Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-27T20:35:35.620Z Has data issue: false hasContentIssue false
  • English
  • Français

Techniques of Choice of Law in Conflict of Personal Laws

Published online by Cambridge University Press:  28 July 2009

Akolda M. Tier
Get access Rights & Permissions [Opens in a new window]

Extract

The division of state inhabitants into communities living under different laws opens up possibilities of conflicts problems on an unprecedented scale. These problems may arise not only when members of different communities enter into legal relationships, but also when the parties, whether members of the same community or not, choose to regulate their legal relations in accordance with another personal law. The occurrence of either of these circumstances poses some problems for which the law is difficult or uncertain. This study attempts to examine with particular reference to the Sudan the problem of choice of law to be administered.

In examining the problem of choice of law I shall attempt to show and compare how different systems of personal laws (i.e., where personal laws are administered in their respective courts of nationality, religion or ethnic community and courts which administer two or more personal laws) try to solve choice of law problems. It is apparent that the existence of the lex fori in the former and its absence in the latter should affect the approach to the problem of choice of law. The contrast between the two approaches is striking. The contention here is that systems of personal laws always apply their lex fori and treat questions of choice of law as mere questions of competence.

Type
Research Article
Information
Journal of African Law , Volume 30 , Issue 1 , Spring 1986 , pp. 1 - 19
Copyright
Copyright © School of Oriental and African Studies 1986

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Schiller, , “Conflict of Laws in Indonesia”, (1942/1943) The Far Eastern Quarterly, 31 at 33Google Scholar.

2 Bartholomew, , Private Interpersonal Law, 1 International and Comparative Law Quarterly 325 (1952)Google Scholar.

3 Allott, , “Internal Conflict of Laws: Principles and Statutory Provision” in his New Essays in African Law, 107, at 108–109 (1970)Google Scholar.

4 28 Cambridge Law Journal, 337, at 338 (1970)Google Scholar.

5 Pearl, , Interpersonal Conflict of Laws in India, Pakistan and Bangladesh, 99–114 (1981)Google Scholar.

6 S. 6(a).

7 Id.

8 S. 6(b).

9 Id.

10 S. 6(c). Apart from two cases of succession to property between Copts whose law of succession resembles Sharia law, this rule of jurisdiction has not been relied on in practice: see Guttman, , The Reception of Common Law in the Sudan, 6 International Comparative Law Quarterly 401 (1957)Google Scholar; Lutfi, Ali, The Future of English Law in the Sudan, (1967) L.J., Sudan & Rep. 219Google Scholar

11 Legislative Supplement to the Sudan Gazette, No. 962, 15 09, 1961Google Scholar.

12 Legislative Supplement to the Sudan Gazette, No. 1046, 15 09, 1967Google Scholar.

13 See, for example, Amol Fakhri Saad v. Fayez Shukri Bishara (1968) J., Sudan L. & R. 99Google Scholar, where a Coptic orthodox wife sued her Coptic husband for divorce in a civil (i.e. non-Sharia) court.

14 Khalil, , The Legal System of the Sudan, 20 International Comparative Law Quarterly 624, at 629 (1971)Google Scholar. He points out that the Sharia Courts Act 1967 came as a complete surprise to the Sharia division of the judiciary.

15 See the Judiciary Act 1972, Legislative Supplement to the Sudan Gazette No. 1130, 20 05 1972Google Scholar.

16 10 Laws of the Sudan, 454 (5 ed. 1981)Google ScholarPubMed.

17 Hayes, , Dar Rights Among the Nomads: An Arbitral Award, (1960) L.J., Sudan & R. 336, at 342;El NurGoogle Scholar, “The Role of Native Courts in the Administration of Justice in the Sudan”, 41 Sudan Notes and Records 78 (1960)Google Scholar; Rannat, Abu, The Relationship Between Islamic and Customary Law in the Sudan, [1960] JAL 9Google Scholar; Cook (ed.), Stubbs′ Customary Law of the Aweil District Dinkas (1962) J., Sudan L. & Rep. 450, at 451Google Scholar; Deng, , The Future of Customary Law in the Sudan, 2 Malaya L. Rev. 268 (1969)Google Scholar; Deng, , Tradition and Modernization: A Challenge for Law Among the Dinka of the Sudan, 87 (1971)Google Scholar.

18 For a similar abrogation of Muslim customs in India and Pakistan, see Rankin, , Custom and Muslim Law in India (1939) Tr. Groc. Soc. 89; Pearl, supra note 5, at 123–136Google Scholar.

19 The Local Courts Act 1977, s. 12(l)(a) and (b).

20 Id., s. 12(l)(c), (2) and (3).

21 Babiker El Saddik v.Osman El Saddik, AC-REV-22-1947Google Scholar (unreported); Badie Ali Badie v. Babiker Bedri, AC-REV-77-1951 (unreported)Google Scholar.

