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

By

Author

Presented To

Department of Law

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

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 laws. 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 law.

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 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 Lagos.