THE CONFLICT OF, I..

A\VS

BY
SIMON E. KULUSIKA

SENIOR LECTURER .. LAW

MODULE LL 39 / LL f+ /

Simon E. Kulusika
LLB (Khatoum) LLM (Leipzig)
First Edition 2009
©ZAOU
ISBN
 PREFACE

The Conflict of Laws (the Private lnternational Law) is a complex and rapidly changing subject.

The student or whoever is studying this subject or dealing with it in whatever way should bear in

mind what has just been said about the Conflict of Laws.

This is the first Module, or publication in Zambia on the Conflict of Laws. It may not cover all

the topics in this area of the Law. But it offers the student or the general reader enough materials

on the Conflict of Laws. In this respect, it is imperative to note that the major purpose of this

Module, or publication is to make available and accessible materials in this field. This can be

supplemented by further reading of, especially, decided cases, statutes and international

instruments. If you are not prepared to read an or most of the cases cited in this Module, the
student may be advised not to take this optional course (offered in the Second Semester- Fourth

Year).

In this Module, or publication, focus is on substantive issues, meaning that residual matters are

excluded. It does not mean that such matters are less relevant to an effective analysis of the

topics contained therein.

The Module, or publication consists in three parts: Part One is a general introduction to basic

topics of the Conflict of Laws. Part Two covers topics related to the family and children law,

e.g. marriage. Part Three is titled "Obligations". It deals with issues arising from contract, or

succession etc. Each part is subdivided into units or chapters. Each unit or chapter deals with a

specific topic.
The Module also contains a table of cases from other jurisdictions than Zambia. These cases are

arranged in chronological order - not a peculiar style - thereby moving away from the traditional

and familiar way of listing decided cases.

In order to enhance a student's understanding of the Conflict of Laws as analysed in the Module,

or publication, the reading of decided cases is highly prescribed.

The author is grateful to all who helped him, in one way or the other, to produce this Module, or

publication. Particular thanks go to the typists, editors, typesetters, proof-readers and publishers

for their invaluable efforts in bringing this work to light. Further, the author expresses

appreciation to the Administration of the Zambian Open University for the funds made available

for publication purposes.

Students and the general readers are requested to provide the author or the publishers of this

Module with feedback, suggestions or commentary on any aspects of the module.

It is hoped that this work wUl be found helpful and beneficial.

SEK
ZAOU
LUSAKA

ii
 ACKNOWLEDGMENTS

The author and publishers of this work would like to acknowledge the use of some copy-rights

materials. This has been done in compliance with the permitted limit as established by practice.

The materials mentioned are intended for academic use only.

Many thanks go to authors ru1J publishers, whose works might have been made use ot: as

previously indicated, in assembling the materials for this Module.

Every care has been taken to express acknowledgment, by means of footnotes, to aU authors and

publishers. Any omission is unintentional, and regretted at the same time.

S. Kulusika
ZAOU
Lusaka
September 2009

m
 USING THE MODULE EFFECTIVELY

• The Module on the Conflict of Laws deals with subject-matters of enormous complexity.
The subject-matters require assiduous attention to be paid to the concepts, principles and

rules involved. These must be clearly understood in order to facilitate a meaningful and

sound analysis.

• If you are determined to overcome the intricacies of the Conflict of Laws, to master it,

and to aspire to high marks in your assignments and examination, then you need to heed

the advice of hard and fruitful work.

• Your Module must be studied in not more than seven (7) weeks as from the

commencement date of the semester during which semester the course: The Conflict of

Laws shall be offered as an Elective (optional} course- for 4 th year students only.

• Keeping in focus the limitation of seven (7) weeks, you are advised:

(1) To read through the Module: noting the concepts, principles, and rules of Law, in

particular that of the Conflict of Laws ...

(2) Having completed reading the entire Module: do some revision of the cases referred

Iv
 to. or set out in the Module: noting the ar2U111ents or reasons advanced by the courts
in the resolution of the matter between the parties.

(3) The reading of the Module must be supplemented or complemented by materials

from other relevant sources such as text books on the conflict of laws, Internet

sources relevant to the topic under examination, and other such materials.

(4) You should not ignore relevant statutes, Legislation and conventions (dealing with

the Conflict of Laws). These are indispensable.

• Any difficulties relating to the Module should be brought to the attention of the instructor

concerned for consideration and possible resolution (if any).

V
DEDICATION: TO PROFESSOR J.K.NGWISHA FOR HIS DEVOTION

TO THE ADVANCEMENT OF UNIVERSITY EDUCATION

AND THE ACHIEVEMENT

OF

EXCELLENCE

\
CONTENTS Page

Dedication

Preface i-ii

Acknowledgments m

Using the Module effectively iv-v

PART ONE 1-62

Introduction 1-62

Chapter one 2-8

Nature of the conflict of laws 2-8

Objectives 2

Key points 2-3

Revision questions 7-8

Chapter two 8-28

Procedure and choice of law rules 8-28

Objectives 8

Key points 8

Revision questions 27-28

Chapter three
29-43

29-43
Domicile

Objectives
29

29
Key points

43
Revision Questions

vii
Chapter four 44-55

Jurisdiction 44-55

ObjQct:iVQ!. 44

Key points 44

Revision questions 55

Chapter five 56·-62

Foreign judgments 56-62

Objectives 56

Key points 56

Revision questions 62

PARTTWO 63-76

The family and Children 63-76

Chapter six 64-69

Marriage 64-69

Objectives 64

Key points 64

Revision questions 68-69

Chapter seven 70-76

Children 70-76

Objectives 70

Key points 70

Revision questions 70

PART THREE
77-99

viii
Law of obligations 77-99

Chapter eight 78-82

Contracts 78-82

Objectives 78

Key points 78

Revision questions 82

Chapter nine 83-99

Property and succession 83-99

Objectives 83

Key points 83--84

Revision questions 99

Reading 100

Statutes( domestic) 100

Statutes (foreign) 100-101

International conventions 101

Table of cases 102-106

Index 107-109

·, )(..
 PART ONE ..

INTRODUCTION

~ r.

1
 CBAPTERONE

NATURE OF THE CONFLICT OF LAWS

OBJECTIVES

At the end of this chapter, you should be ~ble to

• Understand the accuracy or not, of the name Conflict of Laws (also called Private

International Law).

• Identify the foreign element in a case that comes before a court in Zambia or elsewhere in

the world.

• Recognise that the Conflict of Laws helps the courts to eliminate conflict between two or

more system of laws.

• Appreciate the justification for the application by a domestic court of the rules of a

foreign law to a case before it.

Key points

Conflict of Laws is that part of the Law of any country (e.g., Zambia, or England and

Wales) which becomes relevant for application whenever the court, of the country

concerned, is faced with a case involving one or more foreign elements.

The foreign element may be a Zambian citizen and is injured during a day-light robbery

in Pretoria, South Africa. Or it may be a business transaction concluded by a Zambian

citizen in Hong Kong with a business registered in Hong Kong, for the purchase of DEL

computers. Or it may be an immovable property situated in Virginia, USA, of a

Zambian citizen who died domiciled in Botswana.

2
 If disputes arise under the preceding situations, the court must, as a preliminary

measure~ consider issues pertaining to jurisdiction, choice of Law, and recognition ·and ·

enforcement of foreign judgments.

'IJ)~_paramountjustification for the application of a'foreign Law 'is to serve the interests
,, ·! ,;.\. ' .·
• ~ .~. .. '. !
,t: ••i·'I 1

of the parties to the case and achieve justice'.

CLARIFICATION

The study of the Conflict of Laws requires the student) or the general reader, that he/she has a

fair understanding of ilie meaning of what the Conflict -of Laws is aU about. The simplest

meaning of the phrase the Conflict of Laws is that it is the private law of country X concerning

cases that have a foreign element1• 'Foreign element' is intended to refer to a contact with some

system oflaw other than X's law. Such an issue will arise where the facts of the case occurred in

a country other than X or due to the fact that the parties involved in the case are not citizens of X

or do not enjoy the nationality of X.

'.
For the present purposes~ a hypothetical example will clarify what Conflict of Laws is. If S a
.
a contract of sale of maize with T who is also a citizen of X. by
. '

citizen of X concludes

naturalisation, and the contract is to be perfom1ed in X, there is no foreign element in iliis case.
tr 01:spme an.sc:s ociwccn ;:, ano -r, me mauer can oe oeau wn:n m accoroance wtm me aomesnc

laws of X and before a competent court in X. In this scenario one can say that there is no foreign

element.
1
Collier, J.G. {2004) Conflict of Laws, Cambridge: Cambridge University Press, p. 3.

3
The situation will radically be different if the contract is arrived at by R, a citizen of X and V a

citizen of Z. The performance of the contract is to be carried out in country W. In this case

whether the case is brought before the court of X, or Z, or W there is a foreign element.. In such

a case the conflict of laws is said to be 'relevant' .2 As Clarkson and Hill (2006, p. 3) observed:

The Conflict of Laws 'is concerned with cases in which the parties or other relevant is~mes are

connected with more than one country. Ditfe~nt countries have different Laws and there can be

a 'conflict' in the sense that more than one country might have jurisdiction and more than one

law can be applied.' The Conflict of Laws rules are supposed to eliminate these conflicts.

The preceding clarification must be noted to prevent any confusion as the student progresses in

the study of the topics contained in the module or other publications on the Conflict of Laws.

RELEVANCY

Academicians and commentators who have c..onsidered issues relating to Conflict o.f Laws have

different contentions. Some have questioned the relevancy of Conflict of Laws today.. Their

contention is that Conflict of Laws has lost its relevancy and must be abandoned.

2
Ibid, supra note 1, at p. 3.

4
At the other end of the spectrum. there are thinkers ~b.o continue to uphold the relevancy of

conflict of laws. These groups of thinkers have advanced a number of reasons as to why Conflict

of Laws is still relevant. Three of these reasons are set out below:

l. Their contention is that Conflict of Laws enables T, a citizen df country A, who makes a

contraet with D, a ddien of country B. which contract is to be p&fonned in country C, to

sue D in any of the countries, A, or B, or C. Without Coritl1ct of Laws rules none of the
..,
three countries will open the doors of their courts to T in his/her search for justice.

2. They also argue that in the absence of Conflict of Laws, injustice may be inflicted on

citizens and non-citizens alike. That is the application of domestic laws under

circumstances where domestic ·laws do not apply would result in injustice. An example

they advance to support their argument is in respect to the formalities of marriage.

3. Another reason given for the relevancy of Conflict of Laws is that it facilitates the

recognition or enforcement of a foreign judgment that settles the legal issues arising from

the contracted legal relations between the parties.

J.G. Collier after considering the preceding matters made the following proposition:

'These simple examples afford ample justification for the application of foreign

law in cases which possess a foreign element' .3

3
ibid, at p. 378

s
 COUNTRY

As far as the Conflict of Laws is concerned, if one is dealing with Zambia, any other country is a

foreign country. And the law of that country is a foreign law. For example, for the purpose of

the Conflict of Laws of Zambia, India, Pakistan, China, Egypt are foreign countries. The same

apply to Scotland, Northern Ireland, Maryland (in the USA), Texas (in the USA). They are

treated as countries although they are not independent sovereign states as Egypt is. Their laws

are treated as foreign laws for the purpose of the Conflict of Laws.

TERMS

Some technical tenns or expressions to remember include:

Lex actus: Law governing a transaction.

Lex causae: Law that applies to the case.

Lex domicilii: Law of the domicile.

Lex fori: Domestic Law of the forum.

Lex loci actus: Law of the place where a legal act takes place.

Lex loci contractus: Law of the place where a contract is made.

Lex loci solutio~ Law of the place where a cootract is to be performed.

Lex situs: 'Law of the place where a thing is situated.

6
It is noted that the rules of the Conflict of Laws involve legal concepts, categories, localising

elements or connecti."lg factors. In other words the conflict of laws commentators use these

concepts, etc. to express certain rules of the conflict of laws. For example in the rule that

succession to immovables is governed by the lex situs the sentence can be analysed as follows:

Succes~ion to immovables is category, and l©tS is the connecting factor.

REVISION QUESTIONS

1. What distinguishes private international law from public international law?

2. How would you differentiate between Ontario in Canada from Southern Province in

Zambia for fr1e purpose of the Conflict of Laws?

3. What is a capacity to marry?

4. Give one reason for the relevance of the Conflict of Laws?

5. What is the first issue to be resolved by the court in any conflict case?

6. List the other issues for resolution in any conflict case.

7. How does a court determine the applicable Law in any conflict case?

8. Explain the concept of Lex domicile as a connecting factor (for assistance re-.ad Chapter

Three).

9. wnat 1s meant oy 1ex wm ce,eorunoms,

7
10. What is the significance of lex situs doctrine in any conflict case involving real property?

(for details see Chapter Nine).

CHAPTER TWO

PROCEDURE AND CHOICE OF LAW RULES

OBJECTIVES

After studying this chapter, the student should be able to:

• Understand the rules of procedure in cases involving rules of the conflict of laws.

• Explain the rules that govern matters of procedure.

• Distinguish between substantive and procedural questions in cases involving rules of the

conflict of laws.

• Justify the rule that questions of evidence are procedural ones.

• Analyse issues relating to choice of law rules.

Key points

Contract: Where the parties have made a choice of Law in a contract, this has to be

upheld unless, where all the other relevant elements are connected with one country

only, that choice prejudices the application of that country's mandatory rules. Issues

relating to material validity are to be governed by the Law which would govern the

contract had this contract been validly created~

8
 There are four specific rules governing formal validity of a contract - to be noted.

The question of choice of Law in tort is to be determined on the basis'bf the type

of torts (e.g., negligence or assault).

PROCEDURE

Most writers on the Conflict of Laws seem to agree that matters of procedure are governed by

the lex fori. This entails that a court, say in Zambia, will apply to a case involving a foreign

element any rule of Zambian law which is treated as procedural.

(1) Statutes of Limitation

There are at least two types of statutes of limitation: One bars a plaintiff's remedy, the other

extinguishes that right. Under the Conflict of Laws, statutes that bar the plaintiffs remedy are

procedural, and statutes that extinguish his/her right are substantive.

But there may be special statutes of limitation that are substantive. A leading American

authority in support ofthis proposition is Davis v Mms, 194 U.S. 451 (1904).

It is observed that where the statutes of limitation of the lex for~ and the lex causae are both

procedural, one action wm fail if it is brought after the period of limitation of the lex fori, has

expired although that of the lex causae has not expired.

9
 •
(2) Evidence

Questions of evidence, e.g., what has to be proved, how it may be proved, and the sufficiency of

proof, are matters of procedure: Governed by the lex fori,(student should pay attention) to issues

relating to the existence of presumptions which may complicate the rules of evidence.

(3) Remedies

The nature of the plaintiffs remedy is a matter of procedure, as is the mode of trial, to be

determined by the lex fori.

Damages may be a matter of substance or a matter of procedure. Most critical is consideration

relating to the remoteness of damages. This is governed by the lex causae (substantive) measure

or quantification of damages is a question of procedure - the lex fori. In Chaplin v Boys (1969)

3 WLR 322, (1971) AC 356 (Ill,). The distinction would appear to be significant as it was

recognized by the House of Lords: ~Lord Hudson, at p. 332B, per Lord Guest, at p. 334E,

pg Lord Wilberforce, at p. 344 G-H. per .Lord Pearson, at p. 346F.

The rule that questions of remoteness of damage are substantive applies to actions in tort and

actions in contra.ct

(4) Parties and (5) Prforith::s (these matters are treated in any standard textbook on the Conflict of

Laws, the student should consult the relevant parts).

10
In the following case distinction is made between questions of procedure and questions of

substance:

D' Almeida Araujo Lda v Sir Freder,ck Becker & Co Ltd (1953] 2 AU ER 288

The facts of the case were that on 20 March 1947 the plaintiffs (a firm of merchants carrying on

business in Lisbon), agreed to sell to the defendants (an English company carrying on business as

merchants in the City of London) 500 tons of palm oil at 14.20 escudos a kilo fob Angora.

Payment ·.vas to be by way of credit established by 24 March. The proper law of the contract

was Portuguese. On the same date the plaintiffs contracted with Mourao for the purc:hase of 500

tons of palm oil, which was intended to fulfill their contract with the defendants. Payment was

to be by credit and opened by 24 March. The contract provided that in the event of breach the

party in default should pay to the other as indemnity for the damages an amount corresponding to

5 per cent of the total value of the contract. At the same time, the defendants had agreed to resell

the palm oil. However, the sub-purchasers failed to open the appropriate credit, which meant

that the defendants were unable to open the credit in favour of the plaintiffs. The plaintiffs were

ready to complete the sale up until 12 April. On 14 April the plaintiffs advertised the palm oil

for sale in a Lisbon newspaper against immediate opening credit, but were unable to sell it.