22 Hayes, , supra note 17, at 432Google Scholar.

23 The Local Courts Act 1977, s. 4(3).

24 The Chiefs’ Courts Ordinance 1931, s. 8(1)(c) and the Native Courts Ordinance 1932, s. 13(l)(a) and 2(b), read with the Provincial Administration (Consequential Amendments) Act 1961 which substitutes for the word governor in both sections, the words Judge of the High Court and Judge of the High Court or Province Judge respectively.

25 These records were collected by the Sudan Law Project Team drawn mainly from Faculty of Law, University of Khartoum, under a series of financial grants from the Ford Foundation. The documents are now deposited with the Central Archives, Khartoum.

26 According to one view the local courts handle about 55 per cent of the decided cases in the Sudan: see Nur, El, supra note 17, at 78.Google Scholar According to another view their work constitutes between 55 to 75 per cent of all the cases decided in the Sudan: see Thompson, , The Formative Era in the Law of the Sudan, (1965) J., Sudan L. & Rep. 474, at 477Google Scholar.

27 Execution of judgments is a problem especially as regards decisions of inter-community courts: see Cook, (ed.), supra note 17, at 467Google Scholar; Brewster, (ed.), The Mahla Agreement of 1964, (1964) L.J., Sudan & Rep. 218, at 252Google Scholar.

28 Cardahi, Chucri, “Conflict of Laws” in Khadduri, and Liebesny, (eds), Law in the Middle East, 334(1955)Google Scholar.

29 Meili, , International Civil and Commercial Law, 52–58 (Trans, by Khun, 1905)Google Scholar; Lipstein, , The General Principles of Private International Law, 1 Recueil des cours 106 (1972)Google Scholar.

30 Meili, , id., at 56–57; Goadby, , Administration of Justice in Egypt, 23 L. Q. Rev. 409, at 416–417 (1907)Google Scholar; Buckland, and McNair, , Roman Law and Common Law, 23–25 (2 ed. 1965)Google Scholar; Jolowicz, and Nicolas, , Historical Introduction to the Study of Roman Law, 71–74, 102–107 (3 ed. 1972)Google Scholar.

31 Calisse, , A History of Italian Law: (The Continental Legal History Series) 25 (1928)Google Scholar; Beale, , 3 Conflict of Laws, 1888 (1935)Google Scholar.

32 Calisse, , id., at 18; Meynial, “Roman Law” in Crump, and Jacob, (eds), The Legacy of the Middle Ages, 363, at 378 (1926)Google Scholar.

33 Lipstein, , supra note 29, at 109, 112, 126–127Google Scholar.

34 Goadby, , supra note 30, at 411Google Scholar; Brinton, , The Mixed Courts of Egypt, 3, 157–167 (1968)Google Scholar; Salama, , Al-Wasit fi Al-Ahwal Al-Saksiya Lilwataniin Gair Al-Muslimiin, 50 (Dar Al-Fikr Al-Arabi 1968)Google Scholar; and generally, Liebesny, , “The Development of Western Judicial Privileges” in Khadduri, and Liebesny, (eds.), supra note 28, at 309Google Scholar.

35 Kollewijn, , Conflict of Western and Non-Western Law 4 Int'l L. Q. 307 (1951)Google Scholar; Bartholomew, supra note 2. These studies do not consider the problem of choice of law when the laws prima facie relevant were both non-European.

36 The African Courts Ordinance 1951, s. 10.

37 The Local Courts Ordinance 1951, s. 12.

38 XIX Parl. Debates, 531 (1833)Google Scholar.

39 (1868) 1 B.L.R. (O.C.) 87.Google Scholar

40 Id. at 101.

41 See, for the Supreme Court of Calcutta, s. 17 of the Act of Settlement 1781 (21 Geo. 3, c. 70). This was extended to the Supreme Courts in Madras and Bombay by 37 Geo. 4, c. 142, s. 13 which with regard to Madras later became 39 and 40 Geo. 3, c. 79, s. 5 and with regard to Bombay, later became 4 Geo. 4, c. 71, s. 9. These enactments were replaced by the Government of India (Consolidating) Act 1915, s. 117. (5, 6 Geo, 5, c. 61). The rule is now retained in s. 16 of the Presidency Small Causes Courts Act 1881: 3 India Code, 15 (Delhi, 1964)Google Scholar.

A similar rule was made for the muffusil (provincial) courts by regulations: Gobind Doyal v. Inayatullah, I.L.R. (1885) 7 All. 775Google Scholar; Jaffa v. Chhitta I.L.R. (1836) 58 All. 889Google Scholar; Cowell, , The History and Constitution of Courts and Legislative Authorities in India, 124 (5 d. 1905)Google Scholar; IIbert, , The Government of India, 359 (3d. 1915)Google Scholar.

