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

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ABSTRACT

This thesis entitled, “An Appraisal of the Ascertainment of Applicable Law of Torts in
Conflict of Laws” aimed at ascertaining the applicable law of torts in conflict of laws
situation in Nigeria by examining various rules that have been perfected to take care of
such processes based on choice of law approach, among the various rules. Traditionally,
most of the rules governing the ascertainment of applicable law of tort in conflict of
laws were more theoretical in nature, based mainly on the application of the Lex Fori,
Lex Loci deliciti, the proper law of the tort, characterization, and modern theories. Thus,
against this backdrop, the objective of this research is to identify the major aspects of
torts in the conflict of laws that formed the core of choice of law, with particular
reference to Nigeria and to further identify challenges involved there in. However, a
major finding of this research is that there are certain areas of conflict of laws where the
application of the rule in Phillips vs. Eyre (as the prevailing choice of law rule in
Nigeria) is unsuitable to the Nigerian circumstances. It is noted that the rules in Phillip
vs. Eyre and Boys vs Chaplin were designed or rather adopted when human
interactions, productions, means of communication and science and technology were
not advanced as today. In the comparative evaluation of the rules in the commonwealth
countries and in America, the writer laid more emphasis on the view point that have
practical relevance to each jurisdiction in order to satisfy the yearnings of a balanced
determination of conflicts emanating from frictions arising out of the natural contact
between individuals and interests. Obviously, the statement of problem of this thesis
therefore suggested that there is uncertainty of the applicability of law of tort in conflict of laws
situation in Nigeria. In other words, where there is a case of tort involving foreign element in
Nigeria, the court in Nigeria is faced with the problem of which law is applicable? For example,
is it the forum law or the foreign law of torts that will apply? This uncertainty is caused by the
fact that there are several factors to be considered in order to arrive at a choice of the applicable
law. It is the existence of this problem that motivated this work. On this note, the researcher
concluded by recommending (among others) that, the Nigerian legislatures, both the National
Assembly and States Assemblies, should enact a law that will take care of jurisdiction
and ascertainment of applicable law when the cause or matter has a foreign element. The
sources of information relied upon here are doctrinal method of acquiring data and information
was used, thereby, combining several documents, ranging from text books, journals, statutes and
other relevant treaties to accomplish this work.

TABLE OF CONTENTS

TABLE OF CASES
PAGES
1. Adegbola vs. Falaranmi (1921) 3 N.L.R 89 ………………… 34, 40
2 Abu vs. Adegbo (2001) 41 WLR ………………………………….. 34
3. A.G. Abia vs. .A.G. Federation (2002) FWLR, pt. 101,
1410..…………………………………………………………………….30
4. Amin Rasheed Shipping Corporation vs. Kuwait Insurance Co. (1984) A.C.
50………………………………………………………………………..25
5. Ashiru vs. Benson (1967) NWLR 363……………………12,71 , 72,85
6. Bamgbose vs. Daniel (1955) A.C., 107………………………………….34
7. Balogun vs. Balogun (1935) 2 WACA, 290 ……………………………..40
8. Boys vs. Chaplin (1971) A.C. 356……………………………………66, 82
9. Babcock vs. Jackson 12 N.V. 2d 473, 1991, N.E. 2d 279 (1963)………70
10. British Bata Shoes Co. vs. Malikana (1956) 1 FSC
100…………………………………………………………………..71
11. Clerk vs. Clerk (1978) 22 cal. 3d313, 332……………………………….57
12. Goodings vs. Martins (1942) WACA 108……………………………….34
13. Griffins vs. Talabi (1948) 12 WACA 371……………………………….35
14. Koney vs. Union Trading Co. Ltd. (1958) 2 Q.B. 490,524(C.A.)……….35
15. Labinjo vs. Abake (1924) 5 NLR 33 ……………………………………43
16. Machado vs. Fantes (1897) 2 Q.B. 231 (C.A)……………………….65, 66
vii
17. Metal and Roshoff A/G vs. Donaldson, Cufkin and Jenrette Inc (1990) 1
Q.B. 391, I.C.A…….………………………………………….…………..67
18 Okolie vs. Ibo……………………………………… Unreported Case
19. Oyewanmi Agagubgbade III vs. Ogunsesan (1990) 3 NWLR 182,
207………………………………………………………………………42
20. Morguard Investment Limited vs. De Savoye (1990) 3 SCR 1077, 1096-
1097 (sup. Ct. can)……………………………………………………….28
21. Olowu vs. Olowu (1985) 3 NWLR, pt. 13, 372 S.C……….…………………35
22. Phillips vs. Eyre (1870) L.R. 6 Q.B.1, 28 – 29….. 6, 17,53,65,71,78,82
23. Rohstuff A.G. vs. Donaldson Lukin (1990) 1. Q.B. 319 C.A.………….73
24. Slater vs. Mexican National RY (1904) 194, 45. 120, 126…….…53,66
25. Schibsby & Another vs. Western Holz & Another (1870) 40 LTQ 73, ; LR
6,Q.B. 155…………………………………………..…… 7,9,17,80.
