A case has foreign element when either the parties or the facts is connected with a foreign territory. Text writers usually discuss the issues that could be thrown up in a case having foreign elements under three heads: choice of jurisdiction; choice of law and recognition and enforcement of foreign judgment.
By Hakeem Olaniyan
In a federation, choice of jurisdiction rules’ in the conflict of laws will be resorted to in determining venue for litigating either (1) cases which facts or parties (or at least one of them) is connected with another country or (2) cases which facts or parties (or at least one of them) is connected with another state.
Now, Nigerian choice of jurisdiction rules are provided for by states’ High Court laws. In states comprising former Western and Northern Nigeria, Sections 10 and 13 respectively of the High Court laws enjoin the High Courts to exercise concurrent jurisdiction with the English courts. In the Eastern Nigeria, it is governed by Section 22(1) and (2) of the respective states’ High Court laws.
When the jurisdiction issue thrown up is inter-state, these laws must be subject to Part VII, especially Sections 96, 97, 98, 99 and 101 of the Sheriffs and Civil Process Act, because successive Nigerian Constitutions since 1979, (see Part 1, 2nd Schedule of 1999 Constitution) have made inter-state service of process and by implication inter-state choice of jurisdiction, an exclusive federal legislative matter. Old Nigerian cases did recognise that the basis of inter-state (or territorial) jurisdiction is the in personam jurisdiction rule at common law.
The Eastern Nigerian High Courts have also in the past applied their Section 22(1) and (2) to accept or reject inter-state jurisdiction.
Relatively recently however, the bar and bench in Nigeria abandoned these precedents in such cases as Dairo v Union Bank (2007) NWLR (pt.l059) 99; Ogunde v Gateway Transit Limited (2010) 8 NWLR (Pt.1196) 207)
This departure means that only the courts of the place of wrong has jurisdiction. This is absurd as there is no federation in the whole world where the court of a defendant’s residence will shy away from entertaining a case against him. Both the common law rule of in personam jurisdiction and Section 22(1) and (2) of the High Court Laws of Eastern Nigeria do not also give this latitude to the courts.
However, in justifying this departure, the courts often say:
In 1979, a Constitution for the whole federation was enacted into law which determined the territorial jurisdiction of each state with its local governments …. Each of the two mentioned above, by the operation of the new Constitution, has its own judiciary and personnel with no one overlapping or dependant on the other.
Thus, if a cause of action arises in any of the states of the federation within the period when the 1979 Constitution started to be in application, and except where jurisdiction is taken away by the same Constitution, jurisdiction must reside in the respective court of that state. (Dairo v Union Bank (2007) NWLR (pt.1059) PP.141-143 (paras H,A-H & A-D)
Territorial connection is achieved everywhere in the world, as far as civil litigation is concerned by anyone of these three ways: