THE UNIVERSITY OF DODOMA

SCHOOL OF LAW
DEPARTMENT OF PRIVATE LAW
COURSE NAME: PRIVATE INTERNATIONAL LAW
COURSE CODE: LW 4102
COURSE INSTRUCTOR: MR. KHARTOUM MASOUD
NATURE OF THE WORK: GROUP ASSIGNMENT (GROUP NUMBER 03)
SUBMISSION DATE: Wednesday, February 07th 2024
DEGREE PROGRAM: LLB
S/NO NAMES OF PARTICIPANTS REG. NUMBER SEX SIGNATURE

01. JAMES SAMSON JACOBO T/UDOM/2020/08277 MALE

02. INNOCENT GELARD ELISHA T/UDOM/2020/08256 MALE

03. JOHN CLEMENT T/UDOM/2020/09973 MALE

04. MAXIMILIAN MRINA T/UDOM/2020/8305 MALE

05. EMMANUEL R. MBAO T/UDOM/2020/08249 MALE

06. HURUMA MANYAMA T/UDOM/2020/08309 FEMALE

07. WILTRUDICE MWIYOLA T/UDOM/2020/09971 FEMALE

08. MARIA PANDE T/UDOM/2020/02848 FEMALE

09. MARIAM MWINJUMA T/UDOM/2020/09981 FEMALE

10. LUTISIA YUSTUS MWAMBE T/UDOM/2020/02861 FEMALE

Question:
“With relevant authorities, discuss in detail on governing rules regulating property and
succession in conflict of laws”.
1.0 Introduction

Following the development of globalization which enhance the extent of interaction of the
people across the world, occurrence of disputes between two or more individuals connected
with the laws of more than one state has become inevitable, as it is indisputable fact over the
past 200 years a lot of things has changed on various matters regulating the relationship
between the persons of different jurisdiction hence imposition of legal obligation when
regulating the legal relationship among the persons.1

In discussion of this study basing on the scope of the question there are important terms to be
made clear by providing their meaning of those key terms which include the following:

1.1 Conflict of laws: Can be simply defined to mean the set of rules governing the legal
relationship between two or more individuals connected with the laws of more than one state.2
The scope of the conflict of laws can be simply expressed it covers only the matters of civil
nature also with the foreign elements. The term referred to as the private international law.

1.2 Legal obligation: It is used to refer to a legal duty of a person to do something imposed
under the law. Such an obligation come to arises in a situations where an individual or group
of the individuals, is obliged to take a particular course of action under the law. 3 One of the
fact about these obligations are binding ties that are covered by legal terms and can be enforced
by the court. It can be simply expressed also as the promise made by one party to another in
which the law requires a party to perform an act, or refrain from doing an action. Such an
obligation may arise out of contractual relationship, marriage and the other factors.

1.3 Property: The term as it has been defined under the Cambridge Dictionary to mean a ‘thing
or things owned by someone’ it further state it as a possession or possessions.4 Property can be
classified basing on the factor which has been taken into account and for that case there is
movable and immovable property, real and personal property, tangible and intangible property,
corporeal and incorporeal property.
1.4 Succession: As according to professor Nditi in his book of Succession and Trusts in
Tanzania, he has defined the term to mean the passing of the whole or substantially the whole

1
Collier J. G, Conflict of Laws (Third Revised Edition), (Cambridge University Press 2001) 13.
2
Ibid.
3
Roscoe E, ‘Legal Validity and Legal Obligation’ The Yale Law Journal (Vol. 80, No. 1, 1970) 47-75 <
https://doi.org/10.2307/795096 > accessed 4 February 2024.
4
Andrew A, Cambridge Dictionaries Online (Cambridge University Press 2014) <
https://dictionary.cambridge.org > accessed 3 February 2024.
of one’s estate to another or to others. This may occur depending on a number of ways which
include upon the death of a person or succession upon bankruptcy.5 For the purpose of this
document we will cover in detail the governing rules regulating succession in conflict of laws
upon the death only. Both where a person dies testate and intestate without leaving a will.
2.0 Governing Rules Regulating Property in Conflict of Laws

Interaction of the people across the world nowadays it is clear that, persons belonging to
different jurisdictions may involve in transactions relating to property rights. For that reason,
it is important to ascertain the private international law rules regarding the disputes relating to
the property rights in both movable and immovable property between persons from different
jurisdictions for the purpose of securing and protecting the expectation of the parties. For the
purpose of discussion on this section, the study will cover only on the immovable property in
which is going to be discussed in details.

2.1 Private International Law Rules in Respect of Immovable Property

The question arises under the conflict of law rules that, what are the law govern the creation,
transfer and effect property rights where a property interest involves more than one country.
Herein, the discussion will focus on the rules used to determine the disputes arising in
immovable property between persons from different jurisdictions. Different scholars at
different times have suggested different solutions for this problem by providing rules stipulated
herein below;

2.1.1 Lex loci situs: entails that the law governing a particular issue is the law of the jurisdiction
where the properties are located.6 This principle is commonly applied in cases involving real
property, such as land and buildings. The Lex loci situs serve the fundamental principle in
resolving conflicts between different legal systems by establishing a clear framework for
determining which jurisdictions laws should govern a particular issue related to immovable
property. The rule was observed in a case of British South Africa Co. v Companhie de
Mocambique,7 where the Companhia De Mozambique herein plaintiff was in possession of
large tracks of land, mines and mining rights in South Africa. The British South Africa
Company herein the defendants by its agents, were accused of wrongfully entering and taking
possession of the said land, mines and mining right, and ejected the plaintiff company’s

5
Nditi N, Succession and Trusts in Tanzania: Theory, Law and Practice (Law Africa Publishing (K) Ltd 2017)
45.
6
Collier J. G, Conflict of Laws (Third Revised Edition), (Cambridge University Press 2001) 7.
7
British south Africa Co. v Companhie de Mocambique [1893] AC 602.

1
servants, agents, and tenants therefrom and also took possession of some of plaintiff personal
property and assaulted and imprisoned some of the plaintiffs. Among the issues raised was the
matter of jurisdiction regarding immovable or land property. The court of appeal took the view
that the action is maintainable before English court. But, the house of lords laid the rule that an
English court has no jurisdiction to adjudicate upon the righty of property on or the possession
of foreign immovable, even though the parties may be resident or domicile in England.
The general rule of exclusion of foreign immovable property is based upon the consideration
that the only the court of the situs will be able to make effective orders in respect of immovable
property. Also, according to Dicey and Morris “the sovereign of the country where the
immovable property is situated has absolute control over the property within his dominion and
his court alone is, as a rule, entitled to exercise jurisdiction over such land”.

Exceptions to the Mocambique Rule

As a common law rule in private international law. The rule lead an action relating to title in
foreign land, the right to possession of foreign land, and trespass to foreign land non justiciable
in common law jurisdiction.8
As a general rule the dispute among person across different jurisdictions in respect to
immovable property the law used is that of jurisdiction that property is situated but there are
circumstances or exceptions where lex loci situs can be disregarded as be discussed in details
as follows:
First, the dispute concerns personal obligations: this mean that if the defendant become bound
by a person obligation to the plaintiff, the court in exercise of its jurisdiction in personam, will
not shrink from ordering him to convey or otherwise deal with foreign land.
The circumstances that considered sufficient to create this personal obligation mainly related
to; contract relating to foreign land, fraud, fiduciary relationship, and matrimonial property.
Contract relating to foreign land; a contract to foreign land creates a personal law obligation.
Furthermore, while making reference from the case of Penn v Baltimore,9 in which it was
stated that the court could not pass a decree in rem but in the exercise of its jurisdiction in
personam, a decree for specific performance was ordered, in which the above mentioned
instances have been regarded sufficient to render this personal equity.

8
Ibid.
9
Penn v. Baltimore (1750) 1 Ves Sen 444; 27 ER 1132.

1
Second, questions affecting foreign land incidentally raising in an English action: That can be
simply explained in the way that, where the property includes immovable or movable property
found in England as well as immovable properties located in a foreign country, then in that
instance the English court has the power to entertain the matter affecting the foreign immovable
properties for the purpose of administration.10 That position can be further cemented from the
case of Glentanar v. Wellington,11 in which from this case the duke of wellington a British
national domiciled in England wrote which cover also the immovable properties in Spain and
England. The English court did not deny to determine the matter in disputes relating to Spanish
land which were incidental to the main issues involved in the wills of the deceased.
Third, admiralty jurisdiction in trespass: In that exception the English high court has been given
power to determine the dispute relating to trespass of foreign land, in which the high court in
England is said to possess the admiralty jurisdiction to make decision over that dispute. The
position can be observed as by looking from the case of United Africa Co Ltd v. Owners of
MV Telton,12 from this case the plaintiff was the owner and occupier of Warf in Nigeria. The
warf was damaged following the negligent navigation of the defendant. The plaintiff instituted
a case in England seeking for compensation for injury caused to the Warf. The court came to a
conclusion that at the point the high court in England exercises its admiralty jurisdiction the
ban imposed by Mozambique rule is not applied.
In general, lex situs governs the issues include, capacity to take movable, capacity to transfer
immovable by sale, gift, mortgage or in any other form, formal validity of transfer of
immovable, essential validity of transfer of immovable, succession of both the testate and
intestate as it was in the case of Nelson v. Bridport.13

3.0 Governing Rules Regulating Succession in Conflict of Laws

As the meaning of the term, succession has been provided in the introductory part of the paper,
in which the matter to put into discussion is, whether the person died testate or intestate. In
instance, the person dies testate then the will shall be used as the governing law to dispose of
the properties of the deceased to the legal beneficiaries as long as the will was valid executed
and was properly made. Such a discussion can be put simply as follows, but prior to that are

10
James M, ‘Jurisdiction of Foreign Trespass to Land’ Virginia Law Review (Vol. 17 No. 7, 1931) 691-694.
<https://doi.org/10.2307/1066477 > accessed 3 February 2024.
11
Glentanar v. Wellington [1947] 1 Ch. 506.
12
United Africa Co Ltd v. Owners of MV Telton [1946] 2 All ER 372. P 135.
13
Nelson v. Lord Bridport (1864), 8 Beav. 527.

1
instances which render the estates being said to possess the foreign elements which include but
not limited to the following;

First, properties located in different countries or jurisdictions, is where the deceased had
properties situated in different countries for example some are in Uganda and other properties
in Tanzania.
Second, a deceased person is not the national of the jurisdiction in which his or her properties
are situated, such situation may render into conflict of laws in respect of the succession of the
deceased properties about the law applicable to determine the matter.14
3.1 Succession at the International Level

For the purpose of discussion under this section is important to categorize it into two aspects
of testamentary succession and intestate succession which can be discussed as follows:

3.1.1 Testamentary Succession

Under the testate succession, the will shall be used as the governing law to dispose of the
properties of the deceased as according to his express wishes as provided under the will.15 The
matter, which may arise, is on whether the will was valid made in respect to the law in which
the deceased person intended his properties to be bequeathed. From that point of view, there
are factors, which are put into consideration concerning the validity of the will in brief to
include:

First, capacity: as by looking on the age of the testator, in which a person is required to be of
majority age, mental and physical status of a testator in which a person must be of a sound
mind and physically feet to write and sign a will.16

Second, intention of the deceased (animus testandi): Also the intention has to be shown as the
person intended voluntarily to write a will not being forced by any extra factors such as undue
influence.17
Formality: The will must observe all the formal requirements to be complied with in respect of
the law to be used in execution of the will such as being in written, a number of witnesses,
bequeath all the properties of the deceased and other formalities.

14
The Tamil Nadu Dr. Ambedkar Law University, ‘Private International Law: Compiled Lectures Study Material’
(S. Bramanandasivam 2004) 97.
15
Ibid.
16
Ibid.
17
Benson Benjamin Mengi and Others v. Abdiel Reginald Mengi and Another (Probate and Administration
Cause 39 of 2019) at p. 16.

1
In many states it is provided that the wills of local domiciles shall be held valid as to form if
they comply either with the state’s own requirements or with those of one or more states.18

If after making a will the testator decides change his domicile, the validity and the effect of his
will are determined by the rules of the courts of the state of his domicile at the time of his death,
and not by the law that would be applied by the courts of the state of his domicile at the time
of executing the will.

3.1.1.1 Validity and Effect of a Will on Movables and Immovable Properties

The question on the validity of a will with regard to movables and the rights created thereby
are determined by the law that would be applied by the courts of the state where the decedent
was domiciled at the time of his death.19 Therefore, the courts will use or apply their own local
laws with regard to the questions on the validity of the will such as the capacity of the testator
at the time of making the will20.

On the other hand, the court of domicile may also consider foreign laws to determine the
capacity of the beneficiaries to inherit such properties.

Similarly, when there is a question on the determination of the effect of an agreement by the
testator to dispose of his property in a certain way in accordance with the law governing the
agreement. Whichever law would have been applied in the ultimate decision of the case but the
courts of the state where the testator was domiciled at the time of his death will likewise be so
applied by the forum.

3.1.2 Intestate Succession

This is the situation where by the deceased persons died without leaving behind a valid will or
other legally binding document dictating how their assets and property should be distributed.
The rule has been established that, movable properties in the case of intestate shall be
distributed according to the law of domicile of the deceased person at the time of his death.
Instead, the distribution of assets is determined by the laws of intestacy in the state where the
person passed away.

18
Nditi N, Succession and Trusts in Tanzania: Theory, Law and Practice (LawAfrica Publishing (K) Ltd 2017)
79.
19
Ibid.
20
Ibid.