The failure of the defendants to <?v.en the credit meant that the plaintiffs were unable to open the
; '. '.

credit in favour ofMourao. Cons~quently, they were bound to pay an indemnity for breach. The

plaintiffs claimed damages fo~ tbe defendants' breach of contract under t\\lo heads: ( 1) loss of

profit which they would have made on the resale, and (2) the indemnity which they were obliged

to pay to Mourao for breach of contract.

11
Pilcher J:

'While it was common ground between the parties that the substantive contract between

them was governed by Portuguese law. the plaintiffs contended that the damages whi<:h

they were entitled to recover in the particular circumstance of the case were also to be

dete1mined in accordance with the principles of Portuguese law. The defendants, on the

contrary, submitted that even in a case where the substantive contract was governed by

foreign law, procedural or remedial questions, which included the question of damages,

ought to be determined according to the lex Jori, in this case, the law of England. Subject

to the question of the obligation of an innocent party to mitigate the damages, to which I

will refer in a moment, the question of the proper law to be applied in regard to the

damages in this case has importance, because the plaintiffs are seeking to recover from

the defendants the £3,500 as one head of damage - that being, of course, the sum which

they had to pay to Mourao for failing to carry out their contract with him.

The loss sustained by the plaintiffs in paying that sum was clearly not a loss which was

foreseeable by the defendants at the time when they negotiated this contract with the

plaintiffs, and it is clear that under English law this sum of £3,500 would be in·ecoverable

by the plaintiffs from the defendants. It was argued by Mr. Mocatta, on behalf of the

plaintiffs, that they would, under Portuguese law, have been entitled to include this sum

in their damages if damages were assessed on the principles of Portuguese law. While I

feel no certainty that the plaintiffs' right to recover damages in this case will tum out in

the end to be any different whether the principles of English or Portuguese law are

applied, it is none the less desirable that I should state my view on the point. ..

12
I was referred to a number of textbooks on the particular point whether in a foreign

contract which has to be determined by the lex loci contractus the issue of damages is~ in

the words of some of the textbook writers, 'a procedural or remedial matter' such as falls

to be determined in accordance widi the lex Jori, or whether, on the other hand, it is part

of the substantive contract between the parties and so to be determined in accordance

with the lex loci contractus. I propose to read certain passages from the textbooks,

because thel'e. is very little authority on this particular topic in English law. [Pilcher J.

proceeded to read passages in Cheshire's Private International Law ( 4th ed.) at pp. 659~

60] ...

That passage fr<>1n Professor Cheshire's book.seems to me to be very closely reasoned

and to offer considerable help in deciding this problem which is not an easy one. The

conclusion at which he arrives would seem to be that questions of remoteness of damage

should be governed by the proper law of the contract, whereas the quantification of

damage, which according to the proper law is not too remote, should be governed by the

lexfori.'

The student should note that in Harding v Wealand [:2005} 1 WLR 1539, the majority

held that a rule which places a restriction on the right to recover damages should be

regarded as a substantive rule. It was indicated that a rule should be classified as

procedural only if it governs and regulates the mode and conduct of the proceedings

(Clarkson, Ibid, p. 237).

13
 CHOICE OF LAW RULES

In conflict of laws. the choice of applicable law can be s'tated as follows (t\vo examples):
(1) Succession to immovable property is governed by the lex situs.

(2) Succession to movable property is governed by the law of, the last domicile of the

deceased.

In analysing the rules governing the choice of the applicable law, it is important to keep in focus

that, the statement that 'succession to immovables is governed by the lex situs' can be seen to fall

into two parts: (i) 'Succession to immovables' and (ii) 'situs'. The parts as in (i) are called

'operative factors' or 'legal categories'. The parts as in (ii) are called 'connecting factors'.
These connect the legal categories to the applicable law.

CONNECTING FACTORS

The connecting factor employed by the conflict of laws include: the personal law (domicile,

habitual residence -~ nationality); the place where the transaction takes place (place of celebration

of a marriage or place of contracting); place of performance (contract); the intention of the

parties; the situs (place where property is situated); and the place where the court is sitting

(forum).

The selection and the dete1mination of what a connecting factor is may not be an easy task. For

example, if both English and French law use domicile as a connecting factor, but by English Law

a person is domiciled in France and by French Law in England, it becomes problematic to

determine where this person is domiciled. But the English Law will decide that he or she is

domiciled in France. In Annesley, Re, Davidson v Anaesiey (1926) Ch 692 (Russell J) Mrs.

14
Sybil Annesley, a British national, had died domiciled in France (as seen by English law. Under

f'rench law she was domiciled in England). In her will she·--'·,;di$pos~d

.
of her movable property as
I
permitted by English law. But French law - the lex do1[4,,icilii, :- would have applied to the

distribution of her estate. \\,'hat law would the French court apply to the question? lt was held

the French courts would have applied French law to the distribution.

J.H,C. Morris had said that the connecting factor might be either constant or variable. EJ1:ampies

of constant connecting factors in the English conflict of laws include the situsof an immovable,
the place where a marriage is celebrated. a will executed ... , and the domicile of a corporation.

On the other, variable connecting factors includ.e the situs of a movable, domicile of an

individual, the flag of a ship, etc.

CHARACTERISATION

Characterisation is a fundamental question in the conflict of laws. It has generated a lot of

debates and created confusion among lawyers. Its definition has not been helpful. To

understand its nature writers have to use examples in order to explain what it is. For the present

purpose this work will proceed on the assumption that what is being characterised is a legal

question. This is considered the least controversial from, say taking characterisation as involving

a legal relation, or a legal claim or facts of the case. Because, as Collier obs~rvi~S, 'what the

choice'<:ff law rule points to is the legal rules of some system' .4 Collier added 'The facts ar.e

those data which enable the judge to formulate, ... , a legal issue which leads to the application of

a legal rule' .5

4
Collie~, ibid, ;,,..pret, .. t p. :LS.
5
Ibid.

15
Questions to be resolved

The question relating to characterisation can best be illustrated by the following examples which

can be found in mostStandard books on the Conflict of Laws. The example is adopted from

J.H.C. Morris's book on the Conflict of Laws (new edition is under a different editor):

A man takes a ticket in London for a railway journey from London to Glasgow. He is injured in

an accident in Scotland. Is his cause of action for breach of contract, in which case English law

will govern as the proper law of the contract, or for tort, in which case a combination of English

and Scottish law will apply? By which law, English or Scottish, is this question to be

answered?6 The preceding example shows that what is characterised is the nature of the cause of

action. In other cases the court may be characterising the relevant rule of a country 'X's law.

Writers and courts have tried to find solutions to the problem of characterisation. Some tried to

find solutions through .reliance on lex fi;>ri, while others sought a way out through the medium of

lexcausae.

Continental (Europe) writers7 thought that characterisation should be governed by the lex fori.

That is the forum should characterise rules of its own domestic law in accordance with that law,

and should characterise rules of Foreign law in accordance with their nearest analogy in the same

way (there is support in favour of this approach, there is also those who would argue against it ·-

this should be noted. English courts have adopted this practice. The cases Ogden v Ogden

6
Hork v North British Ry. (1873) 5 R. 1055.
7
Kahn, F. 'Gesetzkelten', in Jehrings Jahrbucher, Vol. 30 (1891) 1-143.

16
(19,()3) p. 46 (lex fori) and Buber v Steiner (1835) 2 Bing NC 202 can. be said to illustrate the
,·,1

practice of the English courts.

Lex Causae

Some continental writers would seem to contend that characterisation should be governed by the

lex causae, i.e., the appropriate foreign law. This view was adopted in dealing with Re

l\1aldonado (1954) P. 223 (lex cau.sae) (this case was criticised for being circular). Here the

Court of Appeal had to decide whether the Spanish Government's claim to the movables in

England of a Spanish intestate who died without next-of-kin was a right of succession or a ius

regale. The court held in favour of Spain arguing that the question should be decided in

accordance with Spanish law. The problem of characterisation must be treated seriously by

students studying the conflict of laws.

The way courts characterise cases having foreign elements can be illustrated by Cohn, Re {1945]

Ch 5. The facts of the case were that Mrs. Cohn and Mrs. Oppenheimer, who were mother and

daughter, were killed by the same explosion during a German air raid on London. lJnder Mrs.

Cohn's will if Mrs. Oppenheimer survived Mrs. Cohn, her estate was entitled to certain movable

property. It was not, however, possible to determine whether mother or daughter died first. Both

Mrs. Cohn and Mrs. Oppenheimer were German nationals domiciled in Germany. Essential

validity of a will of movables is governed by the law of the domicile, viz, German law. Article

20 of the BGB (the German Civil Code) provided that where it could not be proved which of a

number of dead persons survived each other, they were to be presumed to have died

simultaneously. On the other hand, S. 184 of the Law of Property Act 1925 (English) provides

17
that where the circumstances render it uncertain which persons died first, 'the younger shall be

deemed to have survived the elder'. Thus, if art. 20 applied Mrs. Oppenheimer's estate was not

entitled; but it was if S. 184 applied.

Uthwatt J:

'The law of the domicile, namely the law of Gennany. is alone relevant in determiining

the effe.ct of the testamentary dispositions of movables made by Mrs. Cohn, the basis on

which the movables are to be administered, and the facts which it is necessary to

ascertain to administer that estate. If, for instance) under the law of Germany, it was not

necessary for the efficacy of the disposition in her favour that Mrs. Oppenheimer should

survive Mrs. Cohn, but was only necessary that she should survive either Mr. or Mrs.

Cohn, no inquiry as to survivorship such as here being made would have been necessary.

The question of survivorship is, in fact, opened up by the provisions of German law as to

inheritance and is formally not: 'Did or did not Mrs. Oppenheimer survive Mrs. Cohn?'

but 'ls the administration of Mrs. Cohn's estate to proceed on the footing that Mrs .

Oppenheimer survived Mrs Cohn or on the footing that she did not?' The purpose to

which the inquiry as to survivorship is directed must be kept iri mind. The mode of

proving any fact bearing on survivorship is determined by the lex Jori. The effect of any

fact so proved is for the purpose in hand determined by the law of domicile. The fact

proved in this case is that it is impossible to say whether or not Mrs. Oppenheimer

survived Mrs. Cohn. Proof stops there. Section l 84 of the Law of Property Act 1925,

does not come into the picture at all. It is not part of the law of evidence of the lex fori,

for the section is not directed. to helping in the ascertainment of any ·fact but contains a

18
 rule of substantive law directing a certain presumption to be made in all cases affecting

the title to property. As a rule of substantive law the section is relevant where title 1s

governed by the law of England. It has no application where title is determined by the

law of any other country.'

RENVOI

In simple terms, renvoi arises where a rule of the conflict of laws of country X refers to the iaw

of Z, a foreign country, but the conflict rule of Z -· a foreign country -- would have referred the

question to the law of X or to the law of T (a third country). ·where a rule of the Conflict of

Laws of country X refers to the law of Z (a foreign country) and the matter ends there, this is an

instance of a simple remission (that is in the case of succession to movables) from the lex causae

to the lex Jori. Where the reference from the rule of the conflict of laws of X to that of Z then on

to that ofT, this is a more complicated case of transmission"

Partial or singl!; renvoi theory

Court of X might accept th~ reference back from country Z and apply the domestic law of X,

disregarding the fact $at ,the intestate was domiciled in Z. This method requires proof of Z

conflict rules relating to succession, hut not of Z's rules about renvoj_. This is not the current

doctrine of the English courts.

Total or double r~:voi

The court of S might decide the case in the same way as it would be decided by the court of T.

19
If the. court of T would refer to the law of S and would intemret that reference to mean S's
domestic law, then the court of S would apply S's domestfo law. If on the other hand the court of

T would refer to law of S and interpret that reference to mean S's conflict of laws arid would

'accept the renvoi' from law of Sand apply T's domestic law, then the court of S would apply

the domestic law of T. This method requires proof not only of the T's conflict rules relating to

succession, hut also of T's rules about renvoi. The cases of Re Annesley and Re Ross, set

below, explain how the above theory works in practice: Re Armesiey (1926) Ch. 692 (st~9 p.

13).

In Re, Ross v Waterfield (1930) 1 Ch. 377, Mrs. Janet Ross, a British national who had died

domiciled in Italy, had in will excluded her son from her movable estate in Italy in a manner

permitted by English law but not Italian law. Since she had died domiciled in Italy, Italian law

seemingly applied; but would the Italian courts apply Italian law or would their choice of law

rule direct the application of English law?

It was held that the settlement of the son as legitimo portio must .be decided in accordance with

the view that Italian courts would take of the English Law; and the Italian courts would in these

circumstances have applied English Law. Therefore, the wm was held valid (renvoi was not
'applied). In this respect, Luxmoore J. said, 'If the country of nationality applies the law which

the country of domicile would apply to such a case if arising in its courts, it may well apply its

own iaw to the subject - matter of dispute, being that which the country of domicile, would

apply, but not that part of it which would remit the matter to the law of domicile, which part

would have spent its operation. in the first remittance.'

20
Application of Renvoi

In respect of the renvoi, for example English courts, has beeri applied in the following:

• Formal validity of wills of movables: Collier v Rivas [1841] 2 Curt 855; Re Fu.Id [1968]

P. 675.

• Succession to movables on intestacy: Re O'Keefe [1940] Ch 124.

• Legitimation by subsequent marriage: Re Askew [1930] 2 Ch 259.

• Fortna:! validity of marriage: Taczanowska v Tachzanowska [1957] p. 301 (C.A.)

• Capacity to marry: Arias (1967) 2 QB 956.

By statute, renvoi plays no part in the law of contract: e.g. Amin Rasheed Shipping

Corpo'h\don v Kuwaiflnsurance Co. (1984] AC 50; or in cases involving tort. In this case, it

was argued (per Lord Diplock) that:

'One final comment upon what, under English conflict rules, is meant by the 'proper

law' of a contract may be appropriate. It is the substantive law of the country which the

parties have chosen as that by which their mutual legally enforceable rights are to be

ascertained, but excluding any renvoi, whether of remission or transmission, that the

courts of that country might themselves apply if the matter were litigated before them.
For example, if a co.ntract made in England were expressed to be governed by French

law, the English court would apply French substantive law to it notwithstanding that a

French court applying its own conflict rules might accept a renvoi to English law as the

lex loci contractus if the matter were litigated before it.'

21

'/
 ,·!,/;JJiliWKJ

Askew, Re [1930] 2Ch 259

• Validity of marriage and legitimacy of child.

Facts

By an English marriage settlement, it was provided that if John Bertram Askew (a British su~ject

then domiciled in England) should marry again he might, by deed or will, appoint his part for the

benefit of any child of a subsequent marriage. Askew separated from his wife, and acquired a

domicile of choice in Germany prior to a German court decree dissolving the marriage. A year

later he married Anna Askew in Berlin. However, before the divorce, a daughter named

Margaret Askew had been born to Anna Askew in Switzerland and she was acknowledged to be

the daughter of John Bertram Askew. In 1913, he purported to revoke part of the above-

mentioned trusts by deed poll for the benefit of Margaret Askew. The trustees of the settlement

took out a summons for the detennination of the question whether the power of appointment had

been validly exercised in favour of Margaret Askew by the deed poll of 1913.

Held

The German court would hold that according to German law Margaret Askew was legitimated by

the marriage of her parents notwithstanding the fact that her father at the time of her birth was

still married to a woman other than her mother. By reason of this legitimation Margaret Askew

became issue of the marriage between John Bertram Askew and Anna Askew.

The court argued that:

'There is no doubt that, if German local law were applicable, the subsequent marriage of

the parents of the defendant Margaret Askew would effect her legitimation . . . although

22
she was born before the divorce, which was not made absolute until 27 July 1911. The

trustees are naturally desirous of the protection of the co,urt in relation to the question

whether the power of appointment in question was validly exerdsed by the deed pol~ and

for this purpose it is necessary to determine whether the defendant~ Margaret Askew,

though born out of wedlock during the continuance of a previous marriage, is, having

regard to her father's domicile, legitimate ...

The question of legitimation of a child by the subsequent marriage of its parents in a

foreign country (apart from the provisions of the Legitimacy Act 1926, sl, subs7,, and s8)

appears at first sight to be well settled. Dicey (Rule 137, Case I, in his Conflict of Laws)

states the result of the decisions thus:

'If both the Jaw of the father's domicile at the time of the birth of the child and the

law of the father's domicile at the date of the subsequent marriage allow for

legitimatio per subsequens matrimonium, the child becomes or may become

legitimate on the marriage' of the parents.•

Now, John Bertram Askew was admittedly dorniciled in Germany both at the date of the
birth and at the date of the subsequent marriage. But what is the meaning of the phrase

'the law br the father's domicile'? Does it refer to the municipal law or local law of
Germany, or does it refer to the whole of the laws appliB~b·fo in Germany including the

views entertained in Germany as to the rules of private international law? There is no

doubt that Dicey means the latter (see his Interpretation of Terms, Definition IT); but in

23
 · my opinion it is very doubtful whether the courts who have dealt with the matter did not

, mean the fonner. The so-called doctrine of renvoi, which has been so much discussed by

jurists of recent years, had not been formulated in earlier days; and those who look at the

sta:iement of the foreign law in the earlier cases (see, for example Re Wright's Trusts and

Re 'Grove) will find that the foreign law as stated was the local or municipal law, and tllat

no evidence was adduced as to the rules of private international law applied in the foreign

country.

