurred in a foreign territory.
In essence, the case is amenable to more than one law.
:: Due to global interaction among peoples, (of different races, values and laws) situations
arise where the parties or the transaction can be subjected to more than one law.
:: The aim of conflict of laws is to select the most applicable law and protect the reasonable
expectation of parties to the transaction.
 :: Historically, special foreigner’s courts (like the court of Staples and Piepowder) were
established to adjudicate upon issues with foreign element(s).
:: Savigny noted that each legal relation has its connecting factors which includes; domicile
(Lex domicili), location of transaction (lex situs), location of courts (lex fori), and so on.
These shall be discussed later.
SOURCES OF NIGERIAN RULES OF CONFLICT OF LAWS1.
1. Nigerian Legislation.
2. English Law.
3. Local and foreign Case law (Staire Decisis).
4. Public international law.
5. International treaties and conventions.
6. Opinions of scholars and text writers.
NIGERIAN LEGISLATION: (Federal and State). This is by far the most important and
superior source of conflict of laws. Enactments by the local legislature can create or repeal
rules. The constitution is the grand norm and by Section 1, inconsistent laws shall be void
to the extent of their inconsistency.
ENGLISH LAW: With colonisation and the cession of Lagos to the British in 1861,
Ordinance No 3 of 1863 extended and received some English laws. By Section 45 of the
Interpretation Act2, English common law rules, the doctrines of equity and Statutes of
General Application that were in force as at first of January 1900 have been received into
Nigeria. Only to the extent as the local jurisdiction and circumstances permit-Section 32
Interpretaiton Act. The various State High Court Laws adopt this incorporation. Benson
V Ashiru also adopted English Common Law.
:: For a Statute of General Application to be enforceable in Nigeria:
- It must have been in force as at 1st of Jan 1900.
- It must apply to all parts of England only-Attorney General V John Holt and co.
- It must apply to all classes of people in England- Labinjo V Abake.
- It must apply to both civil and criminal courts- Young V Abina.
:: Note that the Western groups of state have repealed this provision and re-enacted the ones
they deem relevant.
:: Note also that since Nigeria is a sovereign nation, its local legislature can repeal any of
these English laws.

1
Dicey and Morris classify the sources of conflict of laws into: statutes, decision of courts and opinion of
jurists.
2
A similar provision can be found in the Supreme Court Ordinance 1914 narcistic
 LOCAL AND FOREIGN DECISIONS: New rules and precedents are evolved to interpret
the law and deal with novel circumstances and issues. Such precedents form a viable source
of Nigeria’s conflict of law rules. In practice, our judges have adopted a mechanistic
approach in conflict of laws situations.
:: According to the court in Young V Bristol, the Supreme Court can overrule its previous
decision where it was given per incuriam.
:: In John V Lawanson, the Supreme Court held that neither the decision of the Privy
Council nor of the House of Lords binds it but are of merely persuasive authority.
PUBLIC INTERNATIONAL LAW: also form a veritable source. The Nigerian Courts are
cautious of the international sphere and current practices when formulating their conflict of
laws rules…
INTERNATIONAL TREATIES AND CONVENTIONS: Note however that an
international treaty or convention has to be domesticated to have force of law in Nigeria.
Section 12 of the 1999 Constitution.
OPINION OF WRITERS, SCHOLARS AND JURISTS3: by formulating various theories
and espousing various principles, they have contributed immensely to the development of
conflict of laws through the ages.
Customary international law can also be a source. They are norms from accepted usages and
practices of the whole world-Lord Denning in Trendtex V CBN. For example judicial
immunity, diplomatic immunity, and so on.
DIMENSIONS OF THE SUBJECT (CONFLICT OF LAWS) IN NIGERIA.
1. Inter-community.
2. International.
3. Inter-state.
4. Interpersonal.
5. Inter temporal.
Inter-Community: where the laws of more than one community are applicable to the facts
of a particular case. E.g. ECOWAS law and that of Europe.
International Dimension: here, the foreignness of the facts or parties relates to an
independent sovereign nation. E.g. where the parties are resident in Nigeria, the facts
occurred in Ghana and the case is instituted in Nigeria4. Then the laws of Ghana and Nigeria
(two sovereign nations) are in question.

