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EXTRA-TERRITORIALITY AND THE CONFLICT OF LAWS: SECT ION 23 (1) OF THE

LABOUR ACT1

The genera l and a lmost un iversa l ru le i s that the character of an act as

lawful or unlawfu l must be determined whol ly by the law of the

country where the act i s done.2

Introduction

1. Interest ingly, the appl icat ion of Niger ian laws to s i tuat ions with fore ign

(inte rnat ional) e lements has genera ted debates in some quar ter s. Notably, the

cont roversy has recent ly sur faced in Labour re lated matter s pa rt icu lar ly with the

respect to the appl icat ion and scope of Sect ion 23 (1) of the Labour Act3

.

2. As a genera l pr inc iple in internat iona l law, i t is wel l establ i shed that one sta te

cannot take measures on the te r r i tory of another state by means of enforc ement of

nat iona l laws without the consent of the lat ter . As br i l l iant ly noted by a scholar ,

conf l ic t of laws, as the domest ic counterpart of internat ional law, of fe rs ins ights

and analogies on the germane i ssue of the ext rater r i tor ia l appl icat ion of Niger ian

law, which, surpr is ing ly, have been rare ly exp loi ted or explored.4

3. This paper exp lores the legal pr inciples that s i t behind extra te r r i tor ia l i ty of

statutes , and how such measures have come to be jus t i f ied. In part icu lar , th is

paper wi l l exp lore the impact of th i s pr inciple v is-a-vi s the recru itment of

Niger ian ci t izens when conducted by persons outs ide Niger ia as contemplated

under the Labour Act. In addit ion, ef fort s wi l l be made to cons ider the pr inciple

of ext rater r i tor ia l ju r isd ict ion in inte rnat i ona l law.

1

Adebo la Ogunsanya , Cindy Ojogbo and Jo seph One le ; Counse l a t Olan iwun A jay i LP

2 As pe r Ju s t i c e Ho lmes i n Amer ica n Banana Co. v . Uni t ed F ru i t Co.(1909) 213 U.S. Page

356.

3 Cap L1, LFN 2004.

4 Lea B r i lmaye r , ―The Ex t r a te r r i to r i a l App l i ca t ion o f Amer i can Law: A Method ica l a nd

Const i t u t iona l App ra i s a l‖ , Ava i l ab le a t

ht tp : / / s cho la r s h ip . law.duke .edu/ cg i /v i ewcont ent . cg i?a r t i c l e=3901&cont ex t=lcp and

acce s sed on 7 March 2015 a t 4 :18pm. 133 S.Ct . 1659 (2013); Ava i l a b l e a t

ht tp s: / / s up reme. j us t i a . com/ca se s / f edera l / u s /569/10 -1491/# v i s i t ed 7 March 2015 a t

4:20pm. I n t ha t ca se , i t was he ld t ha t t he r e i s a p re sumpt ion aga i n s t ex t ra t e r r i t o r i a l

app l i ca t ion, t ha t when a s t a tut e g iv e s no c l ea r i nd i ca t ion o f a n ex t ra t e r r i to r i a l app l i ca t ion, i t

ha s none ; s ee a l so ht tp : / /www.sup remecou r t .gov/op in ion s /12pdf /10 -1491_l6gn.pdf

acce s sed on 7 Ma rch 2015 a t 4 :32pm.

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4. Essent ia l ly, the normal ambit of the jur i sd ict ion of the laws of a State is the

ter r i tory over which the state i s sovere ign . It i s a wel l - recognized assert ion and

tr i te pr incip le of law that a sovere ign cannot leg i s late for another.

Notwithstanding thi s, a number of cases have ar i sen where countr ies have sought

to enforce the ir laws in respect of act ions that have taken p lace with in other

ju r i sd ict ions. As cur ious as th i s not ion might appear, Internat ional law has

developed to recognize the r ights of a Nation to apply the i r laws to act ions in

other sovereign ju r i sd ict ions under certa in pr inc iples.

