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

Postgraduate

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 interstate 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.

Introduction

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.
 
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.

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.

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 Justice so far as local circumstances would permit.
 
After the Ordinance, subsequent Nigerian Legislations also provided for the reception of English laws into Nigeria but elevated the cut-off date to 1st 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 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?