3
Like, Huber, Savingy, and so on.
4
The question then is; should Nigerian or Ghanaian law apply? Ghana is an independent Nation, Nigeria is an
independent Nation. Therefore there is a conflict between Nigerian and Ghanaian law. This is an example of
the international dimension of conflict of laws.
 Inter-state Dimension: the court in Babcock V Jackson noted that in federations like
Nigeria (with 36 states) where constituent states are empowered to make laws, the issue of
which state’s law should apply may arise in a dispute. Although in practice, most of the laws
of the various states in Nigeria are similar thereby giving rise to artificial conflict5.
This dimension may be dispelled by some realities like:
- The 1999 constitution which applies to all citizens of Nigeria irrespective of origin or State.
- The federation is viewed as a single unit where the matter or issue falls within the Federal
jurisdiction. For example in matrimonial causes.
- The Sheriff and Civil Process Act makes the judgment of one court of a state equally
enforceable in another state of Nigeria under certain conditions.
- The Evidence Act enjoins us to take cognisance of the laws of sister states.
Inter-personal/Internal conflict: Certain systems of law are applied on personal (rather
than territorial) basis. E.g. Customary and Islamic Law. Nigeria has over 250 ethnic groups
with their diverse customary laws. Inter-personal/Internal conflict occurs where a person is
amenable to more than one personal system of law within the same territory. The question
then arises as to which personal system of law should apply?

WHAT IS THE RIGHT NAME FOR THIS COURSE?

Is the term; "conflict of laws” appropriate?
:: Various names have been suggested for this course. Names like; “comity”, “law of multi-
state problems”, “Inter-municipal law”, “international private law”, “Private international
jurisprudence”, “conflict of laws” and so on...
:: Some have suggested that this course be called Public International Law taking into
cognisance the international factor of the disputes. Morris disagrees. Public International
Law deals with the international relationship between States while Private deals with the
international relationship between an individual and states. Also, the rules of public
international law are basically uniform while conflict of laws rules differ from country to
country. Furthermore, under conflict of laws not all foreign elements are international 6.
:: Over time, the names; “Private International Law” and “Conflict of Laws” have assumed
prominence among the courts, judges, practitioners and scholars.

5
Conflict could be artificial where both laws are substantially similar and the application of either would
produce the same result. So in essence, there is no real conflict.
6
As we have noted earlier that there could be the inter-state and inter-personal dimension of conflict of laws.
For example, in a Federation like Nigeria, there could be an interstate dimension to this subject since each
state legislature can make laws within their legislative competence for the state.
 :: Some argue that the term “conflict of law” is confusing because people tend to read the
literal meaning of conflict of laws which depicts two laws as fighting for supremacy7.
:: For a matter to be conflict of laws, it must throw up a problem that is both spacial and
horizontal. Spacial in the sense that it crosses borders and horizontal in the sense that both
laws are potentially applicable and equal in strength/legitimacy.
In conclusion, scholars have not been able to come up with a perfect/undisputable title for
this course. However, the term “conflict of laws” has been widely utilized… though
occasionally interchanged with the term “private international law”.
WHAT EXACTLY IS THE NATURE/AIM OF THIS COURSE?
:: The crux of this course lies in choosing from a number of potentially applicable laws. As
noted above, a Conflict of Laws situation arises where a civil8 case before the court has a
foreign element. The courts would then have to widen their horizon beyond the forum law 9.
:: There could also be internal conflict of laws. This occurs where a person is amenable to
more than one personal system of law. E.g. Islamic or customary law can apply to a single
person.
:: The foreign element(s) in a case can be recognised by looking at the:
- Facts: Where the facts (or some of the facts) occurred in a foreign territory.
- Parties: Where both or either of the parties are domiciled, resident or was present in a
foreign territory when the facts occurred or at the time of filing the case.
In the above situation, the subject/court seeks to answer the following questions:
1. Can the forum court10 assume jurisdiction? (the question of Jurisdiction)
Where the matter falls (substantially and procedurally) within the competence of the court,
it can assume jurisdiction. Where the above question is answered in the affirmative, the
forum court MUST then ask:
2. What law should apply? (The Choice of Law Question).
The mere fact that a Nigerian court has jurisdiction to entertain a case before it does not
mean that Nigerian law must govern the case. In the conflict of laws scenario, a Nigerian
court can apply Ghanaian law if Ghanaian law is the most applicable. Lawyers and Judges
without knowledge of this subject tend to apply forum (Nigerian) law once it has answered

