ABSTRACT
This write up is to assess the quality of the value of the doctrine of domicile under the Private International Law i. e Conflict of laws. Private International Law is that part of law of a country which deals with cases having a foreign element. It is therefore the that part of law that comes into into play whenever the issue before the affect some events/ facts/ transactions that are so closely connected with a foreign system of laws as to necessitate recourse to that system. The law pertaining to where a person intends to make his permanent home is subject to a lot of argument. No wonder domicile has been said to be easier describe than to define. There are indication from both local and foreign journals which indicate that there are conflicting understanding in the area of domicile. Under the Private International Law, the concept of domicile has several as well as area of applications, some of which include the acquisition and loss of domicile of choice, origin and dependence. In Nigeria, the doctrine of domicile is alien, a product of our colonial link with the British common law. Due to the diverse ethnicity and culture in Nigeria. The doctrine of domicile is based on its character subject to conflict based in the Nigerian context. This long essay identifies the various definition of domicile, the distinctive features of each type of domicile, their workings, variations and also their shortenings.
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CASES
TABLE OF STATUTES
LIST OF ABBREVATIONS
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
1.1.0: BACKGROUND TO THE STUDY
1.2.0: OBJECTIVES OF STUDY
1.3.0: FOCUS OF STUDY1.4.0: SCOPE OF STUDY
1.5.0: METHODOLOGY
1.6.0: LITERATURE REVIEW
1.7.0:CONCLUSION
CHAPTER 2
DOCTRINE OF DOMICILE
2.0.0: INTRODUCTION
2.1.0: DEFINITION OF DOMICILE
2.2.0:ASCERTAINMENT OF DOMICILE
2.3.0: DOMICILE AND NATIONALITY
2.4.0: RULES AND TYPES OF DOMICILE
2.5.0: CONCLUSION
CHAPTER 3
ACQUISITION OF DOMICILE
3.0.0: INTRODUCTION
3.1.0: ACQUISITION OF DOMICILE OF ORIGIN
3.2.0: ACQUISITION OF DOMICILE OF CHOICE
3.2.1.0: RESIDENCE (FACTUM)
3.2.1.1: THE REQUISITE INTENTION (ANIMUS)
3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE
3.2.1.3: LOSS OF DOMICILE OF CHOICE
3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED
3.4.0: CHANGE OF DOMICILE AND NATIONALITY
3.5.0: CONCLUSION
CHAPTER 4
DOMICILE OF DEPENDENT PERSONS
4.0.0: INTRODUCTION
4.1.0: DOMICILE OF CHILDREN
4.2.0: DOMICILE OF MARRIED WOMEN
4.3.0: DOMICILE OF PERSON OF UNSOUND MIND
4.4.0: MERITS AND DEMERITS OF DOMICILE
4.5.0: CONCLUSION
CHAPTER 5
GENERAL CONCLUSION
5.0.0: CONCLUSION
5.1.0: RECOMMENDATION
BIBILOGRAPHY
TABLE OF CASES
NIGERIA
Adeyemi v Adeyemi (1962) LLR 90 @ 72
Enwonwu v Spira (1965) 2 All NLR 233
Fonseca v Passmen (1958) WRNLR 41 @ 42
Odiase v Odiase (1965) NMLR 196
Udom v Udom (1962) LLR 112 @ 117
GHANA
Crammer v Crammer (1987) 1 FLR 116
Lloyd v Lloyd (1961) 2 FLR 349
Att. For Alberta v Cook ( 1926) AC 444
UNITED KINGDOM
A. G v Pottinger (1861) 30 L J Ex 284 at 292
Bell v Kennedy(1808)LR .Sc & Div 307
Blender v Johnstone( 1769) LR IP & M 611
Bowie (Ramsay) v Liverpool Royal Infirmary(1930) AC 588 at 598
Collier v Rivas (1841) 2 Curt 855
Doucat v Geoghegeon (1878)L.R.9 Ch .D at 256
Fentiman (1991) CL. J 445
Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612
Harrison v Harrison(1953) 1 WLR 865
Henderson v Henderson (1969)p. 77 at 80
Hodgson v De Beauchesne ( 1858) 12 Moo PCC 285 at 329, 330
IRC v Bullock (1976) WLR 1178
IRC v Duchess of Portland (1982) Ch 314 at 318- 319
Moorhouse v Lord (1863)10 HL Cas 27 at 285
Plentika v Plentika (1965) 109 Sol Jo 72
Plummer vIRC (1988)1 All ER 79
Putman v Johnson 10 Mass 488, 501(1813)
Re Craignish (1892) 3 Ch 180, 192
Re Flynn (No 1 ) (1968) 1 WLR 103
Re Fuld’s Estate (No 3) (1968) p 615 at 684
Re Furse ( 1980) 3 All ER 838
Whicker v Hume(1858)7 H L Cas 124 at 160
White v Tenant (1880) WLR 790
Winans v A. G(1904) AC 287
Jopp v Wood (1865) 4 D.J & S.