The Concept of "Ext rater r i torial Applicat ion" of a Statute

5. The genera l ru le i s that laws of a State are only appl i cab le with in that State and

do not have extrater r i tor ia l ef fect . There fore, the genera l pos it ion i s a

presumpt ion aga inst the ext rate r r i tor ia l appl icat ion of laws.

6. Accord ing to a learned author5

, there appears to be s ix possible reason for the

presumpt ion: (a) internat iona l law l imi tat ions on extrate r r i tor ia l i ty , which the

legi s lature should be assumed to have observed; (b) consi stency with domest ic

conf l ic t of law ru les; (c) the need to protect against un intended c lashes between

our laws and those of other nat ions which could resu lt in internat ional d iscord;

(d) the common sense not ion that the leg is lature genera l ly leg i s lates with

domest ic concerns in mind; (e) separat ion of powers concerns – i.e. that the

determinat ion of whether and how to apply federa l leg is lat ion to conduct abroad

ra i ses di f f icult and sens it ive pol icy quest ions that tend to fa l l outs ide both the

inst i tut iona l competence and const i tut ional prerogat ives of the jud iciary; and ( f)

that having some background ru le that when statutes apply , extra ter r i tor ia l ly

he lps the legi s lature pred ict the appl icat ion of i t s law and the presumpt ion

aga inst ext rater r i tor ia l i ty is as good a ru le as any.

7. Interest ingly, on ly the not ion that the leg i s la tu re genera l ly legi s lates with

domest ic concerns in mind is a va l id reason for the presumpt ion today .

8. Under the ea r ly Engl i sh common law, par t icu lar ly the cr imina l aspect, the law

treated it se l f as complete ly te r r i tor ia l. Essent ia l ly, i f the elements of a cr ime

occurred outs ide England (or, even more rest r ict ive ly , the venue of the cour t

5 Wil l i am S. Dodge, Under s t and ing The P re sumpt ion aga in s t Ex t ra t e r r i to r i a l i t y , Vo l . 16

Berke l ey J . I n t ‘ l Law. 85 (1998) ht tp : / / s cho la r s h ip . l aw.be rke l ey . edu/b j i l / vo l16/ i s s1 /5

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hear ing the matte r), the court could not hea r the case. This pos it ion was mani fes t

in the famous Lacey's Case of 1583, where the defendant a ttacked a man on

board an Engl i sh sh ip, but the v ict im did not die unt i l reaching land.

Consequent ly, neither the Admira lty Court nor the common law court s could

convict the defendant of murder, because the death d id not occur in the

Admira l ' s jur isdict ion, and the a ttack did not occur in the jur isdict ion of a

common law cour t.

9. In essence, the ext rater r i tor ia l i ty of one element made the cr ime i tse l f

extrate r r i tor ia l, and not punishab le by the common law. Interest ing ly, an Act of

Par l iament was speci f ica l ly required creat ing Engl i sh cr imina l law as to cr imes with

any foreign e lements, and a p resumpt ion aga inst extra te r r i tor ia l i ty appl ied un less

the intent ion of Par l iament to do so was c lea r .

Presumption against extrater r i torial i ty: The United States (US) Approach

10. I t i s a longstanding pr inc ip le of Amer ican law that ‗ leg i s la t ion of Congress,

unless a cont rary intent appears, is meant to apply only with in the ter r i tor ia l

ju r i sd ict ion of the United States. ‘6

As far back as 1909, Just ice Holmes noted

―that the genera l and a lmost un iversa l ru le i s that the cha racte r of an act ; lawful

or unlawfu l , must be determined whol ly by the law of the country where the act

is done‖ and that thi s ―would lead, in cases of doubt, to a const ruct ion of any

statute as intended to be conf ined in i ts operat ion and ef fect to the ter r i tor ia l

l imi ts over which the lawmaker has genera l and leg it imate power ‖.7

11. Neverthe less, i t i s qui te per t inent to note that t he presumpt ion aga inst

extrate r r i tor ia l i ty does not prohib it prosecut ion of cr imes committed outs ide the