In an English court the lex domicilii in the wide sense mu.st prima facie apply, and, this

being a law which the English courts will recognize, the conclusion is that the defendant,

Margaret is a legitimate child of John Bertram Askew in our courts and that the power of

appointment was effectively exercised in her favour.

THE INCIDENTAL QUESTION

An incidental question, 'in the Conflict of Laws, is a subsidiary question which arises in the

course of deciding the actual question to be decided. For exmnple, what share D may get in the

estate of her deceased mother B may depend on whether D is legitimate or illegitimate, and this

hf turn may depend on the validity of her parent~s marriage. This question was considered in

Shaw v Gould [1868] LR 3 HL 55. Elizabeth Hickson had had property left to her lawfully

begotten children. Three of them were children she had with John Sh.aw. The question was

:whether those children were legitimate.

24
Elizabeth while domiciled in England married Buxton also domiciled in England. .She want¢ to

divorce Buxton and induced him for a pecuniary consideration to come to Scotl~p. .aq~ to. ~\{l.Y,
';,•.·,.,,,.,

there long enough for her to divorce him in Scotland. Such a divorce obtained. by,<;pllµi;ion .<

would not generally be considered by English courts. Despite this complication, Elizabeth

thereafter married in Scotland John Shaw a domiciled Scotsman and the three children were ,

born..

It was held that the collusion prevented th,e recognition of the Scottish djvorce; and until the first

marriage was dissolved there was no capacity to contract a second marriage; thus the children

were illegitimate.

For there to be an incidental question. there must be (i) a principal or main question governed by

English (Zambian) conflict rules (by the, Jaw of country A), (ii) a subsidiary or incidental

question in the same case, which could arise on its own and is governed by the law of country B.

(iii) the application of the law of A must produce a result different from that which would foHow

from the application of the law ofB.

The situation in (iii) does rarely arise. It did not arise in Shaw v Gould, since an the issues .

involved were governed by the same law. The three points mentioned above can be illustrated

by the following Canadian case, Schewebel v Ungar [1962} 41 DLR [2d} 622 [SCT Canadlll•

25
A and. B were Jews domiciled in Hungary. They obtained divorce en .route to Israel from

Hungary. Both arrived in Israel where B acquired a domicile. B then went to Ontario and th.ere

married C who was domiciled in Ontario.

Under Ontario conflict rules B had capacity to marry C since her capacity to marry was governed

by Israeli law at the time of the marriage. Israeli law recognised the Italian divorce, it regarded

her as a single woman. But by Ontario conflict rules that divorce was not recognised since at the

time it was·obt.ained the parties were still:domicile<ii jn:Hungary, whose court had not granted it

. and did not recognise. As far as the Ontario court was concerned, B was still married tp A, and
C who was domiciled in Ontario, had no capacity to marry her (B). The court, appiyi11g Israel

law and ignoring Ontario law, which governed the subsidiary issue, held the marriage valid.

The rules governing incident.al question should not mechanically be applied. The court should

. take into account the welfare or interests of all the parties to the litigation.

PROOF OF FOREIGN LAW

Status

In an action before a domestic court (in e.g, England, Zambia or Kenya), a party who relies on

the rules of a foreign system of law must plea<i Ju1cLproye them. In exceptional situations, the

courts will not take judicial notice of the rules of foreign law.

Me.thod of proof

26
An expert giving evidence in favour of a foreign law, can do so orally or by means of an

affidavit. An e~pert should be a judge or '\airyer qualified to practice in the relevant foreign
country.

Duty of Court

If an expert's evidence is not challenged or if the experts are agreed, the judge cannot rejec..t the
evidence and form his/her own opinion from his/her own researches. If the witness is less

reliable, or the evidence is preposterous, this may be rejected. Where textbook of a foreign case

is put in evidence the court can only examine the parts put in evidence.

REVISION QUESTIONS

1. What is a foreign element in respect to the Conflict of Law?

2. Distinguish private from public international law.

3. What is the difference between New Jersey (in the USA) and North~East Province of

Kenya as regards to rules of the Conflict of Laws?

4. What is Lex Jori?

5. Define a connecting factor, cite 1'.vo cases to illustrate your definition,

6. What is the significance of the case R v Breadwood Superintendent Registrar of

Marriages, e:x. parte Arios (1968) .2 QB 956?

7. What is the implication in Law of the proposition that recognition of a judgment is

manifestly contrary to domestic public policy?

8. What is the status of a judgment given in 'default of appearance'?

27
 Ii&,

9. , Does a mere fo:nnal irregularity in the service procedure affect the recognition or

enforcement of a judgment?

10. Does the award of damages for non-pecuniary Losses a matter of substance or procedure?

CHAPTER TH.REE

28
 DOMICILE

OBJECTIVES

By the end of this chapter, the student should be able to:

• Describe a domicile of origin, domicile of choice and domicile of dependant persons.

• Explain the difficulty relating to principle of the revival of domicile of origin.

• Justify the requirement regarding the coincidence of intention and residence in the

acquisition of a new domicile.

• Analyse the complication that may arise in respect of the domicile of illegitimate child

(son ofX).

Jwpgipts l!
·' .
Abla Mayss (Principles of Conflict of Laws, 1996) observes 'The concept of domicile determines I
I

!
an individual's personal Law' and that Laws is the law fo the country to which a person primarily !\

belongs.

··'A domicile of origin', contends Mayss, is the domicile a person acquires at birth. It remains with

him or her until it is replaced by either a domicile of dependency or choice.

A domicile of choice is acquired by an individual residing in a country~ other than the country of

his or her origin, with the intention of remaining there permanently. A domicile of origin endures

until,a domicile of choice is acquired. It revives once a domicile of choice is abandoned. A

domicile of choice will be abandoned when a person departs from a country and the intention to

return has withered away.

_..,.. ,..,..l

29
 , ·;;;,~I,~~~¼'Yfft

INTRODUCTION

It is difficult to define domicile. Because the law assumes that homeless persons or lunatics have

domicile. As for the law, there are three kinds of domicile: (jomicile of,origin: a domicile
,, •"'

assigned to a child when he/she in born. Domicile of choice: a domicile which any independent

person can acquire for herself or himself by a combination of residence and intention. Domicile

of dependancy: domicile of dependant persons (e.g., married women, infant, etc). This changes

with the domicile of someone else, e.g., the parent of an infant, or the husband of a married

woman.

LEGAL DEFINITION

The objective of the law to determine a person's domicile is to establish his or her link wiith some

legal system for a number of legal reasons. This is done by fixing a person's domicile in some

'country' in the sense of the Conflict of Laws.

The preceding proposition suggests that;

(i) Every person must have a domicile - of origin or choice, or depe11dence. Long ago Lord

Westbury eloquently clarified this matter when he said, 'it is a settled principle that no

men shall be without a domicile ... This has been called the domicile of origin, and is

involuntary' 8

. In.Udny v Udny, the issue was whether a subsequent marriage of the parents could legitimate a

son who was bom out of wedlock in Scotland where Col. Udny had his domicile of origin.

. .· Scottish law recognised legitimation by subsequent marriage under certain conditions, but not

English Law before 1926.

8
Udny v Udny (1869) LR 1 Sc & Div 441, at p. 457.

30
Col. Udny lived in London for 32 years and had probably acquired a domicile of choice in

England. He left London for France where he lived for some time, occasionally travelling to

Scotland and England. During this period he met Miss Ann Allatt and fathered a son; he later

married Miss Allatt in Scotland. If he was domiciled in Scotland during these events, the son

was iegitimate; but if he was domiciled in England the son was illegitimate.

It washeld that even if he•had acquired a domicile of choice in England, he had discarded this

whert he left London and moved to France.. Thus his domicile of origin in Scotland revived. He
was domiciled in Scotland during these events and the son was legitimate by subsequent

marriage of the parents.

A domicile of origin can only be lost by the acquisition of a do.m.icile of~hoice. This principle is

stated in Bell v Kennedy'.

Mr. Bell was born in Jamaica. His parents were also domiciled there, but of Scottish origin. At

35 he left Jamaica for good and went to Scotland. He was unsettled by the bad weather in

Scotland and became undecided as to where to settle: Scotland, England or South of France. At

this point his wife, whose domicile depended upon him, died. The issue to be resolved was the

domicile of Bell on the date of his wife's death. It was held that Bell was domiciled in Jamaica.

That is domicile of origin cannot be lost by abandonment.

9
(1868) LR.I. Sc & Div 307.

31
In America the rule is that the domicile of choice continues until a new one is acquired. This can

be illustrate9 by the,9aSe.Re Jones Estate, 192 Iowa 78,182 N.W. 227 (1921).

(ii) No person can at the same time have more than one domicile at any rate for the same

purpose. Thi~.issue is dealt with in Ge.ithweite v Geithweite (1964) P. 356.

(iii) Another prin<.;iple related to the principle in Re Jones, but in respect of burden of proof,

is that an existing domicile is presumed to continue until it is proved that a new domicile

has been acquired.. Therefore, the burden of prooflies on those who ~sert a change of

domicile: . Winans v Attorney General .(1904) AC 287; Ramsay v Liverpool Royal

lnf'D'mary (1930) AC 588.

ACQUISITION AND LOSS OF DOMICILE OF CHOICE

Any person who is by law recognised as incl~pendent can acquire a domicile of choice by the

combination of residence and the intention of permanent or indefinite residence. Anythi11g less

than that will not suffice. Those two factors must be shown to coincide for the purported change

to be recognised by any court before which such an issue may be raised.

In Ramsay v Liverpool Royal Infirmary: George Bowie died in Liverpool in 1927 with a

Scottish domicile of origin. He had lived the latter part of his life in Liverpool. He left a will

which was valid by the law of Scotland but was not valid by the law of England. The action was

brought by the residuary legatees under the wpl, against the testator's sole next of kin., for a

declaration that the testator's domicile at the date of his death was Scottish.

32
 ~,':

The House of Lords affinned both the Scottish Courts below that George Bowie died domiciled

in Scotland. The decision of the House of Lords would appear to have been based on the lack of

intention on the part of George Bowie to change his domicile. One of the Law Lords described

the life of Bowie in Liverpool as 'colourless'.

The issue is considered. in Collier v Rivaz (1841) 2 Curt 855. The facts of the case were that

the testator, Phillip Ryan, died domiciled in Belgium. He left behind him two nieces, Mary Ryan

and Mrs. Langebear, a widow, who would have been entitled to his personal est.ate in case he had

died intestate. He left property to the amount of about £20,000. In September 1824 he executed

.a will, of which he ap~inted Mr.VF Rivaz, Mary Ryan and AH Rivaz executors, and his niece

Mary Ryan residuary legatee. He also left behind him six codicils, four of which were opposed

on the ground that they were not executed according to the forms of the law of Belgium, in

which country it was contended that the deceased was domiciled at the time of hils death. The

main question before the court was whether or not Mr. Ryan, the testator, was domiciled in

Belgium.

Sir Herbert Jenner:

'He was born at ClonmeU in Ireland; in 1762 he entered into the British Navy, in which

he continued to serve until 1780. In 1776 he married at Rochester, and his wife died

about 1802. The deceased was engaged in business as a dealer in foreign cambricks, and,

in consequence of that business, was frequently in the habit of resorting to· different

places on the Continent for the purposes of that trade, but his principal residence was in

this country, where he had a house In Warren Street, Fitzroy Square) which he sold in

33
1802. There.could th~ be.no doubt that up to this time he had abandoned ·his. original

Irish domicile, and had acquired one in England. In 1802 he went to Brussels for the

purpose of residing there, as is stated by him in a codicil before the Court, dated the 24th

of September 1825; in 1803, the war between England and France being renewed, the

deceased was detained as a prisoner; in 1814 he came to England, and remained here for

,a few. months; he afterwards returned to Brussels, and continued to reside there until his

death, with occasional excursions on matters of business or pleasure. ·It also appears that

in early life he had adopted his niece, Mary Ryan, and she went to live with him at

Brussels, and continued to reside with him until his death.

I cannot think it necessary to go at any length into the facts of the case, because they are

all admitted; there is no dispute as to them; the only question is as to the result of them. ·
Now, I cannot but think that all the facts, with respect to the abandonment of 1the old

domicile and the acquisition of a new one, indicate not only an intention to reside at

Brussels~ and make that place his home, but that the fact and intention concur together;

which is all that is necessary to constitute a domicile.

Length ofth:he·will not alone do it, intention alone will not do, but the two taken together

do constitute a change of domicile. No particular time is required, but when the two

circumstances of actual residence and intentional residence concur, there it is, that a

change of domicile is effected. In this case I can have no doubt, from the facts, that this

was the deceased's selected place of domicile; though from 1803 to 1814 it was a forced

residence, yet :from that time, 1814, he became habituated to the manners of Brussels and

34
 the inhabitants of Brussels, and preferred to make his continental residence in that place

to a return to his original domicile. I am, therefore, of opinion, under the whole

circumstances of the case, that the testator must be considered to have been domiciled at

Brussels at the time of his death.'

Furse (dec4), Re, Furse v IRC [1980] 3 All ER 838

• Effect of a vague and ind,efinite contingency on an individual's intention to reside in a

state.

Facts

The testator was born in Rhode Island with a domicile of origin in Rhode Island in 1883. While

still a young child, however, he was brought to England by his father where he was educated and

where he remained until he took up employment in New York at the age of 24 (in 1907). He

married and remained in New York until 1923, save for a period of war service in the British

Anny during the First World War. J.n 1923 he moved with his wife to England and bought a

farm here. Although he and his wife considered returning to New York or buying a farm

elsewhere in the United States from time to time during the l 940s and 1950s, the testator then

decided not to return to the United States as long as he was capable of leading an active life on

the farm. When he died the liability .of his estate for estate duty depended upon whether he died

domiciled in New York or England.

Held

35
 '' ,:,,;,X11J,p1£ L: :i;')>, &i~iki, T '.<

That the testator's intention to remain in England unless he was incapable of leadipg an active

life on the farm, was an intention to remain in England save• on a vague and indefinite

contingency; thus he had acquired a domicile of choice in England before his death.

The court said that:

In Inland Revenue Commissioner v Bullock [1976] l WLR 1178 ,.both the requiremen\s

referred to by Buckley L J were s~tisfied. The contingency was a whoUy clear and well-defined

contingency, namely whether the propositus survived his wife; and there was a substantial

possibility that the contingency might occur, having regard to the respective ages of the

propositus and his wife.

The present case, it seems to me, is very different. The fundamental difference in outlook

between Group Captain Bullock and the testator was that, while Group Captain Bullock had

every wish to leave England, the testator was entirely happy here.

Counsel for the plaintiff says that there are two possible ways of interpreting the testator's

expressed intention. First, he wanted to remain in England to the end of his days unles~ his

physical decline was such as to prevent him going on with his usual life at West Hoathly.

Second, he did not want to remain here to the end of his days. He wanted to return to the United

States but, nevertheless, felt that, while he had a farm and staff and could manage, he should

continue to discharge his responsibilities as a farmer.

36
 ,,

The latter, counsel for the plaintiff submits, is correct. It is not from the manner in which he

expressed his intentions, the testator's hope was that he could go on living his accustomed and
.
very pleasant life at West Hoathly to the end of his days. It was his good fortune to achieve that.

The only circumstance on the happening of which he expressed any intention of leaving England

was if he was no longer able to live an active. physical life on the farm. Apart from that, he

intended to remain in England, all his life.

But that contingency is altogether indefinite. It has no precision at all. A man's idea of an active

physical life is likely to contract with the years. At the age of 80, after 40 yea.rs in England, the

testator was still living at West Hoathly and, although be had been m, he had no firm plans at all

for leaving England. ·

The testator's expressed intention, it seems to me, depended entirely on his own assessment of
whether an ill-defined event had occurred. It really amounted to no more than saying, 'l will

leave England when l feel I want to leave England'. That is substantially the same as Buckley

L.J's example of the man who says he wm leave 'when I've had enough of it'.

In a s1gnificant piece of evidence Mr Besemer said that the testator always wat1ted to stay in

England a bit longer. That, I th~ is only a variant of James L.J's example of the man who

expects to reach the horizon. At tl)e end be finds himself no nearer.

If one loo~ at the other limb of Buckley L.J's :fonnula.tion, namely, 'is then~ a sufficiently

substantial possibility of the contingency happening to justify regarding the intend on to return as

37
a real determination to d.o so on the contingency occurring rather than a vague hope or

aspiration', that does not arise unless the court concludes that the contingency itself is

sufficiently clear to be identified. But it seems to me th.at the vagueness of the notion, coupled

with the fact that the testator's mode of life was.wholly congenial to him, is such that one must

be left in the greatest doubt whether, in the end, it had any reality in the testator's mind at all.

