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Commonwealth Law Bulletin

ISSN: 0305-0718 (Print) 1750-5976 (Online) Journal homepage: http://www.tandfonline.com/loi/rclb20

Comparative choice of jurisdiction rules in caseshaving a foreign element: are there any lessons forNigerian courts?

Abubakri O. Yekini

To cite this article: Abubakri O. Yekini (2013) Comparative choice of jurisdiction rules in caseshaving a foreign element: are there any lessons for Nigerian courts?, Commonwealth LawBulletin, 39:2, 333-358, DOI: 10.1080/03050718.2013.802129

To link to this article: http://dx.doi.org/10.1080/03050718.2013.802129

Published online: 23 May 2013.

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Comparative choice of jurisdiction rules in cases having aforeign element: are there any lessons for Nigerian courts?

Abubakri O. Yekini*

Faculty of Law, Department of Jurisprudence and International Law, Lagos StateUniversity, Lagos-Badagry Express Way, Ojo, Lagos, Pmb 001, LASU, Nigeria

The question of when and how a forum court should exercise jurisdiction incivil matters having foreign elements has been a controversial one amongjudges, legal writers and students of conflict of laws. In Nigeria, the problemis more pronounced as the state operates a federal system of government,with each state having its distinct legislature and court system. The issue ofinterstate (and international) choice of jurisdiction in Nigeria has becomemore prominent in recent times due to cultural, social and commercialexchanges between private individuals or corporations from different parts ofthe country. While the majority of legal systems in the world now allow theircourts to be seized of any matter with a foreign element once there is nexusbetween such matter and the forum state, Nigerian courts do not appear to bethinking in that direction. The courts over the years have maintained, thougherroneously, that it is only the court of the state where a cause of actionarose that can exercise jurisdiction over such a matter, especially in inpersonam actions. This paper seeks to point out the fallacy of the Nigeriancourts in applying a strict territorial approach to jurisdiction in mattershaving a foreign element; the injustice and inconvenience it may occasion;and the fact that such a ‘straight jacket’ approach is out of tune in themodern world jurisprudence of personal jurisdiction.

The development of private international law has stagnated in Africa for some timenow. This is reflected in the neglected and undeveloped state of the subject, andthe near absence of Africa in international processes, academic forums, writings,and institutions that have significance for the subject …1 (Prof. Richard FrimpongOppong)

1. Introduction

The question of when and how a forum court should exercise jurisdiction in civilmatters having foreign elements has been a controversial one among judges, legalwriters and students of conflict of laws. The controversy is reflected in the diverseapproaches used by courts of various jurisdictions as the basis for exercising juris-diction in civil causes or matters that have extraterritorial effect.2 In conflict of

*Email: yekinilaw1@yahoo.com1RF Oppong, ‘Private International Law in Africa: The Past, Present and Future’ (2007)55 AJCL 677.2See the different approaches in subsequent discussions.

Commonwealth Law Bulletin, 2013Vol. 39, No. 2, 333–358, http://dx.doi.org/10.1080/03050718.2013.802129

� 2013 Commonwealth Secretariat

laws, a matter is said to have a foreign element if any of its components has a con-nection with a foreign territory, legal system or where the defendant is outside theterritory of the forum court.3

The issue of choice of jurisdiction has become more prominent in recenttimes due to cultural, social and commercial exchanges between private individu-als and corporations from different parts of the world. As Morris has observed,the barriers that used to hinder people of different parts of the world from inter-acting have now almost vanished. Today, we have mass tourism; employees ofmultinational companies work outside their home state; national boundaries arecrossed without formalities; students study in different parts of the world; andstate economies are now integrated.4

Unlike extra-territorial criminal matters that have been fairly regulated by inter-national law,5 the civil counterpart has largely remained within the competence ofindividual state to regulate.6 Hence, every country has its own rules (conflict of lawrules) for determining when its courts will exercise jurisdiction over civil actionsthat have a foreign element.

In part 2 of this paper, I shall discuss the traditional common law basis ofchoice of jurisdiction in civil matters vis-à-vis the writ rule. This approach iswhat is widely used in other common law jurisdictions. Part 3 will focus on theEuropean Union approach as reflected in the Brussels Convention, LuganoConvention and the Council Regulation of 2001 (Brussels I). Other parts of thepaper will highlight the approaches used in the USA, China and France, andpassing reference will be made to some other jurisdictions as well.

Lastly, the Nigerian courts’ approach will be examined and the misconceptionof the courts surrounding the same. Meaningful recommendations will be suggestedto the courts as derived from the emerging global practice of choice of jurisdiction.

3The word ‘foreign’ means a foreign country. It can also refer to other component statesof a federation other than the forum state. For instance, a cause action that arose in Riv-ers State would be regarded as foreign before Courts in Lagos State. See Morris TheConflict of laws (7th edn Thompson Reuters (Legal) Limited, London 2010) 3.4Morris, The Conflict of laws, (supra) 1.5It is generally accepted under international law that a state may assume jurisdictionwhere the accused person is a national of the forum state irrespective of where theoffence may be committed. This is called the nationality principle. See Nottebohm Case(Second Phase), ICJ Rep 1955 4; Joyce v DPP (1946) AC 347. A state can also assertjurisdiction over any crime committed in its territory irrespective of the nationality of theaccused person, subject to the concept of sovereign immunity. This is the territorial prin-ciple. An extension of the territorial and nationality principles is the protective and ‘pas-sive personality’ principles. The former means that a forum state can exercise jurisdictionover any criminal conduct that affects its security. See Joyce v DPP (supra), AG of Gov-ernment of Israel v Eichmann 36 ILR (1961) 5. The passive personality principle autho-rises states to assert jurisdiction over offences committed against their citizens abroadbecause it is assumed that each state has a legitimate interest in protecting the safety ofits citizens. See US v Yunis 30 ILM 463 (1991). Lastly, all states have universal jurisdic-tion to try piracy, slave trade, hijacking of aircraft and genocide. For a detailed discussionof these principles, see M Dixon and R McCorquodale, Cases & Materials on Interna-tional Law (4th edn (OUP, New York 2003) 268–300; MN, International Law (5th ednCambridge University Press, Cambridge 2003) 579–596; DJ Harris, Cases & Materialson International Law (6th edn Sweet & Maxwell, London 2004) 265–305.6M Akehurst, ‘Jurisdiction in International Law’ 46 Brit Y B Int’l L 145, 177 (1972–73)(concluding that customary international law imposes no limits on civil jurisdiction).

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2. Traditional common law approach

Jurisdiction is an ambiguous term. First, it seems to equate with a territorial unitor law district – so to be within the jurisdiction is synonymous with being in aparticular territory, country or law district. However, for the purposes of conflictof laws, the technical meaning of the word is intended, i.e. the competence of acourt to hear and decide a case. The word ‘jurisdiction’ has been defined as thepower of the court to decide a matter in controversy and presupposes the exis-tence of a duly constituted court with control over the subject matter and theparties.7 In Bronik Motors Limited & Anor v Wema Bank limited,8 it is definedas ‘the power to hear and determine the subject matter in controversy betweenparties to a suit’.

In the UK, where the traditional common law approach originates, jurisdic-tion of courts is dependent upon whether the action is in personam or in rem.9

An action is in personam where the relief claimed is against the defendant topersonally carry out an obligation or to refrain from doing an act.10 On the otherhand, an action is in rem ‘only where the English law and procedure fictionallyconfers personality on the res and thus permit it to be served with a writ.11 TheEnglish court does not exercise jurisdiction over any res that is outside Englishterritory.12 Therefore, the subsequent discussions will focus on actions inpersonam.

At common law, the concept of jurisdiction is closely linked with the conceptof territorial sovereignty. As Ulrich Huber has posited, the world is dividedamong sovereigns and each sovereign has absolute power to affect any onewithin his domain in a particular way.13 Hence, everyone within the territory ofthe sovereign is subject to the jurisdiction of the sovereign.

In the past,14 the basis of assuming jurisdiction over a defendant in Englandis the physical presence of the defendant within the jurisdiction of the English

7HO Abiru, ‘The Concept of Territorial Jurisdiction’ in Law and Development in Nigeria:Essays in Honour of Chief Femi Okunnu, SAN, CON, (Ecowatch Publication Limited,Lagos 2004) 2.8(1983) 6 SC 158.9For a criticism of the distinction between in personam and in rem actions, see IOAgbede, Themes on Conflict of Laws (Shaneson Ibadan, 1989) p 241.10See GMBH v Rivway Lines Ltd. (1998) 5 NWLR (Pt. 549) 265; Cemar Shipping Inc. VM/T Cindy Gaia (2007) 4 NWLR (pt. 1024) 22211HA Olaniyan, ‘Nigerian Conflict of Laws through the Cases: A Researcher’s CriticalComments (Part 1)’, African Journal of International and Comparative Law, Vol. 20,No.3, Oct. 2012, p 393. It should however be noted that under common law, the onlyaction in rem recognised is any action in respect of a ship. This assertion is supported byGMBH v Rivway Lines Ltd. (supra).12See the Moçambique case (1892) 2 QB 358; Guaranty Trust Co. of New York v Hannay& Co., (1915) 2 K B 536, 562, 563; The M. Moxham (1875) 1 P D 43, 107; The Tolten(1946) 135 1 P.13U Huber, De conflictu legum diversarum in diversis imperiis, in Praelectiones JurisRomani ethodierni (1689), cited by S C Symeonides, ‘Territoriality and Personality inTort Conflicts.’ Intercontinental Cooperation Through Private International Law: Essaysin Memory of Peter Nygh, T Einhorn and K Siehr, eds, (TMC Asser Press The Hague,2004), p 403.14At least before the passage of the Common Law Procedure Act 1852 and the accessionto the Brussels Convention of 1968.