26. Tafa vs. Kuka (1945) 18 NLR 5 …………………………………….….44
27. Ubanwa & Ors. vs. Afocha & University of Nigeria (1974) H.E.C. L.R.
308……………………………………………………………………71,73
28. Western Union Telegraph Co. vs. Brown (1914) 234 V. 5.542, 547…53, 56
29. Yunusa vs. Adesubokan (1972) All N.L.R 225……………….…41, 44.
30. Yusuf vs. Obasanjo (2004) 5 SCNJ 1 …………………………………….30
31 Zaydan vs. Mohosen (1973) 11 FSC 1 …………………………………42
viii
TABLE OF STATUTES
1. Area Courts Edict, 1968 ………………………………………………..59
2. 1999 Constitution of the Federal Republic of Nigeria, CAP C20, LFN,
2004……………………………………………………………27,39,71,78
3. Evidence Act, CAP LFN 2004……………………………….………….70
4. Fatal Accident Act, 1963 …………………………………..…2,36,70,70,80
5. Foreign Judgement (Reciprocal Enforcement) Act, Cap. F35, LFN
2004…………………………………………………………….9,10,14,77
6. Infant Relief Act, ……………………………………………………….40
7. Interpretation Act, Cap 89 LFN 1990…………………………………….35
8. Kaduna State High Court (Civil Procedure) Rules, 2007 ………..……..78
9. Kaduna State High Courts Law, of 1991 ……………………………29,33
10. Northern Nigeria High Court Law, Cap 49 L.N.N. 1965……………. 35,36
11. Northern Nigeria Native Courts Law, No.6 of 1956 …………………29,33
12. The private International Law (Miscellaneous Provisions) Act, 1995…56
13. Sales of Goods Act, 1874 ………………………………………………36
14. Wills Act, 1837 ……………………………………………………38,41,56
ix
ABBREVIATIONS
A.C – Appeal Cases
All E.R. – All English Reports
All N.L.R – All Nigerian Law Reports
Cap – Chapter
CRFN – Constitution of the Federal Republic of Nigeria
Harv L. Rev. Harvard Law Review
I.C.L.Q – International and Comparative Law Quarterly
LFN – Laws of the Federation of Nigeria
LFN – Laws of Northern Nigeria
LWN – Laws of Western Nigeria
NLR – Nigerian Law Reports
NWLR – Nigerian Weekly Law Reports
Q.B. – Queen’s Bench
U.K – United Kingdom
U.S – United States
WACA – West African Court of Appeal
WRL – Western Region Law Report
x
TABLE OF CONTENTS
Title Page – – – – – – – – – i
Declaration – – – – – – – – – ii
Certification – – – – – – – – – iii
Dedication – – – – – – – – – iv
Acknowledgement – – – – – – – – v
Table of Cases – – – – – – – – vi
Table of Statutes – – – – – – – – viii
Abbreviation – – – – – – – – – ix
Table of Contents – – – – – – – – – x
Abstract – – – – – – – – – xiv
CHAPTER ONE
General Introduction – – – – – – – 1
1.1 Introduction – – – – – – – – 1
1.2 Statement of Problem – – – – – – – 4
1.3 Research Question – – – – – – – 11
1.4 Aim and Objectives of the Research – – – – 12
1.5 The Scope of the Research – – – – – – 12
1.6 Literature Review – — – – – – — 13
1.7 Methodology – – – – – – – – – 20
1.8 Justification – – – – – – – 21
1.9 Organizational Layout – – – – – – – 21
xi
CHAPTER TWO
The Nature, Sources and Application of Conflict of Laws in Nigeria- 24
2.1 Introduction – – – – – – – – 24
2.2 Definition of Conflict of Laws – – – – – 24
2.3 The Lex Fori (Law of the Place Where the Court is)- – – 25
2.4 The Lex Loci (Law of the Place) – – – – – 25
2.5 The Lex Loci Domicili (Law of the Place Where the Party is Domicile)- 26
2.6 The Lex Loci Celebrationis – – – – – – 27
2.7 The General Concept of Conflict of Laws – – – 27
2.8 The Nature of Conflict of Laws – – – – 29
2.9 The Basis for Application of Conflict of Laws – – – 31
2.9.1 More Just – – – – – – – – 32
2.9.2 More Convenient – – – – – – – 33
2.9.3 The Transaction was not Connected with the Forum Laws – – 33
2.9.4 Based on comity of Nations – – – – – 34
2.9.5 Public Policy Consideration – – – – – 35
2.9.6 Stated Applicable Law to Regulate Parties’ Transaction – – 35
2.10 Sources of Nigerian Conflict of Laws – – – – 35
2.10.1 The Nigerian Legislation – – – – – 36
2.10.2 The Received English Law – – – – – 38
2.10.2(a) The Common Law – – – – – – – 38
2.10.2(b) The Doctrines of Equity – – – – – 43
xii
2.10.2(c) The Statutes of General Application – – – 45
2.10.3 Internal Conflicts: Conflicts between Customary and Islamic Law – 50
2.10.4 Customary Laws – – – – – 50
2.10.5 International Law – – – – – – 53
2.10.6 Treaties – – – – – – – – 53
2.6 Interstate and Interpersonal Conflicts – – – – – 54
CHAPTER THREE
The Theories of Applicable Laws in Conflict of Laws – – – 57
3.1 Introduction – – – – – – – – 57
3.2 Theories of Conflict of Laws – – – – – 58
3.2.1 The Lex Fori Theory – – – – – – 59
3.2.2 The Lex Loci Delicti, Theory – – – – – – 61
3.2.3 The Proper Law Theory (Closest and Real Connection) – – 63
3.2.4 Modern Approach to the Ascertainment of Applicable Law of torts
in Conflicts of Laws – – – – – – – 68
3.3 The Connecting Factors – – – – – – 69
CHAPTER FOUR
Ascertainment of the Applicable Laws in Torts in Conflict of Laws Situation -71
4.1 Introduction – – – – – – – – – 71
4.2 The lex loci Delicti (Where the Tort Occurred)- – – – – – 71
4.3 The Law of the Place where the Court Is :Lex Fori – – – 75
4.4 The Proper Law of Tort – – – 76
xiii