The possibility of leaving West Hoathly was not, indeed, even a hope or an aspiration'.. His

outlook, was something that the testator cannot have wished for.

Having regard to·the way in which the.testator expressed his intentions, one cannot conclude.that

there was a substantial possibility of the contingency happening. One does nor really know with

any certainty what the contingency was. The testator himself was the only interpreter.

In Re Fuld (deceased) (No. 3) (1968] P 675 at 684-685 Scannan J, after referring to the nee4 in

establishing the existence of a domicile of choice to show that the propositus intended to reside

indefinitely in the country in question, said:

If a man intends to return to the land of his birth upon a clearly foreseen and reasonably

anticipated contingency, e.g., the end of his job, the intention required by law is lacking;

but, if he has in mind only a vague possibility, such. as making a fortune (a modern

example might be winning a football pool) or some sentiment about dying in the )~d of

his fathers, such a state of mind is consistent with the intention required by law'.

38
The testator cannot be described as having in mind any 'clearly foreseen contingency. The

contingency which he expressed was vague and permitted of almost infinite adjustment to meet

his own wishes.

It is said on behalf of the plaintiff that the testator's intention was simply to return to the United

States on his retirement from fanning. The case is thus similar to a man returning to his native

country at the end of his job. That is unreal. Farming was not really the testator's job; rather it

was an agreeable adjunct to his mode of life. He was not employed by anybody and there was a

manager to run the farm. His intention was not expressed in terms of retirement from farming,

but of having to give up an active physical life which he enjoyed.

The examination of the nature of the contingency on which a propositus expresses an intention to

leave his place of residence is, of course, only an aid in ascertaining intention. One cannot,

apply tests of certainty too mechanically or in too refined a way. The question in the end is

whether, on the balance of probabilities~ the testatm· intended to end his days here ....

It seems to me that the intention of the testator was indeed to continue to reside in England for an

unlimited period. His intention was to continue to !:ive here for the rest of his li:fo, save on the

contingency which he expressed. That contingency is so vague that it cannot be regarded as

imposing any clear limitation on the period of bis residence. He was not ever prepared to face up

· to such a limitation. The contingency is of the sort which Simon P in Qureshi,,. Qureshi [1971)

1 All ER 325 at 340, [1972] Fam 173 at 193 described as 'open~ended'. One comes back at the

39
 ,,, ,,i!Hs,''i:'''i"'J:'t/,@;~S'.'':Nfh

last, it s1eems to me, to the fact that the testator was determined to live in England for a quite

unlimited pedod....

The authc irities emphasise, of course, that a man cannot acquire a domicile of choice in a country

if 'his intt intion i~; merely to reside there for a limited time, or for some temporary or special

purpose (f :ee, for e:iw.mple, Inland Revenue Commissioners v Bullock [1976) 3 All ;ER 353,

[1976) 1 ,; VLR 1178 at H84). The testator's residence in England cannot, by the, time of his

death, be d,es~·~ribed as for some temporary or special purpose. Nor, for the reasons given, was it

for a limited tin.,e. ·•By domicile', sai1 Lord Cranworth in Whicker v Hume (1858) 7 BL Cas

124 at 160, [1843' ,,,_;QJ AU. l'.R Rep ,tt50 at -i58, "we mean home, the permanent home''. When

the testator died in his 8I st year, still in fa:.·gland and still with no arrangements made for leaving

· England, one could not re,~.Hstically regard b,\s p;~\rmanent home· as other than in England. He

intended to live out his day.:,' h,e.re, sa•ve on a' ctmtingency so vaguely expressed, against the

history of his life, it could not be te~ird.t~d for pract/c:al p11.nposes as limiting that intention.

In the circumstances the testator died dm. ,foik:d in England.

D01\!HCILE OF ~,iEF1i1~NDEN(:y
. that th,e d:om1ctle
The general rule 1s . . . of chmce
. o fd e1, ·~ndeni· p1ersons changes ..'i,•,• 1•·. domicile of
E,.n t··,1.~

• any) on whom he/she is

the person (tf . .egw1y
• .• n depen.,~t (se~
, .
except1ons ,.v-egai, -ding
· married

women, lunatics and infants). It is observed that the dom ~,iJe 1. ,f a cc\,1:1orm:ion is it:. , place of

incorporation. It cannot change tha:t domicile.

40
Seu/lard, Re [1956} 3 Al 1 ER 898

• Effect of husband's death on a ·wife's ability to acquire a domicile of choice.

Facts

The testatrix married in 1893. In 1908 she left her husband and never returned to him. In 1947

she went to Guernsey and expressed the intention of spending the rest of her days there. AU her

possession were moved there. She died in March 1955, in hospital in Guemsey. The testatrix's

husband, who died some six weeks before her, had an English domicile up to the date of his

death, and in the interval between his death and hers the testatrix had been too m to evince any
intention in respect of her domicile. The question arose as to the domicile of the testatrix.

Held

In the circumstances, the testatrix had an intention to acquire a d.omicile of choice in Guernsey,

and that intention was effective in law.

It argued that:

'The difficulty arises in this way. So long as she was married to her husband, even

though she was separated from him as completely as possible short of judicial separation,

she could not form an effective intention to change her domicHe from that of her

husband.'

It is argued, by Mr Dillon, on behalf of the defendant who wishes to e8tablish that the

testatrlx's domicile was English, that as she did not express any intention during the short

41
 ,,: ·)'•~'•iH>'i'ii\rg0,t'.~1i\sJi1;,t,s&12/4w;i<,:;:%},,~v:,fiifiu£1~iiRVifrl

period after her husband's death she could not have acquired a domicile in Guernsey,

and, therefore, her domicile remains that of her husband, namely, in England.

The whole matter, to some extent, is rather unreal, because, generally speaking, the

question of domicile in its legal effects is not present to the mind of women in that

position. AU that they are thinking about is where they are· going to spend the rest of

their days, and where their permanent home is going to be.

In the present case the evidence is really stronger in some respects - though it is

supported by· a rather unsatisfactory affidavit - in this way: there are perfectly good

reasons of a legal nature why the wife may have been advised in the present case to

change her domicile deliberately from England to Guernsey because of the effect it might

have with regard to death duty on her death; In those circumstance it cannot be seen why

an intention which, as found on the evidence, the wife was plainly shown to have in her

mind during her lifetime - namely, to make her permanent home in Guernsey - but which

cannot be effective in law until her husband was dead, should not be effective in law in

accordance with her intention when she survives him. The conclusion in the present case

is that the intention which the testatrix had in fact fonned·during her lifetime was only

prevented by a rule of law relating to the domicile of a wife from being effective in law;

and there is no reason why it should not be assumed that her intention continued after the

death of her husband, and why one should come to the conclusion that some new overt

act was required when all previous evidence is consistent with there having been no

different intention during her life. Accordingly, in the present case the conclusion is that

42
 the testatrix had an intention to acquire a domicile of choice in Guernsey and that the

intention was effective in law'.

REVISION QUESTIONS

1. List all (if possible) types of domicile. Describe one of them.

2. What is a domicile of dependence?

3. How is domicile of choice acquired or lost?

4. Can a married woman change her domicile under Canadian Law? Zambian Law?

5. What is the reason that a lunatic cannot change her/his domicile?

6. What are the differences in the decision of the courts in Re Jone's Estates (1921) and

Ben v Kennedy (1868)?

7. Is it legally permissible for a person to have two domiciles at the same time?

8. What is meant by classification of domicile by the lex Jori?

9. What is the basis of the attribution of the domicile of origin?

10. Can the domicile of origin totally be lost?

43
 CHAPTER FOUR

JURISDICTION

OBJECTIVES

After careful consideration of the materials of this chapter the student should be able to:

• Define jurisdiction in cases involving the rules of the cont1ict of laws.

• Describe what an action in personam is when a foreign element is present in such a case.

• Explain why foreign sovereign states, diplomats and international organisations and their

staffs cannot sue or be sued in a domestic court, without an express waiver from the state

or organisation concerned.

• Analyse the concept of presence in the jurisdiction in respect of individuals and

companies where a case arises which possesses a foreign element.

Key points

As a general basis of jurisdiction, the primary criterion is the domicile of the defendant. \

W11ere the provisions of a convention or other instruments define alternative bases of \

l
I1
jurisdiction, in cases involving contract, torts, etc, the plaintiff is given a choice, to bring his or

her action either in the courts where the defendant is domiciled or in the court..-; of a party to the

convention or instrument. l
In cases involving Lis glibl pendens. the courts first seised of the action have priority over the l
!
l
auestion of jurisdiction. \

1.-.----------------------------J
44
 INTRODUCTION

A· number of countries restrict access to their courts, such that not ·everyone can be a plaintiff or a

defendant before their courts because he or she is of foreign nationality. B·ut other countries,

e.g., England, Switzerland, do not impose any restrictions, only under exceptional circumstances.

Nobody, e.g., in England is prevented from being a party to litigation because he or she happens

to be an alien.

But in certain cases, such as action in :pe.rsonam. presence in the jurisdiction is required.

It is observed that an alien enemy cannot sue. Foreign sovereigns, and sovereign states qannot

su,f:and cannot be sued. Foreign diplomats, and international organisations and theµ· £taffs

carinofsue and cannot be sued, unless, for these four groups, there is a waiver.

MEANING

"Jurisdiction" describes the competence of the courts to hear and decide a case. A court may

have jurisdiction on (1) actions inprt;rsonam, or (2) actions in rem. Under (1) actions are brought

in order to compel a defendant to do or to refrain from doing something or to pay damages. One

of the requirements under ( 1) is that the defendant must be present in the jurisdiction. In actions

under (2) the court is dealing with actions brought against ships and aircraft and the ship or

aircraft must be present in the jurisdiction.

In cases involving divorce or nullity of marriage, jurisdiction is defined by the relevant statute, or

other legislation.
...
45
 ACTIONS JNPER.SON.tq,1

In actions in12ersonam, jurisdiction will exist if the defendant is present in the jurisdiction or (2)

where the defendant submits to the jurisdiction, or (3) where the court allows the defendant to .be

served with a claim form.

(1) Pre.-sence

Where the defendant is in the jurisdiction at the time he/she is served with a claim form or other

similar document, the court is said to have jurisdiction.

It is immaterial that the defendant is only within the Jurisdiction as a casual traveller or for ~ few

hours or minutes. But his/her presence within jurisdiction should not have been secured by tric~

or kidnapping. The preceding points were discussed in Mabaranee of Baroda v Wildenst~in

(1972) 2 QB 283 CA and Colt Industries v Sarlie (No. 1) (1966) 1 WLR 440.

In Colt Industries v Sadie (No. 1)

A New York company got a Judgment in New York against a French.man and sought to er:1force

it in England. Process was served on him at a London hotel where he was ::-.iaying for one ni:Sht ..

It was clear the court had jurisdiction over him.

(2) Submission

This may arise in three different ways:

(a) The defendant accepts service of process (service must be by a solicitor).

'i'.i\\i; 46
(1~1\i,
,.,.,,.i/',,
:,J'-1,

''/
(b) The defendg.nt plewi~ to the mP..rit, e g., b;y dis:puting liability for breach of contract. she or

he thereby submits. But this does not apply where she or he argues that the court has no
jurisdiction over him if he prays for stay of action, this will imply submission (The

Missioniki [1984] 1 LI.R. 266).

(c) The defendant contracts to submit, or the court may exercise its discretion to permit

service (Menta Lines Inc. v Sofian.ites (1984] Ll.R. 14).

A claimant who is abroad sues a defendant who is in the jurisdiction. Jurisdiction will be

exercised in respect of a counterclaim by the defendant arising out of a matter rel~¢ to

the claim.

(3) Companies

As regards the service of process of the court upon a company, the provisions. of tlie ·col'!lpanies

act of the concerned country are of greater significance (in Zambia the Companies Act, Cap 388

of the Laws of Zambia, and the English Companies Act 1985). There are specific rules in both

Acts regarding the registration or incorporation of companies in Zambia and England

respectively (see Dunlop Pnuematic Tyre Co. Ltd\·'A!d\~~udeil & Co. [19021 1 KB 342;

South India Shipping Co. v Export"'lmport Bank of Kowi' [J.985) 1 WLR 585, Sa.ab v Sa'udi

American Bank [1999) 1 WLR 1861; Boocock v HUter-International Co. [1993) '1 WLR

1063).

STAYING OF ACTIONS AND RESTRAINT OF FOREIGN PROCEEDINGS

In a number of countries, powers of courts to stay actions and to restrain foreign proceedings are

contained in various acts of parliament

47
 ;' ,1~;;;,;;;;;zil@t

STAYING OF ACTIONS
(1) Basic Principles

A court may stay an action (e.g., in England), or to enjoin an action abroad, (i) if the same

claimant (plaintiff) sues the same defendant in England and abroad, and (ii) where the claimant

(in En~f,Uld) is defendant abroad, or vice-versa.

In order to justify a stay, the defendant must show that there is in fact vexation and oppression

(St. Pierre v South American Stores Ltd (1936) 1 KB 382; Ionian Bagk Ltd v Oouvreur

(1969) 1 WLR 781). A stay will be granted if the court is satisfied that the claimant is not forum
, ( . ._;',.:·, . '

shopping (see statement of Lord Deririing MR in The Atlantic Star (1973) QB 364 at 382 CA).
. ·. !·,

St. Pierre test is very important - must be noted.

: •'

(2) Foreign Jurisdiction Cla~

' '

In businesses of international status,' the parties to the court may include a clause providing that

all disputes between them arising out of the contract shall be referred to the exclusive jurisdiction

of a foreign court In such a case the court wlU stay proceedings brought, in the domestic court,
in breach of such agreement (Lalo v Garret [1878] 8 Ch. D. 26; The Eleftheria [1970} P, 94;

Mackender v Feldia [1967] 2 QB 590, 598 C.A. Whether the clause is valid, Evans lVIarsbaU

& CO. Ltd v.:Pertola S.A. [1973) 1 WLR 349: Whether the clause is exclusive).

48
 An exclusive jurisdiction clause operates so as to exclude the jurisdiction of all courts except the

·. chosen courts, which alone are intended to have jurisdiction. A non-exclusive jurisdiction clause

is designed to confer jurisdiction upon courts which might not otherwise possess it.

The principles to be applied and the factors to be taken into acctiunt when staying proceedings

were stated by Brandon l in Eleftheria (Supra) (this case must be read, as it was approved in

several subsequent cases, e.g., Th~ EL Amria (198:2) 2 LI R 119 CA; The Sennar (1985) 1

MLR 490 at 500, per Lord Brandon of Oakbrook).

~ .: "
The burden is on the claimant, and not, as in't;ases oflis alibi pendens, on the defendant. Here

the court stays action because it wants to make people abide by their contracts. In exercising its

jurisdiction whether or not to grant a stay (on the basis of foreign. .Jurisdiction clause) the

following guidelines must be considered (see Eleftheria):

(i) In which country the evidence is available and its relevance in respect of convenience and

expense?

(ii) Is contract governed by the law of the foreign country. which law is different from the

Law of Zambia, or Ertgland?

(iii) · With what country:either party is connected, or closely connected?

(iv) Whether the defendants genuinely desire trial in the foreign country. or are they seeking

procedural advantages.

(v) Whether the claimant would be prejudiced by having to sue in the foreign court P,eeause

they would be deprived of security for their claim.

49
(3) G..uidelines cst,.y of actions>

Guidelines for judges in exercising their discretion in staying actions (Spiliade Maritime

Corporation v Consulex Ltd [1987] AC 40 HL):

(a) A .~tay shO\.tld be granted if the court is satisfied that there is another court having

competent jurisdiction (see Lube v Cape Pie (2000) 1 WLR 1545 at 1561, 1566 HL).

(b) The burden lies on the defendant to persuade the court to exercise its.discretion to stay

the action.

(c) The defendant must show that a distinctly more appropriate forum exists (The Atlantic

Star). ;fhe court must look for factors which point to another forum (The Abidin. Dower

[1984} AC 398).

(d) If an appropriate forum does not exist, the stay should not be granted .. ,

(e) Where there is a prima facie more appropriate forum to a stay this will be granted.

(4) Arbitration Clause

Arbitration clauses are intended to remove any dispute from the courts and instead to have the

issue decided by arbitration. By a statute, a court must stay any action and remit the parties to

•·arbitration within the domestic legal order or abroad, where a valid arbitration agreement exists.
. '';

Piercy, Re, Whitwham v Piercyf1895] 1 Ch 83

• Once land is sold, then the proceeds of the sale are movables.

50
Facts

Here a testator domiciled in England left land in Sardinia (where Italian law applied) to trustees

upon trust for sale and conversion and to hold the land before conversion on certain trusts for his
children and their issue. Italian law, the applicable lex situs of the land, out~lawed such 'trust

substitutions• and would hold the children absolutely entitled. If the land be\d on tru.st for sale

could be treated as a moveable, however, then English law could be applied as lex domicilii.