TABLE OF STATUES
AUSTRALIA
Australian Family Law Act 1975
Australian Matrimonial Causes Act 1959
Australian Domicile Act 1982
CANADIAN
Canadian Divorce Act 1968
Code of Domicile
Code of Napoleon (French civil code) 1803
ENGLAND
Domicile and Matrimonial Proceeding Act 1973
NEW ZEALAND
New Zealand Domicile Act 1976
LIST OF ABBREVIATIONS
A.C: Appeal Cases
A.G: Attorney General
ALL ER : All England Report
All NLR: All Nigerian Law Report
Beav: Beavan Charles, Reports…… Rolls court.
Ch: Chancery
Ch. D: Chancery Division
Curt: Curties, W.C Reports…… Ecclestical
Ed: Edition
FLR: Federal Law Report
H L Cas: House of Lords Cases
LR: Law Report
LR. Eq: Law Report Equity Cases
LLR: Lagos Law Report
NMLR: Nigerian Monthly Law Report
NLR: Nigeria Law Report
NNLR: Northern Nigeria Law Report
NWLR: Nigerian Weekly Law Report
WNLR: Western Nigeria Law Report
WRNLR: Western Regional Nigeria Law Report
WLR: Western Law Report
CHAPTER 1
GENERAL INTRODUCTION
- INTRODUCTION
It has been universally recognized that questions affecting the personal status of a human being should be governed constantly by one and the same law irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred. But unanimity goes no further, there is disagreement on two matters. What is the scope of this „personal law‟, as it is called and should its criterion be domicile or nationality?1 In England, however it has long been settled that question affecting status are determined by the law of the domicile of a person and that broadly speaking such questions are those affecting family relations and family property. To be more precise, the following matters are to a greater or lesser extent governed by the personal law: the essential validity of marriage; the effect of marriage on the propriately rights of husband and wife; jurisdiction in divorce and nullity of marriage, though only to a limited degree; legitimacy, legitimating and adoption, wills of movables and intestate succession to movables. The concept of domicile however, is not uniform throughout
1 Cheshire and North‟s :on the merits of nationality and domicile in pp 165- 167 of Private International Law 15
the world Domicile known as habitual residence to some and permanent residence to some people.2 The English concept of domicile is bedeviled by rules, these are complex often impossible to justify in policy terms and lead to uncertainty of outcome. Before looking at these rules in details, one preliminary matter should be considered. This is question of whether the same test for domicile applies regardless of the context I which the matter is raised. English law take the view that the test which determines the place of a man‟s domicile must remain constant no matter what the nature of the issue may be before the court. „Domicile‟ is regarded as a relative term which varies in meaning according to the different situation (e.g. divorce, taxation intestate succession) to which it is applicable. There are however types of domicile, domicile of origin: gotten from birth, domicile of choice: acquired in substitution for the present one and also domicile of dependent persons: acquire through the person they are depending on. These and many more are what is going to be discussed later. Domicile, in its appraisal, its type, workings and also shortenings.
2 Whicker v Hume (1858) 7 H L Cas 124 at 160
1.1.0: BACKGROUND TO THE STUDY
Until the beginning of the nineteenth century, domicile was universally recognized as the basis for the application of personal law.3 However, as a result of the influence of Maincini4 in the mid-nineteenth century some of the continental European countries adopted nationality in preference to domicile as the connecting factor for the ascertainment of personal laws. Since then, some countries have somehow combined the two criteria. For common law countries, however, domicile appears to have been generally accepted. In Nigeria, the adoption of can be justified on ground of practical necessity as “Nigeria nationality” covers a number of independent legal systems.5
1.2.0: OBJECTIVES OF STUDY The aim of this write up is to 1. Assess the definitions of domicile under the Private International Law. 2. Access the quality of the value of domicile. 3. To discuss the rules of domicile as contained in the received English law and to show how these rules have been, or ought to be modified in order suit Nigerian local conditions.
