[en] This work reviews the monograph titled Private International Law in Commonwealth Africa. The reviewer considers the work to be very significant. The work builds on the previous works of the author (of the monograph) principally aimed at the development of private international law (PIL) in Africa. The reviewer situates the work in a larger context by interpreting the work and previous works of the author (of the monograph) as seeds for the development of a future African Union (AU) PIL. In this regard, the reviewer is able to select four major themes that justify the significance of the work in relation to a future AU PIL. These themes concern limitations on previous works on African PIL, the significance of PIL to AU economic integration, the impact of human rights and constitutional law on PIL in Africa, and a plea for cooperation as it relates to a future AU PIL. However, the reviewer exposes the scepticism as to a future AU PIL, and concludes that despite this scepticism, the work is significant enough to sow the seeds of a possible AU PIL.
R, Oppong, Private International Law in Commonwealth Africa (Cambridge University Press, 2013)
This is an expression Dr Oppong rightly uses in R, Oppong, “Private International Law in Africa: The Past, Present and Future” (2007) 55 American Journal of Comparative Law 677, n 1. All the countries referred to in the monograph are English-speaking countries; not all the countries referred to in the monograph are currently Commonwealth countries. Thus, the reviewer regards the use of “Commonwealth Africa” in the title of the monograph as some what misleading for at least two reasons. First, Zimbabwe and Gambia are no longer members of the Commonwealth of Nations; Cameroon, Mozambique, Mauritius, Rwanda and Sey chelles, which are now members of the Commonwealth of Nations, are not accounted for in the monograph. Second, at fi rst glance “Commonwealth Africa” creates the impression that the countries discussed all belong to the same common law legal family, which is actually not the case as demonstrated in the monograph. The countries in the English-speaking part of western and eastern Africa belong to the English common law family, while the countries in the English-speaking part of southern Africa generally belong to the Roman-Dutch law family. Admittedly, the categorisation of southern Africa as belonging to the Roman-Dutch law family is not watertight. There are occasions where southern Africa PIL converges with common law PIL. Also, some areas of southern Africa law (such as commercial and civil procedure law) have some English infl uence, and southern Africa courts do refer to a signifi cant number of English cases. See also R Oppong, “Roman-Dutch Law Meets the Common Law on Jurisdic tion in International Matters” (2008) 4 Journal of Private International Law 311
DrOppong does, however, make passing reference to some other African countries for the pur pose of comparative analysis with countries from English-speaking Africa in the monograph
Oppong, supra n 1, lxii. See also R Oppong, “A Decade of Private International Law in Afri can Courts 1997–2007 (Part I)” (2007) IX Yearbook of Private International Law 223, 224 where a similar method was adopted
R, Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)” (2008) X Yearbook of Private International Law 367, fn *; R Oppong “Private International Law Scholarship in Africa (1884–2009)–A Selected Bibliography” (2010) 58 American Journal of Comparative Law 319, 320; R Oppong, Legal Aspects of Economic Integration in Africa (Cambridge University Press, 2011), xii
See R, Oppong, “Private International Law and the African Economic Community: A Plea for Greater Attention” (2006) 30 Journal of South African Law 497; R Oppong, “Private Inter national Law and the African Economic Community: A Plea for Greater Attention” (2006) 55 International and Comparative Law Quarterly 911; R Oppong, “The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation” (2006) VIII Year book of Private International Law 189; R Oppong, “Choice of Law and Forum Agreement Survives a Constitutional Challenge in the Kenya Court of Appeal” (2007) 33 Commonwealth Law Bul letin 158; Oppong, “Private International Law in Africa: The Past, Present and Future”, supra n 2, 677; Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)“, supra n 5, 367; R Oppong, “Roman-Dutch Law meets the Common Law on Jurisdiction in International Matters”, supra n 2; Oppong, “Private International Law Scholarship in Africa (1884–2009)–A Selected Bibliography”, supra n 5, 319; Oppong, Legal Aspects of Economic Integ ration in Africa, supra n 5. However, the monograph can be appreciated by anyone who has an elementary knowledge of PIL without having to fi rst read these previous works
Oppong, “A Decade of Private International Law in African Courts 1997–2007”, supra n 5, 391. Although this view is correct, there are occasions where comparative analysis with extra-African sources is compelling and irresistible. Nigeria, which operates a federal constitution (unlike other African countries), provides a very good example. In Nigeria, confl ict of laws applies at the international (Nigeria and other foreign countries), inter-state (states within the Nigerian Federation) and internal-confl icts (the interplay between customary law or Islamic law, and the statute or constitution) levels. In matters of inter-state litigation (which does not occur in many other African countries) reference to extra-African sources such as Australia, Canada and the USA (which all operate federal constitutions and are common law countries) for com parative analysis may prove to be very useful to the Nigerian PIL jurisprudence
Justice D, Pillay in Roger Parry v Astral Operation Ltd (LC 190/04, C190/04) [2005] ZALC 15; [2005] 10 BLLR 989 (LC); [2005] JOL 14962 (LC) (21 June 2005)
Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part I)”, supra n 4, 233; Oppong, “Private International Law in Africa: The Past, Present and Future“, supra n 2, 677; Oppong, “Private International Law Scholarship in Africa (1884-2009)–A Selected Bibliography”, supra n 5, 319; O Bamodu, “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273; HA Olani-yan, “Confl ict of Laws Through Nigerian Case Law: A Researcher's Critical Comments” (Part 1) (2012) 20 African Journal of International & Comparative Law 388; HA Olaniyan, “Confl ict of Laws in Nigerian Appellate and Apex Courts: A Biennial Critical Assessment (2009–2010)” (2012) 9 USA-China Law Review 297, 327–29
C, Forsyth, Private International Law–The Modern Roman Dutch Law, Including Jurisdiction of the High Courts (Juta & Co Ltd, 5th edn, 2012), 46–47
UU, Uche, “Confl icts of Laws in a Multi-Ethnic Setting: Lessons from Anglophone Africa” (1991) 228 Recueil des Cours: Collected Essays of the Hague Academy of International Law 273
C, Forsyth, “The Provenance and Future of Private International Law in Southern Africa” (2002) 26 Journal of South African Law 60, 68
Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)”, supra n 5, 390. See also Oppong “Private International Law Scholarship in Africa (1884–2009)–A Selected Bibliography“, supra n 5, 326
Oppong, supra n 1, lx
See also Oppong, “Private International Law in Africa: The Past, Present and Future” supra n 2, 677; Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 222–24
Bini is an ethnic group in Nigeria situated in Edo State. Nigeria has about 400 ethnic groups
“Under the Bini native law and custom, the eldest son of a deceased person or testator is enti tled to inherit without question the house or houses known as ‘Igiogbe' in which the deceased/testator lived and died. Thus, a testator cannot validly dispose of the ‘Igiogbe' by his Will except to his eldest surviving male child. Any devise of the ‘Igiogbe' to any other person is void”: Arase v Arase [1981] NSCC 101, 114. See other Nigerian Supreme Court cases of Idhen v Idehen [1991] 6 NWLR (Pt 198) 387; Lawal-Osula v Lawal-Osula [1995] 9 NWLR (Pt 419) 259; Agidigbi v Agi-digbi [1996] 6 NWLR (Pt 454) 302–03; Uwaifo v Uwaifo [2013] 10 NWLR (Pt 1361) 185
Section 3 of the Wills Law Cap 172, 1976 Laws of Bendel State, applicable in Edo State pro vides that “Subject to any Customary Law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in a manner hereinafter required, all real and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him or if he became entitled by descent, of his ancestor, or upon his executor or adminis trator” (emphasis added). Admittedly, the gender bias in this custom and the constitutionality of its provisions are open to question in light of the provisions of s 42(2) of the 1999 Consti tution that prohibits discrimination on the grounds of gender. It is an area where constitutional law could positively shape internal confl ict-of-law problems in intra-African cross-border trans actions. See infra, Section C.3
See Oppong, “Private International Law and the African Economic Community: A Plea for Greater Attention”, supra n 6, 497; Oppong, “Private International Law and the Afri can Economic Community: A Plea for Greater Attention”, supra n 6, 911; Oppong, “Private International Law in Africa: The Past, Present and Future“, supra n 2, 677; Oppong, “Private International Law Scholarship in Africa (1884–2009)–A Selected Bibliography”, supra n 5, 324; R Oppong, “Observing the Legal System of the Community: The Relationship between Community and National Legal System under the African Economic Community Treaty” (2006) 15 Tulane Journal of International and Comparative Law 41. Oppong, Legal Aspects of Economic Integration in Africa, supra n 5
Ibid
Oppong, supra n 1, 66. See also Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)”, supra n 5, 394 –95; Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 276
Shah v Manurama Ltd [2003] 1 EA 294. This is discussed in Oppong, supra n 1, 460–61
Oppong, “Private International Law in Africa: The Past, Present and Future”, supra n 2, 677; Oppong, “Choice of Law and Forum Agreement Survives a Constitutional Challenge in the Kenya Court of Appeal”, supra n 6, 158; Oppong, “Roman-Dutch Law meets the Common Law on Jurisdiction in International Matters“, supra n 2, 311; Oppong, “Private International Law Scholarship in Africa (1884–2009)–A Selected Bibliography”, supra n 5, 324; Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part I)”, supra n 4, 233–38, 249; Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)”, supra n 5, 398–400
Bid Industrial Holdings (Pty) Ltd v Strang (615/06) [2007] ZASCA 144; [2007] SCA 144 (RSA); [2008] 2 All SA 373 (SCA); [2008] (3) SA 355 (SCA) (23 November 2007)
Law of Domicile Act 1970, s 8
Domicile Act 1992, s 1
Oppong, supra n 1, 43–44, 189, 218, 249–50
Civil Union Act No 17 of 2006 (Gazette No 29441, Notice No 1208 dated 30 November, 2006)
The most recent African country to do this is Nigeria. On 7 January 2014 President Goodluck Jonathan signed his assent to the Same-Sex (Prohibition) Bill 2013. The Same-Sex Marriage (Prohibition) Act 2013 prohibits same-sex marriages or unions and the solemnisation of the same; gay groups, association or organisations, and shows of same-sex public affection. Sub section 5(1) of the Act sanctions same sex relationships with a maximum term of 14 years imprisonment. Subsections 5(2) and (3) respectively sanction administering, witnessing, aiding and abetting the solemnisation of such same-sex relationships; and registering, participating, and operating gay groups, associations or organisations with a maximum punishment of 10 years' imprisonment
Oppong, supra n 1, 248–49
Detmold v Minister of Health and Social Services [2004] NR 175; Minister for Welfare and Population Development v Fitzpatrick (CCT08/00) [2000] ZACC 6; [2000] (7) BCLR 713; [2000] (3) SA 422 (CC) (31 May 2000)
Oppong, supra n 1, 356–57
Ibid, 108–09
R, Oppong, “Re-imagining International Law: An Examination of Recent Trends in the Recep tion of International Law into National Legal System in Africa” (2007) 30 Fordham International Law Journal 296; R Oppong, “Making Regional Economic Community Laws into Enforceable National Laws–Constitutional and Judicial Challenges” (2008) 8 Monitoring Regional Integration in Southern Africa Yearbook 149; Oppong, Legal Aspects of Economic Integration in Africa, supra n 5
Sonderup v Tondelli (2001 (2) BCLR 152; 2001 (1) SA 1171) [2000] ZACC 26 (4 December 2000)
R, Oppong, “The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation”, supra n 6, 189. See also Oppong, “A Decade of Private Inter national Law in African Courts 1997–2007 (Part II)”, supra n 5, 403–5; Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 284–85
Oppong, supra n 1, 20–23
Ibid, 308–9
In re Lartey (Deceased); Lartey v Affutu-Lartey [1972] 2 GLR 488
Ibid, 501 (emphasis added)
Oppong, supra n 1, 387–89. See also Oppong, “A Decade of Private International Law in Afri can Courts 1997–2007 (Part II)”, supra n 5, 392–94
Oppong, supra n 1, 387–89. See also Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 278–79; Oppong, “A Decade of Private International Law in African Courts 1997-2007 (Part II)”, supra n 5, 393–94 where a similar comment was made. Cf AA Olawoyin, “Enforce ment of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Laws” (2014) 10 Journal of Private International Law 129, where the author (in rejecting the concept of reciproc ity, infl uenced by British foreign rule as a basis for designating the list of countries that benefi t from reciprocal enforcement of judgment under the Nigerian Foreign Judgments (Reciprocal Enforcement) Act No 31 of 1960, Cap152 LFN 1990, Cap F 35 LFN 2004, Cap F35 LFN 2010) argues that Nigeria should be concerned with ensuring that countries with which it does signifi cant international trade (such as the USA and China) should be given priority in the list of designated countries that can benefi t from speedy enforcement or registration of judg ments before further consideration is given to political objectives of recognising other African countries in that list. See also The South African Law Reform Commission, Consolidated leg islation pertaining to International Judicial Cooperation in Civil Matters Report (Project 121) December 2006, available at www.justice.gov.za/salrc/reports/r_prj121_2006dec.pdf (Accessed 1 September 2014)
Oppong, supra n 1, 387–89. See also Oppong, “A Decade of Private International Law in Afri can Courts 1997–2007 (Part II)”, supra n 5, 392–94; Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 278–79. Only the judgments of founding Members of the EAC (Uganda, Tanzania, and Kenya) can be registered in each other's countries
Oppong, Legal Aspects of Economic Integration in Africa, supra n 5. See also Oppong, “A Decade of Private International Law in African Courts 1997–2007 (Part II)”, supra n 5, 395–97
Oppong, supra n 1, 455–58
Ibid
Shah v Manurama Ltd [2003] 1 EA 294
At the moment the African Economic Community (AEC) recognises four principal regional bodies for the eastern, western and southern part of Africa, namely the East African Commu nity (EAC), the Economic Community of West African States (ECOWAS), the South African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA). Some African countries are also members of more than one regional body. These regional bodies are expected in the future to merge into one AEC as a common market. See generally Oppong, Legal Aspects of Economic Integration in Africa, supra n 5
49 The possible realisation of an AU PIL will inevitably be incremental such as fi rst creating uni form rules for speedy enforcement of judgments within African states, then unifying AU PIL rules in commercial transactions and further steps may be taken to the realisation of creating a comprehensive AU PIL
J, Mance, “Is Europe Aiming to Civilise the Common Law”? (2007) 18 European Business Law Review 7
Case C-159/02 Turner v Grovit [2004] ECR I-3565, [24]–[31]; Case C-185/07 Allianz SpA (for merly Riunione Adriatica di Sicurta SpA) v West Tankers Inc [2009] ECR I-663
Case C-116/02 Erich Gasser GmbH v MISAT Srl [2005] ECR I-14693
Case C-281/02 Owusu v Jackson (t/a Villa Holidays Bal Inn Villas) [2005] ECR I-1383
Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, as amended [1998] OJ C27/1 (“Brussels Convention”); Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L12/1 (“Brussels I Regulation”)
See also J, Harris, “The Brussels I Regulation and the Re-emergence of the English Common Law” (2008) 4 European Legal Forum 181
On the law applicable to contractual obligations [1980] OJ L266 (“Rome Convention”)
See Art 18 of the Rome Convention. See also THD Struycken, “Some Dutch Refl ections on the Rome Convention, Art 4(5)” [1996] Lloyd's Maritime and Commercial Law Quarterly 18; CSA Okoli and GO Arishe, “The Operation of the Escape Clauses in the Rome Convention, Rome I Regulation and Rome II Regulation” (2012) 8 Journal of Private International Law 513; CSA Okoli, “The Signifi cance of the Doctrine of Accessory Allocation as a Connecting Factor under Article 4 of Rome I Regulation” (2013) 9 Journal of Private International Law 449
Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L177/6. Article 29 of Rome I provides that it shall apply from 17 December 2009. It replaces the Rome Convention
F, Ferrari, “Quelques remarques sur le droit applicable aux obligations contractuelles en l'absence de choix des parties–Art 4 du Règlement Rome I” (2009) 3 Revue critique de droit international privé 459; U Magnus, “Article 4 Rome I Regulation: The Applicable Law in the Absence of Choice” in S, Ferrari and S, Leible (eds), Rome I Regulation, The Law Applicable to Contractual Obligations in Europe (Sellier, 2009), 27; A Dickinson, “Rebuttable Assumptions” [2010] Lloyd's Maritime and Commercial Quarterly 27; R Fentiman, International Commercial Litigation (Oxford University Press, 2010) 212–26; PR Beaumont and PE McEleavy, Private International Law AE Anton (W Green, 3rd edn, 2011), 475–76; Lord Lawrence, Collins (ed), Dicey, Morris & Collins on The Confl ict of Laws, vol 1 (Sweet & Maxwell, 15th edn, London, 2012), 1797–820; CSA Okoli, “The Signifi cance of the Doctrine of Accessory Allocation as a Connecting Factor under Article 4 of Rome I Regulation” (2013) 9 Journal of Private International Law 449
62 Art 4 of Rome I has not yet been the subject of signifi cant interpretation among Member State courts
63 L'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA). In English, this translates as the Organisation for the Harmonisation of Business Law in Africa
Oppong, Legal Aspects of Economic Integration in Africa, supra n 5, 110–11. Dr Oppong is correct to state that it requires a considerable amount of work to unify substantive law compared to unifying PIL, and PIL issues are not easily banished from occurring despite considerable efforts to unify substantive law
65 Section 2(2) of the Same Sex Marriage (Prohibition) Act provides that no certifi cate of marriage issued to persons of the same sex shall be valid in Nigeria. Section 3 of the Act also provides that only a marriage between a man and a woman shall be recognised as valid in Nigeria.,