7
For example an inconsistent state law submitting to the federal law. This situation is a constitutional law
issue.
8
Conflict of laws would not apply where the case deals with a criminal matter, revenue, public, and other like
matters… this shall be discussed later.
9
Forum Law meaning the law of the place where the court is. Where the action is instituted.
10
The court where the action is instituted.
 question number 1 in the affirmative. As they tend to fuse the question of jurisdiction with
the question of law. This shall be discussed later.
Another question which this subject seeks to answer is:
3. Whether the Forum Court should recognise and enforce foreign judgements.
States are sovereign… Exercise of sovereignty has territorial limitation. In other words, the
binding nature of laws and judgments are usually restricted to their territory. Thus, where
Ayo obtains judgment against Korede in the USA, the judgment may not be automatically
enforceable in Nigeria. If Ayo wants to enforce a US judgment against Korede in Nigeria,
the Nigerian courts would have to recognize and enforce the US judgment.
:: The Foreign Judgment (Reciprocal Enforcement) Act has certain provisions regulating
this. Shall be discussed later.
:: Nigeria has her own conflict rules and methods of enforcing foreign judgments.

QUESTION OF CHOICE OF LAW.

Remember that the court first asks; can we assume jurisdiction? Where the matter falls
(substantially and procedurally) within the competence of the court, it can assume
jurisdiction. After it has assumed jurisdiction, then it moves to the second question: what
law should apply? The court has to choose the most applicable law since conflict of laws
seeks to connect persons/cause of action with the most appropriate legal system(s). In
answering question 2, (choosing the applicable law) the court goes through the following
stages:
1. Identifying the foreign element in the case.
2. Characterisation/classification.
3. Connecting factors.
:: 1st step: Identifying the foreign element: After the court has assumed jurisdiction over
a case, it then has to ascertain whether there is a foreign element in the case. A case is said
to have a foreign element where the facts (or some of the facts) occurred in a foreign territory
or both/either of the parties are domiciled, resident or were present in a foreign territory. If
a foreign element is found, the court then moves to the next stage.
:: 2nd Step: Characterisation/Classification: this involves putting the facts/issue under a
subject category of law, like; contract, tort, marriage, and so on. There is no almighty
formula that applies to all cases. Look at this scenario:
- Ade, (primarily resident in Lagos), causes a libel to be published in Gambia. Tayo (primarily
resident in Ghana) is defamed by the libel.
 The characterization/classification of the above fact is TORT… because defamation falls
into the subject category of law of Tort.
Look at another scenario: Both Tayo and Zainab are domiciled in Nigeria. They marry in
Togo. Their marriage is sought to be nullified on the ground that Zainanb is less than
17years. If (for example) Nigeria’s law forbids marriage to a minor below 18 years but
Togo’s Law allows it, what law would apply.
The characterization/classification for the above is MARRIAGE… specifically essential
validity of marriage.
:: A problem could arise where the two different countries do not accept the same
categorisation. Example the forum law categorises the matter as a tort while the foreign court
categorises it as a breach of trust or contract. Do we apply the lex fori or lex causae11 mode
of classification? It has been suggested that where the court is faced with this sort of problem,
it should use its discretion.
:: In Machado V Fontes, the double liability rule was applied which requires the act to
ground liability in both the lex causea and lex fori. In Re Maldonado, the lex causae was
applied. Recent cases have shown the willingness of the courts to apply the substantive law
rather than procedural law as was done In Re Cohn, a mother and daughter (both domiciled
in England) were killed in an air raid. Unable to ascertain who died first. The presumption
of English Law was that the mother died first while the German Law Civil Code presumed
that the deaths were simultaneous. English law (being substantive) was applied.
3rd Step:: Connecting Factors: is an attempt to localise the dispute at the state where it
occurred. Based on the maxim, Locus regit actum. Utilized to arrive at the applicable law.
:: The lex fori12 determines connecting factors. Some connecting factors include:
- For contract: the connecting factor is the intention of the parties inferable from their
agreement. Where the intention of the parties cannot be discerned, we look for the law that
is most connected with the contract.
:: The work of the court is simplified where the parties have already stipulated the law that
would govern their dispute-Capital Oil and Access Bank V Coscharis.
:: Lord Wright in Vital Foods V Unus Shipping Company, noted that the express choice
of the parties can apply provided it is bona fide, legal and not contrary to public policy13.