US where an acceptab le bas is in inte rnat ional law i s found . It s imply requires

that Congress manifest i t s intent to extend the ambit of the re levant US statute

to such cases. I t is worth not ing that a ca re fu l ly de l ineated presumpt ion aga inst

extrate r r i tor ia l appl icat ion of US laws can ass i st those act ing outs ide the US in

6 Wil l i am S. Dodge, ―Unde rs t a nd ing t he Pre sumpt ion aga i n s t Ex t ra t e r r i to r i a l i t y‖, Be rke l ey

Journa l o f I n te r na t iona l Law, Vo lume 16, I s sue 1.

7 Amer ica n Banana Co. v . Uni t ed F ru i t Co. (1909) 213 U.S. Page 356 and 357.

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determining when the ir acts, and the resu lt s of the i r acts, may sub ject them to

US law.8

12. For instance, where a federa l s tatute dec la res cer ta in acts to be bad or

prohibi ted, and certa in resu lt s of acts to be wrongfu l, the appl icat ion of the

statute remains in the core of US lawmaking author ity , where e ither an ‗act-

element ‘ or a ‗ resu lt -e lement ‘ of a cr ime or cause of act ion occurs in the US. It i s

worth not ing that t he presumpt ion aga inst extrate r r i tor ia l i ty would ordina r i ly

come into play when no element occurs in the US. Once the presumption i s

invoked, it can be overcome only i f there i s c lear ev idence of congress iona l intent

that the s tatute should be appl ied in the g iven ci rcumstances. In other words, the

presumpt ion appl ies un less there i s a demonst rat ion of Congress iona l intent for

the statute to apply ext rate r r i tor ia l ly.

13. In two recent cases, K iobel v. Royal Dutch Petro leum9

and Morr ison v. Austra l ia

National Bank,10

the US Supreme Court reaf f i rmed the presumpt ion aga inst

extrate r r i tor ia l appl icat ion of federa l s tatutes. In K iobel v. Roya l Dutch

Petro leum,11

an Al ien Tort Statute (ATS) case, the wrongfu l acts a l leged were

done in Niger ia and the wrongfu l resul ts ( includ ing death) occurred there as

wel l. In Kiobel ‘s case , the Pet it ioners, Niger ian nat iona ls res id ing in the US,

f i led a sui t in federa l cour t und er the ATS, a l leging that respondents—certa in

Dutch, Br i t i sh, and Niger ian corporat ions—aided and abet ted the Niger ian

Government in commit t ing v iola t ions of the law of nat ions in Niger ia. The

quest ion presented was whether and under what ci rcumstances cou r ts may

8 I n the Un i t ed Sta t e s (US), Federa l s t a t ut e s a r e p resumed not to ha ve e f f ec t out s ide o f t he

te r r i to r i a l j u r i sd i c t i on o f the US except t he r e i s a c l ea r ly exp re ssed a f f i rma t iv e i n t ent by

Cong re s s . See ht tp : / /www.supremecour t .gov/op in ions /09pdf /08 -1191.pdf

9 133 S.Ct . 1659 (2013); Ava i l ab l e a t ht tp s : / / s up reme. j u s t i a .com/ca se s / f ede ra l / u s /569/10 -

1491/# v i s i t ed 7 Ma rch 2015 a t 4:20pm. I n t ha t ca se , i t wa s he ld t ha t the r e i s a

p re sumpt ion aga i n s t ex t ra t e r r i to r i a l app l i ca t i on , t ha t when a s t a t ut e g iv e s no c l ea r i nd ica t ion

o f an ex t ra t e r r i to r i a l app l i ca t ion, i t ha s none ; s ee a l so

ht tp : / /www.sup remecou r t .gov/op in ion s /12pdf /10 -1491_l6gn.pdf a cce s sed on 7 Ma rch

2015 a t 4 :32pm.

10 ht tp : / /www.sup remecou r t .gov/op in ion s /09pdf /08 -1191.pdf acce ssed on 19/3/2015 a t

2:47pm.