42 Bartholomew, , supra note 2, at 328ffGoogle Scholar; Roo, Rama, “Conflict of Laws in India” (1958) Zeitschrift fÜr austandisches und internationales Privatrecht, 259, at 263Google Scholar; Pearl, , supra note 5, at 80–90Google Scholar. The possible exception to this trend is Aziz Bano v. Muhammad Ibrahim Hussein I.L.R. (1952) 47 All. 825Google Scholar, a suit of restitution of conjugal rights by husband against his wife who were of Islamic sects known respectively as sunni and shia. However, Bartholomew, id. at 351 considers that the references to the law of the defendant were obiter. In any case, in Ayesha Bibi v. Subodh Chandra Chakrabarti, I.L.R. (1945) 2 Cal. 405Google Scholar, a divorce case between a Muslim wife and a Hindu husband, it was held that the law of the defendant does not apply in matrimonial cases.

43 I.L.R. (1881) 6 Cal. 794, 806, 808.

44 I.L.R. (1885) 7 All. 775, 778.

45 Id., at 778 where he stated: “The principle of applying the native laws … with reference to the accident of (the parties) being arrayed as parties-plaintiffs or parties-defendants in the litigation, is an illustration of the simplicity which marks some of our oldest legislative enactments.”

46 S. 4.

47 Ss. 5, 6 and 7.

48 (1967) Sudan L. J. & Rep. 70.Google Scholar

49 A territorial law is one which is not limited on the grounds of race, religion, ethnic community or other non-territorial concept.

50 Emphasis added. This Act appeared for the first time as the Courts Act 1960.

51 Bennion, , Constitutional Law of Ghana, 447 (1963)Google Scholar.

52 1 L., Ghana Rep. 54 (1972).Google Scholar

53 Id., at 57.

54 Id.

55 (1921) Full Court 48. The court also cited Allott, Essays in African Law, 186 (1960)Google Scholar.

56 1 Ghana L. Rep. 295 (1972) (High Court); 2 Ghana L. Rep. 66 (1973) (Court of Appeal).

57 Id., at 72.

58 (1963) Sudan L. J. & Rep. 182.Google Scholar

59 HC-CS-259–1952 (unreported).

60 Section 5 reads:

Where in any suit or other proceedings in a civil court any question arises regarding succession, inheritance, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs, the rule of decision shall be:

(a) any custom applicable to the parties concerned, which is not contrary to justice, equity and good conscience and has not been by this or any other enactment altered or abolished, and has not been declared void by the decision of a competent court;

(b) the Sharia law, in cases where the parties are Muslims, except in so far as that law has been modified by such custom as is above referred to.

The difference between the old and new section 5 is that the former uses the words “Mohammedan law” and “Mohammedans” for the words “Sharia law” and “Muslims” in the latter.

61 Now renamed the Non-Muslims Marriage Act 1926, 2 Laws of the Sudan 13 (5d. 1981)Google Scholar.

62 HC-CS-86–1950 (unreported).

63 See the English cases of Gray v. Formosa (1963) P. 259Google Scholar and Adams v. Adams (1970) 3 All E.R. 572Google Scholar; Read, The Recognition and Enforcement of Foreign Judgments, 203–216 (1938)Google Scholar; Kahn-Freund, , Domicile of Married Women 5 Modern Law Review 66 (1941)Google Scholar; Morris, , Recognition of Divorce Granted outside the Domicile, 24 Canadian Bar Review 73 (1946)Google Scholar; Cowen, , Divorce and Domicile 68 Law Quarterly Review 88 (1952)Google Scholar.

64 By the Domicile and Matrimonial Proceedings Act 1973, s. 1 of which gives the wife capacity to acquire a separate domicile.

65 See, e.g. Bamboulis v. Bamboulis (1953–1954) Digest of Cases in the Court of Appeal and High Court, Digest No. 25 and at p. 76Google Scholar where it is reported fully; Kattan v. Kattan (1957) J., Sudan L. & Rep. 35Google Scholar.

66 Supra note 58.

67 The judgment at p. 185 mentions 11 insisted of 9 years but this is probably a misprint. Later in the judgment the learned Province Judge points out that these age sets can be extended by two years in each case to 9 and 11 respectively, thus repeating 11.

68 Id., at 185.

69 Id., at 185.

70 Supra note 48.

71 Id., at 75.

72 S. 4 of the Wills and Administration Act 1928.

73 For the list of the excepted communities, see the Non-Muslims Marriage Act 1926, Second Schedule, Part I.

74 Rannat, Abu, supra note 17, at 13Google Scholar.