AN APPRAISAL OF THE APPLICATION OF THE LAW RELATING TO DOMICILE IN NIGERIA

ABSTRACT

This research project entitled ‘AN APPRAISAL OF THE APPLICATION OF THE LAW RELATING TO DOMICILE IN NIGERIA’, is aimed at examining the legal framework of the law relating to the concept of Domicile in Nigeria. However, in the course of this research, the finding of the researcher is that there is a gaping hole in the application of the rules of Domicile especially that of Domicile of Choice in inter-state situation like Nigeria. For instance, according to the traditional concept, the rule of Domicile is to the effect that, to acquire a Domicile of choice, a person must satisfy, amongst others, a principal condition that he must have an intention of remaining in a country or place permanently or at least, indefinitely. This is not practically possible or feasible in Nigeria. Nigeria is a country made up of many States with various ethnic flavors where there is a high mobility of persons as a result of inter-marriages, work and search for ‘greener pastures’. The need to address this unsuitable circumstance constitutes the justification for this research. In the light of this, therefore, the objective of this research is to identify the challenges of the present practice to make viable recommendation as a way forward to addressing the challenges identified. In the final analysis, this research work is concluded by recommending, amongst others, that there should be a consideration of habitual residence as a requirement for acquisition of Domicile of choice rather than intention to reside permanently in a place. The research methodology relied upon will be doctrinaland the sources of information include relevant text materials, statutes, judicial decisions, journals and internet sources.

CHAPTER ONE

GENERAL INTRODUCTION

1.1                                                         Introduction

The concept of Domicile had its evolution from the 13^th Century Italy as a result of the teachings and commentaries of a group of jurists known as the Post-glossators. The Post-glossators were distinguished jurists attached to the Law schools of Bologna, Padua, Peruggia and Pavia in Italy. Pre-eminent amongst these jurists was Bartolus Sassoferato, successive Professor of Law at Bologna, Pisa and Peruggia who may aptly be described as the „Father of Private International Law‟ or what is usually referred to as Conflicts of Law.¹

The Post-glossators originated a theory called „Statute theory‟ and by this theory, they interpreted each statute in any local territory in order to ascertain its object and thus, its rightful sphere of application. To this end, they classified each law that concerns a person or thing, into three categories namely, real, personal or mixed law. A real statute is one whose principal object is to regulate things; a personal statute is one that chiefly concerns persons whereas a mixed statute concerns acts such as the formation of contract. According to the Post-glossators, real statutes are essentially territorial. Their application is restricted to the territory of the enacting sovereign. Personal statutes, on the otherhand, applies only to persons domiciled within the territorial jurisdiction of the enacting Sovereign, but

1. Ehrenweiz, A. A. A (1962) Treatise on the Conflict of Laws. American Journal of Comparative Law, 2, 267 they remain so applicable even within the jurisdiction of another Sovereign‟s territory.² The distinction drawn by the Post-glossators between real and personal statutes led to the universal recognition that question affecting the status of a person should be govern constantly by one and the same law, irrespective of where he may happen to be or where the facts giving rise to the questions affecting him may have occurred.³ This indeed set the stage for the questions affecting status of a person to be determined by the law of the domicile of the person involved.

Until the turn of the 19^th Century, Domicile was universally recognized as the basis for the determination of the personal law. According to Cheshire, the principles of domicile had no rival for over five Hundred years.⁴ However, beginning from 1804 when the French Civil Code first adopted the test of Nationality as the basis for the determination of the personal law, the pride of place that domicile had hitherto enjoyed began to be considerably weakened. In present times, it has fallen out of favour with many legal systems.⁵ Despite this, in England and a great number of the commonwealth countries including Nigeria, Domicile have continued to be the basis for the determination of the personal law. For instance, in Molekwu Vs Molekwu,⁶ the Court of Appeal defined personal law as “the law of the