11 K iobe l . v . Roya l Dut ch Pet ro leum Co. Ava i l ab l e a t

ht tp : / /www.sup remecou r t .gov/op in ion s /12pdf /10 -1491_l6gn.pdf acces sed on 19 March

2015 a t 4 :19pm.

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recognize a cause of act ion under the ATS, for vio lat ions of the law of nat ions

occurr ing with in the te r r i tory of a sovereign other than the US.

14. However, the US Supreme Court held that the presumpt ion aga inst

extrate r r i tor ia l i ty appl ies to cla ims u nder the ATS, and that nothing in the

statute rebuts that presumption. The point was fu rther made that a l l the re levant

conduct a l legedly took place outs ide the US and that even where the c la ims

touch and concern the ter r i tory of the US, they must do so wi th suf f ic ient force

to d isp lace the presumpt ion aga inst extrate r r i tor ia l appl ica t ion. I t i s qui te

pert inent to note that the rat iona le for the presumption can be sa id to be ―to

protect aga inst unintended clashes between our laws and those of other nat ions

which could resu lt in internat iona l d iscord‖.12

The Lotus Case and Extrater r i torial Jurisdict ion

15. The start ing point for thi s d iscuss on ext rater r i tor ia l ju r isd ict ion i s The S.S. Lotus

case13

(France v. Turkey) which was dec ided in 1927 by Permanent Court fo r

Internat iona l Just ice. The lead judgment sta ted thus : ―I t does not, however

fo l low that inte rnat iona l law prohibi ts a State f rom exerci s ing ju r i sd ict ion in i ts

own te rr i tory in respect of any case which re la tes to acts which have taken place

abroad, and in which i t cannot re ly on some permiss ib le rule of inte rnat ional law.

Such a view would only be tenab le i f Internat ional Law conta ined a genera l

prohibi t ion to States to extend the appl ica t ion of thei r laws and the jur isdict ion

of thei r cour ts to persons, property and acts outs ide the ir te r r i tory…‖14

16. As a matte r of fact, States have gone ahead to enact laws with extrater r i tor ia l

appl icat ions. In l ine with thi s, i t i s imperat ive that ment ion i s made of the UK

Br ibery Act (2010) and the US Foreign Corrupt Pract ices Act

(1977)(FCPA), both of which creates l iab i l i t ies even where the corrupt act

occurred ent i re ly outs ide the UK and US respect ively.

Operat ion of the „Effects doctrine ‟ under In ternat ional Law

12

ht tp : / /www.sup remecou r t .gov/op in ion s /12pdf /10 -1491_l6gn.pdf acces sed on 19 March

2015 a t 4:52pm. See a l so EEOC v. Arab ia n Amer ica n Oi l Co ., 499 U. S. 244, 248

(1991) (Aramco).

13 1927 P.C. I .J Repor t s , Ser i es A, No.10

14 S.S . Lot u s ca se (F ra nce v . Tu r key) 1927 P.C. I .J Repor t s , Ser i es A, No.10

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17. Notably, the bas is upon which Inte rnat ional law has permitted a State to

exerc ise ju r i sd ict ion is hinged upon cer ta in pr inc ip les which wil l be del iberated

on subsequent ly. These pr inc ip les a lbe it vague have cont inua l ly rece ived

internat ional jud icia l recognit ion. The most notable inte rnat ional law pr incip le of

ju r i sd ict ion upon which a State might lay a cla im for jur i sd ict ion to t ry an offence

beyond it s borders is the ‗Ef fects‘ doct r ine. This doctr ine was expounded upon

in the Lotus Case.

18. The doct r ine states that to the extent that an act of an ind iv idua l or an ent ity has

a substant ia l and detr imenta l e f fect in a state, that state has the ju r i sd ict ion to

t ry such an of fence. This i s the bas i s on which the United States of America

seems to levy the ir Ant i - t rust legi s lat ions on. Under these ant i - t rust leg is lat ions ,

a foreign company hav ing par t ia l operat ions in the US may be l iab le to l iab le to

heavy pena lt ies under US law for engag ing in ant i -competi t ive pract ices even i f

the actua l act iv i t ies took p lace outs ide the US.