1
The law of domicile will also be used by the court to determine various matters such as the
classes of persons to take the portions of the distributes they are entitled to, the rights of the
surviving spouses, the liability of a beneficiary for unpaid debts and all related questions.

Therefore, since the since the Courts of the state where the deceased was domiciled at the time
of his death have jurisdiction over the matters of succession of movable properties when the
deceased died intestate. The Courts will look at their local laws to determine which category
of person are entitled to inherit upon intestacy. This means that, if the law of succession
changed after the person died the applicable law is the pervious law and not the law that comes
in to effect after the death.

On the other hand, these courts might look to the local law of some other state to determine
whether a particular person claiming a share in the movables of an intestate belonged to that
category.In intestacy, where a person dies without leaving a valid will behind then intestacy
rules shall apply,21 in case the estates of the deceased person has foreign elements, then the
question come to arise is on the choice of laws to be applied in disposing of the properties to
the legal beneficiaries.

3.1.2.1 Choice of Law in Succession Cases concerning conflict of laws

In instances, where the courts face with the choice of law in the succession cases of
international level which concern the conflict of laws, there are two highly advised stages
undertaken to reach the most appropriate and just decision which are;

First, on the applicable law, under this stage the court normally apply the law of the forum (lex
fori), which is applied in all procedural matters by the court into which the matter has been
brought. Where the rules of conflict of laws select a foreign law, its application, even though
it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the
lexi fori instead.22

Second, connecting factors, these are used to determine the connection of the legal issue to the
law of potential relevant state and apply the law which has the greatest connection with the
matter at hand. This means that the connecting factor that will prevail over the others then is
used to ascertain the matter at hand. In that sense, the connecting factor act as a link between

21
The Tamil Nadu Dr. Ambedkar Law University, ‘Private International Law: Compiled Lectures Study Material’
(S. Bramanandasivam 2004) 97.
22
Addrian B, The Conflict of Laws (Forth Revised Edition), (Oxford University Press 2019) 76.

1
the persons and the legal system or rules that will apply to that person in particular context of
the succession matter.23

There are many connecting factors depending upon which court is the forum applying lex fori
for determining the lex successionis. For that effect, the following are the governing rules
(before they were four but now there are six rules) in succession in the conflict of laws:

3.1.2.1.1 Lex domicilii (the law of the deceased’s domicile at death), also is a one of the
connecting factors that is applied in a number of countries including Tanzania, once
determining the law to be applicable by observing the domicile of the deceased at his death by
looking the law of the place where a person was a domicile. The word domicile its meaning
was provided in the case of Henderson v Henderson,24 but also Lord Cranworth defined the
term in the case of Doucet v. Geoghegan,25 domicile to mean the home, the permanent home
of a person not temporary home. In which types of domicile are domicile of choice, domicile
by birth and domicile of dependence, in which no person shall be without a domicile and also
no person shall have two domicile at a time.26That is commonly done to determine the domicile
in which a person is connected on the territorial law of only one system of jurisdiction. That
factor is very important in determining the law to be applied in case the person dies intestate.

In situations where the a will although invalid under the local law of state where the decedent
was domiciled at the time of his death, is valid under the local law of some other state having
a close relationship to the case as the state where the testator was domiciled at the time the will
was executed.

3.1.2.1.2 Lex Patriae (the law of the deceased’s nationality at death), as it is indisputable fact
that nationality represents a person’s political status by virtue of which he or she owes
allegiance to a particular country. This a governing rule in the conflict of laws which is the
system of public law applied to any lawsuit where there is a choice to be made between several
possibly relevant laws and a different result will be achieved depending on which law is
selected.27 The law of nationality (lex patriae) was at the first time adopted in France in 1803.
Basically the concept of nationality depends not only on the place of birth of a person of his
parents but also on naturalization.

23
Collier J. G, Conflict of Laws (Third Revised Edition), (Cambridge University Press 2001) 36.
24
Henderson v. Henderson [1967]
25
Doucet v. Geoghegan (1878) 9 Ch D 441.
26
Udny v. Udny (1869) LR 1 Sc. & Div. 441.
27
Ibid.

1
3.1.2.1.3 The law of deceased’s habitual residence, habitual residence has been used as a
connecting factor in many countries. It has played a most important role in the Hague
Convention on the law applicable to succession to the Estate of Deceased Persons of 1988, on
the ground that it gives an alternative to nationality and difficulties associated with domicile,
such as those in regard to intention, origin, dependency and other. The term residence used to
involve the physical presence in the particular country as an inhabitant. Residence can be
permanent or temporary as differ to domicile. As by referring from the case of IRC v Duchess
of Portland,28 in which it was provided that living somewhere for long or short period of time
does not establish that place to be your permanent home. For instance, in Tanzania for a person
to be considered as a resident must be present in the jurisdiction for about 183 days in that year
of income for the purpose of taxation of the income of the person.29 The residence can be both
to natural person and artificial person include corporations.