Heid

Whether the trustees or the children were the heirs of the land under Italian law, the direction in

the will that the land be sold was valid under Italian law. Once sold, however, the proceeds of

the sale then movables, and should be held under the trusts declared in the will. Prior to the sale,

the rents of the bmd would go to the children, but they could elect that the rents be applied as if

they were income resulting from the proceeds of the sale.

1,

The argument ofthe court:

'The question is, What is the position of matters as regards the real estate in Sardinia? It

is not necessary for the court to decide the question whether, under Italian law, the

trustees take ~as heirs', or whether the testator's children and brother and sister take 'as

heirs', because quacunque via the will is good. lf the trustees take as heirs. then

everything beyond is 'trust substitution', which would not be good according to Italian

law, but the gift to the heirs would stand. If, on the other hand, the trustees are not the

heirs, but the testator's children and brother and sister are the heirs, then according to the

•pre-ponderating weight of opinion, coupled with the evidence derived from what has

51
 .,

actually taken place, the trustees have, accordirig to Italian law, a clear power to st:H the
.-.;,.

:)._-
testator's real estate in Sadinia without any interference on the part of the persons ,.

beneficially interested in it. 1herefore the direc:..'tion given by the will to the trustees.to

sell the estate is perfectly good according to Italian law.

Then the next question is, as to the application of the pro~eds of sale.. ,With respt,"Ct to
••
that the will is perfectly good, because the application of the proceeds is not in any way

inconsistent with the Italian law. The Italian law relates to the land: it detennines how

the land is to go, and regulates the rights of the various persons interested in it: When an

absolute sale has taken place, the Italian law still applies to the land in the hands of the

then owner or owners; but it has nothing whatever to do with the proceeds of sale, after

the land has been placed outside the scope of the will by a disposition which is valid

according to Italian law.

Then, as regards the proceeds of sale, is there anything in Italian law whi~ r~nders it

illegal for the testator to do what he has done? The testator has directed that the proceeds

of the sale of the land -that is, money to be obtained by the English trust~es - is to be

received by them, to be invested upon English securities, and then to be held by the

trustees upon the trusts declared by an English wiU in favour of English beneficiaries. No

one suggest that there is anything in Italian law forbidding this. It is, indeed, said by one

of the Italian advocates that the land is still the 'patrimony'. What is the tf.w as to that?

It depends altogether upon the person to whom the money belongs. No doubt, if the

money belongs to an owner who is subject to Italian law, whatever the I~an law forbids

52
as to trusts must be observed. and if any person owning this property is subject to Italian

law, and attempts to create a trust which the Italian law forbids, then, according to Italian

law, the trust would be void. But when there is an English owner of money arising from

the sale ofla11d which belongs to other persons, and is subject in their hands to Italian

law, there is nothing in Italian law to make that money itself subject to Italian law; and

therefore the proceeds of sale, when received by the trustees in pursuance of the valid

exercise of the power of sale which they have according to theltaHan law, pass entirely

by the testator's will: because the disposition is good according to English law, and is in

no way at variance with Italian law - meaning now by "Italian law" not merely anything

contrary to 'good custom' (whatever that may mean)-- for the Italian law does not

profess to regulate the disposition of English securities passing under the will of an

Englishman to English legatees. The trust for sale being valid, the application of the

proceeds of sale directed by the will is valid also.

Then the only question remaining is this. The trust has not yet been entirely executed,

and at the present moment a part of the testator's Italian land remains unsold, and is,

therefore, subject to the law ofltaly. The enjoyment of that land in the meantime, until it

has been sold, is not in any way affected by the trust for sale, which has not yet been

executed. We must look~ therefore, to the Italian law to say what is the right to enjoy the

land in the meantime, before the sale has actually taken place. First~ the case of the

testator's widow. It seems clear that, according to Italian law, she is a 'usufructuary', in

the sense that the disposition in her favour for life is perfectly good, and that the gift to

53
 'fiH{i+~;;giffffif

the testator's children and brother and sister, subject to that usufruct, is a good
disposition;

Then comes the question of the 'trust substitution'; and as to that, the conclusion upon the

evidence is that the property is unconverted during that limited period. The Italian lav,,,

applying, there can be no 'trust substitution', and, that being so, the attempt to settle the

shares on the children and the brother is not valid; As regards the sister there is no

question, because she takes absolutely in any case. As regards the children, to the extent

of one moiety of their shares, ancftlie brother as to the whole of his share;·ttrettris an
attempt to settle. With the exception of the heir.,.at~law Robert .Charles Piercy and the

brother (who is dead), none of these persons raise any question. According to the Italian

law they take absolutely, and the trusts over are ineffectual; but with those two

exceptions they all say, 'We wish to give effect to the testator's will in this respect; we

are desirous that the income of the property until conversion shall, so far as our interests

go, be applied in the same way as our shares of the income to arise from .the proceeds of

the conversion directed by the will, wiHgo after the conversion has taken place'. There

is nothing contrary to Italianl!!~.,.m.Jheir saying that they wish their sha~?.~!:1e income

of the unsold land to be applied in the same way asifthey were shares of the income

arising from the proceeds of sale after the conversion had taken place. The heir-at-law,

however, does not elect or waive any right which he may have, and it is unnecessary to

decide anything as to his share at present. So long as he lives, and the land remains

unsold, he will, of course, be entitled to receive the income of his share, whether the

trusts in favour of his children are good or bad~ and no question between him and his

54
 children, or any other person, can possibly arise. It may be that all the land will be sold

during his lifetime, and the question will never arise as between him and his children.

But it is possible that he may die while part of the land remains unsold, and the question

may then arise between him and his children. Any directions which are given must be

without prejudice to any question between Robert Charles Piercy on the one hand, and,

on the ottier hand, any person who may claim upon his death to be entitled to his one-

eleventh of the income to arise from any part of the Italian property then remaining

unsold, until the conversion thereof.'

REVISION QUESTIONS

1. What is a stay of an action, in respect to the rules of the conflict of laws?

2. What factors a court must consider in its decision to grant a stay of action?

3. Define Lis alibi pendens.

4. What is a foreign jurisdiction clause?

5. Summarise the guidelines for a stay of actions as proposed by the court in Spiliada.

6. What are the bases of jurisdiction in England and Wales in claims inpersortam?

7. Why is the admiralty jurisdiction of the English court in rem is strictly territorial'?

8. Can a person confer jurisdiction on a court by consent?

9. When can a jurisdiction be exclusive?

10. What do you understand by procedural advantages in respect to litigations commenced in

a foreign country?

55

!
I '
 CHAPTER FIVE

FOREIGN JUDGMENTS

OBJECTIVES

At the end of this chapter, you should be able to:

• Distinguish between the recognition and enforcement of foreign judgments.

• Appreciate the futility of obtaining judgment in a foreign country when the judgment

cannot be enforced in the forum where the defendant happens to be staying (even for a

few hours).

• Understand that, due to the doctrine of territorial sovereignty, judgment delivered in one

country cannot be directly recognised or enforced in another unless there exists an

international agreement between the two countries in question.

Ke:m>iDtl

A plaintiff seeking to enforce a foreign jl.tdgment (in England) may either sue on the

obligation created by the judgment, or plead the judgment res iudicata proceedings

which raise the same issue. Any person who obtained a judgment in any part of the

commonwealth may apply to the High Court to have the judgment registered.

Registration is discretionary.

The foreign court must have been competent to try the case.

The defendant may raise the defences such as fraud, public policy, natural justice, etc.

56
Foreign judgments, made by courts of competence, can be recognised and enforced by a court in

the domestic legal order. But some foreign judgments do not lead themselves to enforcement,

but only to recognition (e:,g., a decree of divorce or nullity. But an 01der for the payment of

maintenance to the wife can be enforced).

(1) Basi~

The basis for the recognition and enforcement of foreign judgment is the doctrine of obligation.

This was stated by Parke B in Russell v Smyth (1847) 9 M. & W 810, at 819; Williams v

Jones (1945) 13 M. & W. 628, at 633 and approved by Blackbum J. a generation later in

Godard v Gray (1870) LR 6 QB 139, at 148-150 and Schibsby v Westenholz (1870) LR 6 QB

155, at 159 in the following words:

'The two principle on which the judgments of foreign tribunals are enforced in England

is ... that the judgment of a court of competent jurisdiction over the defendant imposes a

duty or obligation on the defendant to pay the sum for which judgment is given, which

the courts in this country are bound to enforce.'

The judgment of a foreign court in favour of a claimant is conclusive (e.g., in England).

A foreign judgment, under which a sum of money is payable, may be enforceable in England

under statute by a more direct process of registration

(2) Jurisdiction of Foreign Court

To recognise and enforce foreign judgments, the foreign court should have had jurisdiction

according to (e.g., English) rules of the conflict of laws. In Buchanan v Rucker (1809) 9 East
192. The claimant brought an action in England on a judgment of a court in the island of

57
 ,~\;F":,;:1,:,w::«xrr ½rm,,,,'

Tobago. The defendant had never been in the island, nor had he submitted to its jurisdiction.

These had been a substituted service, valid by the law of Tobago, effected by mailing a copy of

the writ to the court house door. Lord Ellenborough refused to enforce the judgment.

(3) Absence of Jurisdiction

Where jurisdiction exists (e.g., by reason of the defendant being present in the jurisdiction or by

submission, the court will recognize and enforce the foreign judgment (see supra). Difficulty

may arise where jurisdiction does not exist.

Possession of property in the foreign country, or presence of the defendant in the foreign courts

at the time when the cause of action arose, domicile (alone), or nationality of the defendant are

not good grounds for the recognition and enforcement of foreign judgment.

(4) Defences

The defence that may be pleaded to an action on a foreign judgrr1ent is that the foreign court had

no jurisdiction to give the judgment according to (e.g., English) rules of the conflict oflaws.

Other defences include:

(a) Fraud: that the judgment was obtained by fraud. For example, fraud on the part of the

successful party, as where he/she suppresses evidence, or produces forged evidence.

(Ochsenbein v Papelier [1873] L.R. 8 Ch. App. 695).

(b) Public policy: recognition or enforcement of the foreign judgment would be contrary to

public policy (Re McCartney [1921] 1 Ch. 522).

58
(c) Natural Justice: a foreign judgment can be impeached on the ground that the

proceedings were opposed to natural justice, but under this defence there are fewer cases

(English) (see Robinson v Fenner (1913) 3 KB 835, 842.

Brussels I Regulation

New rules regarding recognition and enforcement of foreign judgments have been introduced by

the Brussels I Regulation (Council Regulation (EC) No. 44/2001). These rules apply to aH

matters. of recognition and enforcement of foreign judgments in all member states of the EU,

The Brussels I Regulation is directly effective in England. The Regulation consists in three

chapters. Chapter one defines the .scope of the regulation. Jurisdiction is dealt ·with in chapter

two. The recognition and enforcement of foreign judgments is covered in the third chapter.

It is obseIVed that tht) primary purpose of Brussels I Regulation is to facilitate the free movement

of judgments betvveen states of the EU. The Regulation does not make distinction between

judgments in }2Ysonam an.d judgments in !:J!..m. The Regulation does not favour defendants who

are not domiciled in a member state of the EU.

FOREIGN JUDGMENTS

Black v Yates (1991] 3 WLR 990 Queen's Bench Di.vision (Potter J)

• Effect ofjudgment awarded by foreign court which is enforceable in England (s34 Civil

Jurisdiction and Judgments Act 1982)

59
 :'!:.

Facts

Section 34 Civil Jurisdiction and Judgments Act 1982 was interpr~ted for the first time in the

following circumstances: the plaintiff's husband had been killed in a motorcycle accident in

Spain. He was a pillion passenger on the defendant's motorcycle; and it was not contested that

the defendant's negligence had caused the plaintiff's husband's death. Criminal proceedings

were taken against the defendant in Spain; and under Spanish law compensation claims can be

dealt with in the criminal proceedings unless the right to bring a civil action was expressly

reserved in the criminal proceedings. This was not done although the plaintiff (and her children

on whose behalf she was also suing) was represented by a Spanish lawyer in those proceedings.

In the event, the Spanish court awarded compensation of about £18,000; but the plaintiff and her

children would probably have been awarded abut £75,000 by an English court. The plaintiff

now, on her own behalf, on behalf of her children, and on behalf of the deceased estat,:, brought

action in England against the defendant. She was met, however, with a defence based upon s34.

Held

1. As far as the plaintiff's claims on her own behalf were concerned, the English

proceedings were brought on the same cause of action as that in respect of which the

Spanish judgment was enforceable in England, the requirements of s34 were complied

with and thus the defence succeeded.

2. However, the claims brought by the plaintiff on the part of the children (under the Fatal

Accidents Act 1976) and on behalf of the deceased estate (under the Law Reform

(Miscellaneous Provisions) Act 1934) stood on a different footing. Since the plaintiff had

not purported to act on behalf of the estate in the Spanish proceedings, the estate was not

60
 bound by the Spanish proceedings. And as far as the children were concerned, the

Spanish proceedings were contrary to their interests and there was no evidence that they

were able to give an informed consent to the pow~r of attorney that led to their

representation in the Spanish proceedings. Section 34 was not intended to defeat the

English law of infancy. Thus the court could repudiate the power of attorney; the

children were therefore in law not represented in the Spanish court; and the actions

brought on their behalf could proceed in England.

The court said that:

·Prior to 1982, a foreign judgment had been regarded at common law as only constituting

a simple contract debt, no 'merger' of the original cause of action in the judgment

resulting. This meant that it remained open to a plaintiff to sue either on the Foreign

Judgments (Reciprocal Enforcement) Act 1933, or on the original cause of action; s34 [of

the CJJA 1982] abrogated that rule. From the time the section came into force,

proceedings between the same parties on the original cause of action have no longer been

available unless the judgment in question is not enforceable or entitled to recognition. If

the foreign judgment remains unsatisfied, the proper course of action is to enforce it,

either under statute or at common law, by suing on the judgment. The abrogation of the

non-merger rule is achieved by making the foreign judgment, a bar to further

proceedings. The defendant's principal contention in this case is that the plaintiff and her

two children have already received judgment in Spain in respect of the cause of action

sued on in these proceedings and that the plaintiff is, therefore, debarred from pursuing

proceedings by original action in the High Court in England.

61
 In order to make good that submission the defendant must show that three requirements

have been satisfied: (i) the proceedings must be brought on the same cause of action as

the proceedings in Spain; (ii) the proceedings must be between the same parties or their

privies as the proceedings in Spain; and (iii) the judgment in the Spanish court must be

enforceable or entitled to recognition in England and Wales.

REVISION QUESTIONS

1. List the rules in the case Buchanan v Rucker (1809) 9 East. 192.

2. How can the defendant confer jurisdiction by submission?

3. Is domicile alone sufficient to confer jurisdiction?

4. How do courts establish presence or residence of companies?

5. Who is a judgment - creditor?

6. Is the enforcement of a foreign judgment predicated on recognition of the said judgment?

7. List all possible bases of the recognition of foreign judgments?

8. • What is the legal implications of: the judgment is final and conclusive?

9. What defence is available to a defendant in respect to a foreign judgment?

10. What are main features of the Brussels I Regulation regarding the recognition and

e~forcementof foreign judgments?

62
 PARTTWO

THE FAMILY AND CHILDREN LAW

'It

63
 CHAPTER SIX

MARRIAGE

OBJECTIVES

After studying chapter six, the student should be able to :

• Describe marriage as an important social institution.

• Define the various requirements of a valid marriage.

• Distinguish between formalities of marriage and the capacity to marry.

• Cogently explain the matrimonial causes which concern divorce, nullity of marriage and

judicial separation.

Key ooints
A marriage may be defined 'as the voluntary union for life of one man and one woman, to

the exclusion of all others'. Capacity to marry is governed by the ante-nuptial domicile of

each of the parties immediately before the marriage. (Note b,>£.ception).

The formal validity of marriage is determined by the law of the place of celebration (there

are exceptions).

SOCIAL INSTITUTION

Where two persons (man and woman as is the case in Zambia) agree to become husband and

wife, a marriage is said to have been contracted. As such marriage has been treated as a contract

in the sense that there cannot be valid marriage unless each party (including the parents of the

64
two contracting parties) consents to marry the other (see Mordaunt v Mordaunt [1870} L.R. 2

P. D.M. 109, 126-127, per Lord Penzane). Marriage is of interest to the community. It is a

foundation of society. There are laws which regulate the manner and conditions of forming and

dissolving (unhappily) the marriage bond.

It will be seen that the fonnalities of marriage is governed by the Lex Loci celebrationis, and

capacity to marry is governed by the law of each party's antenaptial domiciles (Brook v Brook

[1861] 9 HLC 193). In Hyde v Hyde (1866) LR 1 P. 8 M. 130,133, Sir J. Wilde (Later Lord

Penzane) said that, "marriage is the voluntary union for life of one man and one woman to the

exclusion of all others".