11
Place where facts occurred
12
Law of the place where the action is instituted.
13
Ordinarily, a foreign law would not be applied where it is contrary to public policy.
- For Marriage: For essential validity14, the connecting factor is the ante-nuptial domicile of
the parties (lex domicili). For formal validity15, the connecting factor is the law of the place
where the marriage was celebrated (lex loci celebratonis).
:: Take for example: Ade a (Nigerian citizen) marries Zainab a (Ghanaian) in Nigeria.
Chinwe challenges the marriage (in the Lagos State High Court) on the ground that it was
not celebrated in a licensed place of worship and no notice of the marriage was published.
 The foreign element here is the Ghanaian citizenship of Zainab.
 The classification here is Family Law/Marriage. Since the issue relates to steps/procedures
required for the valid consummation of marriage, it is a question of formal validity of
marriage.
 The connecting factor for formal validity of marriage is lex loci celebrationis (law of the
place where the marriage was celebrated).
 Nigeria was the place of celebration. Therefore, Nigeria’s law would apply.
- For Tort: the connecting factor is generally the law of the place where the tort was
committed. Although complexities may arise where the tort is cross-border. For example,
we all know that defamation is complete upon publication of the defamatory article. What
then happens where the article is published in different countries? We shall discuss this later.
- For Property: the connecting factor is lex situs which shall have different meaning
depending on whether the property is moveable16 or immovable17.
- Inheritance/succession: for moveable property, the law of the domicile of the deceased at
the time of his death. Where immovable property, the law of the place where the property is
situated.
:: Sometimes the application of the connecting factor may direct us to apply forum law.
Sometimes it may direct us to enforce a foreign law. Foreign law would not be applied where
it is penal, criminal18, contrary to public policy, revenue based or where the foreign law is
not pleaded and proved by the parties.

