Concept of Domicile in PIL

8/10/2019 Concept of Domicile in PIL

http://slidepdf.com/reader/full/concept-of-domicile-in-pil 1/89

1

AN APPRAISAL OF THE DOCTRINE OF DOMICILE

UNDER THE PRIVATE INTERNATIONAL LAW

BY

OMOTAYO COMFORT OLUWATOBI

MATRIC NO: 06/40IA151

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW,

UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILMENT

OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF

BACHELOR OF LAW (LL.B HONS.) IN COMMON LAW .

APRIL 2011



2

CERTIFICATION

This is to certify that this long essay: AN APPRAISAL OF THE DOCTRINE OFDOMICILE UNDER THE PRIVATE INTERNATIONAL LAW was written byOMOTAYO COMFORT OLUWATOBI. It has been read and approved asmeeting part of the requirements for the award of Bachelor of Law (LL.B Hons.)Degree in Common Law in the Faculty of Law, University of Ilorin, Ilorin,Nigeria.

DR. (MRS) NIMAT M. ABDULRAHEEM DATE SIGNATURE

Supervisor . ……....……. …..….………

DR. ADEDOYIN RAJI DATE SIGNATURE

HOD of Host Dept.

Dept. of Jurisprudence & International law ….……. ……..……… .

PROF. A ZUBAIR DATE SIGNATURE

HOD of Graduating Dept.

Dept. of Islamic Law ………… .. …………….

DR. WAHAB O. EGBEWOLE DATE SIGNATURE

Dean, Faculty of Law ……………… ..………… ..

EXTERNAL EXAMINER DATE SIGNATURE

.................. ...................



3

ABSTRACT

This write up is to assess the quality of the value of the doctrine of domicile under thePrivate International Law i. e Conflict of laws.

Private International Law is that part of law of a country which deals with caseshaving a foreign element. It is therefore the that part of law that comes into into playwhenever the issue before the affect some events/ facts/ transactions that are soclosely connected with a foreign system of laws as to necessitate recourse to thatsystem.

The law pertaining to where a person intends to make his permanent home is subjectto a lot of argument. No wonder domicile has been said to be easier describe than todefine. There are indication from both local and foreign journals which indicate thatthere are conflicting understanding in the area of domicile.

Under the Private International Law, the concept of domicile has several as well asarea of applications, some of which include the acquisition and loss of domicile ofchoice, origin and dependence.

In Nigeria, the doctrine of domicile is alien, a product of our colonial link with theBritish common law. Due to the diversi ethnicity and culture in Nigeria. The doctrineof domicile is based on its character subject to conflict based in the Nigerian context.

This long essay identifies the various definition of domicile, the distinctive features ofeach type of domicile, their workings, variations and also their shortenings.



4

TABLE OF CONTENTS

COVER PAGE ……………………………………..………….………………. i

CERTIFICATION PAGE……………………………..………...…………… ii

ABSTRACT………………………………………………….……………….. iii

TABLE OF CONTENTS..................................................................................iv

DEDICATION…………………………………………………………...…… viii

ACKNOWLEDGEMENT…………………………………………………… ix

TABLE OF C ASES…………………………………………………………… x

TABLE OF STATUTES………………………..…………………………….. xii

LIST OF AB BREVATIONS…………………………………………………. xiii



5

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTR ODUCTION…………………………………………………………. 1

1.1.0: BACKGR OUND TO THE STUDY………………………………... .........3

1.2.0: OBJECTIVES OF STUDY……………………………………………….. 3

1.3.0: FO CUS OF STUDY………………………………………………………... 4

1.4.0: SCOPE OF STUDY………………………………………………………… 4

1.5.0: METHODOLOGY……………………………………………..…... ............5

1.6.0: LITE RATURE REVIEW………………………………………………….. 5

1.7.0: CONCLUSION……………………………………………………………… 7

CHAPTER 2

DOCTRINE OF DOMICILE

2.0.0: INTRODUCTION…………………………………………………………… 8

2.1.0: DEFINITION OF DOMICILE .......................................................................9

2.2.0:ASCERTAINMENT OF DOMICILE……………………………………… 16

2.3.0: DOMICILE AND NATIONALITY……………………………. ..................17

2.4.0: RULES AND T YPES OF DOMICILE…………………….……………… 20



6

2.5.0: C ONCLUSION………………………………………………......... ...............25

CHAPTER 3

ACQUISITION OF DOMICILE

3.0.0: INTRODUCTION…………………………………………………………… 27

3.1.0: ACQUISITION OF DOMICILE OF ORIGIN…………….………………. 28

3.2.0: ACQUIS ITION OF DOMICILE OF CHOICE…………………………… .31

3.2.1.0: RESIDENCE (FACTUM)…………………… …………………….…… .33

3.2.1.1: THE REQUISITE INTENTION (ANIMUS) …………………………… 36

3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE...49

3.2.1.3: LOSS OF DOMICILE OF CHOICE..........................................................55

3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED………… .......55

3.4.0: CHANGE OF DOMIC ILE AND NATIONALITY ………...…………… 61

3.5.0: CONCLUSION……………………………………………………………... .62

CHAPTER 4

DOMICILE OF DEPENDENT PERSONS

4.0.0: INTRODUCTION………………………………………………………..64



7

4.1.0: DOMICILE OF CHILDREN …………………………………………64

4.2.0: D OMICILE OF MARRIED WOMEN………………………………....66

4.3.0: DOMICILE OF PERSON OF UNSOUND MIND ……………………69

4.4.0: MERITS AND DEMERITS OF DOMICILE …………….………… ...70

4.5.0: CONCLUSION …………………………………………………………72

CHAPTER 5

GENERAL CONCLUSION

5.0. 0: CONCLUSION………………………………………………………………73

5.1. 0: RECOMMENDATION…………………………………………………….7 4

BIBILOGRAPHY…………………………………………...................... ...............76



8

DEDICATION

To God be the glory for what He has done. I dedicate this work to God almighty for being everything I ever need throughout my course of study. To my parents I amdedicating this work to you too, most especially to my mother Mrs. Abosede ElizabethI love you so much mummy and thank you for being there for me



9

ACKNOWLEDGEMENT

Above all, I will forever be grateful to the Almighty God for everything, I will neverfail to say thank you Jesus for being there for me and for being my pillar throughoutmy stay on this campus. To my darling parent, thanks for making life worth living,thanks for everything spent on me and for every support given you are the best and Ilove you so much. I won‟t fail to acknowledge all my lecturers right from 100L to thisstage thanks for every knowledge you‟ve imparted into me thank you so much for

building me to be useful in this generation.

And to my wonderful and eloquent supervisor Dr Mrs. N.M. Abdulraheem thank youfor your support, guidance, correction and approval. I admire you amongst all thefemale lecturers in this faculty, you are the best. You are a gem.

I will not fail to appreciate my friends though countless but some can‟t be excluded.Folaranmi Eniola Richard thanks for your love, you are the best. To my loving friendAdewole Adefunminiyi, thanks for your support .And to all my friends , kareemTemitope, Adeshina Aminat, Soremekun Oluwaseun, Runsewe Bimpe, OluwoleOlusegun, Egunjimi Emannuel. And to my neighbours in Kemtas. I cannot forget mysiblings, thank you all for being there. I love you all. To my wonderful classmates Iappreciate you all both friends and foes may we meet at the top.

I will never forget my spiritual home the Redeemed Christian Fellowship(RCF)Shadow of the Almighty indeed it is the gathering of the liveliest and happiest

people on campus, thank you all for your prayers and support. And to our patronDaddy Bamidele, I admire your courage and zeal, may the Lord continue to strengthenyou. Thank you sir for your words of encouragement.



10

TABLE OF CASES

NIGERIA

Adeyemi v Adeyemi (1962) LLR 90 @ 72

Enwonwu v Spira (1965) 2 All NLR 233

Fonseca v Passmen (1958) WRNLR 41 @ 42 Odiase v Odiase (1965) NMLR 196

Udom v Udom (1962) LLR 112 @ 117

GHANA

Crammer v Crammer (1987) 1 FLR 116

Lloyd v Lloyd (1961) 2 FLR 349

Att. For Alberta v Cook ( 1926) AC 444

UNITED KINGDOM

A. G v Pottinger (1861) 30 L J Ex 284 at 292

Bell v Kennedy(1808)LR .Sc & Div 307

Blender v Johnstone( 1769) LR IP & M 611

Bowie (Ramsay) v Liverpool Royal Infirmary(1930) AC 588 at 598

Collier v Rivas (1841) 2 Curt 855

Doucat v Geoghegeon (1878)L.R.9 Ch .D at 256

Fentiman (1991) CL. J 445



11

Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612

Harrison v Harrison(1953) 1 WLR 865

Henderson v Henderson (1969)p. 77 at 80

Hodgson v De Beauchesne ( 1858) 12 Moo PCC 285 at 329, 330

IRC v Bullock (1976) WLR 1178

IRC v Duchess of Portland (1982) Ch 314 at 318- 319

Moorhouse v Lord (1863)10 HL Cas 27 at 285

Plentika v Plentika (1965) 109 Sol Jo 72

Plummer vIRC (1988)1 All ER 79

Putman v Johnson 10 Mass 488, 501(1813)

Re Craignish (1892) 3 Ch 180, 192

Re Flynn (No 1 ) (1968) 1 WLR 103

Re Fuld’s Estate (No 3) (1968) p 615 at 684

Re Furse ( 1980) 3 All ER 838

Whicker v Hume(1858)7 H L Cas 124 at 160

White v Tenant (1880) WLR 790

Winans v A. G(1904) AC 287

Jopp v Wood (1865) 4 D.J & S.