19. Simi la r ly, the case of Laker Airways v Sabena15

i l lus t rates the appl icat ion of thi s

doctr ine in the context of US ant i - t rus t leg i s la t ion; here Laker Airways (a United

States a i r l ine operator) f i led a compla int with the US dis t r ic t of Colombia in

respect of an a l leged consp i racy to rest ra in and monopol i se commerce in v io lat ion

of US ant i - t rust leg i s la t ion s (the Sherman Act16

and the Clayton Act17

) by 6

ai r l ines includ ing Br i t i sh Airways. The US court asse rted it had ju r isd ict ion based

on the fact that the ant i -competi t ive pract ices of the defendants produced

substant ia l e f fects on compet it ion with in i t s ter r i tory. The Court he ld inte r a l ia

that once US ant i t rus t law was decla red to be appl icab le, i t co uld not be

qua l i f ied or ignored by v i r tue of comity18

. This attempt to exerc ise ext ra -

ter r i tor ia l ju r i sd ict ion was ha lted by the Secretary of State for Trade and Industry

of the UK issu ing an order and d irect ions under the Protect ion of Trade Act

1980 prohib it ing compliance with any request by the Department of Just ice, the

grand jury of the dist r ic t cour t to produce and commerc ia l in format ion19

. Th is

15

(1984) 731 F.2d 909

16 15 U.S.C. §§ 1 -7

17 15 U.S.C. § 12-27

18 Michae l M. Shaw; I nt e r na t i ona l Law F i f t h Ed i t i on

19 Gene ra l Di r ec t ion o f t he Sec r eta ry o f S ta t e unde r s ec t i on 1 o f t he PT IA, June 23 1983

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Court of Appea l of the UK cons idered the ef fect of the block ing orders to be a

dec is ive factor and found that the orders rendered the US Dist r ict Court act ion

whol ly untr iab le in regard to the a i r l ines, ―s ince they wi l l be unable to defend

themse lves before the Dis t r ic t Court‖20

20. The case of Hart ford Fire Insurance Co v Cal i fornia US Supreme Court21

a lso

shows the inte rest ing interpretat ion of the e f fects pr inc iple and the ext rater r i tor ia l

reach of US ant i - t rust laws. Here the defendants who were UK insurer s d id not

re fute that the i r act iv i t ies had an ef fect with i n the USA, but ra ther asse rted that

the US court s should dec l ine jur isdict ion because the ir acts were lawful in the

UK where the act ions took place and that any balance in the competing interests

of US just ice and internat iona l comity c lea r ly favored decl in ing jur isd ict ion. The

US Supreme Court found in favour of exerc is ing jur i sdict ion on the ground that

there was no rea l conf l ict with UK law as UK law did not compel the UK

companies to act the way they and hence there were no balancing interests of

just ice and comity to cons ider22

.

21. In United States v . Aluminum Co. of America (“Alcoa”), the Second Ci rcui t

re l ied on ef fects in the United States in hold ing that the Sherman Act appl ied to

fore ign companies act ing abroad.23

22. The ef fects pr inc iple has been sa id to be one of the most highly grounds on

which to base an appl icat ion of extra -te r r i tor ia l ju r i sd ict ion espec ia l ly as i t s

scope i s not wel l art icu lated . An increas ingly globa l ized world means commerc ia l

act ions in one state wi l l have severa l consequences on the te r r i tor ies of other

states .