2. Cheshire, C. G., North, P. (1979) Private International Law. (10^th) London: Butterworths. 20
3. Rabel, E. (1958) The Conflicts of Law: A Comparative Study. (2^nd) Michigan:University of Michigan Law School. 109
4. Cheshire, C. G. (1970) Private International Law. (7^th) London: Butterworths. 180
5. Agbede, I. (1989) Essays on Conflicts of Laws. Ibadan: Shaneson C.I. Ltd. 56
6. (1997) 7 NWLR (Pt. 512) 263

deceased that was prevailing or predominant in the area or locality of the deceased.” Indeed, over the years, Domicile has become strictly a common law concept. The  concept  of  domicile  as  applicable  in  Nigeria  is  derived  from  many sources but principally from the Received English Law. The concept was first  introduced  into  Nigeria  by  Ordinance  No.  3  of  1863.  In  Attorney- General Vs John Holt Co.,⁷ Osborne C. J. stated: By Ordinance No. 3 of 1863, it has been enacted that all laws and statutes which were in force within the realm of England on the first day of January, 1863, not being inconsistent with any such Ordinance, should be deemed and taken to be in force in the Colony and should be applied in the administration of Justice so far as local circumstances would permit.⁸

After the Ordinance, subsequent Nigerian Legislations also provided for the reception of English laws into Nigeria but elevated the cut-off date to 1^st January, 1900. However, the following issues which constitutes the Statement of problems of this research which generated the interest of the researcher to delve into this area of study, viz: Within Nigerian law, where is the domicile of a child born after the death of the father? Under the traditional concept of domicile received into Nigerian law, a legitimate child not born during the life time of his father is

7. (1910) 2 NLR 1; (1915) AC 599
8. Ibid, at p.9, 601 respectively.

deemed to have his or her domicile of origin in the country in which his or her mother was domiciled at the time of his birth. This position clearly would not go uncontested, having in mind, especially the customary laws of the people of Nigeria. Where is a deserted or separated wife‟s domicile especially with respect to her Will and succession to such Will?

To what extent can the English doctrine of domicile be applicable under the Nigerian customary law?

By virtue of the foregoing, the objective of the research is to examine the rules of application of the concept of Domicile; to identify its weakness with particular reference to the Nigerian local circumstances, and finally to make viable suggestions on how best to adapt the concept of Domicile in Nigeria.

1.2.                                        Statement Of The Problem

The research Project will vigorously identify and expound the following problems, thereby showing a need for readjustment in the application of the concept of domicile in Nigeria. These problems are:

1. The problem of definition and application of the concept of domicile in inter-state situations in Nigeria. Indeed,
2. there is a gaping hole in the application of the rules of domicile of choice in inter-state situations like Nigeria.
3. The traditional concept of the rules of domicile is to the effect that, to acquire a domicile of choice, a person must satisfy three conditions, namely
4. He must have capacity to choose a domicile by his own act;
5. He must be physically present and resident where he seeks to establish his domicile; and
6. He must have an intention of remaining in that country permanently or at least, indefinitely.

This unsatisfactory rule of domicile has been adopted in Nigeria without qualification. For example, in Fonseca Vs. Passman,⁹ Thomas, J., held that “to establish a domicile in Nigeria, the mere datum of residence is not sufficient… There must be unequivocal evidence of animus manendi or intention to remain permanently.” The problem here is that, there has been a deep failure of Nigerian Judges to draw a strict line of distinction between international and inter-state Conflict of Laws situation. Indeed, whereas a horde of the cases in which the problem of domicile has arisen in England were cases of Conflicts of Law with international flavor, the few cases in which the cases has arisen in Nigeria were more of inter-state situations involving Conflicts of Law. Nigeria is a country made of many States with various ethnic flavors where there is a high mobility of persons as a result of inter-marriages, work and search for „greener pastures‟. To this extent, it is a misconception to think that the above rule can apply without qualification in Nigeria.

The problem of change of origin under customary law. The general belief is that no Nigerian can legally change his ethnic group. The prevailing attitude   is    that    „once   an    Igbo,   always    an   Igbo;    once   a    Yoruba,(1958) W. R. N. L. R. 41 at 42 always a Yoruba; once a Hausa, always a Hausa‟ irrespective of the fact that the family of the propositus had settled amongst other ethnic groups generations previously. The fact is that this phenomenon has far reaching important legal consequences in the realm of domicile. For example, the settler continues to carry his personal law with him, which could be vastly different and indeed in contradiction to the personal laws applicable to the area in which he is now resident. Consequently, the personal rights of his descendants continue to be governed with this „transported‟ personal law eventhough they might never visit their ancestor‟s place of origin or speak the language of the people of that area.