4.5 Ascertainment of Applicable Tort Rules in the Nigerian Courts – 78
CHAPTER FIVE
5.1 Summary and Conclusion – – – – – – – 83
5.2 Observations- – – – – – – – 85
5.3 Recommendations – – – – – – – – 90
5.4 Bibliography – – – – – –

CHAPTER ONE

GENERAL INTRODUCTION
1.1 INTRODUCTION
In Nigeria, as well as other jurisdictions, for example, United States of America, United
Kingdom, France, Germany, Ghana, South Africa, East Africa, just to mention but a few,
there are many laws that are applicable to various subject matters or business. For
example, we have criminal law, constitutional law, commercial law, law of evidence,
company law etc. Conflict of law is one of such laws in the country that is taught just like
it is taught in any of the countries we mentioned above.
Conflict of laws unlike the other kind of laws we mentioned above, is an aspect of
international law. In other words, the laws we mentioned above are principally
considered as municipal laws or local laws1. Conflict of laws is a stoke of international
law. In other words, it is a subsidiary of the international law. This is why it is called
private international law2.
Conflict of laws comes into play or becomes applicable when the issue of jurisdiction is
in question. For example, if Mr. Z enters into contract for hiring of Mr. Y’s Peugeot
station wagon to carry persons from Zaria to Lagos, on reaching Jeba, the car tumbled
and as a result three persons out of the seven persons in the car died. Four other persons
sustained serious injuries and they were rushed to Jeba General Hospital and given first
1 Graveson, Private International Law (1974), Antom, private international law (1967), West lake, private
international law etc. deals with principally choice of jurisdictions choice of law, and recognition and enforcement
of foreign judgments.
2 Agbede, I.O. Themes on Conflict of Laws, Sheheson Publishers, Ibadan, (1989) p. 3.
2
aid treatment. They were later taken to Lagos their hometown. Some few days after they
were taken to Lagos, their injuries worsened and consequently they died also. The driver
and the hirer of the car were sued in Lagos by heirs of the deceased persons for
compensation under the Fatal Accident Law of Lagos3.
Under this circumstance, there may be two separate sets of cases. Firstly, the claim of
compensation for the first three persons who died in Jebba at the sport where the accident
took place, secondly, the Lagos’ case. In all the two cases, the issue of jurisdiction may
be germane and need to be settled before the substantive case for claiming of
compensation is heard. For the example, with respect to the case filed in Lagos, the
counsel to the hirer and driver may raise the issue that though the four persons died in
Lagos, the place of accident was Jebba. Or, he may argue that the correct court where the
case may be instituted is the place where the contract of carriage was entered into. These
and many other arguments could take place in the court until the court resolves on the
issue of jurisdiction before the substantive issues is heard. For the first hypothesis, i.e. in
respect of the three persons that died in the accident, though, this may be easier than the
second one, it also may raise jurisdictional problem. In this regard, which court will hear
and determine the issue of compensation, the court in Jebba or the court in Zaria where
the contract was entered for carrying the deceased persons to Lagos? These issues may
need to be determined before the substantial case is heard.
3 Fatal Accident Law of Lagos, Cap. F1, L.F.N. 2004
3
As we have already said above, one of the preliminary issues to be determined is which
law to be applied in cases where there are two laws bordering different legal system, In
other words, a foreign law. For example, in the hypothetical case of motor accident, if the
law of one jurisdiction is not as favourable as the law in another jurisdiction, the persons
claiming compensations may argue for the application of the law which is more
favourable to them. The Lagos law or the Jebba law?, The Jebba law or Zaria law? All
these problems need to be settled before the court goes into the substance of the case.
Another issue connected with the preliminary issues is the enforcement of foreign
judgment.
All these above scenarios (and many others which could not be exhausted in this
thesis) constitute the statement of problem of this research which is lack of certainty of
the applicability of law of tort in conflict of laws situation in Nigeria. Indeed, the feature
of conflict of laws could be present in all substantive branches of law. That is to say,
every substantive law has its own conflict of laws questions or jurisprudence. Thus, the
laws of torts, crime, contract, family and bankruptcy, to mention but a few, have their
conflict of laws.