3Logical and Legal basis of the conflict of laws .pp 104.
4 Cheshire G.C ; Private International Law (7th ed) p. 180
5 The French Civil Code (code Napoleon) 1803 17
- To identify the distinctive features of each types of domicile, their workings, variations and also their shortenings. 5. To proffer recommendations on the doctrine of domicile.
1.3.0: FOCUS OF STUDY
Under the Private International Law, the concept of domicile has several as well as areas of applications, some of which include the acquisition and loss of domicile of choice, origin and dependent. The focus of study or centre of interest therefore is on the concept of domicile as adopted to determine the individual personal law which is the law of the country to which the person primarily belongs especially for the purpose of family law and succession. So personal law determine matters such as essential validity of marriage, intestate succession, legitimacy, legitimation and adoption etc. All these and many more are what will be discussed in this essay. 1.4.0: SCOPE OF STUDY
The range of this essay however, is strictly on the assessment of domicile under the Private International Law in both the Inter- state and International situations and that the adherence to the English law by the Nigerian judges which should be curbed since the rules itself is being subjected to reform in England.
1.5.0. METHODOLOGY
Both primary and secondary sources of law and the basis for this research work. Thus the Domicile Act, Law Textbooks, Law report, Articles on law, various statute and cases on the subject matter are sources of information. This project shall also be both comparative and analytical in nature.
1.6.0: LITERATURE REVIEW In this study relevant literature, judicial authorities and statutes shall be examined. Thus, credence shall be given to several authors in the field of the Conflict of laws whose works have in no small measure contributed immensely to Private International Law on the whole. Works of different authors both foreign and Nigerian such as Morris and Dicey, Cheshire an North‟s, Graveson, Agbede I.O, to mention a few will serve as an aid to arrive at a logical conclusion on this study. Morris in his book The Conflict of laws6 provides a comprehensive and authoritative coverage of the subject but failed to Graveson ,Conflict of laws7 who only commented on the definition of domicile to no longer fits the complexity, movement and sophistication of modern life in which many of our best intentions become temporary through frustrating circumstances. But he failed to point out the ways to go about
6 Morris: the Conflict of laws, 4th ed by J D McClean, London, sweet and Maxwell, 1993, p 12
7 Graveson, conflict of laws (1969) p.20
giving a definition that will fit our modern life. On the other hand, Agbede .I .O, Themes on Conflict of Laws8 talk on the need to establish residence and intention to remain in a place permanently (or indefinitely),he also went further to provide a comprehensive coverage of the spectrum of the law of domicile as it applies in Nigeria but he did little in expanciating on this requisites of acquiring a domicile of choice. Accordingly, Cheshire and North‟s in their book Private International Law9 gave a good insight to domicile being a difficult term to define but rather better in description, but their way of describing was faulty in that there was no clear distinction between a permanent home and habitual home. Many books and Statutes shall be used mostly in the course of this study. This is because textbooks are what has been compiled by various authors while using the Statutes to back up their argument. Thus, it is only logical for this approach to be adopted since the word domicile itself still happen in how day to day living, as people migrate from one country to another, so there was need for domicile. In this vein, Omoruyi. I. O in his Article10 Domicile as a determinant of personal law; a case for the abandonment of the revival doctrine in Nigeria, examined that the common law
8 Agbede I.O., Themes on Conflict of Laws.( 2001) Shaneson C. I Ltd
9 Cheshire and North‟s , Private International Law, (1974) (7th ed)
10 http://www.nigerianlawguru.com.articles>accessed 2000
conception of domicile vis-à-vis the revival doctrine cannot adequately fit into the realities of the contemporary society and therefore the law must be reformed to reflect this fact. Though, all these authors have tried to assess the doctrine of domicile but it is however clear that there is need for the modifications of some of these rules of the received English law before it can be incorporated into the Nigerian laws.
1.7.0: CONCLUSION
In conclusion, this chapter is an insight into the study of the doctrine of domicile, the quality of it, the aims and objectives, the various methods to be used and also the various authors who dealt succinctly with the assessment of domicile. This chapter is just the introductory part of the study of the doctrine of domicile under Private International Law.