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court. It is believed that ‘the effective way of recovering a debt was for the cred-itor to be able to lay his/her hand on the collar of the debtor’.15 It is a firmlyestablished principle that whoever is served with the King’s writ and can becompelled consequently to submit to the decree is a person over which the courthas jurisdiction. A defendant who is served with the writ of the court on Englishsoil is bound to honour the writ as the court is a viceroy of the King. This isknown as the writ rule.

A claimant who sights his/her defendant within the territory of the Englishcourt can serve the writ on the defendant and the court is automatically seized ofthe matter.16 In essence, mere presence within jurisdiction is sufficient for theexercise of jurisdiction under the traditional rule irrespective of where the causeof action might have arisen. It does not matter if the defendant is a guest inEngland or merely traversing it.

Presence as a basis of jurisdiction of the English court can be illustrated bythe case of Colt Industries v Sarlie (No.1).17 In this case, a company incorpo-rated in New York obtained a judgment in New York against a Frenchman andsought to enforce it in England by serving a writ on him at a London hotelwhere he was staying for one night. The court did not have any difficulty inconcluding that the jurisdiction of the court had been properly invoked.

In Maharanee of Baroda v Wildenstein,18 both the plaintiff and the defendantlived in Paris. The plaintiff brought from the defendant a painting described in asale catalogue as La Poesie for the sum of £33,000. The plaintiff later discoveredthat the painting was not an original one and would only have cost £750. Theplaintiff took out a writ in England claiming rescission of the contract and repay-ment of the price. The writ was served on the defendant when he came fromFrance to pay a fleeting visit to England to attend the Ascot races. The defendantapplied that the action be set aside on the ground that it was frivolous and vexa-tious and an abuse of the process of the court. The court held that the plaintiffhad properly served the writ and invoked the jurisdiction of the court.

However, where a defendant is enticed or kidnapped into the jurisdiction ofthe court for the purpose of serving a writ on him, the court may invalidate suchservice.19

The English writ rule has been criticised by legal writers both within andoutside common law jurisdiction. It has been said that the rule is more akin torobbery than justice.20 Cheshire is of the view that the rule may lead to a situa-tion where the English court will exercise jurisdiction over a case that is totallyforeign in terms of subject matter and parties.21

15HA Olaniyan, ‘Nigerian Conflict of Laws Through the Cases: A Researcher’s CriticalComments (Part 1)’, African Journal of International and Comparative Law, supra,391–392.16P North and J Fawcett, Cheshire and North’s Private International Law, (12th edn But-terworths, London 1992) pp 182–183; Dicey & Morris on the Conflict of Laws, (12thedn Sweet & Maxwell, London 1993) pp 270–271.17(1966) 1 WLR 440 (CA).18(1972) 2QB 283.19See Watkins v North American Timber Co. (1904) 20 T.L.R. 534.20RC Minor, Conflict of Laws (Boston, 1901) 283.21Cheshire, Private International Law (7th edn supra) 76.

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These criticisms have been mitigated by the fact that the English court,despite distinguishing between choice of jurisdiction and law, does not insist thatEnglish law is applicable to all matters before it. So, it does not matter that youare before the English court; the court will be ready to apply a foreign law if thatis the proper law. Again, the English court can exercise its discretion to stay anaction if it forms the opinion that the action should have been broughtelsewhere.22

2.1. Submission

The second basis for exercising jurisdiction under the common law is the sub-mission of the defendant. This is an exception to the writ rule as the court wouldordinarily not have jurisdiction over who is neither present in England nor servedwith the writ.23 A person may submit to the jurisdiction of the court by accept-ing the service of a writ either personally or through his solicitor.24 A personwho files an unconditional appearance and defence has submitted to the jurisdic-tion of the court. However, if a defendant merely argues that the court has nojurisdiction over him, this does not constitute submission.25

Likewise, a foreigner who sues in the forum court is deemed to have submit-ted to the counterclaim of the defendant.26 A person may also submit to thejurisdiction of the court by contract. This may arise where he/she has chosen theEnglish court as the choice of court under the agreement forming the basis ofthe dispute.

2.2. Extended/assumed jurisdiction

The third basis for exercising jurisdiction is what is commonly referred to as‘extended or assumed’ jurisdiction. This arises where the defendant is not physi-cally present in England and has not submitted to the jurisdiction of the court.The English court would not ordinarily exercise jurisdiction over a defendant thatis outside England.27 Prior to the enactment of the Common Law Procedure Actof 1852, defendants could easily evade obligations by just moving out of

22This is known as the doctrine of forum non conviniens. The principle governing theapplication of this doctrine in the UK was stated by the English court in Spiliadia Mari-time Corporation v Cansulex Limited (1987) AC 460 that the English court will grant astay where the court is satisfied that there is some other available forum having compe-tent jurisdiction and such forum is the more appropriate place for the trial of an action.The court will also take into consideration, the interest of all parties and the ends of jus-tice. For a detailed discussion on the doctrine, see IO Agbede, supra, 270–283; Morris,supra, 133–144.23HO Abiru, ‘The Concept of Territorial Jurisdiction’ in Law and Development in Nige-ria: Essays in Honour of Chief Femi Okunnu, SAN, CON, supra, 18–19; Re Busfied(1886), 32 ch. D; Re Anglo African S.S. Co. (1886), 32 ch., D; Berkeley v Thompson(1886), 32 ch. D; Ex p. Blain, Re Sawers (1879), 12 ch. D 522; Tassell v Hallen (1892)1 QB 321; Matthews v Kuwait Bechtel Corporation (1959) 2 QB 57.24English Civil Procedure Rule (CPR), Rules 6.8.25CPR Rules 11(3).26CPR, ‘Part 20’ Claims.27LA, Collins, ‘Some Aspects of Service out of the Jurisdiction in English Law’ (Oct.,1972) 21(4) ICLQ, 656–681.

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England after committing a tort or breach of contract or other obligations, sincethe English court would hardly exercise any extra-territorial jurisdiction.

The Common Law Procedure Act introduced the concept of extended orassumed jurisdiction into English law. The Act empowers the court to summon adefendant who is not present in England to answer a claim before it by grantingleave to a plaintiff to serve the writ on the defendant irrespective of his country,domicile or residence.

Today, the English courts have evolved certain factors to be consideredbefore an English court will exercise its discretion to grant leave to serve adefendant who is not within English territory. These factors have been frequentlyrefined over the years by the courts. The House of Lords in Seaconsar Far Eastv Bank Markazi Iran28 summarised it, among others, that the plaintiff must showthat there is a serious issue to be tried.

The comprehensive rules are contained in the English Civil ProcedureRules29 and supplemental Practice Direction30 as follows.

(1) A claim made for a remedy against a person domiciled within thejurisdiction.

(2) A claim made for an injunction ordering the defendant to do or refrainfrom doing an act within the jurisdiction.

(3) A claim made against a person (‘the defendant’) on whom the claim formhas been or will be served (otherwise than in reliance on this paragraph)and –

(a) there is between the claimant and the defendant a real issue which itis reasonable for the court to try; and

(b) the claimant wishes to serve the claim form on another person whois a necessary or proper party to that claim.

(4) A claim being an additional claim under Part 20 and the person to beserved is a necessary or proper party to the claim or additional claim.

(5) A claim in respect of a contract made within jurisdiction, was madethrough an agent within jurisdiction, is governed by English law orcontains a term conferring jurisdiction on the English court.

(6) A claim made in respect of a breach of contract committed withinjurisdiction

(7) A claim in tort where damage was sustained within jurisdiction or thedamage sustained resulted from an act committed within jurisdiction.

(8) A claim whose subject matter relates to property within jurisdiction

These are some of the relevant factors that the English court would considerbefore granting leave to a plaintiff to serve a notice of a writ outside England forthe purpose of assuming jurisdiction over such matter. It will be observed thatthe purport of the above-mentioned provisions is to guard against exorbitantjurisdiction, so that the court would only exercise jurisdiction where there is a

28(1994) 1 AC.29SI/1998/3132l; Rule 6.30Rule 3.1 of Practice Direction.

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connection between the subject matter and England, especially in cases wherethe defendant is overseas.