Against this backdrop, therefore, the objective of this research identified the
major aspects of torts in the conflict of laws that formed the core of choice of law, with
particular reference to Nigeria and further identified challenges involved there in.
However, the major finding of this research was that there are certain areas of conflict of
laws where the application of the rule in Phillips vs. Ayre (as the prevailing choice of law
rule in Nigeria) is unsuitable to the Nigerian circumstances. In the comparative
4
evaluation of the rules in the commonwealth countries and in America, the writer laid
more emphasis on the view point that have practical relevance to each jurisdiction in
order to satisfy the yearnings of a balanced determination of conflicts emanating from
frictions arising out of the natural contact between individuals and interests.
1.2 STATEMENT OF THE PROBLEM
The topic of this thesis as reinstated here is an Appraisal of the Ascertainment of
Applicable Laws of Tort in Conflict of Laws Situations in Nigeria. The import of this
topic suggests that there is uncertainty of the applicability of laws of tort in conflict of
laws situation in Nigeria. In other words, when there is a case of tort involving foreign
element in Nigeria, the court in Nigeria always face the problem of which law is
applicable. Furthermore, the courts are always uncertain which of the laws of conflict
would apply i.e.Is it the forum law or the foreign law of torts that would apply? This
uncertainty is caused by the fact that there are several factors to be considered in order to
arrive at a choice of the applicable law. It is the existence or presence of various features
that made the choice of applicable law ascertained. This is why this thesis is the appraisal
of the ascertainment of the applicable laws of torts in conflict of laws in this country,
Nigeria. The problem of ascertainment of applicable laws of tort in conflict laws situation
can be grouped or classified as follows.
In conflict of laws or private international law proper, one of the problems which
dominate every case with foreign element is jurisdiction. This is because in a case where
there is a foreign element, it means there is more than one territorial area involved by the
5
facts of the case. That is to say, the facts of the case took place in two or more places i.e.
territorial areas or geographical areas. For example, in the hypothetical case of accident
involving passengers in a station wagon, traveling from Zaria to Lagos which tumbled at
Jebba where some passengers died on the spot at Jebba and some died few days later;
there are two or more territorial or geographical areas involved in the facts of the case.
Firstly, there is Zaria where the contract to carry the passengers to Lagos was entered
into. Secondly, there is Jebba where the car was involved in an accident as a result of
which three passengers died. Thirdly, Lagos, where more passengers eventually died
again. If we take it that the accident took place in Nigeria, but because of the federal
system of government where the country is divided into states, each of the states where
the accident or the facts of the cases occurred is an independent and separate state.
Therefore, the jurisdictional problem comes into play. In this case, which court is
competent to hear and determine cases involving claims for damages/compensation? Is it
the court situates at Zaria or Jebba or Lagos? Each of these courts would claim that one
fact or another took place in its jurisdiction. This may pose a problem for a court.
One of the problems that is commonly available or faced in cases with foreign elements
is the one usually relating to the Choice of applicable law. In other words, where there is
more than one applicable law. If there is more than one applicable law, which law would
be chosen for the purpose of application and determination of the case? In our
hypothetical case above, if the applicable law in Zaria, Jebba and Lagos are different,
which law would be chosen for application in order to enable the court award or disallow
the payment of compensation? Is it the law of Kaduna State, Lagos State or Kwara State?
6
In the case of Phillips vs. Eyre4, an action was brought in England against the governor of
Jamaica for false imprisonment committed against the plaintiff in that Island. The
defence was that a subsequent act of the local legislature had indemnified the defendant.
Most of the argument was concerned with the competence of the Jamaican legislature to
pass a retrospective legislation. The court of first instance held that the local legislature
was competent and gave judgment for the defendant. This decision was affirmed on
appeal to the Exchequer Chamber, Judge Willes, stated as follows:
As a general rule in order to found a suit in England for a wrong
alleged to have become committed abroad, two conditions must be
fulfilled. First, the wrong must be of such a character that it would have
been actionable if committed in England. Secondly, the act must not
have been justifiable by the law of the place where it was done.
These two statements above are very confusing. This is because, in the first statement, the
judge was making reference to jurisdictional issues. However, in the second statement,
the judge was talking of the choice of law. To further adumbrate these two problems, is to
say that, if an action is actionable in the place where it was committed and also actionable
in the place where the court was asked to try and determine it, the problem is that of a
double character. One character refers to jurisdiction and another refers to choice of law.
However, the pendulum, in our view, is tilted very much in favour of jurisdiction. That is
to say that, though the case is that of jurisdiction, it can equally be considered to be a
problem of choice of law. However, the second statement is more pointed toward the
problem of choice of law. This is because of the existence of the word justifiable. This
means that if the law of the place where the action took place has justified it, and the law
4 [1890] L.R. 6 Q. B1
7
of the place where the court that is trying the case does not justify it, but criminalized it
or it is a base for awarding liability, then the court asked to award the liability may have
to consider the problem of applying its law which exonerate liability and the law of the
place where the action took place, which exonerates the dependent from liability. This is
a proper case of choice of law. It therefore poses a problem i.e.is it a choice of law or a
case of jurisdiction? Only a very critical mind with immense knowledge of law and
advocacy would be capable enough to unknot this strong knot. In our mind, this is a
serious concerned in matters of conflict of laws involving torts in this country. For
example, what will be the caliber of judges and counsels involved in order to separate the
chaffs from the husk very accurately? Secondly, what would be the time and energy that
would be used in these types of cases in order to seeing that justice is done to the case
and indeed to the litigants involved in such a case(s)? All these are problems of this
research.