12

TABLE OF STATUES

AUSTRALIA

Australian Family Law Act 1975

Australian Matrimonial Causes Act 1959

Australian Domicile Act 1982

CANADIAN

Canadian Divorce Act 1968

Code of Domicile

Code of Napoleon (French civil code) 1803

ENGLAND

Domicile and Matrimonial Proceeding Act 1973

NEW ZEALAND

New Zealand Domicile Act 1976



13

LIST OF ABBREVIATIONS

A.C: Appeal Cases

A.G: Attorney General

ALL ER : All England Report

All NLR: All Nigerian Law Report

Beav: Beavan Charles, Reports…… Rolls court.

Ch: Chancery

Ch. D: Chancery Division

Curt: Curties, W.C Reports…… Ecclestical

Ed: Edition

FLR: Federal Law Report

H L Cas: House of Lords Cases

LR: Law Report

LR. Eq: Law Report Equity Cases

LLR: Lagos Law Report

NMLR: Nigerian Monthly Law Report

NLR: Nigeria Law Report

NNLR: Northern Nigeria Law Report

NWLR: Nigerian Weekly Law Report

WNLR: Western Nigeria Law Report

WRNLR: Western Regional Nigeria Law Report

WLR: Western Law Report



14

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

It has been universally recognized that questions affecting the personal status of a

human being should be governed constantly by one and the same law irrespective of

where he may happen to be or of where the facts giving rise to the question may have

occurred. But unanimity goes no further, there is disagreement on two matters. What

is t he scope of this „personal law‟, as it is called and should its criterion be domicile or

nationality? 1 In England, however it has long been settled that question affecting status

are determined by the law of the domicile of a person and that broadly speaking such

questions are those affecting family relations and family property. To be more precise,

the following matters are to a greater or lesser extent governed by the personal law:

the essential validity of marriage; the effect of marriage on the propriately rights of

husband and wife; jurisdiction in divorce and nullity of marriage, though only to a

limited degree; legitimacy, legitimating and adoption, wills of movables and intestate

succession to movables. The concept of domicile however, is not uniform throughout

1 Cheshire and North‟s :on the merits of nationality and domicile in pp 165 - 167 of Private

International Law



15

the world Domicile known as habitual residence to some and permanent residence to

some people.2

The English concept of domicile is bedeviled by rules, these are complex often

impossible to justify in policy terms and lead to uncertainty of outcome. Before

looking at these rules in details, one preliminary matter should be considered. This is

question of whether the same test for domicile applies regardless of the context I

which the matter is raised. English law take the view that the test which determines the

place of a man‟s domicile must remain constant no matter wha t the nature of the issue

may be before the court. „Domicile ‟ is regarded as a relative term which varies in

meaning according to the different situation (e.g. divorce, taxation intestate

succession) to which it is applicable. There are however types of domicile, domicile of

origin: gotten from birth, domicile of choice: acquired in substitution for the present

one and also domicile of dependent persons: acquire through the person they are

depending on.

These and many more are what is going to be discussed later. Domicile, in its

appraisal, its type, workings and also shortenings.

2 Whicker v Hume (1858) 7 H L Cas 124 at 160



16

1.1.0: BACKGROUND TO THE STUDY

Until the beginning of the nineteenth century, domicile was universally recognized as

the basis for the application of personal law. 3 However, as a result of the influence of

Maincini 4 in the mid-nineteenth century some of the continental European countries

adopted nationality in preference to domicile as the connecting factor for the

ascertainment of personal laws. Since then, some countries have somehow combined

the two criteria. For common law countries, however, domicile appears to have been

generally accepted. In Nigeria, the adoption of can be justified on ground of practical

necessity as “Nigeria nationality” covers a number of independent le gal systems. 5

1.2.0: OBJECTIVES OF STUDY

The aim of this write up is to

1. Assess the definitions of domicile under the Private International Law.

2. Access the quality of the value of domicile.

3. To discuss the rules of domicile as contained in the received English law and to

show how these rules have been, or ought to be modified in order suit Nigerian local

conditions.

3 Logical and Legal basis of the conflict of laws .pp 104.4 Cheshire G.C ; Private International Law (7 th ed) p. 1805 The French Civil Code ( code Napoleon ) 1803





18

1.5.0. METHODOLOGY

Both primary and secondary sources of law and the basis for this research work. Thus

the Domicile Act, Law Textbooks, Law report, Articles on law, various statute and

cases on the subject matter are sources of information. This project shall also be both

comparative and analytical in nature.

1.6.0: LITERATURE REVIEW

In this study relevant literature, judicial authorities and statutes shall be examined.

Thus, credence shall be given to several authors in the field of the Conflict of laws

whose works have in no small measure contributed immensely to Private International

Law on the whole. Works of different authors both foreign and Nigerian such as

Morris and Dicey, Cheshire an North ‟s, Graveson, Agbede I.O, to mention a few will

serve as an aid to arrive at a logical conclusion on this study.

Morris in his book The Conflict of laws 6 provides a comprehensive and authoritative

coverage of the subject but failed to Graveson ,Conflict of laws 7 who only commented

on the definition of domicile to no longer fits the complexity, movement and

sophistication of modern life in which many of our best intentions become temporary

through frustrating circumstances. But he failed to point out the ways to go about

6 Morris: the Conflict of laws , 4 th ed by J D McClean, London, sweet and Maxwell, 1993, p 127 Graveson, conflict of laws (1969) p.20



19

giving a definition that will fit our modern life. On the other hand, Agbede .I .O,

Themes on Conflict of Laws8

talk on the need to establish residence and intention toremain in a place permanently (or indefinitely),he also went further to provide a

comprehensive coverage of the spectrum of the law of domicile as it applies in

Nigeria but he did little in expanciating on this requisites of acquiring a domicile of

choice.

Accordingly, Cheshire and North‟s in their book Private Internationa l Law 9 gave a

good insight to domicile being a difficult term to define but rather better in

description, but their way of describing was faulty in that there was no clear

distinction between a permanent home and habitual home.

Many books and Statutes shall be used mostly in the course of this study. This is

because textbooks are what has been compiled by various authors while using the

Statutes to back up their argument. Thus, it is only logical for this approach to be

adopted since the word domicile itself still happen in how day to day living, as people

migrate from one country to another, so there was need for domicile. In this vein,

Omoruyi. I. O in his Article 10 Domicile as a determinant of personal law; a case for

the abandonment of the revival doctrine in Nigeria, examined that the common law

8 Agbede I.O., Themes on Conflict of Laws.( 2001) Shaneson C. I Ltd9 Cheshire and North‟s , Private International Law, (1974) (7 th ed)10http://www.nigerianlawguru.com.articles>accessed 2000







22

In this chapter, the various definitions of domicile shall be examined, the English

conception of domicile, domicile and nationality, how domicile can ascertained andthe forms and types of domicile.

2.1.0. DEFINITION OF DOMICILE

It is not an easy task to define the concept of domicile because, the concept is not

uniform throughout the world therefore it is subject to diverse meanings.

According to Sir GEORGE JESSEL;

“The term domicile is incapable of definition 12 ”

MORRIS also has asserted that

“Domicile is easier to illustrate than it is to define” 13

This is probably due to the fact that traditional definition has become rather obsolete

as a result of judicial modification, which has attended the concept overtime.

The Oxford Advance and Learners Dictionary define domicile as

“The place where somebody lives, especially when it is stated for official or legal

purpose” 14

12 Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 25613 Morris, Conflict of laws , 4 th ed by J. C McLean, Sweet and Maxwell, 1993, p.126 th edition14 6 th edition by Sally Wehmeier (2000)



23

The Black Law Dictionary defines the concept of the domicile as

“A person ‟s legal home. That place where a man has his true, fixed and permanent

home and principal establishment, and to which whenever he is absent he has the

intention of returning 15”

LORD CRANWORTH attempted a definition sometimes ago in Whicker v Hume 16

to the effect that;

“By domicile we mean home, the permanent home, and if you do not understand

your permanent home I am afraid that no illustration drawn from foreign writers or

foreign language will very much help you to it”

This definition by Lord Cranworth is obviously simplistic from the subsequent judicial

developments on these issues. In fact there is an opinion that the definition by LORD

CRANWORTH is „ far too simplicitic a nd indeed somewhat misleading‟ 17

LORD CRANWORTH‟s definition errs on the side of simplicity because there are

circumstances in which a person may not be residence in his place of domicile. The

fact that one has lived in a particular place for several years is irrelevant where there is

intention to remain there 18.

MORRIS also objects to this definition on the ground that a perso n‟s domicile may not

always be the permanent home. In fact according to him;

15Bryan A. Garner: 8 th edition Thompson West 200416 (1958) H L C 124 at 16017Collier J. G : Conflict of laws , 2 nd edition, Cambridge, C. U. P 1994. P 40.18 White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178



24

“A person may be domiciled in a country which is not and never has been his home;

a person may have two homes but he can only have one domicile. 19”

He concluded that there is often a wide difference between the English concept of

domicile and population of a home.

Judicial authorities have equally shown that to acquire domicile according to the

received English law, it is necessary to establish residence in a place and an intention

to reside there permanently. The English courts have with complete justification

established the principle of definition of domicile for the purpose of English rule

conflict of laws according to thee concept in English law Nevertheless it is clear from

decided cases that to acquire domicile in territory, according to the received English

law, it is necessary to establish residence and an intention to remain there permanently

(or indefinitely). A domicile can only be acquired by the concurrence of these two

factors. However, an intention of indefinite residence is not equivalent to permanent

residence if it is contingent upon uncertain event.20

Thus in Moorhouse v Lord 21 it was held that:

“The present intention of making a place a person‟s permanent home exists only

where he has no other idea than to continue there without looking forward to any

event, certain or uncertain which might induce him to change his residence. If he

19 Ibid at 1320Ibid21 (1863) 10 H L Cas 272 at 285-286



25

has in his contemplation some event upon the happening of which his residence will

cease it is not rather a present intention of making it a temporary home, though for a

period indefinite and contingent.”