It must be stated at this juncture that the three bases of exercising jurisdictionby the English court discussed under this part are applicable to persons notdomiciled in the European Union, as that category of persons is governed by aseparate choice of jurisdiction rules as will be discussed in the next part of thispaper.31

3. The European Community approach

In 1968, members of the European Union, in a bid to harmonise the differencesin the choice of jurisdiction rules of member states among other things, enteredinto an international treaty to regulate the subject matter. This resulted in thedrawing up of the Brussels Convention on Jurisdiction and the Enforcement ofJudgments in Civil and Commercial Matters, 1968.32 The Brussels Conventionwas initially entered into by the six contracting states of the European EconomicCommunity (EEC), viz. France, Germany, Italy, Belgium, Luxembourg and TheNetherlands.33

In 1988, the provisions of the Brussels Convention were extended to theEuropean Free Trade Association (EFTA)34 in order that the advantage of, interalia, a uniform law on jurisdiction could be enjoyed by EFTA countries. Thisled to the conclusion of the Lugano Convention on Jurisdiction and the Recogni-tion and Enforcement of Judgments in Civil and Commercial Matters.35 Bothconventions are now supplanted by the Council Regulation (EC) 44/201136

(‘Judgment Regulation’, also known as Brussels I).

3.1. Choice of jurisdiction rules under the Brussels regime

3.1.1. General jurisdiction

The convention is only applicable to civil and commercial matters. It does notapply to cases bordering on status or legal capacity of natural persons or issuesarising out of matrimonial proceedings, bankruptcy and winding up of

31The traditional common law choice of jurisdiction rules is applicable to non-EU domic-iliaries. For instance, a Nigeria domiciliary of France or other EU member states will becovered by the Brussels regime and not the traditional rules because the connecting factoris ‘domicile’ and not ‘nationality’. So, it does not matter where the defendant comesfrom, the relevant question is, is he a EU member state domiciliary? Article 2 of theBrussels Convention, 1968 for instance provides that: ‘Subject to the provisions of thisConvention, persons domiciled in a Contracting State shall, whatever their nationality, besued in the courts of that State’. This convention is domesticated as it were by CivilJurisdiction and Judgments Act 1982 (as amended).32The Convention came into force on 1 February 1973.33Article 63 of the Brussels Convention provides that any state which subsequently joinedthe EEC (such as the UK, and Denmark in 1973; Greece in 1981; Spain and Portugal in1986; and Finland, Austria and Sweden in 1995) would be bound by its terms.34The states are Norway and Switzerland as the founding members. Iceland joined in1970 and Liechtenstein in 1994.35The Convention came into force on 16 September 1988.36Official Journal of the European Communities, 2001 L 12/1 16.1.2001.

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companies, social security, revenue, custom, administrative matters andarbitration.37

The primary choice of jurisdiction of courts in Europe is domicile. A defen-dant could only be sued in the state where he/she is domicile. This is the generallink between the defendant and the forum court. Article 2 provides thus:

Subject to the provisions of this Regulation, persons domiciled in a ContractingState shall, whatever their nationality, be sued in the courts of that state alone

The concept of domicile under the Brussels regime does not necessarily carrythe technical meaning it has under common law.38 The regulation has left themeaning of domicile to be determined by the national law of each contractingstate.39 For instance, in the UK, a person is domiciled in England if he/she is aresident in a particular law district and the nature and circumstances of his/herresidence indicate that he/she has a substantial connection with it. A presumptionof substantial connection arises where a person has been resident in the UK forthe last three months.40

Corporations and other associations for the purpose of the regulation are likenatural persons domiciled at the place of their statutory seat or central adminis-tration or principal place of business.41

The regulation still allows for some sort of residual choice of jurisdiction inrespect of defendants that are non-EU domiciliaries. It provides that the court ofany member state can validly exercise jurisdiction over a defendant that is not adomiciliary of the EU by using the provision of its national laws.42 In thisregard, the English courts for instance can still validly apply the writ rule overnon-EU residents and French courts can also validly exercise jurisdiction usingnationality as a connecting factor.

37Art 1 (1), Judgment Regulation (JR). A number of legal writers have undertakenextensive works on personal jurisdiction under the Brussels regime. See: A Giardina,‘The European Court and the Brussels Convention on Jurisdiction and Judgments’(Apr., 1978) 27(2) ICLQ pp 263–276; J Hil, ‘Jurisdiction in Matters Relating to a Con-tract under the Brussels Convention’ (Jul., 1995) 44(3) ICLQ 591–619; NE Enonchong,‘Service of Process in England on Overseas Companies and Article 5(5) of the BrusselsConvention’ (Oct., 1999) 48(4) ICLQ pp 921–936; PE, Herzog ‘Brussels and Lugano,Should You Race to the Courthouse or Race for a Judgment?’ (Summer, 1995) 43(3)AJCL pp 379–399 TC, Hartley, ‘Antisuit Injunctions and the Brussels Jurisdiction andJudgments Convention’ (Jan., 2000) 49(1) ICLQ pp 166–171.38The concept of domicile, especially as a personal connecting factor, has been problem-atic. As a result of the controversies surrounding the ascertainment of a person’s domicile(especially the one of choice), Agbede has wondered that a person’s domicile may remainuncertain throughout his/her life. See IO Agbede, supra, pg.54. For other cases that havebrought these problems to bear, see: Winans v AG (1904) A.C 287; Ramsay v LiverpoolRoyal Infirmary (1930) AC 588.39Art. 59, JR.40See section 41 (6) CJJA, 1982 and Civil Jurisdiction and Judgments Order 2001, Schd.1 para 9(2).41Art 60(1), JR.42Art 4, JR.

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3.2. Exclusive jurisdiction

The Brussels regime confers on the courts of contracting states exclusivejurisdiction over certain matters. These matters are:43

(1) any proceedings that has as its object, a right in rem in immovableproperty situated in the territory of the member state;

(2) any proceeding which seeks to determine the validity of the constitution,nullity or dissolution of companies;

(3) any proceeding that seeks to determine the validity of entries in publicregisters;

(4) any proceeding that touches on the registration or validity of patents,trademarks and design and other similar rights registered in the memberstate;

(5) a proceeding for the enforcement of judgment in the member state;

In all of these actions, it is only the court of the member state that has theconnection with the object of the proceeding that can validly exercise jurisdictionover such matters.

3.3. Special jurisdiction

Special jurisdiction is the jurisdiction exercised by a court because of the connec-tion between the subject matter and the forum state. The Judgment Regulationsprovides for a special jurisdiction regime. A forum court may exercise jurisdic-tion over a defendant domiciled in another member state where the subjectmatter has ‘a close connection’ with it. Article 5 of the regulations spells outinstances where such a court may be seized of a matter even if the defendant isnot domiciled in its state. The first rule provides that:

A person domiciled in a Member State may, in another Member State, be sued inmatters relating to a contract, in the courts for the place of performance of the obli-gation in question

This goes to show that a claimant in a contractual matter has the choice ofsuing at the state of domicile of the defendant and where the state of domicile isdifferent from the place of performance of the contract, he/she has the option ofsuing in the state of performance as the court of that state is conferred with juris-diction because of the connection between the latter state and the subject matter.

The place of performance in a contract of sales of goods is the place where thegoods were delivered or ought to have been delivered while in a contract of ser-vice, the place where the service was provided or ought to have been provided.44

Similar provision is applicable in tort cases. The court of the member statewhere a harmful event occurred or may occur has jurisdiction over such cases,even if the defendant is not domiciled in that member state.45 It is interesting,

43See Art 22, JR.44Art. 5(1)(b).45Art 5(3).

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however, to note that this EU Regulation provision has been broadly interpreted.The case of Bier v Mines de Potasse d’Alsace46 concerned the discharge ofindustrial waste into the Rhine river in France, which caused harm to the plain-tiff’s plant nursery business in The Netherlands. The court decided that the placeof the harmful event could include both the place where the tortious act (wrong-ful discharge of waste) occurred and the place where the damage ultimatelyoccurred. The plaintiff had the option to sue in either France or The Netherlands.In this case, the court commented that the reason for the creation of special juris-diction (in addition to jurisdiction based on the place of domicile of the defen-dant) is to allow for efficacious determination of the dispute by a court closelyconnected to the issue.

A person or corporate entity that is domiciliary in one member state may besued in another member state in matters arising out of the operations of itsbranches and agencies in another member state.47

The court of a member state where a trust is domiciled has jurisdiction overproceedings arising from the activities of such a trust. The question of where atrust is domiciled is within the exclusive competence of each member state todecide in accordance with its conflict of law rules.48

In summary, choice of jurisdiction among the member states of the EuropeanUnion is generally based on domicile and, except for where exclusive jurisdictionis granted, all other cases must have a connection with the forum state. It ishowever noted that the connection under the Brussels regime is a restricted orclose one as against what is obtained in some other jurisdiction.