14
Where the case or question before the court relates to things which the parties/marriage must possess. Like;
maturity, capacity, consent of the parties, prohibition of consanguinity and affinity (no blood relationship
should exist between the husband and wife e.g they should not be siblings) and many other essential
requirements.
15
Formal validity includes steps and procedures which the parties must follow for the marriage to be validly
conducted. Like marriage in an open licensed place of worship, in the presence of witnesses, during permitted
hours…
16
Here lex situs means the law of the place where the transaction (in relation to the property) took place.
17
Here the lex situs is the law of the place where the immovable property (e.g land) is situated/located.
18
For example Mr A publishes a libel against B in Brazil. B institutes the action in Nigeria. In Brazil, libel is
a crime. In such an instance, conflict of laws backs out since in Brazil, libel is a crime and this subject does
not deal with criminal matters.
 PROBLEMS ASSOCIATED WITH DETERMINING APPLICABLE LAW19.
- Ren voi.
- Incidental question.
- Time factor.
REN VOI: (Referring back).
:: The forum law (Municipal law) determines the conflict rules.
:: The municipal laws of each country varies, so does their conflict of law rules. As such the
connecting factors vary from country to country. For example Nigeria (as with many other
common-law countries) uses domicile for essential validity of marriage while many civil
law countries like France use nationality. Look at this example:
Where Ade (a Nigerian national domiciled in France) marries his cousin, Cynthia. The
marriage was conducted in France. A case for dissolution of the marriage on the ground of
consanguinity is brought before the Lagos High Court. SOLUTION:
:: Step 1: the forum court would determine whether it can assume jurisdiction. Yes.
:: Step 2: Identify the foreign element: The foreign element here is the celebration of the
marriage in France (i.e. the facts occurred outside Nigeria) and Ade’s foreign domicile
(France).
:: Step 3: Connecting factor: the matter relates to essential validity of marriage
(consanguinity of Ade and Cynthia) therefore, the connecting factor is domicile.
:: Since Ade is domiciled in France, the French law would apply.
The problem of ren voi comes in here: After the connecting factor has directed us to apply
French law, the court has to do one of the following:
1. Reject Ren voi: Here, the court applies the internal law of France (applicable in non-conflict
situations) to govern the dispute. OR
2. Accept Ren voi: Here the court looks at the whole of French law including its conflict rules.
French law provides that the law of the party’s nationality applies. Therefore, Nigerian law
would apply since Ade is of a Nigerian Nationality20.
Ren voi can be accepted by remission or transmission. The above situation is a good example
of accepting ren voi by remission21. Ren voi can be accepted by transmission where for

19
Before proceeding, please ensure that you understand what we have discussed so far. Give yourself
examples, acquaint yourself with the cases and understand the principles discussed so far.

20
Remember that French conflict rules (as with many other civil law countries) provide that nationality shall
govern essential validity of marriage. Ade is a Nigerian National. Therefore, Nigerian law would apply.
21
Nigerian conflict rules said; “apply French law since Ade is domiciled in France”. Then French law said:
“apply Nigerian Law since Ade is a Nigerian National”. Therefore remitting it back to Nigeria.
 instance, Ade is a Gambian National, domiciled in France and the suit was instituted in
Nigeria. The Nigerian court would first apply French law (being Ade’s domicile) and the
French law would tell the Nigerian courts to apply Gambian law (being Ade’s nationality).
In such case, Ren voi has been accepted by transmission as French law directed Nigeria to
apply the law of another territory that is not Nigeria. OR
3. The Nigerian court can decide to handle the case as though it was sitting as the court of the
lex causae in the circumstances of the case.
:: In Casdagli V Casdagli, Scruton LJ noted the readiness of the court to accept renvoi by
remission or transmission where necessary. However, in Armitage V AG, the English court
repudiated the renvoi theory.
The Ren voi doctrine has been praised for preventing forum shopping. Professor Agbede
however argues that the ren voi doctrine is frustrating in its application. He suggest the
principle of validation which seeks to uphold valid bona fide transactions. This was applied
in Collior V Rivaz, Re Duke of Wellington. What this means is that ren voi would be
ignored/rejected if the transaction is valid and bona-fide. What is your opinion? Are you in
support of the Ren voi theory?

INCIDENTAL QUESTION:
:: Discovered by German Jurist Melchior.
:: An incidental question is an issue that arises incidentally while trying to determine the
main issue. Where in the process of answering an issue with a connecting factor, another
subsidiary issue arises with its own separate connecting factor.
:: Incidental questions usually crop-up in cases involving validity of marriage, wills and
divorce decrees. Take for example;
- Ade is domiciled in Nigeria. Upon his death, the court wants to share his immovable
properties in UK22. The UK law (being the lex situs) directs that the property be given to his
wife. 5 people claim to be Ade’s wife. The incidental question is; “who is Ade’s wife?” In
answering this incidental question, the court would look into the essential and formal validity
of each marriage which is governed by domicili or lex celebrationis respectively. Thus while
determining what law would apply to the distribution of Ade’s property, another question as
to the validity of his marriage is thrown up to determine who his wife is.
Do not be confused at this point. Just note that for there to be an incidental question:

22
We know that the connecting factor for immovable property is the law of the place where the property is
located (lex situs).
1. There must be a main question that has its distinct connecting factor 23.
2. There must be a subsidiary question that can be answered by a different connecting factor if
it had risen on its own24.
3. The court can decide to answer the independent question autonomously or surrender it to the
law governing the main issue.
4. The court’s decision (3 above) should affect the outcome of the case.
Examples of incidental question were seen in Schwebel V Ungar, in determining whether a
divorcee woman had the capacity to enter a valid marriage 25, the incidental question arose
as to the validity of her previous divorce decree (which was invalid under Ontario law (lex
fori) but valid under law of Israel (lex domicili)). Also in Re Hall, a testator died domiciled
in NY. The main question was how to distribute his estate. An incidental question arose as
to the legitimacy of the child for the purpose of succession.

TIME FACTOR
Where a foreign law has undergone changes since the facts occurred, should the court apply
the law as it was when the facts occurred or should it apply the law as it presently is? The
court can:
- Ignore subsequent changes in the law/retrospective legislations. Where the court does so,
we can say that time is a factor.
- Recognize changes in the law: In this instance, time is said to not be a factor. Tort is one
of the areas where time is not a factor. This was illustrated in Philips V Eyre where Edward
John Eyre (ex-governor of Jamaica) passed a retrospective legislation which immunised him
from various torts committed during his reign. He was sued in England. The English court
held that the case could NOT succeed because of the retrospective legislation immunizing
the governor. The court in this case recognized the changes in the law.
The court also held that time was not a factor in Starkowski V AG and the court recognized
the retrospective effect of the Australian Law that validated void marriages.

TORT IN THE CONFLICT OF LAWS.

:: For an action to lie in England for a wrong alleged to have been committed abroad
1. The wrong must be of such a character that it would have been actionable if it had been
committed in the local jurisdiction. AND

23
As seen above, the main question is what law would apply to the distribution of Ade’s immovable estate in
UK (succession to immovable property).
24
In the example above, the subsidiary question is validity of marriage (to the 5 women that claim to be Ade’s
Wife… whether they were validly married to Ade).
25
This question being governed by the law of her domicile.
2. The act must not have been justifiable by the law of the place where it was done.
:: This is the DOUBLE LIABILITY RULE as formulated by Willies J in Philips V Eyre
following The Halley case where it was noted that an English court should not enforce a
foreign municipal law in respect of an act which attracts no liability in England.
:: The use of the phrase “for an action to lie” (by Willis J) seemed to suggest jurisdiction but
what he meant was the success of an action in tort with a foreign element...
In the Philips V Eyre case, Edward John Eyre (ex-governor of Jamaica) committed various
torts during his reign in Jamaica. He was sued in England. Jamaican law provided that he
would incur no liability (this law was a retrospective legislation passed to immunize him
from suits in respect of torts committed by him during his reign). The double liability rule
was adumbrated in this case. In applying it to this case:
- Whether the act was of such a character that it would have been actionable if it had been
committed in the local jurisdiction (England)? The answer to this is YES. The ex-governor
of Jamaica committed various serious torts. This is a wrong in England.
- Was the action unjustifiable in the place where it was done? NO. The Action has become
justifiable by virtue of the retrospective legislation which immunised the governor. His
actions were no longer actionable/regarded as a wrong in Jamaica.
For failing to fulfil the second leg, the English court held that the case could NOT succeed.
:: The double liability rule has undergone various changes.
:: In Machado V Fontes, the court qualified the Philips V Eyre principle and only required
that the conduct complained of must attract some liability whether civil or criminal in both
jurisdictions.
:: In Boyes V Chaplin, the court introduced flexibility to the rule in Philips V Eyre noting
that the English court can displace either limb of the double liability rule in deserving and
exceptional circumstances to prevent injustice. Here, the plaintiff was awarded damages
under the lex fori because it would have been lower if awarded under Maltese law where the
accident occurred. Meaning that some discretion is accorded to the judges to do justice in
the case. In Red Sea Insurance Co V Bouygues SA the court introduced further flexibility
to the rule in Philips V Eyre by displacing forum law for foreign law therefore relegating
the first leg of the DLR.
The Nigerian Position.
:: Though our courts purport to follow the Philips V Eyre rule, our results seem to show that
we are applying the lex loci delicti comicii 26.