This rule of domicile might have worked well during its formative (mid-Victorian

England) era of comparative certainty, simplicity and legalism but in the

contemporary world of tension and increased mobility, few things for human affairs

can be certain least of a ll is one‟s intention. As stated by CHESHIRE 22,

“Singular indeed would be the man who could unreservedly warrant that whatever

good or evil might befall him he would never return whence he came”

In GRAVESON‟s 23 view, this definition no longer fits the complexity movement and

sophistication of modern life in which many of our best intentions become temporary

though frustrating circumstances. Rather curiously, this unsatisfactory definition of the

English concept of domicile has been in Fonseca V Passman 24, THOMAS.J. held

that:

“To establish a domicile in Nigeria the mere factum of residence here is not

sufficient…. There must be unequivocal evidence of animus manendi or intention to

remain permanently”

22 Cheshire: Private International Law (7 th ed ) at 14523 Graveson: Conflict of laws (1969) p. 20724 (1958) WRNLR 41 at 42



26

More curiously, however is the failure of the Nigerian judged to distinguish between

inter-state and international situation. For instance, in Udom v Udom 25, COKER.J.

who was concerned with an inter-state conflict problem said:

“The subject must not only change his residence to that o f a new domicile, but also

must have settled or resided in the new territory cum animo manendi The residence

in the new territory must be with the intention of remaining there permanently to

reside, the factum is the actual residence.”

This dictum appears to ignore the warning of BEALE 26that the circumstances of life in

a country must have weight with the judge in determining the meaning of domicile.

“In USA there is a habit of moving from place to place; in England the habit is to

remain indefinitely in one place. The rule of English law will have many Americans

without a domicile of choice. 27”

American judges are equally conscious of the inconvenience that will result from

adopting the English rigid definition of domicile. Thus, PARKER .J. held in Putman

v Johnson 28

In this new and enterprising country it is doubtful whether one half of

the young men, at the time of their emancipation, fix themselves in any town with an

intention of always staying there. They settle in a place by way of experiment to see

whether it would suit their view of business and advancement in life, and with an

25 (1962)LLR.112 at 11726 Beale, J.HA. : Treatise on the conflict of law (1935),P.10627 Ibid28 10 Mass 488,501(1813)





28

movements are unrestricted, it will be difficult, if not impossible to find people who

will wish to reside in a particular state for better for worse.

Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and

minimizing its attendant evils. Such a social policy ought to influence judicial

decisions, but the decision in Udom v Udom 31 domicile does not appear to take

account of this policy.

As for the necessary requirements for establishing a domicile in Nigeria at the

international level, it would be better, one imagines, to impute an intention to be

domiciled in Ni geria to person‟s who are habitually resident in Nigeria. This

suggestion is designed to aid the courts in ascertaining a person‟s v. therefore, if there

is evidence convincingly showing that a propositus has no such intention, he should he

should be denied a local domicile.

The object of determining a person‟s domicile is to connect him with some legal

system for certain legal purposes. To establish this connection it is sufficient to fix his

domicile in some “country” in the sense of the conflict of laws .e.g. England or

Scotland, California or New York. It is not necessary to show in what part of such a

country he is domiciled 32, but it is usually insufficient to show that he is domiciled in

some composite state like the United Kingdom, the United states, Australia or Canada

30 Ibid31 Ibid32 Re craignish( 1892)3 Ch 180,192



29

with, each of which comprised several “countries” in the conflict of laws sense. A

person who emigrates, Scotland or to Canada with the intention of settling either in

England or British Columbia, does not change his domicile until he has decided in

which country he intends to settle and has actually settled there 33.

2.2.0: ASCERTAINMENT OF DOMICILE

The question as to whether a person has established factual residence in a particular

country raises little or no problem in practice. However, the thorough manner in which

the English courts attempt to discover the necessary intention has produced absurd

results.

These courts have found it necessary to consider such difficult as a person‟s taste,

habits, conducts, action, ambitions, health, hopes, projects and so on. „there is no act,

no circumstances in a man‟s life however trivial it may be in itself, which ought to be

left out of consideration…‟But these factors are, one imagines, hardly suitable for

judicial enquiry. What is rather absurd in the whole exercise is that circumstances

which are treated as decisive in one case may be disregarded in another or even relied

upon in support of a different conclusion. No circumstances of group of circumstances

appear to furnish a definite criterion of the existence of the necessary intention.

33 Att.Gen For Alberta v Cook (1926) AC 444



30

The latitude of discretion which the courts reserve to themselves makes their decisions

appear arbitrary and very often inconsistent. The result is that a person‟s domicile may

remain uncertain throughout his life. Must our domicile asks Gravenson continue to be

kept a legal secret from us until we either invoke divorce jurisdiction or die?

A desirable approach for the Nigerian courts in this regards is to tackle this problems

with the presumption that a person intends to reside indefinitely in a country where heis habitually resident.

This presumption which should be rebuttable will, it is hoped, obviate the very

complicated problems involved in discovering a person‟s exact intention when he is

absent from jurisdiction or when (as is usually the case) he is already dead.

2.3.0: DOMICILE AND NATIONALITY.

The change from domicile to nationality on the continent of Europe started in France

with the promulgation of the code Napoleon in 1804. One of the principal objects of

the codifiers was to substitute a uniform law throughout the whole of France for the

different coutumes of the French provinces. In matters of personal status these

coutumes applied to person‟s domiciled within the province, whenever they happene d

to be. It was natural that the new uniform law should apply to Frenchmen everywhere,



31

Article 3 (1) 34 of the civil code provided that the laws governing the status and

capacity of person‟s govern Frenchmen even though they are residing in foreign

countrie s.”No provision was expressly made for the converse case of foreigners

residing in France, but the ”French courts held that in matters of status and capacity

they too were governed by their national law. The provisions of the French code were

adopted in Belgium and Luxembourg and similar provisions were contained in theAustrian code of 1811 and the Dutch code of 1829.

The change from domicile to nationality on the continent of Europe was accelerated

by Mancini‟s famous lecture he advocated the principle of nationality on the ground

that laws are made more for an ascertained people than for an ascertained territory. A

sovereign (he said) in framing laws for his people should consider their habits and

temperament, their physical and moral qualities and even the climate, the temperature

and fertility of the soil. This was heady wine for a people preparing to throw off a

foreign yoke and unify all the small state of Italy into a new nation. Under Mancini‟s

influence article 6 of the Italian civil code (1865) pro vided that “the status and

capacity of person‟s and family relations are governed by the laws of the nation to

which they belong”. Mancini‟s ideas proved extremely influential outside Italy too,

and in the second half of the nineteenth century the principle of nationality replaced

that of domicile in code after code in continental Europe, until today only Norway and

34 Code Napoleon 1804



32

Denmark retain the principle of domicile. The result is that the nations of their world

have become divided in their definition of the personal law; and it is the fact more

than any other which impedes international agreement on uniform rules of the conflict

of laws. What then are the arguments in favour of nationality and domicile as the

personal law?

The advocates of nationality claim that it is more stable than domicile becausenationality cannot be charged without the formal consent of the state of new

nationality. However, as has been well said, “the principle of nationality achieves

stability, but by the sacrifice of a man‟s personal freedom to adopt the legal system of

his own choice. The fundamental objection to the concept of nationality is that it may

require the application to a man, against his own wishes and desires has perhaps risked

his life”.

It is also claimed that nationality is easier to ascertain than domicile because it

involves a formal act of naturalization and does not depend o the subjective intentions

of the propositus. This is undoubtedly time, though there may be difficult cases of

double nationality or of statelessness 35. But it does not follows that the most easily

ascertained laws is the most appropriate law. Many immigrants who have no intention

of returning to their country of origin do not trouble to apply for naturalization. It

would have been ludicrous to say that only the English courts, and not the courts of

35 Beckett( then second legal adviser to the foreign office ) 1939







35

Domicile signifies connection with what has conveniently been called a “law

district”. 40 i.e. a territory subject to a single system of law. In the case of a federation,

where the legislation authority is distributed between the state and federal legislatures,

this law district is generally represented by the particular state in which the propositus

has established his home 41. A resident in the USA, for instance is not normally

domiciled in the USA as such, but in one of its states. Nevertheless, the doctrine of

unity of domicile one man, one domicile- may be modified by federal legislation. Thus

the family law 1975, which has force throughout the commonwealth of Australia,

provides inter alia that proceedings for a decree of dissolution of marriage is

“domiciled in Australia”42

. Thus, the effect within a limit field is to create an

Australian, as distinct from a state, domicile and, indeed, one that, because of statutory

amendments in this limited content, is different from domicile in a state for other

purpose, e.g. succession 43.

3. The fact that domicile signifies connection with a single system of territory law does

not necessarily connote a system that prescribes identical rule for all classes of

persons. It may well be that in a unit such as India different classes of the population

according to their religion, race or caste, but none the less it is the territorial law of

40 Dicey and Morris, pg 118- 11941 Odiase v Odiase (1965) NMLR 19642Family Law Act 1975, s 39(3) (b)43 Lloyd v Lloyd (1961) 2 FLR 349



36

India that governs each person domiciled there, not withstanding that Hindu law may

apply to one case, Muslim to another.

4. An existing domicile is presumed to continue until it is proved that a new domicile has

been acquire. Hence, the burden of proving a change of domicile lies on those who

assert it. Conflicting views have been expressed as to the standard proof require to

rebut the presumption. According to SCARMAN. J., the standard is that adopted in

civil proceeding, proof on a balance probability not that adopted proof beyond

reasonable doubt in the criminal proceedings. 44 On the other hand, according to SIR.

JOCELYN SI MON P., “the standard of proof goes beyond a mere balance of

probabilities45

”. This observation no doubt stems from such case s as Winans v A.G46

which appear to regard the intention in favouring of retaining the domicile of origin as

an almost irrebuttable presumption SCARMAN.J., however, added that „two things

are clear-first, change, the domicile of origin persists; and secondly, that the

acquisition of a domicile of choice is serious matter not to be lightly inferred from

slight indications or casual words‟.