4. US courts approach

In the USA, the issue of choice of jurisdiction shares some similarities with whatis obtainable under the Brussels regime and the common law rules, while theydiffer in some other respects. Although the USA comprises federal states withdifferent levels of government having their respective choice of jurisdiction rules,the constitution of the country provides the general basis for the exercise ofjurisdiction by courts. In other words, the issue of choice of jurisdiction has beenelevated to a constitutional one.49

46Case 21/76 (1976) 1735 E.C.R.47Art 5 (5), JR.48Art 5 (6), JR.49For a detailed analysis on choice of jurisdiction in the USA see; AB Spencer, ‘Jurisdic-tion to Adjudicate: A Revised Analysis’ (Spring, 2006) 73(2) UCL Rev pp 617–672; PHay, ‘Refining Personal Jurisdiction in the United States’ (Jan., 1986) 35(1) ICLQpp 32–62; AT von Mehren and DT Trautman, ‘Jurisdiction to Adjudicate: A SuggestedAnalysis’ (Apr., 1966) 79(6) Harv L Rev pp 1121–1179; C Nelson, ‘Sovereign Immunityas a Doctrine of Personal Jurisdiction’ (Apr., 2002) 115(6) Harv L Rev pp 1559–1654; LBrilmayer ,‘How Contacts Count: Due Process Limitations on State Court Jurisdiction’(1980) 1980 Supreme C Rev pp 77–113; GC Hazard, Jr, ‘A General Theory of State-Court Jurisdiction’ (1965) 1965 The Supreme Court Review pp 241–288; M Twitchell,‘The Myth of General Jurisdiction’ (Jan., 1988) 101(3) Harv Law Rev pp 610–681; PJBorchers, ‘Comparing Personal Jurisdiction in the United States and the European Com-munity: Lessons for American Reform’ (Winter, 1992) 40(1) AJCL pp 121–157; J Wein-stein, ‘The Federal Common Law Origins of Judicial Jurisdiction: Implications forModern Doctrine’ (Mar., 2004) 90(1) Va L Rev pp 169–300.

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This constitutional provision was first given effect by the US Supreme Courtin Pennoyer v Neff.50 The Court held that the sovereign interests of other stateswere protected by the due process clause51 from the forum state’s assertion ofjurisdiction over a non-resident defendant. What this means is that due processcould only be satisfied through actual presence of the defendant or his/herproperty in the forum.52

Giving a further interpretation to the due process clause as it relates to a non-resident defendant, the US Supreme Court again added another requirement forchoice of jurisdiction in International Shoe Co. v Washington.53 In this case, thecourt held that due process requires that to subject a person to in personam juris-diction, if he/she is not present within the territory of the forum state, he/shemust have certain minimum contacts with it such that the maintenance of the suitdoes not offend traditional notions of fair play and substantial justice. This is theorigin of the minimum contact test which is now the general basis for exerciseof jurisdiction in the country.

The state of the law in the USA is somehow unclear, as the Supreme Courthas failed to give decisive meaning to what is referred to as ‘minimum contact’and its ‘sovereign interest’ analysis. Although, it has been suggested that whatthe court meant with sovereign interest protection cannot be more than the factthat a defendant’s presence in the forum is sufficient to confer the forum courtwith jurisdiction.54

While Pennoyer might have settled the fact that presence, residence ordomicile of the defendant within the forum court is sufficient for a court to exer-cise jurisdiction, what constitutes a ‘minimum contact’ has not received such def-inite explanation from the US Supreme Court.

In Perkins v Benguet Consolidated Mining Company,55 the Supreme Courtfound that Ohio’s court had jurisdiction over the defendant Philippine company(though the matter has no connection with Ohio) because, during the Japaneseoccupation of Philippines, the company had conducted ‘continuous and systemic’business activities in Ohio.

In Helicopteros Nacionales de Colombia, SA v Hall,56 the Supreme Courtheld that a Texas court had jurisdiction over a plane crash that occurred in Perukilling four Americans because the contract for the sale of the helicopter wasnegotiated in Texas, the defendant’s pilot and management were trained in Texas,the defendant had purchased some other helicopters in Texas, etc. The court was

5090 US 714 (1877). This case established presence in the forum state is enough to estab-lish jurisdiction as it complied with the due process test even when an out-of-state indi-vidual enters the forum state for a brief time. See Burnham v Superior Court, 495 US604, (1990).51The due process clauses are contained in the US Constitution, 5th and 14th Amend-ment.52For a critique of the introduction of sovereignty principles in decision as to choice ofpersonal jurisdiction of courts in the US, see Hazard, A General Theory of State-CourtJurisdiction, 1965 S. Ct. Rev 241, 252–72.53326 US 310 (1945).54DJ Capra,‘Conceptual Limitations on Long-Arm Jurisdiction’ (1984) 52 Fordham LRev p 1038.55342 US 437 (1952).56466 US 408 (1984).

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of the opinion that these ‘in-state’ activities of the defendant were sufficientcontacts to confer general jurisdiction on the Texas court.

The latest reasoning of the US Supreme Court is that a US court may exer-cise jurisdiction over foreign defendants ‘when their affiliations with the Stateare so “continuous and systematic” as to render them essentially at home in theforum State’. By this, the in-state activities must be direct and anticipated andthe defendant must purposefully avail himself of the privilege of conductingactivities within the forum state. Where the activities of the defendant are remotein the state or not purposeful, no valid contact would have been maintained.57

This above position can be illustrated in the latest decision of the USSupreme Court on the matter in Goodyear Dunlop Tires Operations, SA vBrown.58 In this case, a bus accident occurred in France resulting in the death oftwo boys from North Carolina. The accident was caused by a defective tyre man-ufactured in Turkey by a subsidiary Goodyear Dunlop Tire, a US corporation.The boys’ father sued the US company, its Turkey subsidiary and two other for-eign subsidiaries in North Carolina. While the US Company did not disputejurisdiction of the North Carolina court, the Supreme Court held that the courtcannot exercise any general jurisdiction over the foreign subsidiary as they donot have any contact with the forum.

4.1. Special jurisdiction

The US courts will exercise jurisdiction over specific subject matters that haveconnection with the forum state.59 This has been described by Prof. Symeonideas ‘specific’ or ‘case-linked’ jurisdiction.60 Unlike the general jurisdiction whichis exercised over any defendant that does systemic business in the USA, specificjurisdiction may only be invoked to adjudicate claims against the defendant thatarise from the defendant’s specific contacts (transaction) with the forum state.For instance, in Keeton v Hustler Magazine Inc.,61 the US Supreme Court held

57See: Asahi Metal Industry Co. v Superior Court of Cal., Solano Cty, 480 US 102 (1987).58131 S Ct. 2846 (US 2011).59The Uniform Interstate and International Procedure Act (UIIPA), which is a model long-arm statute that several states have enacted makes provisions enabling the state courts toextend jurisdiction over out-of-state defendants where the matter has a connection with theforum state. While section 1.02 allows the courts to exercise jurisdiction over any of itsdomiciliaries, or a company organised under the laws of, or maintaining his or its principalplace of business in, the forum state, section 1.03 of the Act provides that: (a) A courtmay exercise personal jurisdiction over a person, who acts directly or by an agent, as to a[cause of action] [claim for relief] arising from the person’s (1) transacting any business inthis state; (2) contracting to supply services or things in this state; (3) causing tortiousinjury by an act or omission in this state; (4) causing tortious injury in this state by an actor omission outside this state if he regularly does or solicits business, or engages in anyother persistent course of conduct, or derives substantial revenue from goods used or con-sumed or services rendered, in this state; [or] (5) having an interest in, using, or possessingreal property in this state; [or] (6) contracting to insure any person, property, or risklocated within this state at the time of contracting.60SC Symeonides, ‘Choice of Law in the American Courts in 2011’: Twenty-Fifth AnnualSurvey, (2012) 60 AJCL, also available at www.ssrn.com/abstract=1980624 (accessed17–07-12).6146 US 770 (1984).

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that a forum court has jurisdiction over the publisher of a defamatory article,where the publisher circulated the publication in the forum state.

An attempt to extend specific jurisdiction to every kind of injury suffered inthe forum state has been refused by the US Supreme Court. In McIntyre Machin-ery, Ltd. v Nicastro,62 the New Jersey court exercised specific jurisdiction overan English manufacturer whose massive metal-shearing machine had severed thefingers of a New Jersey worker in New Jersey. The Supreme Court held that theNew Jersey court did not have jurisdiction over the suit as there was no specificeffort by the British Manufacturer to sell in New Jersey.63 The court could notform a majority opinion on whether personal jurisdiction could be exercisedbased on the doctrine of stream of commerce.64

In tortious claims, a forum court has jurisdiction over any injury suffered inthe state irrespective of where it arose.65

4.2. Other approaches

From the discussions so far, it will be observed that the emerging trend has beenthat there are three basic approaches in determining when and how to exercisejurisdiction over a defendant that is not within the dominion of the forum state.A general jurisdiction is exercised over all persons that are domiciliary or resi-dent within the territory of the forum state or as in the USA, persons having

62S.Ct. 2780 (U.S. 2011).63For a detailed discussion of the plurality of the decision of the court, see SC Symeo-nides, supra.64The doctrine of stream of commerce was proposed by some of the justices that decidedthe case as sufficient to establish connection with the forum state. They opined that adefendant who puts his products or goods in the stream of commerce would have techni-cally established connection with any forum that his goods/products entered. Unfortu-nately, the court was divided on 4:4 in this doctrine. One wonders if this reasoningwould not have evolved a concept of global personal jurisdiction as the defendant maynot determine at times how his goods is circulated by retailers. This case is similar to thecase of Asahi Metal Industry Co. v Superior Court of Cal., Solano Cty. (supra) where aCalifornia domiciliary who was injured in a California accident allegedly caused by thesudden loss of air in his motorcycle tyre filed an action against the manufacturer. TheTaiwanese manufacturer filed a cross-complaint seeking indemnification from Asahi, aJapanese company that had manufactured the valve assembly that was incorporated intothe tyre. The plaintiff settled his claim against the Taiwanese defendant. Hence, theremaining parties before the court are the Taiwanese manufacturer and the Japanese com-pany. The Supreme Court held that the Californian court has no jurisdiction over the Jap-anese company as the latter did not purposefully intend to sell the Forum State. For adetailed discussion on these latest US decisions and the confusions they have created, seeA Ides, ‘A Critical Appraisal of the Supreme Court’s Decision in J McIntyre Machinery,Ltd. v Nicastro’, (2012), available at SSRN: http://ssrn.com/abstract=1938472 (accessed15-7-12); TD Peterson, ‘The Timing of Minimum Contacts after Goodyear and McIntyre’(2011) 80 Geo. Wash. L. Rev. p 202; Note, Personal Jurisdiction – Stream-of-CommerceDoctrine: J McIntyre Machinery, Ltd. v Nicastro, (2011) 125 Harv. L. Rev. 311; J. McIn-tyre Machinery, Ltd. v Nicastro: The Stream-of-Commerce Theory of Personal Jurisdic-tion in a Globalized Economy, 66 U. Miami L. Rev. 233 (2011); LJ Silberman,‘Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective’New York University School of Law Public Law & Legal Theory Research Paper Series,Working Paper No. 12–24, 2012.65Keeton v Hustler Magazine Inc., supra.

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some contacts with the state. Forum courts also exercise jurisdiction over foreigndefendants where the subject matter of dispute is closely or generally connectedwith the forum state. In some other cases, forum courts exercise exclusive juris-diction over certain matters irrespective of the status of the parties or where theaction arose.

Aside these widely recognised approaches, a number of states have somepeculiar provisions in their national laws which prescribed peculiar choice ofjurisdiction rules. Some of these states include France, The Netherlands and Ger-many.

In France, the French court is empowered to hear and decide any action insti-tuted by a French national irrespective of the location of the defendant orwhether the subject matter has any connection or not with France.

Article 14 of the French Civil Code states thus:

An alien, though not residing in France, can be cited before the French courts, forthe performance of obligations contracted by him in France with a Frenchman; hecan be brought before French courts for obligations contracted by him in a foreigncountry toward Frenchmen66

By this provision, the French court can exercise territorial jurisdiction overvirtually any action brought by a plaintiff of French nationality. Hence, national-ity is another connecting factor applicable in France as the basis of jurisdiction.This provision no doubt is an exorbitant one as it tends to force non-Frenchdefendants to litigate in France, even where the cause of action has nothing todo with France. Conversely, the French court would consider as exorbitant aforeign court’s assumption of jurisdiction over an unwilling French defendant.67

The usage of Article 14 can be illustrated by the recent action maintainedagainst Yahoo! in France by two French non-profit organisations for allowingaccess through its auction site to Nazi-related propaganda, the display of whichis illegal in France. Yahoo! is a US corporation and its physical location wasobviously outside France.68

It should be noted, however, that French courts cannot use this provisionagainst a domiciliary of the European Union as that will be contrary to Article 2of the regulation. For non-EU domiciliaries, Article 14 provision can be validlyinvoked against them as the Brussels regime does not cover such category ofpersons.69

66Code Civil art. 14 (Fr.). This translation comes from HP deVries and AF Lowenfeld,‘Jurisdiction in Personal Actions, A Comparison of Civil Law Views’ (1959) 44 Iowa LRev 306, 317. The French reads: L’étranger, même non résidant en France, pour-raêtrecitédevant les tribunauxfrançais, pour l’exécution des obligations par luicontractéesen France avec unFrançais; ilpourraêtretraduitdevant les tribunaux de France, pour lesobligations par luicontractées en pays étrangerenvers des Français.67Art. 15.68Although the court based its jurisdiction on Article 46 of the new Code of Civil Proce-dure using the fact that Yahoo!’s conduct had caused effects in France, such jurisdictioncould still be maintained under Article 14. For a further reading on the jurisdiction of theFrench court over Yahoo!, see PS Berman, ‘The Globalization of Jurisdiction’ (Dec.,2002) 151(2) U Pennsylvania L Rev pp 311–545.69KM, Clermont & JB, Palmer, supra, p 12.

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The Netherlands allows any of its domiciliaries whether Dutch or otherwiseto approach its courts in any cause or matter irrespective of the nationality of thedefendant or where the matter arose. The plaintiff’s domicile is the basis ofchoice of jurisdiction.70 However, with the Brussels regime, The Netherlands canno longer apply this provision to a EU domiciliary.71

In Canada, the Supreme Court has standardised the basis for asserting juris-diction over foreign defendants in Canadian courts in its latest decision handeddown in Club Resorts Ltd. v Van Breda.72 The court ruled that jurisdiction mustbe established primarily on the basis of objective factors that connect the legalsituation or the subject matter of the litigation with the forum. The followingfactors are presumptive connecting factors that, prima facie, entitle a court toassume jurisdiction over a dispute:

(1) the defendant is domiciled or resident in the province;(2) the defendant carries on business in the province;(3) the tort was committed in the province; and(4) a contract connected with the dispute was made in the province.

In China, the emergence of private international law is relatively new due tothe country’s international isolation and its own closed national policy. Today,China is the second largest economy and one now expects the country to havegrown a bit in the area of private international law, as a great number ofbusinesses around the world have a connection with the country.

70See Article 126, section 3 old Code of Civil Procedure of The Netherlands. The codehas been revised in 2002 and now Article 2 and Article 3 of the new Code of CivilProcedure enfold the main rule for international jurisdiction. The connecting factor isthe domicile or habitual residence of the defendant. The Dutch courts also have cse-linkjurisdiction under Art. 6 of the Civil Code in the following maters. According to Article6, the Dutch court has jurisdiction in matters concerning: (a) obligations from an agree-ment, that has been performed or must be performed in The Netherlands; (b) an individ-ual employment agreement or an agency agreement if the work is or used to beperformed in The Netherlands; (c) an individual employment contract, if the work isperformed temporarily in The Netherlands, concerning rights of action with regard toconditions of employment and labour conditions referred to in Directive 96/71/EC ofthe European Parliament and of the Council of 16 December 1996 concerning the post-ing of workers in the framework of the provision of services; (d) consumer agreementsinvolving a consumer who has his domicile or habitual residence in The Netherlandsand an opposite party who pursues commercial activities or his trade of profession(also) in The Netherlands; (e) obligations arisen from a tortious act, if the event thathas caused the damage has taken place or may take place in The Netherlands; (f) realproperty rights in, as well as lease and farm lease agreements to immovable thingslocated in The Netherlands; (g) estates of a deceased natural person, if the last domicileor last habitual residence of the deceased was located in The Netherlands; (h) the valid-ity, nullity or dissolution of commercial partnerships and legal persons established inThe Netherlands; (i) legal claims related to a bankruptcy, suspension of payment undera moratorium or the Debt Repayment Scheme for Natural Persons that has been pro-claimed or granted in The Netherlands.71Art. 1 of the Code of Civil Procedure makes clear that the national provisions on inter-national jurisdiction only apply when the action is not covered by regulations of theEuropean Union or by international treaties or conventions722012, SCC 17.

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Currently, there no separate code for private international law in China. As LiHe has observed, there have been remarkable developments in privateinternational law legislation and in the field of academic study in recent years.73

Issues about private international law, such as jurisdiction and the choice andapplication of an applicable law, are mainly stipulated in civil laws such as theGeneral Principles of Civil Law of China74 and the Civil Procedure Law ofChina.75

China adopts the territorial jurisdiction principle and as such a Chinese courthas jurisdiction where a defendant is domiciled in China. Accordingly, in a law-suit brought with respect to a contractual dispute, both the court of the placewhere the defendant’s domicile is located and the court of the place where thecontract is performed have jurisdiction. Similarly, in a lawsuit brought withrespect to a tort, the court in the place where a tort is committed and the placewhere the defendant’s domicile is located have jurisdiction.76

Where the defendant is not a domiciliary of China, the court can assumejurisdiction in any of the following circumstances,77 if:

(1) the contract is signed or performed within Chinese territory;(2) the object of the action is within Chinese territory;(3) the defendant has distrainable property within Chinese territory; and(4) the defendant has its representative agency, branch or business agent

within Chinese territory, the appropriate Chinese court will havejurisdiction over the case.

The Chinese courts are also vested with exclusive jurisdiction in thefollowing actions:

(1) a lawsuit brought concerning real estate located in China;78

(2) a lawsuit concerning harbour operations location in China;79

(3) a lawsuit concerning inheritance where the deceased is a domiciliary ofChina or where the principal portion of the estate is located in China;80

(4) lawsuits brought concerning disputes arising from the performance ofcontracts for Chinese-foreign equity joint ventures, Chinese-foreigncontractual joint ventures or Chinese-foreign cooperative exploration anddevelopment of the natural resources in China.81

73L He, ‘The Promotion of Cross-Border Exchange of Intellectual Assets between China,Japan and Switzerland: The Case of Music and Trade Secrets– a Chinese law perspective’<www.ruig-gian.org/resources/perspectivefromchinaversion-090326.pdf> accessed 12 July2012).74Adopted on 12 April 12 1986, and effective on 1 January 1987.75Adopted on 9 April 9 1991, and modified on 28 October 2007.76Art. 24 of the Civil Procedure Law of China.77Art 241 of the Civil Procedure Law of China.78Art. 34(1).79Art. 34(2).80Art. 34(3).81Art. 244. For an elaborate discussions on choice of jurisdiction in china, see D Huanf-ang, ‘An Overview of Choice of Jurisdiction and Law of Foreign-related Cases in China’(2009) 4(4) J Cambridge Studies; L. He, supra.