26
Law of the place where the wrong was committed.
 :: In Amanambu V Okafor, a suit was instituted in Eastern Nigeria (Under the Fatal
Accidents Law of Eastern Nigeria) for a fatal accident and death which occurred in Northern
Nigeria. The court held that the action could not be maintained as the applicable law was
that of Northern Nigeria. Same position was followed in Dairo V UBN and Ogunde V
Gateway Transit to decline jurisdiction for a wrong/act committed in a foreign territory. In
Dairo V UBN, the court held that since the entire facts including publication of defamatory
article occurred in Ogun State, the High Court (Lagos) lacked jurisdiction. In Ogude V
Gateway Transit Ltd, Ogun state High Court held that it lacked jurisdiction to entertain suit
on accident that occurred along Oworonshoki (Apapa Lagos).
:: These decisions with all due respect are erroneous. The fact that a tort was committed in
State A does preclude the court in State B from entertaining the case. As such, Nigerian
courts have been applying the double liability principle as a choice of jurisdiction rule rather
than a choice of law rule.
:: The laws of Nigerian States are similar, thus the error of the Nigerian courts is not fatal.
:: Let us flow through some cases to understand the reasoning of our Nigerian courts.
In Benson V Ashiru, the issue was whether an action could lie under Lagos state law where
the injury and death occurred in former Western Nigeria. Held (following Koop V Bebb and
Philips V Eyre) that for the action to lie, the conduct must be of a nature which if it had
occurred in Lagos would be actionable and must not have been justifiable in the part of
Nigeria where it occurred. Thus the action could lie. In Ubanwa and four others V Afocha
and University of Nigeria, the accident occurred in Zaria and suit instituted in Eastern
Nigeria. The court held (following Philips V Eyre and Section 22 of the High Court Law
of East Central State27) that it could entertain the case. In Agunanne V Nigerian Tobacco
Company, the court disallowed the defence of common employment available in the law of
Northern Nigeria where the accident occurred because it was not available under the Eastern
laws where the action was instituted (it did not fulfil the second leg of the Philips V Eyre
rule). See also Zabuski V Israeli Aircraft.
:: From our discussion above, we can see that the Nigerian courts are inconsistent in applying
the principles relating to tort. Sometimes they get it right and at other times they don’t. Note
however that the Nigerian courts are not bound to follow Philips V Eyre, Machado V Fontes,
Boys V Chaplin, and other foreign cases sheepishly. The Nigerian courts must however take
a stand as the law on this area rests on an ambivalent parlance.
:: So, what exactly can we say is the conflict rule in relation to torts?