The presumption of continuance of domicile varies in strength according to the kind of

domicile which is alleged to. It is weakest when that domicile is one of dependency 47

44 Re Fynn (No 1 ) (1968) 1 WLR 10345 Henderson v Henderson ( 1969) p. 77 at 8046 (1904) AC 28747 Harrison v Harrison (1953) 1 WLR 865



37

and strongest when domicile is one of origin, for “its character is more enduring, its

hold stronger, and easily shaken off 48.

The law commission‟s proposals for the reform of the law of domicile would leav e

unchanged the rule the burden of proving the acquisition of a new domicile falls on the

person alleging it. However, the normal civil standard of proof on a balance of

probabilities would apply in all disputes about domicile and no higher on different

quality of intention would be required when the alleged change of domicile was from

one acquired at birth than when it was from any other domicile.

5. For the purpose of a rule of conflict of laws, domicile means domicile in the English

sense. The question where a person in domiciled is determined soled in accordance

with English law. Thus, persons domiciled in England often acquired a domicile of

choice in France without complying with the formalities formerly required by French

law for the acquisition of a French domicile 49. Conversely, a person domiciled in e.g.

France may acquire an English domicile of choice regardless of whether French law

would regard him as domiciled in England 50. There is one statutory exception to this

rule. Section46(5) of the family law Act 1986 refers to domicile in a country in the

sense of that country‟s law

48 Ibid49 Collier v Rivas (1841)2 Curt 85550 Ibid



38

It is too wide a formulation to say that an English court, domicile means domicile in

the English sense. Under the renvoi doctrine, English courts sometimes refers to the

whole law of a foreign country, including its rules of the conflict of laws, and accept a

reference back to English law either because the foreign conflict rule referrers to the

law of the nationality, and the propositus is a British citizen; or because the foreign

conflict rule refers to the law of the domicile, and the foreign court regards the

propositus as domiciled in England. In the latter case, it is not true that domicile in

English court always means domicile in the English sense; but it is still true that it

means domicile in the English sense for the purpose of an English rule of the conflict

of laws

There are different kind of domicile and they are;.

1. Domicile of origin

2. Domicile of choice

3. Domicile of dependent person e.g. domicile of children, married women, persons of

unsound mind and so on. All these will be discussed extensively in the next chapter

2.5.0: CONCLUSION

In conclusion of this chapter, domicile is regarded as a relative term which varies in

meaning according to different situation (for example taxation divorce interstate

succession) to which it is applicable. A judge must however inevitably focus his



39

attention on the concrete problem before him, otherwise he will neglect the social and

economic requirements of the situation. Also it is hard to believe that judges in this

country have not been influenced by an awareness of the consequences of the finding

as to domicile in the particular case before them. There is evidence that the courts

wish to achieve a number of policy objectives in particular, to validate wills and to tale

jurisdiction to grant a divorce whenever possible. It is easy for courts to achieve the

right result by manipulating the process of ascertaining the domicile, and is a likely

explanation of many cases which are otherwise hard to reconcile on their fact.



40

CHAPTER 3

ACQUISITION OF DOMICILE3.0.0: INTRODUCTION

Every person in accordance with the English law is required to have or acquire a

domicile and s ince domicile is the means of ascertaining a person‟s per sonal law under

the English. In this regard, acquisition of domicile is a way by which domicile can be

obtained by a person. The various types of domicile has a way they can be acquired

e.g. domicile of origin is acquired at birth, this is rather automatic in that it is ascribe

to every person at birth unless such person acquire another by his own choice when

eligible 51. Domicile of choice on the other hand is acquired when a person takes up

residence in another country which is backed up by an intention to remain

permanently. There are however special cases where domicile is being dictated by

some external necessity, such as offices, the demands of creditors or relief from

illness 52. The loss of domicile of choice, domicile of origin and choice contrasted and

how domicile and nationality can be changed. All these are what shall be discussed

extensively as we proceed in this chapter.

51 Ibid at 45852 Ibid at 458





42

It is suggested therefore that an illegitimate child should be presumed to take the

domicile of the head of its family. It should be stressed, however, that this rule is by

no means absolute. It is merely a presumption so that in those cases where a child is

virtually reared and maintained by the mother or her „family‟ this presumption may be

rebutted. This suggestion has no other basis than the welfare of the child. It is

therefore the child‟s welfare that must be given overriding consideration in this regard.

It is however, the exaggerated importance attached to the domicile of origin under the

English law and stands in need of radical modifications in Nigeria. According to this

law, almost overwhelming evidence is required to shake off the domicile of origin. 56Its

character is more enduring, its hold is stronger and less easily shaken off.57

As put byLord WESTBURY

“The domicile of origin is the creature of law and is dependent of the will of the

party, it would be inconsistent with the principle on which i t is by law created and

ascribed, to suppose that it is capable of being by the act of the party entirely

obliterated and extinguished. It revives and exist wherever there is no other

domicile and does not require to be reacquire or reconstituted animo et facto a

manner which is necessary for the acquisition of a domicile of choice.” 58

56 Udom v Udom (1962) L. L .R 11257 Winans v Att. Gen (1904) A.C.287 at 290,Per Lord MACNAGHTEN58 Cheshire: Private International Law (7 th Ed) at 164



43

Cheshire has suggested that these rules evolve in the nineteenth century when England

was a nation of enterprising pioneer‟s, most of whom regarded their ultimate return

home as a forgone conclusion. 59

The “revival” doctrine (this is done when one abandons his domicile of choice, such

revives back the domicile of origin) as well as the enduring character of domicile of

origin appear to rest on the assumption that a man belongs to his country of origin

much more that to the country of his choice. But this assumption has been dismissed

as archaic and meaningless in an age of migratory population . Perhaps, a better

explanation for the development of rules of domicile of origin in its rigid sense from

the view of Rabel who wrote that;.

“The doctrine of domicile of origin was maintained and developed to satisfy t he

natural desire of a home country from which innumerable colonizer have gone out

into the world” 60

While a person may easily sever his connection with the country of his nationality

(where that is the connecting factor) he remains, for all times, a miserable prey to his

domicile of origin. 61 Undoubtedly, the „revival‟ doctrine of domicile of origin runs

59Wolff: m, Private International Law (2 nd Ed 1950)p.10960Rabel: E, The Conflict of Laws : A Comparative study ( 2 nd Ed.1958) vol 1, p.16561 Cheshire: Private International Law (7 th Ed)at 165, the domicile of origin transcends even nationality

instability and permanence.



44

counter to the fundamental principle of domicile as it may located a person‟s domicile

in a country which cannot be regarded as his home by any stretch of the imagination.

The rule of domicile of origin might have been good law in an era where families were

born and when they lived and died in the same community and „when the ties, both

material and sentimental, which bind one to his birth place‟ were str ong. 62 But under

the present political arrangement in Nigeria where state boundaries bear little relation

to ethnic loyalty, to adopt such rules will be socially undesirable if not legally

embarrassing. Moreover the mobility of society generally has provoked, even in

England, an almost unanimous critism of this rule and the recommendation for its

change. Indeed the English rules of domicile of origin have found a place in American

law. 63

3.2.0: DOMICILE OF CHOICE

Any person who is not dependent on another (i.e. one who is not a child or a mentally

disordered person) can acquire a domicile of choice or may change his domicile by

taking up residence in another country with the intention of remaining there

permanently 64.

62 Goodrich and Scoles: Conflict of Laws (1964) 3963 Beale, Treatise on the conflict of Laws (1935) at pp. 184-18564 Ibid at 17



45

The two requisite here is residence and intention and they are normally referred to as

“factum and animus” respectively. It is not essential that the “factum and animus”

should come in any particular order so long as it comes at a point in time. These two

factors must coincide before the law will recognize a change of domicile. Residence

however long in a country will not result in the acquisition of domicile of choice, if the

necessary intention is lacking. 65 Conversely intention however strong to change a

domicile will not have the result if the necessary residence in the new country is

lacking. A new domicile is not acquired until there is not only a fixed intention

establishing a permanent residence in the new country, but until also this intention has

been carried out by actual residence there. 66 Hence, a domicile cannot be acquired in

itinere, 67 it is necessary not only to travel, but to arrive.

It is very difficult to keep the two requirements of residence and intention watertight

compartments, but in the nearest of clarity of exposition they must be considered

separately. However, residence and intention are separate but interrelated concepts.

65 Jopp v Wood (1865) 4 D.J & S.616: Winans v Att. Gen. (1904)A.C.28766 Bell v Kennedy (1868) L .R 1 Sc & div, 307,319 Per Lord Chelmsford67 Ibid at 454 .



46

3.2.1.0: RESIDENCE (FACTUM)

„Residence in a country for the purposes of the law of domicile is physical presence in

that country as an habitant of it. ‟68

In one case a taxpayer who spent ten to twelve weeks each year in Quebec for the

purpose of maintaining her links with that province with a view ultimately to returning

to live was held not to be a resident of Quebec during her presence there since she was

not there as an inhabitant.

Normally, though, the requirement of residence is easy to establish. Residence is a

fact, though a necessary one, from which intention may be inferred. Older cases

adopted a presumption in favour of domicile which grew in strength with the length of

residence and was so hard to rebut. However, more recent cases, including House of

the Lords authorities have attached less weight to the length of residence, and have

taken the view that, although a material consideration, it is rarely decisive.