One of the problems which courts may encounter in conflict of laws situation is the
enforcement of foreign judgments. Sometime, this may pose a serious problem.
In the past, the basis for one court to enforce a judgment of another country or
jurisdiction, so to say, was mainly cooperation between countries or nations. That is, the
courts of one country may enforce judgment of another country on the basis that its own
decision may one day be taken to that another country for enforcement. Thus, this
principle is like a proverb or maxim which says “scratch my back and I scratch your
back”. This was a very old principle of conflict of laws.
8
However as time goes by, court have moved away from this principle to a more cogent
and plausible grounds ie. Doctrine of Obligation or duty For example, in the case of
Schibsby and Another vs. Western Holz and Another5, the plaintiff in this case were
Danes resident in France, the dependents were also Danes resident in London and
carrying on business there (London).
A written contract had been made between the plaintiffs and dependents, which was in
English, and dated in London, but no distinct evidence was given as to where it was
signed. By the contract, the defendants were to sling in Siredena cargo of Swedish boats
on board of French or Swedish vessel far Case, in France, at a certain rates for all oats
delivered at Caen. From the correspondence, it appeared that the plaintiffs asserted, and
the defendants denied, that the delivery at Caen was short of quantity for which they had
paid and that the plaintiffs made some other complaints as to the condition of the cargo,
which were denied by the defendants. The plaintiffs very plainly told the defendants that,
if they would not settle the claims, they would sue them in the French courts. They did
issue process in manner described, and the French consulate in London served on the
defendants a copy of the citation.
The defendants did not appear in the court in France. The French court gave judgment in
favour of the plaintiffs against defendant for default of appearance. The plea of the action
was among others, a plea of never indebted, and a special plea asserting that the
defendants were not residents or domiciled in France, or in any way, subject to the
jurisdiction of the French court nor did they appear, and that they were not summoned,
5 [1870, 40 L.J.Q. 73; L.R 6, Q.B. 155
9
nor had any notice or knowledge of the pending proceedings, or any opportunity of
defending themselves there from. The jury found that the defendants had notice and
knowledge of the summons and the pendency of the proceedings in time to have appeared
and defended the action in the French court. It was held that the judgment of a court of
competent jurisdiction over the dependants to pay the sum for which judgment is given,
which the courts in this country (England) are bound to enforce, and consequently, that
anything which negatives that duty or forms a legal excuse for not performing it, is a
defense to the action. The court, reiterated that they had declined to hold that the doctrine
of comity was the main reason for enforcement of foreign judgment. This reason, the
court said, was not plausible and tenable. The only reason to hold a foreigner liable is the
doctrine of duty or obligation to settle his liability in a foreign jurisdiction.
Notwithstanding the change from the doctrine of “comity” to the doctrine of duty and
obligation, the Nigerian statutory law which was made or enacted in the year 1960 and
came to force in February, 1961 still retain the ideology and philosophy of the doctrine of
“comity”6
One of the problems engulfed by this thesis is the confusion that had set in by the
decision of the English court in the case of Schibsby and Another V. Westernholz and
Another7 in which the original principle of the doctrine of comity was abrogated and
replaced with the doctrine of obligation/duty. Notwithstanding this change, the statutory
provision which empowers Nigerian court to recognize and enforce foreign judgment is
6 Foreign Judgment (Reciprocal Enforcement) Act, Cap. F35, LFN, 2004.
7 ibid
10
still worded with the ideology and philosophy of the original doctrine of comity. In other
words, the statutory provision which provided the jurisdiction for the enforcement of
foreign judgment does not have slightest semblance with the doctrine of obligation and
duty. This total absence of the ideology and philosophy of the doctrine obligation or duty
on the part of the defendant in the statute has created confusion between the case law
principle of doctrine of comity and the statutory provision of the doctrine of duty and
obligation. As it is now, do we say we have two different laws on the enforcement of
foreign judgment or we have one single law? If we have two laws, i.e case law and
statute, which one would the court apply or use as a basis for enforcement of foreign
judgment, the statute or the case law doctrine? While in the case of Schibsby V. Western
holz8the basis for enforcement of foreign judgment is obligation and duty. In the Foreign
Judgments (Reciprocal Enforcement) Act9 the basis for assuming jurisdiction for
enforcement of foreign judgment is the doctrine of comity. For clarity, the Act provides:
The Minister of Justice if he is satisfied that, in the event of the benefits conferred
by this part of the Act, being extended to judgments given in the superior courts of
any foreign country, substantial treatment will be assured as respects the
enforcement in that foreign country of judgment given in the superior courts in
Nigeria may by order direct. That this part of the act shall extend to that foreign
country.
This means that if another country will be disposed to apply our own judgment, then
Nigerian superior courts can equally enforce their judgment. This provision reinstates the
ideology and philosophy of the doctrine of comity and not ideology and philosophy of the
8 ibid
9 Cap. L35, L.F.N., 2004
11
doctrine of obligation/ duty. This is a problem in the ascertainment of applicable laws of
tort in conflict of laws situation in this country, Nigeria.
1.3 RESEARCH QUESTIONS
i. where there exist a problem of conflict of laws, which of the laws of conflict will
apply?
ii. Is it the forum law that is applicable or the foreign law?
iii. Why the choice of law?
1.4 AIM AND OBJECTIVES OF THE RESEARCH
The aim of the research is to ascertain the applicable law of Torts in conflicts of laws
situation in Nigeria so as to achieve the following objectives:
i) To resolve issues on multiplicity of principles of tort when ascertaining applicable
laws of tort in conflict of laws situations in Nigeria.
ii) To identify challenges on the practice and proffer possible solutions to the
challenges identified.
1.5 THE SCOPE OF THE RESEARCH
By scope, we mean the territorial or geographical area covered by this research topic.
Therefore, as the topic of the research has indicated or shown the research deals with a
critical appraisal of the ascertainment of applicable laws of tort in conflict of laws in
Nigeria. The inclusion of the word “Nigeria” indicates that this topic will be critically
12
analyzed, discussed or studied in relation to Nigeria only and not in relation to any other
country or geographical area. However, nothing prevents us, from looking into what is
tenable in some other jurisdictions so as to benefit from the advantage of comparative
study. The work will cover literatures relevant to tort in conflict of laws situation.
1.6 LITERATURE REVIEW
Conflict of laws or private international law is a branch of international law which deals
with situations or cases where there is element of foreign law or jurisdiction. One
interesting feature of conflict of laws as a subject is that, every subject or discipline has
its own conflict of laws discourse or jurisprudence. This means that subjects such as law
of contract, evidence law, property law, family law, tort law, admiralty law, negotiable
instrument law and legitimacy laws all have their conflict of laws attached to them.
The review of literature relating to text books is not an easy one. This is because of the
dearth of lack of indigenous literature or text book on conflict of laws in tort situations.
Nigerian academics have not found it necessary to explore this fertile area of academic
pursuit. Nigerian academics are more comfortable and more familiar with subject matter
such as constitutional and criminal laws, contract and company laws, criminal and civil
procedural laws, public international law etc. This study of conflict of laws generally, as
a discipline rarely occupies the attention of many Nigerian academicians. Therefore, the
only Nigerian author on conflict of laws is Agbede. His book on conflict of laws title
“Themes on Conflict of Laws” deals with issues such as the English doctrine of renvoi,
foreign revenue law in the conflict of laws, public policy and justice, land transactions in
13
the conflict of laws. Other subjects dealt within that book include jurisdiction in
personam and foreign immovables, conflict of tort laws under the received English law,
conflict of tort laws, and new basis for solution and analysis of the rule in Benson vs.
Ashiru10. This book, though will be helpful in some other respects, it has not dealt with
the subject matter of this thesis directly. Since the aim and objectives of writing that book
is different from our aims and objectives of writing this thesis, it is not surprising that the
subject matter of this work was not captured by Agbede’s book.
As we have already highlighted in the scope of this work, the thesis seeks to ascertain the
applicable laws of tort in conflict of laws situations in Nigeria. Therefore, many foreign
works would not have something in common with this thesis. However, the literature of
many foreign authors, particularly general principles relating to jurisdiction, choice of
laws, enforcement of foreign judgment in fragmented forms in various textbooks, are
important.
Dicey and Morris11 in their work entitled, “the Conflict of Laws” discussed the change
from the doctrine of comity to the doctrine of obligation and duty as it is the practice in
England. They explained the rules, principles and practice, which determine how the law
of England and Wales relates to other legal systems. The authors further dealt (in volume
1) with general principles, procedure, state immunity, jurisdiction of courts, enforcement
of foreign judgments and international arbitration, before covering (in volume 2) family
law, property law, corporations and bankruptcy, contracts, torts, unjust enrichment and
10 [1967) N.M.L.R 363
11 Dicey and Morris, (2000) the Conflict of Laws, 13th ed. Vol. I, Sweet and Maxwell, London 14-006, p. 419
14
equitable claims, and foreign currency obligations, Sets out the nature and scope of
conflict of laws, the interpretation of statutes which implement international conventions
and the operation of statutes in the conflict to laws12. Though Nigeria is a part of common
law jurisdiction, whether it will gladly embrace this change, is a matter of conjecture.
There is no case law on this new principle in Nigeria. Their work has been very material
to the current research and same is acknowledged.
Abla Mayss discussed the drawback under the common law rules in his work entitled,
“Statutory Reform of Choice of Law in Tort and Delicti: A Bitter Pill or a Cure for the
ill?”13, which according to him had been that of the distinction made between English
torts on the one hand, and foreign torts on the other. In the former case, English courts
consistently applied English law, irrespective of, and despite the existence of foreign
elements. In the latter, however, they applied the double-actionability rule. Apart from
being described as discriminatory and nationalistic in character, this distinction had the
disadvantage of having to determine the place of tort, which clearly added to the
complexity of proceedings.