FORMALITIES OF MARRIAGE

By the formalities of marriage is meant such requirements as:

(1) whether a customary, or religious, or civil ceremony, or any ceremony at all, is required,

(2) the number of witnesses necessary,

(3) the permitted hours during which marriages can be celebrated,

(4) whether publication of Banns or notices is necessary.

(5) what words are to be used, and other (if any).

Thus, in Apt v Apt (1948) P. 831 the Court of Appeal (in England) held that the question

whether proxy marriages are valid is a question of formalities. The court agreed that marriage is

valid which was celebrated by proxy (lawful in Argentina~ but not in England). It held that in

Argentina between a man domiciled and resident there and a woman domiciled and resident in

England. The rules of the conflict of laws in regard to marriages are that those matters are

65
 m;
;< ,",2'(1:C.:A;i:_t,;r:1n ,m Wiff'

regulated by the lex loci celebrationis, the law of the place where the ceremony takes place,

which reflects the rule locus regi,t aqtum. The Privy Council reatlirmed this rule in Berthiaume

v Dastous (1930) AC 79, where a marriage performed cin France of two French Canadians (in

France) in the mistaken belief that it had been preceded by a civil ceremony as required by

French law was held invalid. The English courts have treated the question of whether parental

consent is required as a matter of formal validity and not of capacity to marry. In Simonin v

Mallae (1860) 2 Seo & Tr. 67 it was held that a provision of French law which requires a person

under a certain age to make an 'acte respectueux' and ask his parents' permission .to marry,

though not complied with, did not render void a ceremony celebrated in England.

Retrospective changes in the law of the country of celebration subsequent to the date of the

marriage may validate the marriage. That was the position of the House of Lords held in

Starkowski v Attorney General (1954) AC 155 that a marriage which was formally invalid by

the local law when it was celebrated was validated by the operation of a law enacted in the

foreign country in question at a later date.

CAPACITY TO MARRY

Capacity to marry (essential validity) includes the impediment of the prohibited degrees of

consanguinity and affinity and lack of age. Other impediments are the lack of parental consent,

previous marriage and physical incapacity.

th
The prevailing theory is that of Dicey (see A.V. Dicey and J.H.C. Morris, Conflict of Laws, 13

edition (London,· Stevens, 2006) which is known as the dual or ante nuptial domicile test, which

66
says that if both partie..i have capacity to marry each other by the laws of their domiciles at the

time of the ceremony, the marriage is valid, but it is invalid ifby either or both of these laws they
,,.,l' .,

have no such capacity.

The other theory is of Cheshire that is the law of the intended matrimonial home: the country

where, at the time of the ceremony, the parties intend to, and after the ceremony do, set up home.

THE DUAL DOMICILE TEST

The dual domicile test was applied to Padolecchia v Padolecchia (1968) P. 314:

H, domiciled in Italy, married there in 1943 and later obtained divorce in Mexico. This was not

recognised in Italy. He went to Gve in r5enmark and on a one-day visit to England succeeded in
'marrying' W, domi9iled in Denmark, they both returned to Denmark. H petitioned for a decree

of nullity in respect of this marriage, alleging that at the time he was still married to his first

wife. Danish law was unclear as to whether he had capacity. The court held that since by the iaw

of his Italian domicile the husband lacked capacity, the English ceremony was bigamous and

void. The dual domicile test was applied.

DIVORCE AND JUDICIAL SEPARATION

In England, after 1974, parties tQ m_aaj~g~-~ere placed on an equal footing. As such English

courts have jurisdiction to entertain a petition for divorce, if and only if, either pa1'ty is at the date

of the commencement of proceedings domiciled in England or has been habitually resident there

for one year immediately preceding that date (habitual residence: Kapur v Kapur [1984] 5 FLR

920). The English courts apply English law in divorce proceedings.

67
 NULLITY OF MARRIAGE

Such matters, in England, are governed by statute. The court has jurisdiction if, and only if, at

the date of commencement of proceedings either party is domiciled in England or has at that date

been habitually resident there for one year. The same rule applies in the event of the death of

either party to the marriage. The relevant choice of law rules here are those which govern the

validity of marriage as to formalities, legal capacity, consent of the parties and physical

incapacity.

It is observed that when the recognition of a foreign divorce, amendment or legal separation is an

issue then, as with any foreign judgment., the English courts are only concerned with the

jurisdiction of the foreign court which granted it. They are indifferent to the ground on which it

was granted {see the case lndyka v Indyka [1969] 1 AC 53 (BL).

REVISION QUESTIONS

1. List the statutes or acts in Zambia which regulate the manner and conditions of fo1ming

and dissolving the marriage contract.

2. Explain 'marriage is the voluntary union for life of on.e man and one woman to the

exclusion of all others'.

3. Distinguish between formality of marriage and capacity to marry.

4.. What were the legal issues in Ogden v Ogden [1908] P. 46?

··s. Distinguish between a marriage void ab initio and a marriage voidable?

6. Explain the two types of the formal requirements of a marriage.

68
7. Identify and explain one category of the essential validity of marriage.

8. What is a real and substantial connection in respect of the essential validity of the

marriage?

9. What is (if any) the distinction between divorce and judicial separation as far as concerns

the Conflict of Laws?

10. How does irregular nullity of marriage affect the rights of the parties in a conflict case?

69
 CHAPTER SEVEN

CHILDREN

OBJECTIVES

The objectives of this chapter may be said to enable the students to:

• Define what a child is.

• Describe the various safeguards, care and legal protection which a child needs.

• Explain the duties and obligations of guaroians of children.

• Examine the concepts of legitimacy, legil:imation and adoption in respect of children.

• Understand the principles and rules governing the succession of a child to property

(immovables and movables).

~Y pgints
Rights of succession of children are no longer influenced by their status - legitimate or

iUegitimate - nor dependent on their parents marriage status. This seems the position in

England and many other jurisdictions.

It may be necessary to determine the status of a person as legitimate or illegitimate for

purposes of citizenship, ascertaining domicile.

The legitimacy of a child is determined by the law of the father's domicile.

70
A person who is illegitimate by birth can be legitimated by the subsequent marriage of his or

her parents; or by formal act of declaration by the parents of the child to be legitimate.

Different rules govern the adoption of children in the different countries.

INTRODUCTION

The United Nations (UN) Convention on the Rights of the Child (CRC) which was adopted by

the UN General Assembly on 20th November 1989, and entered into force on 2nd September

1990, defines a child as 'every human being below the age of 18 years unless, under the law

applicable to the child, majority is attained earlier' (Art. 1). The burden lies on the state to

justify instances in which the state concerned may prescribe a lower age limit.

As contained in the Convention on the Rights of the Child (CRC), the child needs, special

safeguards, legal protection and care even after the child attains the age of 18 years. ln this

chapter, specific topic of great importance to the welfare of the child will briefly be examined.

GUARDIANSWP OF MINORS
.... -. --,~·, . ,,,.

JURISDICTION

Guardianship

The state as parens patriae is concerned with matters related to the welfare of its infant subjects

who because of tender years are incapable of taking care of themselves.

71
 ,f?.;m¾?i)2c?J5%''0'frt{f

In several countries the courts have power, inherent or statutory, or both, to make guardianship

orders. The orders make a child a ward of court, which may extend to the appointment of a

guardian of him or her. This power of the court extends to all minors - that is anyone living

within the country in question. It is immaterial that the· child is of foreign nationality or

domicile: (Hope v Hope [1854] 4 Dec. GM. & G328; Re B's Settlement [1940] Cb. S.4; Re D

(An Infant) [1943] Ch. 305). It includes any child who is physically present within the

jurisdiction for however brief a period (Re P(GE)(An Infant) /1965) Ch. 568, 588, 592 (C.4). In

the Re P, it was held that the court had jurisdiction. A child who had been living in England with

his mother had, when on a visit to his father, been taken away by his father to Israel. This was

· because the child had been and still was ordinarily resident in England when the proceedings

were instituted. Jurisdiction will exist even though the child owns no property (in England) in

the cou~try concerned.

It is observed that guardianship is taken to signify the appointment of someone to take care of

parentless children. It usually includes custody, which is concerned with the right of parents or a

parent or a third party to decide matters relating to the upbringing of a child, and it includes

control over the child's property. Custody includes the right to care and control of the child and

to determine his residence. In making orders regarding a child the court's paramount

consideration is said to be the child's welfare (see English. Children A(.,1: 1989, Section 1(1] ).

72
 LEGITIMACY, LEGITIMATION AND ADOPTION

Definition

Legitimacy: refers to the status which any legitimate child enjoys as from the time of the child's

birth.

Legitimation: means that a child who is illegitimate at the time of his or her birth becomes

legitimate by reason of subsequent events (parent.al marriage as in England. or parental

recognition).

Adoption: is an act of creating parent and child relationship between the two who may not

necessarily be related by nature.

B~t interests of a child is a matter, or event that is deemed to serve the concerns of a child. 1n

this respect or 'superjor: int~mst'.i't t}iatJ~,·$1 inte{e&t: :that):nbe~r; ~JUJY other interest, the
s.:ameas'best interests' [CMV Clarkson & J. Hill, The Conflict of Laws, 2006, P.389).

·' J;!igbts-9f. custody!;; incluf;!ei;; the. right~ to c~e fqr.,a.:.~llil~-M~, th~-;r,ight tp\pe4Umine the ~hild' s
'.place of residence. [Clarkson & Hill, Ibid, P. 402]

,.:...·, . -=::.:\·.:

. ,;{~< j: l. :'>iJ?.~l'lJMA~Y.
In .England; all persons who are born in lawful wedlock, or conceived therein,·-are-prima facie

l~gitim~e in. EnglWJd (Re &>,,~lli.~~r$ettle,'r'ent :lt~2J l Ch~ 75J). :P,iffi~qity~,may arise. '7vbere. a

.~nild ~~ not ~o~ i~Jawfill,,:w.~ls?_c~ ~-~l!I'.9.~,Engmh Law, but the child is legitimate by some

-Qm_e~, systeµi p( -~VI;!_.. .. . . 1·. :.~ .,:!,; .'>

ln m~y,C4Ses C()l}~ming:nµm1y ofww.nag~i f9r .1iwl$, of:l~g.aJ .s~~iW.#1· WatrY::{be: l~.gi~im~~Y:Qf

,ch,Hdren of the .uQi~l!,and th.eir ,rig4t 9f ,succtrssirm to pf:QPC:~Yi?'~S. µt_e ,~l ~int~ .i~t,r~. This is

JLJµsti:ate<J l,y t,!Je.,f~l,lo'.Wing ,ca.se,$: ::; :_,: ,{) -r·; .·

73
 Brook v Brook ( 1861) 9 HL Cas. l 93

Re de Wi/lon (1900) 2 Ch. 48 l

Shaw v Gould(1868) tR3 HL 55 {still an eluding caseon'succes~ion to property)

Re Bischoffeheim (1948) Ch~ ~ J~;_';: '_,iJ;";'"(,:':'

•. ... , '
t' ,, "' .1,, ' . .. . . '
·'2-.R~ P~}~;{14~ofc'#~ti :. ' i,Jt.i ,,.. :ft:::t)"t':i'f) ~t -.~:/"" J~\,> :.~·r;.f-;~i"i.~ L·J

f.~:: :,,,::. :!
.
~'j'
~ ·. ,, \

.,.
LEGITIMATION •.:

At common law the courts had evolved the rule that if the father was domiciled both at the time

of the child 1 s birth and at the time of his subsequent marriage in a foreign country (e.g.,

Scotland) whose law permitted legitimation by subsequent marriage, the child would be

recognized in England as having been legitimated by that marriage (Re Goodmen Trust (1881)

17Cb. D 266; Re Askew [1930] 2 Ch 259).

The preceding has been altered i~gland by ·{lt~itimacy Act 1976 (students .should consult

relevant sections t>fthe Legitimacy Act, Cap 52 and other acts in the jurisdiction for.the correct
rules on this matter).

Where the succession is governed by English law~ in respect of deeds or wills executed or

intestacies occurring on or after l st January 1976 a legitimated and any other person is entitled to

take any interest in property as if the legitimated person had been born legitimate (Legitimacy

Act 1976, S. 5 -English).

"•',-.;jl){,,>A•

74
If the succession is regulated by foreign, e.g., Ghana Law, that law would detennine the

succession rights by and to a legitimate person (no English authority).

ADOPTION

At common law the conditions of adoption and its recognition were discussed in B_e Valet1,tin~j,

Settlement (1965) Cb. 831 CA. Each country in the world (except lslamic countries) has its o,vn

laws on adoptions. These laws must be considered in order to find out the rules on adoptions.

Adoption is a legal act that changes status. An adopted child is in Law as the legitimate child of

his or her adoptive parents rather than the child of his or her natural parents. Under English

domestic law only an unmarried:thiid underthe·age of 19 may be adopted and the paramount

consideration is the welfare of the child throughout his or her life (English Adoption and

Children Act 2002, S. 1(2); Clarkson, Ibid, p. 380). Under other legal system the adopted person

may not be treated as the legitimate child of his or her adoptive parents in every respect. As

Clarkson observes 'the central issue for most children is the determination of where and with

whom they should ... and the issue who should have access to a child and in what

circumstances.'

In Zambia, rules and principles goveming adoption are contained in the Adoption (Amendment)
·-•1'_ ...... ,•Oil!""'- - • .,.q--.·~ .. ✓--

Act of 1997 [Cap 54]. The relevant section of this Act must be read along the relevant sections

of other countries.

75
 ',if>;,<;10J£i>j'.W'f' FF t

Succession by and to adopted children should depend upon the law governing the succession. In
,.1r"''

England, a foreign adoption has the same effect as an English adoption. That is an adopted child

shall be treated in law as if he/she had.been born, where the adopters were married couple, in

wedlock, and shall be treated as if he/she. were not the child of his/her natural parents. This

applies to both testate and intestate succession and dispositions of property from 1976 (Ibid

S.38).

REVISION QUESTIONS

1. Why should a child be provided with special safeguards?

2. What are the duties of a child's guardian?

3. Contrast a legitimate and legitimated child?

··-· ,.,
4. What are the requirements of adoption in Zambia?

5. Is the prescription of a lower age of majority by a state compatible with the Convention

on the Rights of the Child (CRC)?

6. Distinguish between guardianship and custody of a child.

7. What were the legal issues raised in Brook v Brook (1861) 9 HL Cas. 193?

8. Why is Shaw v Gould (1868) LR 3 HL55 still controversial?

9. Does adoption ensure the right of a child?

10. What governs succession as regards an adopted child?

76
 PART THREE

LAW OF OBLIGATIONS

·-,

n
 CHAPTER EIGHT

CONTRACTS

OBJECTI\>"'ES

At the end of this chapter, students should be able to understand the general principles and rules

of contracts in the conflict oflaws, and to:

• Understand the common law and statutory rules as regards, such matters as the effect of

mistake, misrepresentation, illegality on contracts.

• Explain, in a comprehensive way, the concept of the applicable law of a contract (proper

law - English courts).

• Define the notion of the expres.~. choice of lJ1W and contrast this with inferred choice of

law.

• Justify presumptions for dealing with particular types of contract ( e.g., a contract

conceming the sale of immovable property).

• Analyse the differences between mandatory rules and rules of public policy as regards

their effect on a contract,

Kn: uoin,ti
Where the parties have made a choice of Jaw in their contract, this will be upheld, provided

that the choice does not prejudice the application of that country's mandatory rules.

Where no choice of law is made, the contract will be governed by the law of the country

with which it is most closely connected.

78
The materials that follow should be read in conjunction with domei,tic statutes, acts of. parliament
,,.,

and international conventions dealing with contractual obligations. In many countries regional

and international agreements or conventions have had influence on the choice of law rules as

regards contractual obligations.

PROPER LAW DOCTRINE

.Matters relating to questions of offer and acceptance, capacity of parties, formalities, or essential

validity as regards contracts on the conflict of laws are governed by the "proper law", or
> ,.~,-, ·t

applicable law of the contract.

..,, ··•-·~

In defining the 'proper law' of the contract, Lord Wright had this to say;

'The proper law of the contract means that law which the English ... court is to apply in

determining the obligation under the contract. EngHsh law in deciding th,:se matters has

refused to treat as conclusive, rigid or arbitrary criteria, such as {ex loci contractus or lex

loci solutionis, and has treated the matter as depending on the intention of the parties to

be ascertained in each case on a consideration of the tenns of the contract, the

situation of the parties, and generally on an the surrounding facts. It IJO,ay.,. be that the

parties have terms in their agreement expressed what law they intend to govern, and in

that case prima facie their intention will be effectuated by the court. But in most cases

they do not do so. The parties may not have thought of the matter at ail. Then the court

has to impute an intention, or to determine for the parties what is the proper 1aw which, as

79
 just and reasonable persons they ought [to] or would have intended, if they had thought

about the question when they made the contract'. (Mount Albert Borough Council

v Austrelasion etc., Assurance Society Ltd [1938] AC 224,240).

