AN APPRAISAL OF THE APPLICATION OF THE LAW RELATING TO DOMICILE IN NIGERIA
The concept of Domicile had its evolution from the 13th 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 19th 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,6the Court of Appeal defined personal law as “the law of the
- Cheshire, C. G., North, P. (1979) Private International Law. (10th) London: Butterworths. 20
- Rabel, E. (1958) The Conflicts of Law: A Comparative Study. (2nd) Michigan:University of Michigan Law School. 109
- Cheshire, C. G. (1970) Private International Law. (7th) London: Butterworths. 180
- Agbede, I. (1989) Essays on Conflicts of Laws. Ibadan: Shaneson C.I. Ltd. 56
- (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 AttorneyGeneral 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