He further states that in addition, there had been some doubts surrounding the applicable
test to such instances, for such test was that normally applied to ascertain the place of tort
for jurisdictional purposes. Regardless of the fact that this rule was abolished, this no
longer requires such a place to be determined. This process had been questioned on the
12 Dicey, Morris & Collins (2012) on the Conflict of Laws, 15th edition, Sweet & Maxwell, United Kingdom, , p.
1244
13 Abla Mayss, Statutory Reform of Choice of Law in Tort and Delict: A Bitter Pill or a Cure for the Ill? Published
in Web Journal of Current Legal Issues in association with Blackstone Press Ltd. (1996), p. 345
15
ground that a decision to grant leave to serve a writ out of the jurisdiction was, and still
is, discretionary. Whilst an English court might be inclined to decide that a tort had been
committed in several places for the purposes of a rule of jurisdiction, it had to insist on
one single place of tort for the purposes of choice of law.
He summarized the torts rule in conflict of laws thus; the state of the common law rules
was far from clear. The general rule of double-actionability operated in favour of
defendants. The first limb of the rule incorporated a nationalistic attitude. The nature and
extent of the exception required further elaboration. The distinction made between
English torts and foreign torts promoted complexity, for it necessitated the identification
of the place of tort as a first step in the process of determining the applicable law. Hence,
well balanced reforms were needed to remedy such shortcomings. Does the new law
tackle these shortcomings? His work has also been very material to the current research
and same is also acknowledged.
Cheshire and North in their work titled, “Private International Law”,14 classify the “cause
of action” in order to determine the applicable conflict of laws rule. According to them,
“classification of the cause of action”, means the allocation of the question raised by the
factual situation before the court to its correct legal category. Its object is to reveal the
relevant rule for the choice of law. The rules of any given system of law are arranged
under different categories, some being concerned with status, others with succession,
procedure, contract, tort and so on, and until a judge, faced with a case involving a
14 Cheshire and North, Private International Law, 10th ed. (1979), p. 112.
16
foreign element, has determined the particular category into which the question before
him falls, he can make no progress, for he will not know what choice of law rule to apply.
He must discover the true basis of the claim being made. He must decide, for instance,
whether the question relates to the administration of assets or to succession, for in the
case of movables left by a deceased person, the former is governed by the law of the
forum, the latter by the law of the domicile. Whether undertaken consciously or
unconsciously, this process of classification must always be performed. It is usually done
automatically and without difficulty.
Albert Ehrenzweig, the author of the leading contemporary treatise in English, on the
conflict of laws15, takes the position that the whole search for general rules for the
solution of conflict of laws, problems, in unsettled areas of the law has proceeded on the
wrong basis. Ehrenzweig contends that all a priori approaches are bound to be deceptive
because courts in practice will not be bound by overly abstract and mechanistic rules of
reference that direct them to apply a certain legal system for a given class of cases (for
example, the law of the place of making for contracts, the law of the place of injury for
torts, and the law of the situs for real property), but will use manipulative devices to
promote the just outcome of particular disputes or to give preference to local as against
foreign interests. The real indicators of how a conflict problem will be solved, then, arise
not from the doctrinal language used by a court to explain its decision but from the
15 Ehrenzweig, Albert A. (1962) A Treatise on the Conflict of Laws. St. Paul, Minn.: West. pp. 234-236
17
awareness of the sense of justice or bias that underlines the doctrinal explanation.
Ehrenzweig thus sets for himself, the very ambitious task of finding “true rules “the
living law, as distinct from the enunciated law and asserts that only by this search can the
pattern of judicial decision be made intelligible and predictable standards of result be
obtained. The most fundamental rule Ehrenzweig finds is that a court will tend to apply
its own law to a controversy in those situations in which it is one of several plausibly
applicable laws. Thus all instances of reference to foreign law are derogations from this
underlying “true rule.” Ehrenzweig’s approach is based both on a critique of judicial
practice (cutting through the technical or legalistic explanation to the real one) and upon
an acceptance of its authoritative status (the role of a scholar is not to supply higher
criteria but to analyze judicial practice so as to discover the operative criteria).
What for Ehrenzweig is a matter of pervasive methodology becomes for Brainerd
Currie,16 a matter of pervasive ideology. Currie is less interested in what courts do than in
developing an approach leading to what they should do, although his jurisprudential
strategy is to proceed by way of very close analysis of particular cases. He believes, to
overstate it some, that a court should always apply local law when the forum has a
governmental interest in the outcome of the controversy and that foreign law is
appropriately applied only when the forum is disinterested in the outcome. In this regard
he opposes the recent tendency of courts to balance the interests of various potentially
applicable legal systems and to choose the law of that legal system which has the greatest
16 Currie, Brainerd (1963) Selected Essays on the Conflict of Laws, Duke Univ. Press, Durham, N.C, pp. 121-125
18
interest in the particular case. Such balancing is for Currie inappropriately undertaken by
courts and is more properly a matter for legislative determination.
Currie and Ehrenzweig repudiate the traditional search in the conflict of laws for
allocation criteria posited in advance, and both affirm the fundamental governance of
controversies by local law. In consequence, they renounce the ideal of uniformity of
result. Currie, not only denies the duty to refer to foreign law, but also argues that courts
should not defer except when they affirm both jurisdiction and disinterest. In the rare
cases that satisfy these two conditions, the courts cannot reach a proper decision and
might just as well apply local law, or flip a coin, or dismiss the cases.
The review of literature in this subject matter should not be limited to what authors have
said in their various books. Review of literature cuts across text books to case laws. In
this regard, since we have already said that enforcement of foreign judgment is one of the
problems encompassed in this thesis, it may not be out of place to review the only statute
directly connected with this thesis, namely, Foreign Judgment (Reciprocal Enforcement)
Act17. This Act, though contains the doctrine of comity, has not dealt with the doctrine of
obligation/duty which is said to be the main basis of examining jurisdiction in conflict of
laws in tort situations18
Secondly, though the Act, talks of the competence of the court that originally gave the
judgment, the statute is silence about the doctrine of obligation / duty which is said to be
17 Cap. F. 3, L.F N, 2004.
18 Schisbby case op cit. pp. 344-348
19
the main basis of assuming jurisdiction in conflict of laws in tort situations. Therefore,
the statute which was enacted in 1960 was oblivious of the doctrine of obligation / duty
which was first formulated in 1870 in the Queen’s Bench in England. In other words, the
Act did not take into cognizance, the change that took place some ninety (90) years, then
before it was enacted.
In relation to case law review, as far as this thesis is concerned, it may be worthy of note
to make reference to the case of Philips vs. Eyre19 which is one of the locus classicus on
jurisdictional problems. In this case, we have discovered that two issues of great
importance were discussed, namely jurisdiction and choice of law. That is to say, the fact
revealed that the court could assume the hearing of a case based on jurisdiction.
Similarly, the facts of the case discussed that the court could as well assume jurisdiction
on the ground of choice of applicable law. This is not too good a case or authority, on the
ground that a novice judge is vulnerable to err very quickly on cases with thin edges, like
this. With this kind of judgment, one is likely to commit miscarriage of justice at a very
slightest opportunity. The better thing is that the court, in this case, should have
formulated a more concrete, easily discernible doctrine, but not an easily misleading
judgment like the one contained in this case20. It is hoped that at the end of this thesis, we
would be able to formulate easier and reliable doctrine to be applied in all cases of tort
law in matters where there are foreign elements.
19Philips vs. Eyre [1970) L.R. 6, Q.B.I
20 ibid
20
1.7 METHODOLOGY
The doctrinal method of research was, therefore, used, using primary and secondary
sources such as library materials like books, articles, journals, periodicals, seminar
papers, as well as internet/websites, etc. to wit.
a. Primary sources which consisted statutes and case laws.
b. Secondary sources which consisted relevant information from leading authorities,
textbooks on tax laws and practices, writings and articles of scholars, magazines,
opinions of jurists, journals, periodicals, seminar papers, as well as
internet/websites, etc..
1.8 JUSTIFICATION
There is no gainsaying that a lot of time would be spent, energy would be spent, and no
doubt some money would be spent in the course of writing this thesis. The question that
would be asked is; what is the justification for all these? The answer is that this work
would be of great importance to its readers such as judges, justices and all members of
the bar. It will help lawyers who are practicing international law, particularly, private
international law or conflict of laws. This work will be of great help to lecturers and
students of private international law in this country. Practitioners of private international
law would find this thesis indispensable.
21
1.9 ORGANIZATIONAL LAYOUT
This thesis was constructed upon five chapters. The first chapter dealt with the
general background of the topic entitled, “the Ascertainment of Applicable Law of Torts in
Conflict of Laws Situation”. It also dealt with the aims and objective of the research work,
scope and limitations as well as the statement of research problems. It further highlighted
the literature review, jurisdiction, research methods adopted and the layout of the whole
work.
Chapter two of this work comprised the general concepts of conflict of laws. Under
it the nature and scope of conflict of laws, its reasons and basis are all discussed. It also
comprised the conflict of laws issues in Nigerian situation as well as how English laws
and cases are received and applied in Nigeria. Nigerian legislation and decisions of
Nigerian courts in relation to torts cases decided in Nigeria having foreign elements are
also discussed in this chapter.
Chapter three looked into the ascertainment of applicable laws of torts in conflict
of laws situations. Under it, the development of interstate and interpersonal conflicts is
discussed. Renvoi, internal law solution and general considerations are also highlighted.
Still under chapter three, partial or single Renvoi theory and total or double Renvio theory
are discussed, in relation to research. Furthermore, characterization, Lex Fori, Causea,
Lex Loci delicti and incidental questions in choice of tort law in conflict of laws situation
are also discussed.
22
Chapter four of this work centered on the theories of choice of law in torts in
conflict of laws situations. These theories includes the theory of Lex Fori, its development
and application, Lex Loci delicti its development and application, and the proper law
theory, its development and application.
Finally, chapter five of this work gave the summary of the whole work, the author
made observations and proffered suggestions and recommendations at how the issue of
ascertaining the applicable law of torts in conflict of laws situation should be adequately
tackled.

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