An Appraisal Of The Doctrine Of Domicile Under The Private International Law
This write up is to assess the quality of the value of the doctrine of domicile under the Private International Law i. e Conflict of laws.
Private International Law is that part of law of a country which deals with cases having a foreign element. It is therefore the that part of law that comes into into play whenever the issue before the affect some events/ facts/ transactions that are so closely connected with a foreign system of laws as to necessitate recourse to that system.
The law pertaining to where a person intends to make his permanent home is subject to a lot of argument. No wonder domicile has been said to be easier describe than to define. There are indication from both local and foreign journals which indicate that there are conflicting understanding in the area of domicile.
Under the Private International Law, the concept of domicile has several as well as area of applications, some of which include the acquisition and loss of domicile of choice, origin and dependence.
In Nigeria, the doctrine of domicile is alien, a product of our colonial link with the British common law. Due to the diverse ethnicity and culture in Nigeria. The doctrine of domicile is based on its character subject to conflict based in the Nigerian context.
This long essay identifies the various definition of domicile, the distinctive features of each type of domicile, their workings, variations and also their shortenings.
General Conclusion and Recommendation
In summary of this essay, questions concerning the status of a body of persons associated together for some enterprise, including the fundamental question whether it posses the attribute of legal personality, must on principle be governed by the same law that governs the status of the individual, i.e. by the law of domicile. What this law admits of no doubt if we reason on the analogy of the individual. Every person acquirers at birth a domicile of origin by operation of law. In the case of the legitimate natural person it is the domicile of his father. It is however clear that the law of domicile needs some radical modifications especially concerning on the few Nigerian situations. It is so dishearten to know that our judges have now chosen to adhere strictly to the received English law rules which have been subjected to reform in England where they originated from, but further cling conservatively to the outdated rules.
In conclusion, it may be said that a system which is based upon domicile, is free and more elastic than that which is based upon nationality because nationality is generally too artificial and has little to recommend it. The Nigerian legislature and court should remove some of the archaic doctrines that seem to have eaten deep into our modern dispensation, and should form a new definition of domicile, simple and more workable and in line with the concept of habitual home rather than permanent home.
I would recommend that as touching intention to prove acquisition of domicile;
- When a person has his home in a country, he should be presumed to intend to live there permanently.
- Where a person has more than one home, he should be presumed to intend to live permanently in the country in which he has his principal home.
- Where a person is stationed in a country for the principal purpose of carrying on a business, profession or occupation and his wife and children have their home in another country, he shall be presumed to intend to live permanently in the latter country.158
- The rule of reviving domicile of origin should be regarded as the principle of continuity i.e. a person’s domicile once acquired would continue until he obtained another one. There will be no question of previous reviving.
- The fact that a dependent person can only acquire his/her domicile by the act of the person he is dependent upon should be reconsidered. Especially that of a married woman, she should retain her domicile after acquiring that of her husband.
- In all, the law commission’s proposals should be considered as ‘a further important step in the process of improving the structure, effectiveness and fairness of the rules of domicile’.
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