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5. Nigerian courts’ approach

The jurisdiction of Nigerian courts is prescribed by the Constitution and statutes.The Constitution creates a High Court of Justice for each state of the federationand the federal capital territory82 and clearly demarcates their areas of jurisdic-tion. While the state high courts have unlimited jurisdiction over civil and com-mercial matters,83 the Federal High Court has exclusive jurisdiction over certainmatters stipulated under section 251 of the Constitution.84 The constitution alsoallows the component states to grant additional jurisdiction to their respectivehigh courts by law and to establish other inferior courts as they may deem fit.85

Each state high court in Nigeria has an enabling law that makes provisionsfor conflict of laws rules which in essence govern among others, choice of juris-diction rule.86 The Common Law of England was also received in Nigeria bythe Interpretation Act87 and all the High Court Laws. Hence, one can say thatthe traditional common law rules of choice of jurisdiction particularly, the writrule, is part of Nigeria law.88

The Constitution provides that:

Subject to the provisions of section 251 and other provisions of this constitution,the High Court of a State shall have jurisdiction to hear and determine any civilproceedings in which the existence or extent of a legal right, power, duty, liability,privilege, interest, obligation or claim is in issue or to hear and determine anycriminal proceedings involving or relating to any penalty, forfeiture, punishment orother liability in respect of an offence committed by any person.89

For the purpose of exercising any jurisdiction conferred upon it under this constitu-tion or any law, a High court of a State shall be duly constituted if it consists of atleast one Judge of that Court.90 (emphasis mine)

Subject to the provisions of any law made by the House of Assembly of a State,the Chief Judge of a State may make rules for regulating the practice andprocedure of the High Court of the State.91

82Section 6 (5) of the 1999 Constitution (as amended).83Section 272 of the 1999 Constitution (as amended).84These matters range from taxation of companies, custom and excise duties, bankingand other financial institutions, the operation of Companies, intellectual property, admi-ralty matters, bankruptcy and insolvency to mines and mineral resources.85See sections 272, 273, 4(7) and 6(4)(a).86See for instance see section 29 of the various High Court Law of the states of thenorthern states, section 10 High Curt Law of Lagos State, CAP H3, Laws of Lagos State,2003; section 23 of the High Court Law of the Federal Capital Territory, Abuja; section 8of the High Court Laws of Ondo, Osun, Oyo and Ekiti State; section 22 of the HighCourt Laws of the states of southeastern Nigeria. The Constitution merely provides forthe general jurisdiction of the courts especially as it affects subject matters. The details ofthe jurisdictional rules are contained in the various High Court Laws cited above.87Section 23 of the Act, Cap I23, LFN 2004.88HA Olaniyan, ‘A Review of Judicial and Legislative Approach of Nigeria to Discre-tionary Jurisdiction over Foreign Causes’ (supra), p 1; IO Agbede, supra, pp 8–13,238–253.89Section 272 (1), 1999 Constitution (as amended).90Ibid. section 273.91Ibid. section 274.

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In consequence of the above constitutional provisions, the High Court law ofeach state of the federation provides for the choice of jurisdiction rules of therespective courts. For instance, section 10 of High Court of Lagos Law whichhas similar provisions with other states except those of eastern and southernNigeria states provides as follows.

The High Court shall, in addition to any other jurisdiction conferred by the Consti-tution of the Federation or by this or any other enactment, possess and exercise,within the limits mentioned in, and subject to the provisions of, the Constitution ofthe Federation and this enactment, all the jurisdiction, powers and authorities whichare vested in or capable of being exercised by the High court of Justice inEngland.

Section 22 of the High Court of Eastern Nigeria Law, which is applicable inthe states of eastern and southern Nigeria, also provides that the High Court shallhave power to:

Hear and determine any suit for specific performance or any suit founded upon abreach of contract if the contract was made within jurisdiction of the court thoughthe breach occurred elsewhere or if the breach occurred within the jurisdictionthough the contract was made elsewhere or if the contract ought to have beenperformed within the jurisdiction or if the defendant or one of the defendantsresides within the jurisdiction.92

By a combined reading of these provisions, it is obvious that in Lagos andother states having similar provisions, the High court can exercise a choice ofjurisdiction rule as the English court would do in the absence of any contraryprovision. Therefore, the courts can validly exercise jurisdiction where the defen-dant is served with the writ of the court, where the defendant submits to thejurisdiction of the court or where the subject matter has other connections withthe forum state. In the eastern part of the country, the law spelt out the factorsthat would sway the mind of the court to assume jurisdiction over any subjectmatter.

There also exists a nation-wide jurisdiction conferred on every state highcourt by the Sheriffs and Civil Processes Act (SCPA). The Act allows every statehigh court to exercise jurisdiction over any subject matter once it has close con-nection with the forum state. These connections include: if the defendant wasresident within the jurisdiction of the court; the contract was performed or brea-ched within the jurisdiction of the court; where it is a tortious claim, that the tortwas committed within the jurisdiction of the court.93

Be that as it may, the Nigerian courts seem not to appreciate the purport ofthe writ rule and the long-arm provisions of the SCPA as the decisions of thecourts have portrayed. Nigeria is a federation with 36 component states and afederal capital territory. For conflict of law purposes, each of the 36 states is a

92Section 22 of the High Court Law Cap 61, Laws of Eastern Nigeria 1963 edition Vol.IV.93See section 101, Sheriffs and Civil Processes Act, CAP S6, Laws of the Federation ofNigeria, 2004.

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‘foreign’ state to one another because each state has its separate court systemand laws.

At interstate level, the Nigerian courts, including the Supreme Court, haveconsistently held that laws have no extra-territorial effect and that a court of astate cannot exercise any jurisdiction over a cause of action that does not origi-nate from that state. This is the decision of the Supreme Court in Dairo vUBN.94 The Court of Appeal has handed down numerous decisions in thisrespect as well. Very recently, a number of Court of Appeal decisions reaffirmedthe line of reasoning of the Supreme Court.

In Ogunde v Gateway Transit Ltd,95 the appellant was injured in an accidentwhich was caused by the respondent’s commercial bus along Oworonsoki–ApapaExpressway in Lagos State. The appellant sustained injuries as a result of theaccident. She was taken to the National Orthopaedic Hospital Igbobi, Lagoswhere she was admitted for about 15months. After her discharge from Hospital,her legs were noticeably deformed. Thereafter, the appellant commenced a civilaction against the respondent (owned by Ogun State Government) at the OgunState High Court, Abeokuta. The Court of Appeal held as follows.

No doubt, the High Court Ogun State has the legal capacity to adjudicate on tortssuch as negligence as alleged in the present case but it lacks the geographical juris-diction to entertain this matter because the cause of action arose in Lagos State

In Ngige v Capital Bancorp Limited & Anor,96 the Court of Appeal held thata Lagos high court has no jurisdiction over a contractual matter that arose inOnitsha, Anambra State despite the fact that all the parties are resident in Lagos.

In Nigerian Bottling Company v Nwaneri,97 the Court of Appeal held that aLagos high court has no jurisdiction to entertain a tortuous claim that emanatedin Imo state despite the fact that both parties are resident in Lagos.

The courts usually reason that the Constitution has demarcated the varioushigh courts into distinct geographical locations and no one of them can entertainan action that arose from another state. It is submitted that such a conclusioncannot be inferred from any of the provisions quoted above. The Constitutiondoes not contain such limitation. There is no exclusivity in the laws and as suchit cannot be read into it by implication.

94(2007) Vol. 11 MJSC 74. The court reasoned that with the advent of democratic gov-ernment and constitution, a high court has been established for each state and as such nostate can sit on any action that arose from another state. The court erroneously confusedthe question of choice of jurisdiction and choice of law. It assumed that a court mustalways apply its laws to matters before it. This is where the Supreme Court got it wrong.Had it been the panel distinguished choice of jurisdiction from that of law, it would haveconcluded that a Lagos high court can apply the law of any other jurisdiction if that isthe applicable law to the transaction. The rules of jurisdiction are quite separate and areprovided under the various High Court laws. This position of the courts has been criti-cised by a number of authors, see : HA Olaniyan, ‘Nigerian Conflict of Laws Throughthe Cases: A Researcher’s Critical Comments (Part 1)’ (Oct. 2012) 20(3) AJICL, pp 388–406; see also HA Abiru, ‘The Concept of Territorial Jurisdiction’ in Law and Develop-ment in Nigeria: Essays in Honour of Chief Femi Okunnu, SAN, CO, supra.95(2010) 8 NWLR (Pt. 1196) p 207.96(1999) 7 NWLR (pt. 609) pg. 71.97(2000) 14 NWLR (pt. 686) pg. 30.

