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29 Dec

CONFLICT 1.2 NATURE AND AIMS OF THE COURSE

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 civil[1] case before the court has a foreign element. The courts would then have to widen their horizon beyond the forum law[2].

:: 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 court[3] 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:

  1. 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 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:

  1. 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.

[1] 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.

[2] Forum Law meaning the law of the place where the court is. Where the action is instituted.

[3] The court where the action is instituted.

Isochukwu

Quite eccentric really

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