Whatever weight is given to the length of residence it is undeniable that time is not the

sole criterion of domicile. 69 Both long residence and short residence does not

constitute negative domicile everything depends on the attendant circumstances, for

they alone disclose the nature of the person‟s presence in a country. In short, the

68 IRC v Duchess of Portland (1982)Ch 314 at 318-31969 Hodgson v De Beauchesne (1858) 12 Mco PCC 285 at 329, 330

id t “ lit ti ll tit ti t t” 70 Th i J



47

residence must answer “a qualitative as well as a quantitative test”. Thus in Jopp v

Wood 71 it was held that a residence of twenty- five years in India did not suffice to

give a certain John Smith an Indian domicile because of his alleged intention

ultimately to return to Scotland, the land of his birth. Again in IRC v Bullock 72 a

Canadian who had a domicile of origin in Nova Scotia was held not to have become

domicile in England, despite the fact that he had either serve in RAF or lived in

England for over forty years. He retained his domicile in Nova Scotia because he

intended to return there, should his wife predecease him.

Conversely, brevity of residence is no obstacle to the acquisition of a domicile if the

necessary intention exists. If a man clearly intends to live in another country

permanently, as for example, where an emigrant, having wound up his affairs in the

country of his origin, flies off with his wife and family to Australia, his mere arrival

there will satisfy the element of residence. 73

A striking example of this truth occurred in America: where a man abandoned his

home in State X and took his family to a house in state Y, about half a mile from X,

intending to live there permanently. Having deposited belongings there, he and his

70 Bowie (or Ramsay) v Liverpool Royal Infirmary (1930) AC 588 at 59871 (1865) 4 De GJ & Sm 61672 (1976) 3 All ER 353, (1976) 1 WLR 117873 Hodgson v De Beauchesne (1858) 12 Moo PCC 285 at 329, 330



disappear if the law commissions proposal that residence‟ be replace by simpler



49

disappear if the law commissions proposal, that „residence be replace by simpler

concept of „presence‟, is adopted. 77

3.2.1.1: THE REQUISITE INTENTION (ANIMUS)

An intention to reside permanently or for an unlimited time in a particular country is

required for the acquisition of domicile of choice. This may however not pose any

difficulty as the word „permanently‟ is used in its ordinary meaning as signifying the

opposite of „temporary‟. The word ;permanent‟ a according to the Shorter Oxford

English Dictionary means “lasting or designed to last indefinitely without change”,

and this indeed is the definition that most of the judges have recognized when require

to consider the nature of intention necessary for a change of domicile. In Udny v

Udny ,78 for instance, Lord WESTBURY described the intention as being one to reside

“for an unlimited time”. A more modern statement to the same effect is that of

SCARMAN J,79

who referred to an intention to reside “indefinitely”.

The essence, therefore of these and many other similar statements is that the intended

residence must not be for a limited period, whether the limitation is expressed in term

of time or made dependent on the occurrence of a contingency (i.e. a possible but

77 Law Com No 168 (1987) Scot, Law Com No 107 (1981), Para 5,778(1869) L.R 1 Sc & Div 441 at 45879 Re Fuld’s Estate (No 3) (1968) p 615 at 684

unpredictable future event), such as the accomplishment of a definite task, that will



50

unpredictable future event), such as the accomplishment of a definite task, that will

occur if at all during the life of the propositus.

It is also clear that a conditional intention will not suffice. Thus in Crammer v

Crammer ,80 a woman with a French domicile of origin who came to England

intending to remain there and marry an Englishman, who was already married, did not

acquire an English domicile of choice. Her intention to remain was conditional on

both herself and her proposed husband obtaining divorces or their relationship

continuing. It would, no doubt, have been different if she had intended to remain there

without a condition, but this was not her intention.

In cases where the termination of residence is dependent on the occurrence of a

contingency(i. e, a possible but unpredicted future event) this will not prevent the

acquisition of a domicile unless the contingency is itself unambiguous and realistic, in

the world of SCARMAN J : „ If a man intends to return to the land of his birth upon a

clearly foreseen and reasonable anticipated contingency, e.g. the end of his job the

intention require by law is lacking; but, if he has in mind only a vague possibility,

such as making a fortune (a modern example might be winning a football

pool)……such a state of mind is consistent with the intention require by law.‟

Subsequently, a distinction has been drawn between the question of whether a

80 (1987) 1 FLR 116

contingency itself is clear and the question of whether a contingency which is clear



51

g y q g y

will happen. 81

If a contingency is not sufficiently clear to be identified then it cannot operate to

prevent the acquisition of a domicile of choice. Thus in Re Furse 82 evidence that the

propositus, who had a Rhode Island domicile of origin would leave England, where he

had lived for nearly forty years, if he was no longer able to live an active physical life

on his farm was not fatal to a change of domicile, and it was held that the propositus

had acquired an English domicile of choice.

On the other hand, if the contingency can be identified, it has to be asked whether

there is a substantial possibility of the contingency happening; if there is , this will

prevent the acquisition of domicile of choice. Thus in IRC v Bullock, 83 where a

husband intended to return to Canada to live permanently if his wife predeceased him,

it was held that the husband did not acquire the English domicile of choice, since there

was a real possibility, in view of their ages, of this happening. Of course, if there is nosubstantial possibility of a contingency happening the evidence showing a desire to

leave the residence will not prevent the acquisition of the domicile of choice. 84

81 IRC v Bullock (1967) 1 WLR 1178 at 118682 (1980) 3 All ER 83883 (1976) 1 WLR 117884 Pletinka v Pletinka (1965) 109 Sol Jo 72



possibility as if were t o cite the word of SCARMAN J. again, “a clearly foreseen and



53

reasonable anticipated contingency”. The facts of the former case were these:

Winans was born in 1823 in the United State, where he was continuously engage in

his father‟s business until 1850. F rom 1850 to 1859 he resided in Russia. He married a

British subject and appears never to have set foot again in the USA. In 1859 he

showed signs of consumption and being advised by the doctors to winter in Brighton

in England, he reluctantly took rooms at a hotel there, and in 1860 leased two

adjourning houses. He still held these houses at the time of his death. From 1860 to

1893 he spent time each year in England but also in Scotland, Germany or Russia.

From 1893 until he died in 1897 he lived entirely in England. Estate duty was paid on

English fortune of over two million pounds, but the crown now claimed legacy duty

on a comparatively small amount of property abroad. Such duty was payable only if he

had acquired an English domiciles at the time of his death. 91

The fact that he had resided principally in England for the last thirty-seven years of hislife raised a very strong presumption in favour of an English domiciles, but there was

no direct evidence as to what his intention was analysed by LORD MACNAGHTEN

with some particularly the hope, projects and daily habits of Mr. Winans. He found

that, in addition to the care of his health. Mr. Winans had two objects in life. The first

was the construction in Baltimore of a large fleet of spindle-shape vessels, which

91Ibid at 290

would give America superiority at sea over Britain. The second object was to develop



54

a large property of about 200 acres in Baltimore. On this, wharves and docks were to

be constructed for the spindle-shaped vessels, and a large house built in which Mr.

Winans intended to live in order that he might take personal command of the whole

undertaking. He succeeded in getting control of the property only at the very end of

his, and at the time of his death he was working day and night on the scheme.

LORD MACNAGHTEN reached the conclusion that the domicile of origin in New

Jersey had not been lost. He said that “up to the very last he had an expectation or

hope of returning to America and seeing his grand scheme inaugurated”. 92 LORD

HALSBURY found it impossible to infer from the evidence what Mr. Winans

intention was, and he held therefore that the crown had not discharged its duty of

proving a change in domiciles. LORD LINDLEY vigorously dissented. In his view

Winans had given up all serious idea of returning to America. 93

In Bowie (or Ramsay) v Liverpool Royal Infirmary ,94

one George Bowie, who hadleft a will that was formally valid if his domiciles at death was Scottish but invalid if it

was English. The story of his life was uneventful. He was born in Glasgow in 1845

with a Scottish domicile of origin. He gave up his employment as a commercial

traveller at the age of thirty-seven and refused to do any more work during the92 Ibid at 29893 Ibid at 30094 Ibid at 588



stressed that the difficulty in reconciling the numerous statements arises not from



56

clarity of judicial thought, but from the nature of the subject. The cases involved a

detailed examination of the facts and it is not surprising that different factual situations

have chosen different language to describe the law. 95 SCARMAN J. would regard the

difference between the statements of judges in earlier cases as showing a difference of

emphasis and therefore as being of no great moment.

It may well be, then, that to construct a formula which describes the precise intention

required by English law for the acquisition of a domicile of choice is an impossibility,

but perhaps the most satisfactory definition was that offered a hundred years ago by

KINDERSLEY V-C:That place is properly the domicile of a person in which he has

voluntary fixed the habitation of himself and his family, not for mere temporary

purpose, but with a present intention of making it his permanent home, unless and

until something (which is unexpected of the happening of which is uncertain) shall

occur to induce him to adopt some other permanent home. 96

There is a time at which intention is relevant. The traditional statement that there must

be at present intention of permanent residence merely means that so far as the mind of

the person at the relevant time was concerned he possessed the requisite intention. The

relevant time varies with the nature of inquiry. It may be past or present. If, for

95 Re Fuld’s Estate (No 3 ) (1968 ) P 675 at 682 - 68396 Lord v Calvin (1859) 4 Drew 366 at 376

example, the inquiry relate to a domicile of inquiry of a deceased person. It must be



57

ascertained whether at some period in his life he had formed and retained a fixed and

settled intention of residence in a given country. Once this is established, evidence of

his subsequent fluctuations of opinion whether he would or would not will be

ignored. 97

There is evidence of intention i.e. intention needs to be proved. Most disputes as to

domicile turn on the question whether the necessary intention is accompanied with

residence, and this question often involves very complex and intricate issues of fact.