27
Which provides for the unlimited jurisdiction of the High Court.
 Part III (Section 11 and 12) Private International Law (Miscellaneous Provisions) Act
1995 repealed the first leg of the double liability rule 28 and contains certain helpful
provisions. The Act provides the following;
- As a general rule, the lex loci delicti comici (law of the place where the wrong was
committed) would apply. Except in the area of defamation.
- If the action/wrong was committed in two different countries;
 The applicable law is the law of the place where the injured party sustained the injury. (In
the case of property, the law of the place where the property was damaged).
- In other cases, the country where the most significant elements of the tort occurred or the
law with the most significant connection.
:: The courts have been seen to apply the “substantial connection” test. This test applies the
law that has the most substantial connection with the facts and with the parties. In Johnson
V Coventry Churchill international Ltd, the court applied the substantial connection test.
In this case, the plaintiff was injured in a work site in Germany. He sued the employers for
negligence and failure to provide a safe working environment. Such cause of action was not
available under the lex loci delicti (Germany) but was available under English law. The court
applied English law and enforced his claim, holding that since both parties were English and
the contract was subject to English law, they had a substantial relationship with England.
Similarly, in Babcock V Jackson husband and wife were given a free lift from New York
to Ontario. At Ontario, they were injured due to the driver’s negligence. They sued in New
York . In Ontario, (the lex loci delicti comici) a gratuitous passenger cannot make a driver
liable. While in NY a negligent driver can be liable to a gratuitous passenger. The court
applied NY law as the parties were substantially connected to NY (as they were domiciled
in NY, the car was registered in NY and the journey began from NY)… the connection with
Ontario is fictitious while the connection with New-York was substantial.
:: The lex delicti comici may also be displaced where the parties are physically and socially
insulated from their geographical environment for example in flight or at sea.
A joint law reform is recommended to promote uniform State Tort Laws. The above
legislative intervention is required for Nigeria. We need to take a solid standpoint and view
in relation to torts with foreign elements.

LIMIT TO THE APPLICATION OF FOREIGN LAWS.

Just as the topic sounds… Where foreign law would not apply to govern a case.
1. Non-choice areas.
2. Exclusion of Foreign Laws.

28
Which required that the action must not be justifiable in England
 NON-CHOICE AREAS
Areas where the forum law29 rather than foreign law would apply. They include:
- Matrimonial causes. (Divorce, nullity, separation, maintenance).
- Guardianship, custody and adoption cases.
- Procedure.
- Admiralty actions.
A. Matrimonial Causes: Remember that this subject is concerned with choosing the most
applicable law. Also note that the question of jurisdiction30 is distinct and different from the
question of applicable law.
You may be disappointed to see matrimonial causes under this head. The truth is that
matrimonial causes ought not to be a non-choice area because the courts have to choose
the law that is most applicable to the parties and facts. However (the reality is that) in
matrimonial causes, the question of choice of law has been submerged under the
question of choice of jurisdiction. For example, in Le Mesurier V Le Mesurier, it was
held that only courts of domicile was competent to grant a divorce decree. Thus only
the court of the
FULL NOTES ON WWW.ISOCHUKWU.COM

Contents
INTRODUCTION: ............................................................................................................................. 1
SOURCES OF NIGERIAN RULES OF CONFLICT OF LAWS...................................................... 2
DIMENSIONS OF THE SUBJECT (CONFLICT OF LAWS) IN NIGERIA. .................................. 3
WHAT IS THE RIGHT NAME FOR THIS COURSE? .................................................................... 4
WHAT EXACTLY IS THE NATURE/AIM OF THIS COURSE? ................................................... 5
QUESTION OF CHOICE OF LAW. ................................................................................................. 6
PROBLEMS ASSOCIATED WITH DETERMINING APPLICABLE LAW. ............................. 9
TORT IN THE CONFLICT OF LAWS. .......................................................................................... 11
LIMIT TO THE APPLICATION OF FOREIGN LAWS................................................................. 14
NON-CHOICE AREAS ................................................................................................................ 15
EXCLUSION OF OTHERWISE APPLICABLE FOREIGN LAW. ............. Error! Bookmark not
defined.
PERSONAL CONNECTING FACTORS. .......................................... Error! Bookmark not defined.
DOMICILE ...................................................................................... Error! Bookmark not defined.
NATIONALITY .............................................................................. Error! Bookmark not defined.
MORE DISCUSSION ON MARRIAGE. ........................................... Error! Bookmark not defined.

29
Law of the place where the action is instituted.
30
Whether the instant court has the competence/capacity to hear a case.
 REFERENCES. ................................................................................... Error! Bookmark not defined.
CONFLICT IN THE LAW OF CONTRACT. ........................................ Error! Bookmark not defined.
CHOICE OF JURISDICTION................................................................. Error! Bookmark not defined.

FULL NOTE ON WWW.ISOCHUKWU.COM