3.1.2.1.4 Lex loci situs (the law of the jurisdiction in which deceased’s immovable and movable
properties are situated): This is simply mean the law of the place where the properties are
located at the point of deceased death, which plays a vital role as one also of the connecting
factors in lex successionis.30 Normally the laws of those jurisdictions are likely to govern the
administration of the estate of the deceased’s properties. For the purpose of this study, the
following are the important details to be observed:

Succession signifies also the estates, rights, and charges which a person leaves after his death,
whether the property exceeds the charges or the charges exceed the property, or whether he has
only left charges without any property.31 The rules governing succession in the conflict of laws
in terms of succession can be looked upon depending on the two types of succession, intestate
succession and testamentary succession but also depending on the type of the properties subject
to succession. On determining the rules governing succession in the conflict of law before
anything there are two things which should be looked upon. First, the court which has
jurisdiction to determine the matter on succession. Second, the proper choice of law rules which
can be relied on by the court in determining the matter.

28
IRC v Duchess of Portland [1982] Ch 314.
29
The Income Tax Act [CAP. 332 R.E 2019] s. 66(1)(a) and (b).
30
The Tamil Nadu Dr. Ambedkar Law University, ‘Private International Law: Compiled Lectures Study Material’
(S. Bramanandasivam 2004) 98.
31
Caroline S and Spero M, Succession, Wills, and Probate (Routledge 2015) 236 < https://www.routledge.com >
accessed 3 February 2024.

1
4.0 Conclusion

In conclusion, the intricate landscape of conflict of laws governing properties and succession
underscores the necessity for a nuanced understanding of legal frameworks, both domestically
and internationally. 32 Through the analysis of various governing rules such as domicile,
nationality, it becomes evident that that reconciling competing interests and ensuring equitable
outcomes pose significant challenges. As globalization continues to blur jurisdictional
boundaries and legal systems evolve, the need for harmonization and clarity in conflict of laws
principles becomes ever more pressing.33 In navigating this complex terrain, it is imperative
for legal practitioners and policymakers alike to prioritize coherence, fairness, and the
protection of the individual rights. Only through a concerted effort to strike a delicate balance
between legal traditions, societal values, and practical considerations can conflict of laws
effectively serve its fundamental purpose of facilitating predictability and justice in an
increasingly interconnected world. These rules are to work to bring justice and fairness.

References

Books

32
Beck C.H, Dispute Resolution and Conflict of Laws (Hart Publishing 2022) 1.
33
Ibid.

1
Beck C.H, Dispute Resolution and Conflict of Laws (Hart Publishing 2022).

Collier J. G, Conflict of Laws (Third Revised Edition), (Cambridge University Press 2001).

Nditi N, Succession and Trusts in Tanzania: Theory, Law and Practice (LawAfrica Publishing
(K) Ltd 2017).

The Tamil Nadu Dr. Ambedkar Law University, ‘Private International Law: Compiled
Lectures Study Material’ (S. Bramanandasivam 2004).

Case laws

British south Africa Co. v Companhie de Mocambique [1893] AC 602.

Doucet v. Geoghegan (1878) 9 Ch D 441.

Glentanar v. Wellington [1947] 1 Ch. 506.

Henderson v. Henderson [1967].

IRC v Duchess of Portland [1982] Ch 314.

Nelson v. Lord Bridport (1864), 8 Beav. 527.

Penn v. Baltimore (1750) 1 Ves Sen 444; 27 ER 1132.

Udny v. Udny (1869) LR 1 Sc. & Div. 441.

United Africa Co Ltd v. Owners of MV Telton [1946] 2 All ER 372. P 135.
Online Sources

Andrew A, Cambridge Dictionaries Online (Cambridge University Press 2014) <

https://dictionary.cambridge.org > accessed 3 February 2024.
Caroline S and Spero M, Succession, Wills, and Probate (Routledge 2015) 236 <
https://www.routledge.com > accessed 3 February 2024.
James M, ‘Jurisdiction of Foreign Trespass to Land’ Virginia Law Review (Vol. 17 No. 7,
1931) 691-694. < https://doi.org/10.2307/1066477 > accessed 3 February 2024.
Roscoe E, ‘Legal Validity and Legal Obligation’ The Yale Law Journal (Vol. 80, No. 1, 1970)
47-75 < https://doi.org/10.2307/795096 > accessed 4 February 2024.