This is because “there is no act, no circumstance in a man‟s life, however trivial it may

be in itself, which ought to be left out of consideration in trying the question whether

there was an intention to change the domicile. A trivial act might possibly be weightier

with regard to determining this question than an act which was of more importance to

a man in his lifetime. 98

It is impossible to lay down any positive rule with respect to the evidence necessary to

prove intention. All that can be said is that every conceivable event and incident in a

man‟s life is a relevant and an admissible indication of his state of mind. It may be

necessary to examine the history of his life with the most scrupulous care, and to

resort even to hearsay evidence where the question concerns the domicile of a person,

97 Re Marrett, Chalmers v Wingfield (1887) 36 Ch D 40098 Drevon v Drevon (1864) 34 L.J. Ch.129, 133,Per Kindersley V- C.

now deceased, possessed in his lifetime. 99 Nothing must be overlooked that might



58

possibly show the place which he regarded as his permanent home at the relevant time.

No fact is too trivial to merit consideration. Indeed, one of the defects of English law

is that the evidence adduced in a disputed case of domicile is often both voluminous

and difficult to assess. This is due to the over- scrupulous manner the courts attempt to

discover a man‟s exact intention. The tendency is to investigate his actual state of

mind, rather than to rest content with the natural inference of his long – continued

residence in a given country. This, indeed, is to set sail on an uncharted sea. Nothing

must be neglected that can possibly indicate the bent of his resident‟s mind. His

aspirations whims, amours, prejudice, religion, financial expectations – all are taken

into account. 100

Having regard, therefore, roving commission imposed on the courts, it is not

surprising that their decisions exhibit a multiplicity of different factors that have been

regarded as indicia of intention. Without attempting to give an exhaustive list, it may

be useful to observe that at one time or another the following have been regarded as

relevant criteria of intent: naturalization, retention of citizenship, purchases of a house,

or of a burial ground, the exercise of political rights, the establishment of children in

business, the statutory declaration made by a candidate for naturalization that he

99 Scappaticci v A-G (1955) P 47,(1955) 1 All ER 193n100 Casdagli v Casdgli (1919) AC 145 at 178

intends to reside permanently in the United Kingdom, the where a man‟s wife and his



59

family reside, departure from a country owing to compulsion of war, the refusal of a

foreign fiancé to leave her own country, statements as his domiciliary intentions made

by a deceased person in his lifetime, the effect of the radical intolerance on

domiciliary intention, and the fact that a family is split between England and

abroad. 101

Undue stress must not be laid on any single fact, however impressive it may appear

when viewed out of its context, for its importance as a determining factor may well be

minimized when considered in the light of other qualifying events. Again, no one fact

is of constant value, for every case varies in its circumstances and what is of decisive

importance in one may be of little weight in another. 102

It is for this reason that it is impossible to formulate a rule specifying the weight to be

given to particular evidence. All that can be gathered from the authorities in this

respect is that more reliance is placed on conduct than on declarations of intention,

especially if they are oral. Nevertheless, the common law rule, that expression of

intention by a living person cannot be received in evidence unless against his own

interest, is not applicable in an issue of domicile, and it is common enough for witness

to testify to parol declarations made during his life by the person whose domicile is in

101Begum v Entry Clearance Officer, Dacca (1983) Imm AR 163102 Hodgson v De Beauchesne (supra)

question. This kind of evidence, however, especially when given long after the



60

conversation occurred, is suspect, for witness may lie or forget. Declarations should

contain “a real expression of intention” for it only too frequently happens that they

cannot be taken at their fact value. They may be interested in statements designed to

flatter or to deceive the hearer, they may represent nothing more than vain

expectations unlikely to be fulfilled, and the very facility with which they can be made

require their sincerity to be manifested by some active step taken in furtherance of the

expressed intention. The circumstance in which the statement is made needs to be

considered and any declaration must be backed up by conduct consistent with the

declared intention.

Even lower in the scale of values is evidence given in the course of the trial by the

person himself not of his past declarations, but of his past intention. This must be

accepted with very considerable reserve, for on such personal issue as his own place of

domicile he is under a bias that is likely to influence his mind, perhaps even his

veracity. 103

In at least two respects, motive in the sense of the antecedent desire that determines

the will to act is one of the indicia of the intention requisite for the acquisition of a

domicile of choice. First it may throw light on the question whether the removal to

103 Ibid , but in Brown v Brown (1982) 3 FLR 212 at214 -215 where the declaration was consistence

with conduct.

another country was intended to be permanent. It will serve, for instance, to contrast



61

the case of a man who flees to England to escape political persecution in his own

country with that of retired officer who goes to Jersey to avoid heavy taxation.

Secondly, it may provide a means of testing the sincerity of a declaration of intention.

Thus if a widower testifies t hat at the time of his wife‟s death he and his wife regarded

Scotland as their perman ent home, the fact that Scotland‟s law he is entitled to one -

half of his wife‟s property may make his testimony a little suspect. 104

It is important to realize that the only intention relevant to a change of domicile is an

intention to settle permanently in a country. This will effect a change of domicile even

if the propositus intended to retain his former personal law. 105 One of the legal

consequences of an intention to settle in country „X‟ is that the person in question

becomes subject to the law of „X‟ whether this is his wish or not. It is inevitable effect

to his residence in that country couples with his intention to remain there without any

limit of time 106 . Thus in Re Steer 107 An English man, having taken up his residence in

Hamburg with the intention of settling there for good, remained there until his death

some fifty years later. On the occasion, when he came to England for a temporary

purpose, he made a Will in which he declared that though he intended to return to

104 Cf Re Craignish (1892) 3 Ch 180.105 Douglas v Douglas (1871) LR 12 Eq 617 at 644, 645.106 Re Craignish (1892) 3 Ch 180 at 188, 189.107 ( 1858) 3 H & N 594.

Hamburg it was not his intention to renounce his English domicile of origin. It was

h ld h hi d l i hi h d d i h i l



62

held that this declaration which suggested a desire to have two simultaneous

domiciles, could not nullify the consequences of having in fact acquire a German

domicile.

3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE

In order that a person may acquire a domicile of choice, it has been said that „ there

must be a residence free chosen, and prescribed or dictated by any external necessity,

such as the duties of offices the demands of creditors or the relief from illnesses 108 .

This is a somewhat misleading statement. It certainly does not mean that only a person

able to exercise the most perfect freedom of choice can acquire a domicile of choice,

for it did, the acquisition of a domicile of choice would be a rare event. What it does

means can only be elucidated by examining a number of a special cases. These are;

person liable to deportation; fugitives from justice; refuges; invalids; member of the

armed forces; employees; and diplomats.

Persons liable to deportation: A person who resides in a country from which he is

liable to be deported may lack the necessary intention because his residence is

precarious. But if in fact the forms the necessary intention, he acquires a domicile of

108Ibid at 458

choice. 109 Once such a person has acquired a domicile of choice he does not lose it

l b d t ti d h b d g i t hi H l l it h



63

merely because a deportation order has been made against him. He only loses it when

he is actually deported and can no longer be said to have an intention to return as a

lawful resident.

Fugitives from justice: A person, who leaves a country as a fugitive from criminal

justice, or in order to evade his creditors, has a special motive for leaving it, but no

special motive for living in any other country. In the case of a fugitive from justice,

the intention to abandon his previous domicile will readily be inferred, unless perhaps

the punishment which he seeks to avoid is trivial, or by the law of that country a

relatively short period of prescription bars liability to punishment. In Re Martin ,110 a

French professor committed a crime in France in connection with professorship and

fled to England, where he remained for the next twenty years. Two years after the

French period of prescription had expired he returned to France. The court of Appeal

by a majority held that he had an English domicile six years after his arrival in

England.

109 Boldrini v Boldrini (1932) P. 9110 (1900) P. 211

Similarly, a person who leaves a country in order to evade his creditors may lose a

domicile there; but if he plans to return as soon as he has paid or otherwise got rid of



64

domicile there; but if he plans to return as soon as he has paid or otherwise got rid of

his debts, there is no change of domicile. 111

Refugees: If a political refugee intends to return to the country from which he has fled

as soon as the political situation changes, he retains his domicile there; but if his

intention was not to live that country even when the political situation has changed, he

can acquire a domicile of choice in the country to which he has fled. Thus in Re Lloyd

Evans 112 an Englishman with a Belgian domicile of choice returned to England very

reluctantly in June 1940 because of the German invasion, and lived in furnished flat in

England until he died in 1944. He always intended to return to Belgium after the war.

It was held that he retained his Belgian domicile. On the other hand, in May v May 113

a Jew fled from Germany to England in 1938 to escape persecution by the Nazis. He

originally intended to emigrate to the United States, but his hope of doing so was

frustrated by the outbreak of war in 1930. In 1914 the idea of going to the United

States gradually faded from his mind. He declared that he would never return to

Germany even if the Nazis were overthrown. It was held that he had acquired an

English domicile of choice by the beginning of 1942.

111 Re Wright’s Trusts (1856) 2 K & J.112 (1947) Ch. 695113 (1943) 2 All E.R. 146.





limited time. On the other hand an employee can more easily gives up his employment

than a member of the armed forces can. The question whether an employee who is



67

q p y

sent to a country intends to reside there permanently or indefinitely remains in the last

resort a question of fact. There is, for the purpose, no distinction between public

servants and other employees. If such persons go to a country for the temporary

purposes of performing the duties of their office or employment, they do not acquire a

domicile of choice there, but if they go not merely to work but also to settle, they do

acquire domicile of choice. This in Att. Gen v Rowe 117 an English barrister was

appointed chief Justice of Ceylon. His intention was to hold this office until he had

earned his pension and then return to England. It was held that he retained his English

domicile. On the other hand, in Gunn v Gunn 118 a man with a domicile of origin in

Manitoba was employed by a corporation owning a chain in cinema in Saskatchewan.

He moved to Saskatchewan with the intention of residing there for an indefinite

period. It was held that he acquire domicile of choice in Saskatchewan.