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The courts seem not to distinguish between choice of jurisdiction and choiceof law. The courts usually think that a state cannot adjudicate and apply the lawof another state to a matter before it, and as such the plaintiff must always suebefore the court of the state where the cause of action arose because the law ofthat state governs the transaction. However, a critical examination of that reason-ing will show that it cannot be correct and it is not supported by earlier SupremeCourt decisions.

In international situations, Nigerian courts are not getting it right either. Apartfrom the conflict rules provided in the enabling statutes of the courts quotedabove, the various rules of courts also allow the courts to exercise assumed juris-diction over defendants that are not present in Nigeria.98 The grounds for exer-cising such jurisdiction are similar to that enacted in the Sheriffs and CivilProcesses Act (SCPA). The difference is that while the SCPA is applicable tointerstate matters, the provisions in the rules of courts are applicable tointernational situations.

In First Bank of Nigeria v Abraham,99 the respondent who was resident inEngland at the relevant time secured a loan from the appellant’s London branch.Later on, he defaulted in the repayment of the loan. When he came back toNigeria, the appellant obtained a writ at the Lagos High Court for the recoveryof the sums due. The respondent objected to the jurisdiction of the court on theground that the cause of action did not arise in Lagos. His argument was rejectedby the court which ruled that it had jurisdiction because the respondent was thenresident in Lagos. On appeal to the Court of Appeal, the court reasoned that thelower court had no jurisdiction over the matter because the loan was negotiatedin London and, as such, English law was applicable to the transaction. Hence,the appropriate court would be the English court. On a final appeal to theSupreme Court, the apex court set aside the decision of the Court of Appeal. Itwas held that the Lagos High Court had jurisdiction over the matter simplybecause the purport of the loan is in respect of a business to be carried out inLagos, and so the performance of the contract was in Lagos.

While the court arrived at a right conclusion, it is submitted that the reason-ing was wrong. The court ought to have reasoned that the Lagos High Courtcould exercise jurisdiction on the basis of residence and proper service of thewrit on the defendant. This would have satisfied the provisions of the High CourtLaw and the Sheriff and Civil Processes Act which are the relevant laws.

The error of the reasoning of the court would have been evident if the loanwas made to be payable in England or that English law should be applicable.The court would have held that because the loan was negotiated in London andwas meant to be performed in London, a Nigerian court would have jurisdiction.Otherwise, if the court had appreciated the essence of the writ rule and the

98For instance see, Or 8 R 1, High Court of Lagos (Civil Procedure) Rules, 2004. This isimpair material with the 2012 version, which is yet to come into force; Or 12 R 13 HighCourt of Edo (Civil Procedure) Rules, 1988; Or 8 R 1, High Court of Kaduna (Civil Pro-cedure) Rules, 2007; Or 8 R 1, Ebonyi State High Court (Civil Procedure) Rules, 2006;Or 9 R 12, Abia State High Court (Civil Procedure) Rules, 2009; Or 8 R 1, The HighCourt of Benue State (Civil Procedure) Rules, 2007; Or 11 R 13, High Court of the Fed-eral Capital Territory (Civil Procedure) Rules, 2004 etc.99(2003) 2 NWLR (pt. 803) p 31.

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long-arm provision of the Sheriffs and Civil Processes Act, the court would havedecided on the basis of the fact that the defendant was resident within thejurisdiction of the court and nothing more.

In Resolution Trust Corporation v FOB Investment Limited & Anor,100 thecorporation, a US government agency, was sued in Lagos State as a receiver of adistressed bank in which the first respondent had an interest. The corporationwas domiciled in the USA and had no contact with Nigeria. It challenged thejurisdiction of the Lagos High Court. While the High Court dismissed its preli-minary objection, the Court of Appeal set aside the decision of the lower courtand held that the USA was the proper forum to entertain the matter.101

While the court has considered the relevant factors for forum conviniens andhad arrived at the correct conclusion, it is necessary to consider the court’sreasoning in respect of the choice of jurisdiction of Nigerian courts. The courtcorrectly stated the principle of choice of jurisdiction of Nigerian courts is analo-gous with that of the English court thus:

Whereas in the present matter the dispute involves some foreign nationals residentoutside Nigeria i.e. and have not yet submitted to the jurisdiction of the trial court,i.e. personal jurisdiction, is being contested it is necessary to determine the basis.One should not look too far beyond the constitution and the enabling act or lawconstituting the particular court, in this instance, the court below-an arm of theLagos State High Court, its jurisdiction is firmly rooted in the constitutions ofNigeria, that is to say Section 236 of 1979 Constitution and the High Court LawCap. 60 of Section 10 which provides thus:

‘The High Court shall in addition to any other jurisdiction conferred by the Constitu-tion of the Federation or by this or any other enactment, possess and exercise withinthe limits mentioned in and subject to the provision of the constitution of the Federa-tion and this enactment, all the jurisdiction powers and authorities which are vestedin or capable of being exercised by the High Court of Justice in England.’

Flowing from the foregoing provision is the conclusion that the Lagos State HighCourt, the instant court below inclusive has powers and authorities as the HighCourt of Justice in England. Since an English Court is disposed to entertain mattersof conflict of laws as the instant one so far could the court below

Having correctly stated the law, the court then went on to make use of thelocal venue rule102 of the Lagos High Court as the basis for lack of jurisdiction.

100[2001] 6 NWLR [PT. 708] 246.101The factors considered by the court are that: (a) all the defendants are domiciled in theUSA. (b) The business of the second defendant/appellant is carried on in the USA, andhas no connection to Nigeria or presence in Nigeria. (c) The Central Savings Bank waslocated in the State of New York. It had no branches, operations or contacts with Nigeria.(d) The investment which the plaintiff alleged it would make was in the USA. (e) Thealleged breach for which the plaintiff is suing occurred in the USA. (f) The law govern-ing the affairs of the parties is the Financial Instructions Reform Recovery and Enforce-ment Act 1989 (FIRREA), a statute of the US Congress. (g) The documents necessary toresolve the dispute are located in the USA.102Or 2 R 3 provides that ‘All suits for the specific performance, or upon the breach ofany contract, may be commenced and determined in the Judicial Division in which suchcontract ought to have been performed or in which the defendant resides or carries onbusiness’.

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It is submitted that the local venue rule was not enacted for choice of jurisdictionin conflict situations, but for mere administrative convenience. The rule merelyguides litigants as to the judicial division of the High Court where a matter is tobe instituted. It is never a rule of jurisdiction. Therefore, the court had assumedthat the Lagos High Court although it has jurisdiction would not be convenientbecause the appellant does not reside nor carries on business in Lagos and thecontract was not to be performed in Lagos.

Were the matter to be before an English court, the court would not have exer-cise jurisdiction at all as the defendant was not present in England and did notsubmit to the jurisdiction of the English court and because the contract has noconnection with England, the court would hardly allow its writ to be servedabroad. So, it is not even a case of forum non conviniens.

Again, in Zabusky & Ors. v Isreali Aircraft Industry Ind.,103 the plaintiffssued the defendant over libellous publication published in the Israeli Embassy inLagos. The trial court declined jurisdiction on the ground that the alleged tortwas committed in a foreign land. The Court of Appeal set aside the decision ofthe lower court and held that the court had jurisdiction. In the opinion of thecourt:

By virtue of sections 10 and 11(1)(a) of the High Court Law, Cap. 60, Laws ofLagos State, 1994, the High Court of Lagos State has co-ordinate jurisdiction withthe High Court of England. In other words, the High Court of Lagos State, like theHigh Court of England, is entitled to enforce principles of private international law.Thus, the rules of the common law of England on questions of private internationallaw apply in the High Court of Lagos State. Under those rules, an action in tortwill lie in Lagos, Nigeria, for a wrong alleged to have been committed in anotherpart of Nigeria or outside of Nigeria if two conditions are fulfilled. First, the wrongmust be of such a character that it would have been actionable if it had been com-mitted in Lagos State; and secondly, it must not have been justifiable by the law ofthe part of Nigeria, or the place outside Nigeria where it was done. Accordingly, inevery action brought in Nigeria upon a foreign tort, the plaintiff must prove thatthe defendant offended the law of both lex loci delicti commissi and of Nigeria.[Benson v Ashiru (1967) NSCC 198]

It is clear from the excerpt above that the court had misplaced the rule inPhillips v Eyre as a rule of jurisdiction whereas it is a rule of choice of law.The right basis for jurisdiction of the Lagos court would have either been section10 of the High Court Law which incorporates the writ rule or Order 8 of therules of the court. By Order 8 of the rules of the Lagos High Court, an action intort can be entertained by the court if the said tort was committed within jurisdic-tion. Therefore, the decision of the Court of Appeal was reached in error becausehaving concluded that the tort was a foreign tort and the defendant not beingresident in Nigeria, then the court ought to have affirmed the decision of theLagos High Court that declined jurisdiction in the matter.

A similar error was perpetuated by the Court of Appeal in Herb & Ors vDevimco.104 In this case, the respondent had sued the appellants at the LagosHigh Court for damages for inducement of breach of contract. The appellants

103(2008) 2 NWLR pt. 1070, 109.104[2001] 52 WRN 19.

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co-owned Eko Hotels Limited with Lagos State Government and the respondent,a French company was contracted to manage the hotel for an initial period of10 years. None of the appellants was resident in Nigeria except that they ownedabout 75% of the shares in Eko Hotels. The alleged offensive letters that resultedin the termination of the contract between Eko Hotels and the respondent werewritten by the first appellant in London, England and were addressed to therespondent head office and received in France.

The appellants were served outside Nigeria and part of the issues for determi-nation was whether the Lagos High Court could validly exercise jurisdiction overthe appellants who were not resident in Nigeria and for a tortious act thatoccurred outside Nigeria. While the Court of Appeal rightly reasoned that juris-diction over non-resident defendant was governed by section 10 of the HighCourt Law and Order 8 of the rules of the court, the court however wronglydecided that the High Court had rightly exercise jurisdiction over the appellantsusing the double liability rules as a rule of jurisdiction. The court held that:

Similarly, there is no gainsaying that the cause of action giving rise to the instantsuit relates to tort issue governing exercise of jurisdiction by our courts on mattersrelating to tort is not without decided authorities in our laws. For example in thecase of Benson v Ashiru (supra) the Supreme Court had cause to make pronounce-ment on the issue when it relied on the English case of Phillips v Eyre (1870)LR 6QB 1 and said as follows:

‘The Rules of Common Law of England on questioning of Private InternationalLaw apply in the High Court of Lagos. Under these rules an action of tort will liein Lagos for a wrong alleged to have been committed in another part of Nigeria iftwo conditions are fulfilled. First the wrong must be on (sic) such a character thatit would have been actionable if it had been justifiable by law of the part ofNigeria where it was done.’

Although the learned counsel for the appellants opined that the above pronounce-ment of the Supreme Court does not apply to the situation of the instant case sincethe appellants are based or resident outside Nigeria, I hold a different view on that.My understanding of the pronouncement is that it attempts to resolve issue on juris-diction over parties living in places other than within the jurisdiction of a trialcourt. For that reason alone, the authority of Benson v Ashiru is apposite. Thus, inmy view, the combined effect of the provisions of section 10 of Lagos High CourtLaw, order 8 rule 1, the decided authorities cited and the depositions in the state-ment of claim made me conclude that Lagos State High Court can, in the surround-ing circumstance of this case exercise its jurisdiction on the three appellants eventhough they are non-resident in its area of jurisdiction.

One point that is clear is that the court missed the point as it concerns therule in Phillips v Eyre105. Whether the Lagos High Court validly exercisedjurisdiction in that case depends on the construction of the expression ‘a tortcommitted within jurisdiction’ as contained in Or 8 R1 (f) or the English lawsconception of ‘place of the commission of the tort’. The current English Civil

105(1870)LR 6 QBI.

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Procedure Rules would consider the tort to have been committed in Nigeria inthis instance since the effect was suffered in Nigeria.106 The court could havesimply sought refuge from the English law to interpret Rules 1(f) to mean a tortsuffered in Nigeria. By that, the court would be exercising extended or assumedjurisdiction as the English court would have done.

6. Conclusion and recommendations

By and large, it is observed that while the courts have stringently upheld theexclusive territorial principle as the basis of jurisdiction in interstate matters, thesame has been down played for international situations. The basis of jurisdictionof courts in international situations is neither here nor there. The courts have notbeen able to formulate and articulate any logical and consistent approach forinternational situations. We are of the view that there should be no basis fordifferent approaches to interstate and international situations, as any contact withany state other than the forum state makes a case ‘foreign’.

Nigerian courts have failed to appreciate the ‘long-arm’ provisions as con-tained in the Sheriffs and Civil Processes Act107 and the provisions on service ofwrits outside the country that are contained in the rules of courts. These provi-sions empower the courts to exercise personal jurisdiction over certain causesand matters that have close connection with the forum state. One clearly then seethat the problem lies not in the laws but in the understanding of the courts of thewhole tenor of the subject matter of conflict of laws.

Apart from overstretching the constitutional demarcation of states and courts,the courts have placed needless emphasis on local venue rules as the basis ofjurisdiction.108 Local venue rules are contained in the rules of courts of varioushigh courts in the country and they are strictly meant for actions in the forumstate ordinarily.109 It is trite that the local venue rules are for mere administrativeconvenience.110 They cannot be relevant in deciding jurisdiction in actions thathave out-of-state elements be it national or international. It is the conflict of lawrules of the forum court as contained in the respective High Court Laws ofvarious states or the long-arm statute (SCPA) that determine when a court canexercise jurisdiction in causes having foreign element. It is on this note that we

106CPR R. 6.20(8) provides that ‘A claim is made in tort where (a) damage was sus-tained within the jurisdiction or (b) the damage resulted from an act committed withinthe jurisdiction’.107CAP S6, LFN 2004. This statute is similar to the Australian Service and Execution ofProcess Act 1992. Act No. 172 of 1992 (as amended). All the federating states in theUSA also have similar long arm statute that allows the respective states to serve writ out-side the forum state for the purpose of exercising personal jurisdiction over defendantsthat are outside the forum state. See Vedder, Price, Kaufman & Kammholz, ‘Long-ArmStatutes: A Fifty-State Survey’, (2003) <www.vedderprice.com> accessed 17 July 2012).108Resolution Trust Corporation v F.O.B Investment and Properties Ltd & Anor (2001) 6NWLR (Pt.708) 246; Krans Thompson Organizations Ltd v University of Calabar (2004)9 NWLR (pt.879) 631.109For instance see Order 2 Rules 2–4, High Court of Lagos State (Civil Procedures)Rules, 2004.110Ogigie v Obiyan (1997) 10 NWLR (Pt.524) 179; Platinum Habib Bank Plc v AbasaNigeria Enerprises Limited (2009) 11 LLR.

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agree with the decision of the courts in Benson v Ashiru,111 Barzasi v B VisioniLtd112 and Prof. Albert Ogunsola v ANPP113 which support the position that theissue of choice of jurisdiction of courts in matters that connected with more thanone legal district is one of private international law.

There now seems to be some kind of uniformity in the choice of jurisdictionrules of courts in cases having a foreign element in a sizable number of coun-tries. The golden rule which most courts now use is that a forum court has gen-eral jurisdiction over every person within its reach, even if the subject matter isforeign. The connecting factor here may be nationality, domicile or residence.

For out-of-state defendants, most jurisdictions have devised means of exercis-ing special jurisdiction over such defendants where the subject matter hasconnection with the forum state. Both in the civil and common law traditions,long-arm provisions exist to extend the jurisdiction of the forum court to suchfar distance defendants.

In inter-state matters, the courts must start to appreciate and give effect to theprovisions of section 101 of the Sheriffs and Civil Processes Act, which is Nige-ria’s long-arm statute and allows a plaintiff to sue in a forum court once there isconnecting factor(s) between the defendant and the forum court as stipulatedunder the Act. More importantly, the country is now becoming digitalised andthe idea of using territory as the sole basis for jurisdiction of courts may belaughable as the digital world which we are embracing knows no territorialboundary. Goods and services are provided online via interactive web pages. IfNigerian courts continue to maintain strict the territorial basis of jurisdiction,then injustice and inconveniences will abound as many people will not be ableto approach the court in virtually all their day-to-day activities.

For matters that have connection with foreign countries, it is recommendedthat Nigerian courts take cognisance of these global developments and reshapethe jurisprudence of personal jurisdiction over non-resident defendants. There isneed to harmonise and standardise choice of jurisdiction in international matters.The courts should give effect to the intention of the drafters of the enabling lawsand rules of courts. It is suggested that all high courts should be empowered toexercise general jurisdiction over every person resident within the jurisdiction ofthe court, since that is the best place that such defendants could be effectivelydealt with. Special jurisdiction could also be asserted by the court once there isany serious connection between the subject matter and the state.

The need to bring the law and practice of choice of jurisdiction of Nigeriancourts in line with the global trend is an imperative one. Where a Nigerian courtexercises jurisdiction over a non-resident defendant in a manner different fromthat of a foreign country, for instance, it will be difficult for such a judgment tobe enforced in that foreign country. So, to forestall possible occurrence of such,Nigerian courts’ approach needs to correspond with what is obtainable in otherjurisdictions.

111(1967) NMLR 363.112Supra.113(2003) 1 NWLR (pt. 826) 462. Other cases in this line of thought include: Zabuisky vIsreali Aircraft (2008) 2 NWLR (Pt.1070) 109, Herb v Devimco International B.V (2001)52 WRN 19; NPA v Panalpina World Transport (1974) UILR 89.

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Notes on contributorAbubakri Yekini holds an LLB from Lagos State University in 2008 and a Barrister-at-Law from Nigerian Law School in 2009. At the Nigerian Law School, he received a firstclass and emerged as the third overall best student in the entire federation. He has anumber of awards to his credit as well. He had just concluded his LLM at the prestigiousUniversity of Lagos. He is at present a graduate assistant in the Faculty of Law, LagosState University, and is currently researching for his doctoral programme.

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