CONFLICT 1.4 TORT IN THE CONFLICT OF LAWS
:: For an action to lie in England for a wrong alleged to have been committed abroad
- The wrong must be of such a character that it would have been actionable if it had been committed in the local jurisdiction. AND
- 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.
:: 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 State) 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?
Part III (Section 11 and 12) Private International Law (Miscellaneous Provisions) Act 1995 repealed the first leg of the double liability rule 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.
 Law of the place where the wrong was committed.
 Which provides for the unlimited jurisdiction of the High Court.
 Which required that the action must not be justifiable in England