Diplomats: Diplomats are simply a special category of public servants and the same

principles apply to them. It is a question of fact whether they intend to reside

permanently or indefinitely in the country to which they are accredited. Generally, of

course, they form no such intention, but occasionally they may do so and thus acquire

117 (1862) 1 H & C 31118 (1956) 2 D .L. D

a domicile of choice in a country, he does not lose it merely by reason of being

appointed to a diplomatic post in that country. 119



68

3.2.1.3: LOSS OF DOMICILE OF CHOICE

A domicile of choice is said to be lost when both the residence and intention, which

must exist for its acquisition are given up. This is not lost by given up residence and

intention only, neither is it necessary to prove a positive intention not to return. It is

sufficient to prove merely the absence of intention to continue to reside. 120

3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED

As compared with the views held in civil law countries, in the USA, in New Zealand

and Australia 121 , the domicile of origin is regarded by the present English law as

fundamentally different from a domicile of choice. It differs in its character, in the

conditions necessary for its abandonment and in its capacity for revival. These is

categorized into two

TENACITY OF THE DOMICILE OF ORIGIN

There is the strongest possible presumption in favour of the continuance of a domicile

of origin. As contrasted with a domicile of choice, it has been said by LORD119 An instance is afforded by Naville v Naville (1957) (1) S.A. 280120 Re Flynn (No 1) (1968) 1 W. L. R. 103, 113-115121 New Zealand Domicile Act 1976 and the Australian Domicile Acts 1982; Nygh, pp 177- 178

MACNAGHTEN that “its character is more enduring, its hold stronger and less easily

shaken off” 122 . In fact decision such as Winans v A-G 123 and Ramsay v Liverpool



69

Royal Infirmary 124 warrant the conclusion that almost overwhelming evidence is

require to shake it off. In the latter of these cases evidence was completely lacking of

the slightest indication, either by words or actions, that George Bowie intended to live

anywhere else than in England. Yet it was held that the tenacity of his Scottish

domicile of origin had not yielded. Also in Cramer v Cramer Stephen BROWN and

BALCOMBE LJJ held that the burden of proving a change of domicile from one of

origin to one of choice was a heavy one. 125

ABANDONMENT OF AN EXISTING DOMICILE .

Since a domicile of choice is voluntarily acquire if there is the requisite intention and

residence, so it is extinguishable in the same manner, i.e. merely by a removal from

the country with an intention not to return and even without acquiring a fresh

domicile 126 . In case of dual or multiple residence what is necessary is that the country

ceases to be the chief residence with presumably an intention not to reside there as the

chief residence. The only distinction between acquisition and abandonment is that the

122 Ibid at 290

123 Ibid at 290124 Ibid at 558125 (1987) 1 FLR 116 and (1982) 3 FLR 212126 Tee v Tee (1947) 1 WLR 213 at 215

latter requires less evidence than the former. There cannot be abandonment by

intention alone.



70

But it has been objected by MEGGARY J, obiter, that to require proof of an intention

not to return is too rigorous a test, since it denies effect to a departure from a country

without an intention of returning. In his view, it is unnecessary to prove a positive

intention not to return , since the “merely negative absence of any intention” 127 , to

resume the residence will suffice of effect an abandonment of the domicile.

It is submitted that this suggested distinction between an intention not to return and the

absence of an intention to return is fallacious. The difference between the two variants

of intention is not obvious, but presumably the absence of an intention not to return

can only mean that at the time of departure the person in question has not decided

whether to return or not . if this is the state of his mind, the result in law is that his

mind domicile is unchanged. In other words, it would seem clear on the authorities

that there must always be a positive intention not to return before it can be said that a

domicile of choice has been lost. But the identification of a person‟s domic ile is

always inferred from his conduct together with his declarations, if any, and at the time

when the question falls to be determined the inference from the evidence may well be

that what began as indecision has been gradually transformed into a definite resolve

not to return.

127 Ibid at 113

But the domicile of origin on the other hand, which in its inceptionn is not a matter of

free will but is communicated to a person by operation of law; is not extinguished by



71

mere removal with an intention not to return. It cannot be lost by mere abandonment.

It endures until supplanted by a fresh domicile of choice. Bell v Kennedy 128 is the

leading authority for this rule,

The domicile of origin of Bell was in Jamaica, where he had been born of Scottish

parents domiciled in that Island. He was educated in Scotland but returned to Jamaica

after reaching his majority. Some fourteen years later, in 1837, he left the Island

without any intention of returning, resided with his mother-in-law in Scotland, and

occupied himself in looking for an estate in that country on which to settle down. He

had not been successful in this when his wife died in 1838, but after her death he

bought an estate and it was admitted that at the time of the trial he had acquired a

Scottish domicile. The question for decision, however, was what his domicile was at

the time of his wife‟s death? It was held that his domicile at the moment was in

Jamaica. Although he abandoned the Island for good in 1837 and was resident in

Scotland, he had not at that time decided to make his permanent residence there. The

evidence showed that in 1838 his mind was vacillating with regard to his future home.

Therefore, since he had not acquired a Scottish domicile of choice, he retained his

domicile of origin.

128 (1868) LR 1 Sc & Div 307



and takes up his temporary residence in New York, being undecided whether to settle

permanently in Virginia or California. The result is that immediately on his departure



73

from Peru his Peruvian domicile ceases abruptly, but his Scotland‟s domicile of origin

revives and remains attached to him until he has in fact acquired a domicile of choice

in some other country. It is clear that during his period of indecision in New York

there must be some personal law applicable to him. This might be either Peruvian or

Scottish law. In the United States of America, where revival doctrine is not

accepted 132 , it would be the law of Peru. According to Lord chancellor HATHERLEY,

however, to admit this is to be absurdity of asserting a person to be domiciled in a

country which he has resolutely forsaken and cast off, simply because he may perhaps

for years be deliberating before he settles himself elsewhere.

Yet certain doubts suggest themselves. Is it so absurd to prefer the law under which

the man has recently been living, perhaps for a prolonged period? Are the claims of

the law which is imposed on him at birth, independently of his volition, superior to

that which he has voluntarily chosen and long retained? At any rate the advantages of

preferring the domicile of origin in the case of our hypothetical X are not particularly

conspicuous. The country that determines his personal law is one that he has never

visited and for which he feels repugnance. Nevertheless, if he wishes to marry, his

capacity will be determined by reference to the law of Scotland. If he dies intestate

132 Re Jones’ Est ate (1921) 192 Iowa 78, 182 NW 227.

leaving movables in England, they will be disturbed according to Scotland‟s law and

United Kingdom inheritance tax will be payable. These illustrations, which could be



74

multiplied, provoke the thought that the virtues of the doctrine of revival are not so

obvious as appeared to the mid-Victorian judges. The doctrine of revival has in fact

been rejected in New Zealand 133 and in Australia 134 and its rejection in the United

Kingdom has been proposed by the law commission.

3.4.0: CHANGE OF DOMICILE AND NATIONALITY

It is importantt to emphasise that nationality and domicile are two different

conceptions and that a man may change the latter without divesting himself of his

nationality 135 . An Englishman may remain an Englishman in the sense that his

allegiance renders him subject to certain duties to the crown, and yet he may so

change his residence that many of his legal rights and obligations will be determinable

by a foreign system of law, as being the law of his domicile. The mere fact that an

alien living in England under a certificate of registration is liable to deportation for

misbehavior or has even been recommended for deportation does not prevent him

133 Domicile Act 1976, s 11. Webb (1977) 26 ICLQ 194134 Domicile Acts 1982, s 7135 Bradfield v Swanton (1931) IR 446; also a discussion By Westlake in Private International Law (7 th

edn) pp 348-354



abandonment of domicile of choice should be sufficient for the abandonment of

domicile of origin. 139



76

139Agbede. I. O. „ Personal law and personal system of law : Synthesis or Symbolisms

CHAPTER 4

DOMICILE OF DEPENDENT PERSONS



77

4.0.0: INTRODUCTION

No dependent person can acquire a domicile of choice by his own act. As a general

rule, the domicile of such persons is the same as, and changes with the domicile of the

person (if any) on whom he is legally dependent. The class of dependent persons is

children, women, and persons of unsound mind. This was stream lined by the law of

England on Domicile and and Matrimonial Proceedings Act. 140 These classes of people

can only acquire domicile based on the act of the person they are dependent upon. All

these shall be dicussed as we proceed in this chapter.

4.1.0: DOMICILE OF CHILDREN

The Common law rules as to the domicile of dependency emphasized the link

between a child and its father, the child was treated as dependent upon the father even

if the parents had separated and the child was living with the mother. Section 4 of the

Domicile and Matrimonial Proceeding Act 141 sought to introduce greater flexibility

into the rules as to dependency, enabling the child to be dependent upon the mother in

appropriate circumstances. It provides that the domicile of a dependent child whose

140 1974141ibid



When the domicile of a dependent child is change as a result of a change in his

parents‟ domicile or as a result of his legitimation, the new domicile which the chil d

g t i thi i th d i il f d d d t d i il f igi H it



79

gets in this way is the domicile of dependency and not a domicile of origin. Hence, it

is not domicile but the one he acquired at birth which will revive if in later life he

abandons one domicile of choice without acquiring another at the same time.. On the

other hand, it would seem to follow from what has been said above about adopted

children that the domicile of origin of an adopted child is deemed to be the domicile of

his adopted parent or parents at the time of his adoption. If this is so, it is the only

example in English law in which a domicile of origin can be changed.