The doctrine of the proper law (applicable law) emphasizes the freedom of the parties to choose

the law which should govern their contract. Where this is clear, the court may ascertain the

proper Jaw by using the formulation of Lord Simonds in Bonythor@ v Commonwealth of

Australi! [1951] AC 201,219, where he said,

'The proper law of the contract [is] the system of law by reference to which the ,contract

was made or that with which the transaction had its closest and most real connection',

The above formulation was adopted by the House of Lords in Tomkins9n v First Pennsylvania

Banking and Trust Co. (1961] AC 1007, per Lord Denning at p. 1068; per Lord Morris at P.

1081 and since then has been almost invariably used by English judges. (see also Mmer and

Partners Ltd. V Whitworth Sheet Estates Ltd [1970] AC 583, 604).

In discussing the proper law doctrine, the student should also consider the provisions of the

Rome Convention on the Law Applicable to Contractual Obligations of 1980.

RENVOI

The parties to a contra.ct deemed to have intended to refer to the domestic rules and not to the

conflict rules of their chosen law; and the connection with a given legal system is a connection

wit.h substantive legal rules and not with conflict rules. Clearly, .the principle of renvoi finds no

80
place in the law of contract (Re United Railwa_ys of Jlavan!! and Re&)a Warehouse Ltd (1960}

Ch 52, 96-97, HL) (see Article 15 of the Rome Convention. 1980 on the Law Applicable to
Contractual Obligations. It excludes the use of renvoi throughout the convention). For a recent

statement on the matter read: Amin Rasheed Shipping Corporation v Kqwait Insurance Co.

(1984} AC 50 H L.

FORMATION OF THE CONTRACT

The formation involves matters related to offer and acceptance, consideration , and the reality of

consent. Other requirements include the formal requirement for the validity of the contract and

the capacity of the parties.

In the conflict of laws, the absence of consideration may not invalidate a contract (Re Bonacina

[1912] Cb. 394)~ The issue of offeumd acceptance can be illustrated by Albeko Schumaschinen

v Ka.mborian Shoe Machine Co. Ltd [196J.} III L.J. 519.

FORMAL VALIDITY

It is sufficient to comply with the fon:nalities prescribed by the Lex loci contractus, for Locus

. regit .actum is the accept.able maxim in this respect,

CAPACITY OF PARTIES

As a general rule the proper law of the contract governs matters of capacity of the parties. But if

the defendant had capacity to make the contract by the law of his/her domicile and residence:,

81
then the contract is valid, whatever the proper law may say (D. McClean & K. ISeevers:

Morris, The Conflict of Laws 2005, 359).

ILLEGALITY

Writers would seem to agree that whether a contract or a contractual term is illegal is not

determined by the proper law of the contract, but by other systems of law, e.g., the Lex tori, the

Lex loci contractus, and the Lex loci solutionis (see Kohler v Midland Banl~J19SO] AC 24;

]misseviep v Well (1950) AC 327).

REVISION QUESTIONS

l. List all requirements of formation of a contract. Discuss some of them.

2. Define the proper law of the contract

3. Which law governs the formal validity ofthe contract? Cite decided cases.

4. Why is renvoi irrelevant in respect of contracts?

5. Assess the relevance of Kohler v Midland Bank [1950] AC 24 in respect to issues of the

illegality of contracts.

6. How does an applicable law in contract is Identified?

7. When is a choice of law to be considered as express in respect of a contract for the sale of

timbers?

8. When is it permissible to split the applicable Law?

9. List possible presumptions regarding the applicable law in the absence of choice.

10. It is argued that a contract is valid ifthe defendant had capacity to make it by the law of

his or her domicile and residence? Do you object to such a proposition?

82
 CHAPTER NINE

PROPERTY A.~D SUCCESSION

OBJECTIVES

After studying this chapter the student should be in a position to:-

• Distinguish between movable property and immovable property for the purposes of the

conflict of laws.

• Explain the reasons for treating succession to movables is governed by the law of the

deceased's domicile, whereas succession to immovables is governed by the lex situs of

the land.

• Determine, in the event of a conflict between the lex fori and lex situs as to whether a

particular thing is movable or immovable, that in such a situation the lex situs determines

the characterization (see Re Hoyles {1911) 1 Ch 179; Re Berchtold [1~)23] 1 Ch 192,

199; MacDonald v M:acDonald {1932) S.C. (HL} 79, 34; Re Catcliff [1940] Ch 565,

571).

• Understand that title to property, in general is governed by its lex situs, whether it is

immovable or movable.

Kevpoinu
AU cases involving immovable property must be brought in the courts of the country where

the property is situated (the lex sit'ff,!). [The mle is subject to exceptions: this must be 11otedl

--- ......... ,~.-

83
 ~,,,:<wirt:~:&®YSPS w;.:~

As a general rule, the law of the place where the property is situated determines questions of both

fonnal and essential validity of transactions nertinent ~o immovable property. The lex situs means
'• . . . >o • ,,

the whole of that Law, including its conflict of Laws. The doctrine of renvoi operates in this context.

The l~x situs determines the validity of the transfer of movable property at the time of the disposition.

Movable property - in intestate succession - wm be distributed according to the law of the

deceased 1 s domicile at the time of death.

Immovable property will be distributed in accordance with the lex situs.

·~--. --· "'

MOVABLE-TANGIBLE PROPERTY

Contractual issues regarding tangible movables are governed (English Law)~ in principles, by the

applicable law of the contract. Whereas proprietary issues ( e.g., passing of tile in that property)

are governed by the lex situs of the property. For example, English law governs the contractual

issues, such as whether D was in breach of contract or of a term only of the contract. But

country: Gold-Land Law determines whether title has passed to E. If the movable (tangible): car

has not been delivered by D to E, title had not passed and D is stm the owner.

✓,-... ....,.,,..,,. _ _ - - - ✓- ·•-·. \

It is important to note that:

(1) Where the situs remains constant in one country, that country's law will determine title

to the goods;

84
(2) Where the situs is changed by the goods being moved from one country to another the

problem is complicated: In the first scenario, assume that B acquired title to a car by the

law of country X when the car was there, B's title will be recognised in :England unless

when the car is subsequently in country C a transaction takes place there which by the

law of C gives title to E, in which event E's title will prevail over B's. ln the second

scenario, the facts are the same but no transaction takes place in C, or if one does take

place there, but does not by the law of C give title to E, B's title will continue to be

recognised {see the complication in Winkworth v Christie, Manson and Woods [1980}

Ch. 496 [1980] 2 \VLR 937).

The case below shows the effect of change of title of a n10vable on those involved Winkwoi'tb v

Christies Manson and Woods Ltd and Another [1980] 2 WLR 937.

The facts were as follows:

Certain works of art had been stolen from their owner Winkworth, the plaintiff, in England.

They were taken to Italy where they were sold to the second defendant who bought them in good

faith. He returned them to England with a view to sale at Christies. The plaintiff sought a

declaration that he was the owner of the works of art. Under Italian law, which was not fully

proved, it appeared that the second defendant, being in good faith~ and having complied with the

· necessary fonnalities, would have acquired good title. Did Italian law or English law determine

who owned the works of art? This question was tried as a preliminary issue.

85
Slade J:

'The general principle rnlating to the validity of dispositions of personal property, as

formulated by Pollock CB and approved by the Court of Exchequer Chamber, to which I

shall refer briefly as 'the principle of Cammell v Sewell', has been reaffirmed in many

subsequent decisions. I will mention only a few of them. As thus formulated, it was

expressly approved by Blackburn J delivering the joint opinion of himself and Bramwell

B. Mellor J. Brett J and Cleasby B. in Castrique v Imrie (1870) LR 4 HL 414 when, after

quoting the words of Pollock CB he said, at p. 429: 'This, we think, as a general rule, is

correct, though no doubt it may be open to exceptions and qualifications.'

Faced with these and a number of other 20th century authorities on the same lines, Mr.

Mummery, on behalf of the plaintiff, accepted that as a general rule the validity of a transfer of

movables is governed by the lex situs and that accordingly the principle of Cammell v Sewell

would have the effect of rendering Italian law the relevant law for the purpose of determining the

rights of the second defendant and the vendor of Italy, from whom he purchased, as between

themselves and their respective successors in title.

Laying emphasis on what may be called these English connecting factors, Mr. Mummery

advanced two main propositions as possible avenues of escape from the principle of Cammell v

Sewell. Briefly, the first was, that for the purpose of applying this principle to detennine the

respective rights of the plaintiff anc:l the second defendant in the peculiar circumstances of this

case, the lex situs should be treated as being English~ rather than Italian law. The second was that

if, contrary to his first submission, the application of the principle of Cammell v Sewell would

86
result in the relevant issue being determined according to Italian law, then the exceptional facts

of the case bring it outside this principle.

No authority has been cited the facts of which can be said to be precisely on all fours with the

present case, in the sense that an the English connecting factors relied on by Mr. Mummery are

present. Since, however, I have found three decisions especially illuminating in the context of

his two principal submissions I shall refer to these decisions in some detail . . . \Vhile pausing

there, Cammell v Sewell is thus, in my judgment, clear authority for the following proposition:

the mere circumstances that the goods in the present case have been brought back to England,

following the sale to the second defendant and that their proceeds are now in England do not

entitle the English court to decline to apply Italian law for the purpose of determining the

relevant issue if~ but for those circumstances, that would be the law applicable ...

No case has been cited to me in which the decision in Cammell v Sewell has either been

overruled or, I think even criticised. It is therefore binding on me except insofar as it can

properly be distinguished on its material facts. If therefore my analysis of it is correct, it presents

at very least a serious obstacle to the plaintiff in the present case and correspondingly powerful

support to the second defendant. ..

Accordingly, I think it clear that, if the principle of Cammell v Sewell applies at all on the facts

of the present case, then the lex situs of the relevant disposition cannot be treated as being

English rather than Italian. Intolerable uncertainty in the law would result if the court were to

permit the introduction of a wholly fictional English situs when applying the principle to any

87
particular case, merely because the case happened to have a number of other English connecting

factors.

It therefore follows that, if the plaintiff is to succeed, he must satisfy the court that the second

principal submission made on his behalf is correct, namely that the principle of Cammell. v

Sewell does not apply to this case, because the particular circumstances bring it within an

exception to that principle ....

It must be accepted that exclusive reference to the lex situs must cause hardship to a previous

owner in some cases, particularly, if his goods have been moved to and sold in a foreign country

without his knowledge or consent ...

I thus summarise my conclusions as follows:

(l) The relevant general principle is, in my judgment, clearly and accurately stated in

Cheshire & North's Private International Law, l 0 th ed. ( 1979), p. 527:

'Therefore, it is now established that the proprietary effect of a particularly

assignment of movables is governed exclusively by the law of the country wh~re

they are situated at the time of the assignment. An owner will be divested of his

title to movables if the~~ are taken to a foreign country and there assigned in

circumstances sufficient by the local law to pass a valid title to the assignee, The

title recognised by the foreign lex situs overrides earlier and inconsistent titles no

matter by what law they may have been created.'

88
,1 (2) The rule, however, is not one of universal application; in particular it is not likely to be

applied in any of the five exceptional cases already mentioned.

(3) It is not however, contended that any of these five exceptions applies on the facts ef the
i present case. For the reasons already given, I cannot accept the plaintiffs submission
I,'
that the court should regard such facts as giving rise to a further exception, based on the
l
grounds that the goods were stolen from the plaintiff in England, then removed to Italy

and sold there without the plaintiff's knowledge or consent and have now been returned

to England.
s
y
INTANGIBLE MOVABLES

(CHOSES IN ACTION)

An intangible movable does not physically exist. But it has a legal existence. The law can and

does ascribe a situs to it (an intangible movable). Specific rules exist for some intangible

movables:

(1) Intellectual property rights like patents, copy rights, and trademarks have their ~tus

where they can be effectively transferred, and, if they are assigned, where their holder is.

(2) A share or other security issued by a company is, if transferrable by an entry in the

company's share register and represented by a share certificate, situat<;:d where the

register is kept.

(3) If a security is a bearer security represented by a warrant, its situs is where the warrant is

kept (For more details, the student should consult books on property).

89
 IMMOVABLE PROPER1l'Y

The Mozambique rule which was forrnulated by the House of Lords in the course of r,naking a

rc1liog on ilie case B!iitislhl Sol!l!tlru AfrnC!ll C{[Jl. v Compa~1hia de 1Vfo~.$.mbiqu.ui [1893] AC 602 can

,:onveniently be stated (as found in Dicey and Mords, The Ccmffil\d of Laws [19731] 1r11.de "79) as

'Subject to the exceptions hereinafter mentioned, the court (English Court) has no

jurisdiction to entert,aan an action for ( i) me detennination of the title to, or the right to
th,t possessioli'll of, any immovable situate out of Engl.and (foreign land); or (:2) the

recovery of damages for trespass to such immovable.'

The fads of the case were as follows:

The plaintiff (claimant current term), a Portuguese Chartered Company, claimed that it

was in1 possession of large tracts of !ands in Southem Afdca. That the defendant, an

English Chartered Company, by its agents ,;vrongfoHy broke and entered and took

possessior1J of the lan\ds and ejected the plaintiff company therefrom. The plaintiff

,daimed (1) declaration that it was lawfolly in possession of the lands; (2) un lr~unction

r,estraining the defond:aint from asserting any tide to the lands: (3) £250,000 damages for

trespass. The defendant pleaded that because me lands 1Here outside the jurisdiction the
st:mternient of claim disclosed no cause of action. The question of law was ordered to be

heard before a Divisional Court of the Queen's Bench rnvision, which gave judgment for

the defendant and dismissed the action. In the comt of Appeal the plaintiff formally

abru1d.oned claims ( l) and (2), and the court by a majority declared that the High Court

had jurisdiction. The House of Lords unanimously restored the judgrne:ri1t of the

90
 Divisional Court. The British South Africa Company case should be read along with The

Tolten [1946] P. 153, 141-142.

CHOICE OF LAW

The principles of the English and American Conflict of Laws is that all questions relating to

immovables are governed by the lex situs. But there are exceptions in the case of succession.

The transfer and extinction of interests in immovabl:es and formal and essential validity of

transfers are governed by the lex situs (see Adams v Clu.tterbuck (1883] 20 QBD 403).

In respect to capacity to convey or to take conveyance of foreign land, the matter is governed by

the lex situs (see Bank of Africa Ltd v Cohen 11909] Ch 129 CA).

In the case Bank of Africa: a marrk:d woman domiciled in England by a deed executed here,

agreed to make a mortgage tn a bank here of her land in South Africa to secure the debt of her

husband. Under SoUlth African law she had .no capacity to do so. She was sued for breach

contrru:.t.

It was held that she could not he liable. since she had no capacity to enter into the agreement

SUCCKSSI:ON

This topic is to bij read in conjunction with domestic legislation, regional and international

conventions governing various aspects of successfon.

91
Questions of succession, in general, arise when the beneficial contemplates the distribution of his

(or her) net estate,, and. questions are concerned with .the law which will govern the issue that may

arise.

As a general rule, succession to immovables is governed by the lex situs, and succession to

movables by the law of the deceased's last domicile.

Where succession is under wills one may need to look at the law of the testator's domicile at

time when the will was executed. It also is noted that other laws are made relevant by statute if

the question is one of fonnal validity. Where they will exercise a power of appointment, there is

need to consider the law governing the creation of the power.

MOVABLE PROPERTY

Sue.cession to movables is governed by the law of the last domicile of the deceased: Lynch v

Provisional Gov,-.ln1ment of Paraguay [1871] 2 P & D 268:

"Lopez, dictator of Paraguay died in 1868. He left property, including funds. in a London

bank, to his Irish mistress, Madam Lynch. She sought probate of the will in England, but

this was opposi~d by the Provisional Government which, after Lopez's death, had enacted

a decree purporting to invalidate his will and to confiscate his property to the state.'

The Government's claim was r~jected. It was held that Lopez's will, being valid by Paraguayan

law when made and when he died, was not invalidated by the subsequent change in that law.

92
The law of the last domicile governs intes~. This law ceases to operate, when there is, or

remains, no one whoi under that law, can succeed on intestacy. Under such situation, the state,

in England the Cmwns will take the property as own or loss property or bona vacantia (Re

Maidonado [1954) P. 223 CA).

WILLS OF MOVABLES

CAPACITY

The law of the testators' domicile determines whether he/she has personal capacity to make a

will of movables (In the Estate of Fuld (No. 3) (196$] ~- 675, 696). 'Personal capacity is used

to denote such questions as whether an infant or a married woman or a person suffering from

bodily or mental illness can make a valid will.'

The above principle is applicable where the testator's domicile is the same at the date of his

death as it was when he ma.de his wilt But if the domicile changes, most writers would seem to

agree that his/her domicile at the date of the will should govern.. Capacity to make a vviH of

immovables is governed by the lex sity§.