The problem of a married woman‟s domicile. The common law position with respect to the domicile of a married woman is that a wife takes the domicile of her husband on marriage and continues to do so until the marriage is terminated by death or divorce. There is no gainsaying the fact that the Matrimonial Causes Act, 1970 has obviated to some extent the hardship on the deserted wife but the problem is that its effects can simply be described as a drop of respite in an ocean of legal problems. For instance, with respect to making a

Will, a deserted wife‟s capacity to make such Will and the material or essential validity of such Will must comply in many cases with the lex domicilii of the husband, which in many cases may be unknown. Again, there is a problem of succession to the movables of an intestate deserted wife as this is governed by the husband‟s domicile at the time of her death.

1.3                                        Scope Of The Research

This research work has as its area of coverage an analytical appraisal of the concept of Domicile. Specifically, the research will consider the development of the traditional concept of Domicile and its introduction into Nigerian law. Particular attention will be paid to the various forms and rules of Domicile as well as the problems inherent in their application in Nigeria. The research will also develop the subjects of Nationality and habitual residence as alternatives to the concept of Domicile, bringing the merits and demerits of such alternatives. A concerted effort will be made to discuss present judicial and legislative approaches to the problems associated with application of the concept of domicile. Finally, the research will seek to provide recommendations and suggestions on how to best adapt the concept to suit Nigerian local circumstances.

1.4                                                          Research Methodology

The doctrinal method of research shall be adopted in the analysis of the concept of domicile and its application in Nigerian law. This will be achieved through a detailed consultation and examination of local and foreign statutes, case laws, text books and journals dealing with the subject matter and any other relevant material that will be useful for credible research.

1.5                                      Literature Review

Within   the   ambits   of   this   research   work,   relevant   literature,   judicial

authorities and statutes shall be examined. Thus, credence shall be given to several authors in the field of Conflict of Laws whose works have in no small measure contributed immensely to Private International Law on the whole and the concept of domicile in particular.

Morris in his book, ‘The Conflict of Laws’¹⁰ provides a comprehensive and authoritative coverage of the concept of domicile but offers little in terms of exposition of the problems arising in its application.

Graveson , „Conflict of Laws’¹¹ on the other hand, did not only comment on the definition of domicile but also posited that the concept 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 a working definition and application in view of prevailing circumstances in modern life.

A foremost Nigerian author on the concept of domicile, Agbede, in his work, ‘Themes On Conflict of Laws’¹² discusses in great detail 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 did little in expatiating on this requisites of acquiring a domicile of choice.

Cheshire and North in their book, ‘Private International Law’¹³ gave a good insight to the fact that domicile as a concept is better described than defined.

10. Morris, J.H.C. (1993) The Conflict of Laws. London: Sweet and Maxwell.
11. Graveson, R.H. (1969) Conflict of Laws. (5^th) London: Sweet and Maxwell.
12. Agbede, I.O. (2001) Themes on Conflict of Laws. Ibadan: Shaneson C.I. Ltd.

Omoruyi in is Article¹⁴ ‘Domicile as a determinant of personal law: A case for the abandonment of the revival doctrine in Nigeria’, gave a well-rounded insight to the concept and posited that the common law concept 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.

1.6                                         Justification Of The Research

This research work will be useful and beneficial to students of law, Academics, Legal Practitioners, Judges, Legislators and Human right activists, etc.

1.7                                                     Organizational Layout

The research is organized into chapters and sub-topics discussing key issues relevant to the concept of Domicile.

Chapter One is a general introduction to the research. Amongst other issues, it focuses on Statement of the problem to be resolve in body of the research, scope of the research, the research methodology, justification for the research and literature review.

http://www.nigerianlawguru.com/articles. accessed 11th August, 2014

Chapter Two deals with conceptual clarifications and the development of Domicile. It focuses on the development of the concept of domicile from its traditional root to its introduction into Nigerian law and clarifies some concept related to Domicile such as its definitions, forms and rules. Chapter Three deals with issue of alternatives to Domicile as a connecting factor to determining the personal law of an individual. The chapter analyzes the merits and demerits of Nationality and Habitual residence as alternatives to Domicile. Chapter Four considers the peculiar problems associated with the application of the concept of Domicile. The areas covered include the problem of defining Domicile in inter-state situation as occur in Nigeria, the problem of change of Domicile under Nigerian customary law and the problem of married woman‟s domicile. Chapter Five is the summary and conclusion of the Research. It also proffer recommendations based on the findings of the research.