4.2.0: DOMICILE OF MARRIED WOMEN

Until 1974, the rule was that the domicile of a husband was communicated to his wife

immediately on marriage and it was necessarily and inevitably retained by her for the

duration of the marriage. This rule was much criticized as “the last barbarous relic of a

wife‟s servitude” 145 and was abolished by section 1 of the Domicile and Matrimonial

Proceedings Act. 146 The domicile of a married woman as at any time on or after 1st

January 1974 „shall, instead of being the same as her husband‟s by virtue only of

marriage, be ascertained by reference to the same factors as in the case of any other

145 Gray v Formosa (1963) pg 259.267.146 1973

individual capable of having an independent domicile‟ .This means t hat for all

purposes a married woman is to be treated as capable of acquiring a separate domicile;

though in vast majority of cases she and her husband will independently acquire the



80

though in vast majority of cases she and her husband will, independently, acquire the

same domicile. It is however quite possible for happily married spouses to have

separate domiciles. For example, a person domiciled in New York marries a fellow

domiciled in England, both intending at the end to go live in New York. 147

However, before 1974 there was an absolute rule, to which there were exceptions, that

the domicile of a married woman was the same as, and changed with, the domicile of

her husband as discussed above. 148 This rule reflected social conditions and attitudes

of past age; it led to serious injustice to wives especially in the matter of divorce

jurisdiction, but it has been abolished in 1974.

Section 1 (1) of the Act is retrospective in the sense that it applies to women married

before as well as after January 1, 1974. Hence, a transitional provision was needed.

Section 1(2) provides that where immediately before that date a woman was married

and then had her husband‟s domicile by dependence, she is to be treated as retaining

the domicile (as a domicile of choice, if it is not also her domicile of origin) unless and

until it is changed by acquisition of another domicile either on or after that date. Thus,

147 Ibid148 Ibid

in IRC v Duchess of Portland ,149 a woman with a domicile of origin in Quebec

married a domiciled Englishman in 1948. She lived with her husband in England but

retained links with Quebec visiting it for ten to twelve weeks every summer keeping



81

retained links with Quebec, visiting it for ten to twelve weeks every summer, keeping

a house which she owned there ready for immediate occupation and retaining

Canadian citizenship. She intended to return permanently to Quebec with her husband

when he retired from business, but continued to live in England. It was held that the

effect of section 1 (2) was that she retained her English domicile of dependency as a

domicile of choice. In effect, the pattern of her own life before 1974 was given no

weight. The Law Commission has recommended, in the context of its proposal on

reformulation of the domicile that any person at any date after the enactment of the

new rules should be determined as if those rules had always been in force. 150

However, this transitional problems may give rise to a problem similar to one found at

common law when the husband died. Taking an hypothetical case; where H domiciled

in France marries W domiciled in Scotland and they live in England. In 1972, H leaves

W in England and returns to live in France. Where is W domiciled in 1974?

After 1973, W retains H‟s domicile in France as if it were a domicile of choice and

this will continue until she utilizes her new capacity to acquire a domicile of choice in

England, where she wishes to remain living. Does she acquire such an English

149 (1982) Ch 314150 Law of Domicile , para, 8. 7

domicile merely by continuing and intending to live permanently in England. On the

analogy of common law decisions involving acquisition of a domicile of choice after

the death of a husband, W immediately acquires an English domicile and no further



82

the death of a husband, W immediately acquires an English domicile and no further

act on her part is necessary. Authority for this view can be found in the obiter dicta in

IRC v Duchess of Portland .151

4.3.0: DOMICILE OF PERSONS OF UNSOUND MIND

A person of unsound mind cannot acquire a domicile of choice and as a general rule,

retains the domicile which he had when he became insane. 152 Since he cannot exercise

any will, he can neither acquire nor lose a domicile. Nor can his domicile be changed

by the person in charge of him.

Most of the cases which support these statements concerned persons who were

“lunatics so found” by inquisition. This procedure and the term “lunatic” are obsolete

in English domestic law, which now make provision for many kind and degrees of

mental disorder. 153 It seems unlikely that all persons who suffered from any form of

mental disorder for which provision is made by English domestic law would be

regarded as dependent persons for the purpose of the law of domicile. Whether or not

151 Ibid152 Bempde v. Johnstone (1796) 3 Ves, 198153 Mental Health Act (1983)

they could form the necessary intention to acquire or lose a domicile is likely to be

treated as a question of fact in each case.

There is one exception to the rule stated above that a mentally disordered person



83

p y p

retains the domicile he had when he became insane. If a dependent child becomes

insane and remains so after attaining the age of sixteen, the appropriate parent has

power to change his domicile even after he attains that age. Whether the power is

exercised or not is a question of fact in each case.

Under the new domicile provisions proposed by the Law Commission, 154 an adult

lacking the capacity to form the intention necessary for acquiring a domicile would be

domiciled in the country with which he was for the time being most closely connected.

When that capacity was restored to him, he would retain the domicile he had

immediately it was restored, but could of course then acquire a new domicile under the

rules applying to adults generally.

4.4.0: MERITS AND DEMERITS OF DOMICILE

The English preference for domicile is based on two main grounds. First, domicile

means the country in which a man has established his permanent home, and what can

be more natural or more appropriate than subject him to his home law? It is difficult to

agree that he should be excommunicated from that law merely because technically he

154 Law Commission

is a citizen of some state that he may have abandoned years ago. 155 Secondly, domicile

furnishes the only practicable test in the case of such political units as the United

Kingdom, Canada, Australia, and USA where the same nationality embraces a number



84

of sometimes diverse legal systems. The ex pression “national law” when applied to a

British subject is meaningless. It is one system in England, another in Scotland;

similarly for a Canadian, there is one system in Ontario and a quiet different one in

Quebec.

In the course of its development in England, however, the law relating to domicile has

acquired certain vices. A short mention of these will suffice. First, it will not

infrequently happen that the legal domicile of a man is out of touch with reality, for

the exaggerated importance attributed to domicile of origin, coupled with the technical

doctrine of its revival may well ascribe to a man a domicile in a country which by no

stretch of the imagination can be called his home. Secondly, an equally irrational

result may ensue from the view, sometimes accepted by the English courts, that long

residence is not equivalent to domicile if accompanied by the contemplation of some

uncertain event the occurrence of which will cause a termination of the residence.

Thirdly, the ascertainment of a man‟s dom icile depends to such an extent on the proof

of his intention, the most elusive of all factors, that only too often it will be impossible

to identify it with certainty without recourse to the courts.

155 Law of Domicile

4.5.0: CONCLUSION

In conclusion, it has been suggested that the capacity to acquire a domicile of



85

dependent person is not always governed by English law, the law forum. Such a

possibility was adumbrated obiter in an English case in 1887. 156 Its acquisition is not

itself a problem for the solution of which a rule for the choice of law is required. For

the connecting factor in any English choice of law rule must logically always be

interpreted according to English notions. 157

156 Urquhart v Butterfield (1887) 37 Ch.D 357 at 384157 Re Martin (1900) P 211 at 227

CHAPTER 5

GENERAL CONCLUSION AND RECOMMENDATION

5 0 0: CONCLUSION



86

5.0.0: CONCLUSION

In summary of this essay, questions concerning the status of a body of persons

associated together for some enterprise, including the fundamental question whether it

posses the attribute of legal personality, must on principle be governed by the same

law that governs the status of the individual, i.e. by the law of domicile. What this law

admits of no doubt if we reason on the analogy of the individual. Every person

acquirers at birth a domicile of origin by operation of law. In the case of the legitimate

natural person it is the domicile of his father.

It is however clear that the law of domicile needs some radical modifications

especially concerning on the few Nigerian situations. It is so dishearten to know that

our judges have now chosen to adhere strictly to the received English law rules which

have been subjected to reform in England where they originated from, but furthercling conservatively to the outdated rules.

In conclusion, it may be said that a system which is based upon domicile, is free and

more elastic than that which is based upon nationality because nationality is generally

too artificial and has little to recommend it. The Nigerian legislature and court should

remove some of the archaic doctrines that seem to have eaten deep into our modern

dispensation, and should form a new definition of domicile, simple and more workable

and in line with the concept of habitual home rather than permanent home.



87

5.1.0: RECOMMENDATIONS

I would recommend that as touching intention to prove acquisition of domicile;

a) When a person has his home in a country, he should be presumed to intend to live

there permanently.

b) Where a person has more than one home, he should be presumed to intend to live

permanently in the country in which he has his principal home.

c) Where a person is stationed in a country for the principal purpose of carrying on a

business, profession or occupation and his wife and children have their home in

another country, he shall be presumed to intend to live permanently in the latter

country. 158

d) The rule of reviving domicile of origin should be regarded as the principle of

continuity i.e. a person‟s domicile once acquired would continue until he obtained

another one. There will be no question of previous reviving.

e) The fact that a dependent person can only acquire his/her domicile by the act of the

person he is depensdent upon should be rerconsidered. Especially that of a married

woman, she should retain her domicile after acquiring that of her husband.

158Article 2 of Code of Domicile

f) In all, the law commission‟s proposals should be considered as „a further important

step in the process of improving the structure, effectiveness and fairness of the rules of

domicile‟



88

BIBLOGRAPHY

ARTICLE ON INTERNET



89

Omoruyi . I. O. „ Domicile As A Determinant Of Personal Laws: A Case For

The Abandonment Of The Revival Doct rine In Nigeria‟

http://www.nigerianlawguru.com.article>accessed 2000

BOOKS

Agbede. I. O, Themes on Conflict of Laws (2001) Shaneson C.I Ltd

Beale, Treatise on the conflict of laws (1935)

Bryan A. Garner, Blacks Law Dictionary 8 th ed. Thompson West 2004

Cheshire and North‟s; Private International Law(1974)7 th edition

Colier J.G; Conflict of laws 2 nd ed. Cambridge C. UP 1994

Dicey and Morris; Private International Law (8 th ed.1969)

Goodrich and Scoles; Conflict of laws (1964)39

Graveson; conflict of laws (1969)

Morris, Private International Law 4 th ed by J.C Mclean Sweet & Maxwell 1993

Oxford Learners Advanced Dictionary 6 th ed.by Sally Wehmeier (2000)

Rabel .E.; The Conflict of laws ; A comparative study.(2 nd ed.1958)

Wolff. M., Private International Law (2 nd ed. 1950) p 109

Documents

Concept of Domicile in PIL