Conflict of laws in Nigeria: When two different countries or jurisdictions have their laws necessary for application in favour of a subject or a situation from one of those countries or jurisdictions, there is bound to be a conflict of laws. This area of law is otherwise known as Private International Law. On the other hand, where there is a clash between two laws in a country, there is a situation of internal conflict of laws.
However, in Nigeria, due to the factor of pluralism or diversity within the polity, these clashes between laws are seen often. An example can be seen in the existence of Customary and English law operating side by side.
Furthermore, the High Court exists alongside the Sharia court. Generally, in Nigeria Conflicts occur between the various state laws, giving rise to inter-state conflict situations. Interstate conflict situations arise whenever a court is faced with the problem of recognizing, applying or enforcing the law of another state or when it is required to exercise jurisdiction over persons or property located in another state.
Conflict between English law and Customary law in Nigeria
As a general rule, English law applies to transactions between Nigerians on the one hand, and also between Nigerians and non-Nigerians on the other hand, in the following instances:
- Where the parties specifically agreed that English law should govern the transaction;
- Where the party relying on customary law will be deemed to have agreed that English law should apply to the transaction;
- Where the transaction is unknown to customary law.
- The following cases support the application of English law in the circumstances
Koney V. Union Trading Company Limited
In this case, the plaintiff, a Nigerian, placed an order for the supply of a portable sewing machine from the defendant European company. A dispute arose. It was held that English law and the Statute of Limitation applied.
When does customary law apply?
Customary law applies to a matter when there is a clash between English Law and Customary Law as a general rule, customary law will apply in the following situations:
- Where a transaction is subject to customary law, the rule of customary law will apply between natives as decided in Ogiamen V. Ogiamen (1967) NMLR 245, Iwuchukwu V. Anyanwu (1993) 8 NWLR pt. 311 p. 307; Agheghen V. Waghoreghor (1974) All NLR 74.
In Labinjo V. Abake (1924) 5 NLR 33 both parties were natives. The defendant who was a young girl and a minor under 21 years of age living with her parents was sued in a magistrate court for the price of goods sold and delivered to her for trading purposes in 1922 when the defendant was seventeen (17) or eighteen (18) years of age. The magistrate held that the Infant Relief Act 1874 which is in force in Nigeria Applied to the case, the girl being a minor, and dismissed the action on that ground.
On appeal by the plaintiff to the Divisional court, that is High Court, the decision was reversed. The defendant appealed to the WACA, which held that, the Infant Relief Act applied in Nigeria without modification in meaning. And also, that the trial court should find out the liability of a minor if any, under native law and custom for the price of goods supplied to her for trading purposes without the consent of her parent or guardian, and the lower court should apply such customary law, instead of English Common Law.
The case was therefore remitted to the Magistrate to take evidence and decide the case according to the liability or otherwise of an infant debtor under native law and custom.
In this case, Labinjo V. Abake supra, Combe CJ stating the general rule of law that:
“the general rule is that, if there is a native law and custom applicable to the matter in controversy, and if such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with any local ordinance, and if it shall not appear that it was intended by the parties that the obligations under the transaction should be regulated by English law, the matter in controversy shall be determined in accordance with such native law and custom”.
As a general rule, where customary law is applicable to a transaction, the mere fact that the agreement is reduced into writing will not render customary law inapplicable to the transaction.
Conflict examples
- In Neleson V. Nelson, two of the defendants were non-natives, the WACA relied on the substantial injustice rule and applied customary law in order to avoid a substantial miscarriage of justice, which in the view of the court would be occasioned by the application of English law. The application of customary law instead of English law in order to avoid the miscarriage of justice is not totally free from criticism. The basis for criticism is that if a court applies customary law instead of English law in order to avoid the miscarriage of justice to one party; the argument will be: whether injustice is not thereby occasioned to the other party who lost the case?
- In Labinjo V. Abake (1924) 5 NLR 33 both parties were natives. The defendant who was a young girl and a minor under 21 years of age living with her parents was sued in a magistrate court for the price of goods sold and delivered to her for trading purposes in 1922 when the defendant was seventeen (17) or eighteen (18) years of age. The magistrate held that the Infant Relief Act 1874 which is in force in Nigeria Applied to the case, the girl being a minor, and dismissed the action on that ground.
On appeal by the plaintiff to the Divisional court, that is High Court, the decision was reversed. The defendant appealed to the WACA, which held that, the Infant Relief Act applied in Nigeria without modification in meaning. And also, that the trial court should find out the liability of a minor if any, under native law and custom for the price of goods supplied to her for trading purposes without the consent of her parent or guardian, and the lower court should apply such customary law, instead of English Common Law.
The case was therefore remitted to the Magistrate to take evidence and decide the case according to the liability or otherwise of an infant debtor under native law and custom.
In this case, Labinjo V. Abake supra, Combe CJ stating the general rule of law that:
“the general rule is that, if there is a native law and custom applicable to the matter in controversy, and if such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with any local ordinance, and if it shall not appear that it was intended by the parties that the obligations under the transaction should be regulated by English law, the matter in controversy shall be determined in accordance with such native law and custom”.
Sources of conflict of laws
Jurisdictional differences gives rise to conflict of laws, law preferences and acceptance of judgment.
- Legal systems: significant differences in legal systems and traditions between countries can lead to conflicts.
- Jurisdictional problems: rivalry claims of jurisdiction by various states can result in conflicts.
- Treaties and conventions: International treaties may address conflicts of laws, but interpretation and adherence can vary to a large extent.
- Acts of parliaments: National laws regarding extraterritorial jurisdiction and recognition of foreign judgments can create conflicts.
Internal conflicts of law in Nigeria
- Nigeria operates an integral legal system, which is made up of a plurality of laws, such as customary laws, English law, Muslim law, and statute law thereby leading to conflict of laws as the case may be.
- In the celebrated case of Olowu v. Olowu, the Supreme Court held that although Nigeria is one country, it’s multi-ethnic, multi-lingual and multi-customary laws makes the problem of conflict of laws unavoidable. In this case Oputa JSC examing the problem of internal conflict of laws in Nigeria said that:
- “Nigeria being one nation, one country, will it not be contradiction in terms to talk of conflict of laws in the same country? Our former National Anthem supplied the answer ‘Though tribes and tongues may differ in brotherhood we stand, Nigerians all’ there are diffrent ‘tribes and tonhues’ in Nigeria. different customary laws dealing with devolution of property on intestacy. where there is a clash between two or three of these different customary laws and the court has to chose which one should apply, we have an issue of conflict of laws”.