FORMAL VALIDITY

At common law a will of immovables had to comply with the fonnalities prescribed by the le)£

situs, and a wm of movables had to comply with the formalities prescribed by the law of the

testator's last domicile (Pepin v Bruyer {1911] 2 Ch 504; Bremer v Freeman [1857110 Moo

P .C. 306) {consult relevant domestic or regional or international conventions on the matter of

· the validity of wills).

93
 MATERIAL OR ESSENTIAL VALIDITY

The material or essential validity of a will of movables, or of any particular gift of movables

contained therein, is governed by the law of the testator's domicile at the time of his or her death

(see Whicker v Hume [1858] 7 H.L.C. 124).

The term material or essential validity should be taken to refer to questions regarding the duty of

the testator to leave a certain proportion of his/her estate to his or her childrer, or widow (see

R Groos [1915] 1 Ch 57:2; Re Annesley (1926] Ch 692. Also questions whether gifts to

charities are valid; and whi~ther a gift is not contrary to the rule against perpetuities or

accumulations.

The material or essentiar validity of a glft by will of immovables is governed by the lex situs.

That law wiU detennine ,,v}mt estates t~an legally be created (Nelson v Bridport [18451 8 Beav.

547). Other matters include whtt,ther gifts to charities are valid (Re Hoy ies (19:U] 1 Cb J.79);

whether the testator is by law (';OmpeHed to leave a certain proportion of his/her estate to his/her

children or widow (Re Ross [1930] 1 Ch 377).

CONSTRUC'flON

By the word 'constm,;tion.' is meant the meaning of words and phrases used in the will by the

testators~ and also the way in which the law filts up gaps in his/her dispositions when he/she has

failed to foresee and ptovide against t)ertain events.

94
It is noted that the construction
~t "
of a will of movables is governed by the law intended by the

testator. This is presumed to be the law of his/her domicile at the time when the will was made -

unless the contrary is indicated - the presumption is a rebuttable one (see Cunnington [1924} 1

Ch 68).

A change of domicile between the time when the will was made and the time of the testator's '

death does not effect the construction of the win.

The above rule applies to the construction of wills of immovables.

REVOCATION

The. materials in this section should be read in light of existing domestic legislation, and regional

and international conventions.

The revocation of wills is being considered in light of the rules of the conflict oflaw:;. A will

may be rev~ked either (i) by a later will or codicil; or (ii) other testamentary mode of revocation,

e.g., by burning, tearing or destroying; or (iii) by a change of circumstances, e.g., in English

domestic law by subsequent marriage of the testators, or in some other systems by his or her

subsequent divorce or by the birth of children.

(a) A later will or codicil may revoke an earlier wiH either expressly or by implication.

(b) The revocation of a will by tearing is governed by the lex situs in the case of immovables,

or by the law ofilie testator's domicile in the case of movables.

95
 ,· ·t",';;~~;;,,;£+;0£iib\·i¥t✓1~&lJliiJi&%3Miis%ii:t~~&Wffl

(c) The question whether subsequent marriage may revoke a will depends on the domestic

law of each country. In England subsequent marriage revokes a will (see Re Martin

[1900] P. 211)

Co/lens (deed), Re, Royal bank of Canada (London) Ltd. v Krogh and Another [ 1986] 2 WLR

919

• Intestate succession to immovable is governed by their situs, while intestate succession to

movables is governed by the law of the deceased's last domicile.

Facts

The deceased died domiciled in Trinidad and Tobago leaving property there, in Barbados and in

Engalnd (some of which was immovable). $1,000,000 was paid to his widow in full settlement

of her claim against the Trinidad and Tobago estate. She now claimed, in reliance upon s46 of

the Administration of Estates Act 1925, the statutory legacy of £5,000 from her husband's

immovable English estate.

Held

On a true construction of s46(1) the residuary estate that was charged with the payment of the

statutory legacy was confined to assets, succession to which was governed by English law; thus a

statutorj legacy had to be paid out of the proceeds of the sale of the deceased's immovable

property in England, notwithstanding the widow having already taken benefits from the Trinidad

and Tobago estate.

96
Argument of the court;

'Under the law of the intestatc's domicile, namely Trinidad and Tobago, the widow is

entitled to one third of the estate absolutely. Subject thereto the children take the estate

equally. As to the law of England, it is common ground between counsel that the

succession to the English imn10vable property on the intestacy of the deceased is

regulated by the domestic English law of intestacy. That is the rule as stated by Dicey &

Morris, The Conflict qlLaws, 10th ed (1980), voL 2 p. 612, r98. The comment on the rule

that succession to immovabJes of an intestate is governed by the law of the country where

the immovables are situate suggests that although that was the position before 1925 it

might be that after 1925 the law was different. However, counsel has not sought to argue

that point a:nd the argument has proceeded on the basis that the English estate, so far as it

consisted of immovable property, is regulated by domestic English law,

The question which arises is this. Is the widow entitled to her statutory legacy out of the

English immovable estate notwithstanding that she has taken $1 miUion under the deed of

compromise out of the Trinidad and Tobago estate, and would have been entitled to one~

third of the rest of the estate under the law of domicile? Can she take both the share of

the estate under the law of domicile which regulates the movable property of the

deceased and in addition the statutory legacy under the English law of intestacy in

relation to the English immovable property? It is common ground between counsel that

the deed of compromise does not affect the matter.

97
 ' "'"\ ~\-'.f:~:wrrvw i:c ,,,~!

The relevant statutory provisions are contained in the Administration of Estates Act 1925,

as amended by the Intestates' Estates Act 1952. Section 33 of the Act of 1925 provides

that on the death of a person intestate "as to any real estate upon trust to sell and convert

into money such part thereof as may hot consist of money, and then 'to apply the globular

mixed fund of realty and personalty to pay debts and testamentary expenses and other

matters. The s33(4) provides:

'The residue of the said money and any investments for the time being

representing the same~ including (but without prejudice to the trust for sale) any

part of the estate of the deceased which may be retained unsold and is not

required for the administration purposes aforesaid, is in this Act referred to as 'the

residuary estate of the intestate'.'

The right to the statutory legacy arises under s46, as amended. Section 46 is headed:

"Succession to real and personal estate on intestacy"'. Subsection (1), so far as relevant,

provides that if the intestate leaves a wife and issue, the surviving husband or wifo shall

take the personal chattels absolutely:

' ... and, in addition, the residuary estate of the intestate (other than the personal

chattels) shall stand charged with the payment of a fixed net sum of £5,000, free

of death duties and costs, to the surviving husband or wife with interest thereon

from the date of the death ... until paid or appropriated~ and, subject to providing

for that sum and the interest thereon, the residuary est.ate ... shall be held (a) as to

98
\•

one half upm1 trust for the surviving husband or wife during his or ht,r life, and,

subject to such life interest, on the statutory trust for the issue of the intestate, and

(b) as to the other half, on the statutory trusts for the issue of the intes~te.'

The widow is entitled to her statutory Legacy out of the English assets.

REVISION QUESTIONS

1. State clearly the rules governing the contracu.fal questions concerning tangible movable.

2. List all the rules enunciated in the case: Wink.worth v Christie, Manson and Woods

[1980] Ch 496.

3. What is the Mozambique Rule?

4. What is the general principle of the American Conflict of Laws regarding choice of law

rules relating to immovable?

5. What is meant by succession to immovables, in general in the wake of the death of a

testator?

6. What are the consequences of the revocation of a will by burning?

7. What are Lex situs rules? Explain each one of them.

8, What are the common problems arising from matrimonial property?

9. What is the advantage or advantages of careful construction of words in a will?

10. How is a will revoked under Zambia family Law?

99
 READING

Abla Mayss, Principles of Conflict of Laws, 3rd ed. (London, Cavendish Publishing 1999).

Cheshire, Private International Law, 8th ed.(see the latest) (London, 1970).

A.V. Dicey and J.H.C. Morris, The Conflict of Laws 13th edn., by L. Collins and Others

(London, Stevens, 2000).

J.D. McClean and Kisch Beevers, Morris The Conflict of Laws, (London, Thomson: Sweet and

Maxwell, 2005).

0. Kahn -Freund, 'General Principles of Private Intemational Law' (1974- 111), Recueil des

cours, Vol. 143, 369 - 82.

E. Rebel, The Conflict of Laws, a Com,.rutrative Study, 2nd edn., Vol. 1 (Ann Arbor, University of

Michigan Press, 1968).

Statutes (domestic}:

The Arbitration Act, Cap. 40 (vol. 4)

The Citizenship Act, Cap. 124

The intestate Succession Act, Cap. 59 (vol. 5)

The Interpretation and General Provisions Act, Cap. 2 (vol. 2)

The Legitimacy Act, Cap. 52 (vol. 5)

The Maintenance Act, Cap. 55 (voL 5)

The Maniage Act, Cap. 50 (vol. 15)

The Termination of Pregnancy Act, Cap. 304 (voL 17)

Statutes (forei2n}

100
Administration of Estate Act l 925

The Adoption and Children Act, 2002

The Arbitration Act 1996

The Children Act, 1989

Civil Jurisdiction and Judgment Act 1982

The Defence of Marriage Act, 28 U.S.A. (USA)

The Divorce (Religious Marriages) Act, 2002

The Family Law Act 1986

The Fatal Accident Act 1976

Law Reform (Miscellaneous Provisions) Act 1934

The Legitimacy Act 1976

The Matrimonial Causes Act 1073

The Matrimonial and Family Proceedings Act 1984

{nternational Conventions

The Hague Convention on Jurisdiction, Applicable law, Recognition, Enforcement and

Cooperation in Respect of Parental Responsibility and Measures for the Protection of

Children, 1996.

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry

Adoption, 1993.

101
 ,.,,,,·;;:',ki:~frii"%r¥,

The Rome Convention on the Law Applicable to Contractual Obligations, 1980.

Table of Cases

(In Chronological Order) Pages

Buchanan v Rucker (1809) 9 East 192 57,62
Hubber v Steiner (1835) 2 Bing. N C 202 17

Collier v Rivas (1841) 2 Curt 855 21, 33

Nelson v Bridport ( 1846) 8 Bear 547 94

Parke Bin Russell v Smyth (1847) 9 M. & W. 810 57

Hope v Hope (1854) 4 Dec. G M & G 328 72

Bremer v Freeman (1857) 10 Moo PC 306 93

Whicker v Hume (1858) 7 HL Cas 124 40,94

Simonin v Mallac (1860) 2 Seo & Tr. 67 66

Brook v Brook (1861) 9 HLC 193 65, 72,76

Hyde v Hyde (1866) LR l P. & M. 130 65

Bell v Kennedy (1868) LR l Sc. & Div 307 31, 43

Shaw v Gould (1868) LR 3 HL 55 24,25, 74, 76

Udny v Udny (1869) LR 1 Sc &. Div 441 30

Castrique v Imrie ( 1870) LR 4 HL 414 86

Godard v Gray (1870) LR 6 QB 139 57

Mordaunt v Mordaunt (1870) LR 2 P.D.M. 109 65

102
Schibsby v Weslerholz (1870) LR 6 QB 155 57

Lynch v Provisional Government of Paraguay (1871) 2 P & D 268 92

Hork v North British Ry (1873) 5 R 1055 16, 86

Ochsenbein v Papelier (l 873) LR 8 Ch., App. 695 58

Lalo v Garret (1878) 8 Ch. D. 26 48

Re Goodmen Trust (1881) 17 Ch. D. 266 74

Adams v Clutterbuck ( 1883) 20 QBD 403 91

British South African Co. v Companhia de Mozambique (1893) AC 602 90

Piercy, Re, Whiteharm v Piercy (1895) 1 Ch 83 50

Re Martin (1900) P. 211 96

Re de Wilton ( 1900) 2 Ch 481 74

Re Bozzelli's Settlement (1902) l Ch. 751 73

Davis v Mills, 194 U.S. 451 (1904) 9,68

Winans v Att.-Gen. (1904) A. C. 287 32

Ogden v Ogden ( 1908) P. 46 16

Bank of Africa Ltd. V Cohen (1909) Ch. 129 (CA) 91

Re Hoyles (1911) 1 Ch. l Ch. 179 83,94

Pepin v Bruyer (1911) 2 Ch. 504 93

Re Bonacina (1912) Ch. 394 81

Robinson v Fennar (1913) 3 KB 835 59

Re Groos (1915) 1 Ch 572 94

Re Jones Estate, 192 Iowa 78, 182 N.W. 227 (1921) 32,43

Re McCartney ( 1921) 1 Ch. 522 58

103
Re Berchold (1923) l Ch. 192 83

Cunnington ( 1924) I Ch. 68 95

Annesley, Re, Davidson v Annesley (1926) Ch 692 14,20,94

Re Askew (1930) 2 Ch. 259 14

Berthiaume v Dastous (1930) A.C. 79 66

Ramsay v Liverpool Royal Infim1ary (1930) A.C. 588 33

Re, Ross v Waterfield (1930) 1 Ch. 377 94

McDonald v McDonald (1932) S.C. (HL) 79 83

St. Pierre South American Stores Ltd (1936) 1 KB 382 48

Mount Albert Borough Council v Australasian etc, Assurance

Society Ltd (1938) A.C. 224 80

Re B's Settlement (1940) Ch. 54 80

Re Catcliff (1940) Ch 565 83

R Paine (1940) Ch 46 14

Re D {An Infant) (1943) Ch. 305 72

Cohen, Re (1945) Ch. 5 17

Williams v Jones (1945) 13 M. &. W 628 57

The Tolten (1946) P. 153 91

Apt v Apt (1948) P. 83 65

Bassevien v Well (1950) A.C. 372 56

Re Bischoffsheim ( 1948) Ch 79 79

Kohler v Midland Bank ( 1950) A.C. 24 82

Baruthom v Commonwealth of Australian (1951) AC 20 l 82

104
D; Almeida Amuyo Lda v Sir Freiderick Booker & Co. Ltd

(1953) 2 ALL ER 288 11

Starkowski v Att.-Gen. (1954) A.C. 155 17,93

ScuHard, R (1956) 3 AH ER 895 41

Taczamowsk v Taczarnowsk (1957) P. 301 21

Re United Railways of Havana and Regla Warehous,~ Ltd., (1960)

Ch.52 81

Albeka Schumachinen v Kamborian Shoe Machine Co. Ltd.,

(1961) 111 LJ 519 81

Tomkinson v First Pennsylvania Banking Trust Co. (1961} A.C 1007 80

Shewebel v Ungar (1962) 42 DLR (2d) 622 25

Geithweite v,Geithweite (1964) P. 356 32

Re P. (GE) (An Infant) (1965) Ch. 588 (AC) 72

Re Valentine's Settlement ( 1965) Ch, 831 75

Colt Industries v Sarlie (No. 1) (1966) 1 VI/LR 440 46

Mackender v Feldia (1967) 2 QB 590 48

R. v Breedwood Sup. Registrar ofMarriagf;S ex parte Arios

(1968) 2 QB 956 27

Re Fuld (1968) P. 675 38,93

Padolechia v Padolechia ( 1968) P. 314 67

Chaplin v Boys (196,9) 3 WLR 322 10

Indyk?. v Indyka (1969) l A.C. 53 (HL) 68

l05

/
 ,,:/f.Y7llffJ!ll'" ,.,));,_, _, , ,

Ionian Bank Ltd. V Couveur ( 1969) 1 WLR 781 48

The Eleftheria ( 1970) P. 94 48

Whitworth Street Estates Ltd (1970) A.C. 583 80

Gureshi v Gureshi (1971 ). All ER 325 39

Maharanee iofBaroda v WiMenstein (1972) 2 QB 283 (CA) 46

The Atlantic Star (1973) QB 364 48, 50

Evans Marshall & Co. Ltd. v Bertola S.A. (1973) l WLR 349 48

Inland, Revenue Commissioner v Bullock ( 1976) 1 WLR 1178 36, 40

Winkworth v Christie Manson and Woods (1980) l Ch. 496 85, 99

Fume (<l.eed), R. Furse v IRC (1980) 3 All ER 838 35

The E.L. Amria {1982) 2 UR 119 (CA) 49

The Abidin Dower (1984) A.C. 398 50

Amin Rasheed Shipping Corporation v Kuwait Insurance Co.

(1984) AC 50 81

Kapur v Ki,1pur (1984) 5 FLR 920 67

Menut Um:,-s Inc. v Sofianites (1984) UR 14 47

The Missioniki (1984) LIR 266 47

The Sennar (1985) l MLR 490 49

S1Juth India Shipping Co. v Export - Import Bank of Korea

(1985) 1 WLR 585 47

Collens, R. C. (1986) 2 WLR 919 96

Spiliade M,lfitime Cmp. v Consulex Ltd (1987) A.C. 40 (HL) 50

106

'tj
l
,.
Black v Yates (1991) 3 WLR 90 59

Boocock v Hilter - International Co. ( 1993) l WLR 1663 47

Saab v Saudi-American Bank (1999) 1 WLR 1861 47

Lube v Cape Plc (2000) 1 WLR 1545 (HL) 50

Harding v Wealand (2005) 1 WLR 1539 13

107