National i ty Principle

23. Another pr inc ip le for the exerci se of extra -ter r i tor ia l jur isdict ion i s the

National i ty Pr inc ip le which permi ts a s tate to exerc i se ju r i sd ict ion over i t s

nat iona ls wherever they may have been when a civ i l wrong or c r imina l of fence i s

commit ted. This jur i sdict ion cannot be exerci sed t i l l the Nat iona l re turns to the

20

Journa l o f Compet i t i v e Bus ine s s a nd Cap i t a l Ma rket s ; Lake r A i rway s and t he Cou r t s : A New

Method o f B lo ck i ng The Ex t ra te r r i to r i a l Appl ica t ion o f U.S Ant i t r us t Laws

21 113 S. Ct 2891 (1993)

22 Ma r t i n D ixon ; Tex tbook on I nt e rna t iona l Law Si x t h Ed i t io n

23 148 F.2d 416 (2d C i r .1945) (L. Hand , J . ).

8 | P a g e

home state. Close ly re lated to thi s is the Pass ive Persona l i ty where a State may

asser t jur isdict ion over an offence based on the nat iona l i ty of the v ict im of the

of fence. Unde r pass ive persona l i ty, a s tate would have jur i sdict ion over a l l cr imes

where the vict im was a nat iona l, i r respect ive of the place where the of fence was

commit ted or the nat ional i ty of the offender. In the case of US v Yunis , the US

asser ted jur isdict ion over a Lebanese nat iona l who h i jacked a p lane with two US

nat iona ls , based on the pass ive personal i ty pr inciple.

24. This wide scope for the assert ion of jur isdict ion appears to c reate a ca lamitous

not ion of ju r isd ict ion espec i a l ly in cr imina l matte rs where an ind iv idual could be

open to poss ib i l i ty of t r ia l twice for the same of fence; for instance where an act

has created substant ia l ef fects in two sta tes and both sta tes asse rt ju r i sd ict ion

based on the e f fects pr inc ip le or whe re two di f ferent sta tes at tempt to assert

ju r i sd ict ion based on the nat iona l i ty pr inc ip le and the pass ive persona l i ty

pr incip le. It ought to be considered i f Internat iona l law pr inc ip les recognize and

prevent th is possibi l i ty of t r ia l twice for the same of fence.

The Exclus ion of Foreign Law

25. I t is a wel l -developed pr inc iple of Engl i sh law that Engl ish court s wi l l not

enforce or recognize a r ight, power, capac ity, disab i l i ty or lega l re la t ionship

ar i s ing under the law of a fore ign count ry, i f the enforcement or recognit ion of

such r ight , power, capaci ty, d isab i l i ty or lega l re lat ionsh ip would be incons is tent

with the fundamenta l publ ic of Engl i sh law.24

Basica l ly, the genera l pr inc ip le of

law appears to be that a foreign law, which is otherwise appl icab le accord ing to

the Engl i sh rules of the conf l ict of laws, wi l l no t be appl ied or enforced in

England i f the law, or the resul t of i ts appl ica t ion, i s cont rary to publ ic pol icy.

Per Lord Simon, in Vervaeke v. Smith25

held that ―There i s abundant author i ty

that an Engl i sh court wi l l decl ine to recognize or apply what would otherwise be

the appropr iate fore ign rule when to do so would be aga inst Engl ish publ ic

pol icy.26

24

Di cey & Mor r i s , The Conf l i c t o f Laws , Sweet & Maxwe l l , Vo l .1, London 1993, Chapt e r 6 ,

p.88; see a l so Kahn -F r eund , Se l ec t ed Wr i t ing s (1978), Chap. 9 c i t ed i n D i cey & Mor r i s .

25 [1983] 1 A.C. 145, 164

26 Ve rva eke v . Sm i t h [1983] 1 A.C. 145, 164

9 | P a g e

26. Accord ing to Morr is, ―In any system of the conf l ic t of laws, and the Engl i sh

system i s no except ion, the cour ts reta in an over r iding power to re fuse to

enforce, and somet imes even to refuse to recognize, r ights acqui red under foreign

law on grounds of publ ic pol icy.‖27

27. However, i t i s worth not ing that under the Engl i sh domest ic law, i t i s now wel l

set t led that the doctr ine of publ ic pol icy ―should only be invoked in clear cases

in which the harm to the publ ic i s substant ia l ly incontestab le, and does not

depend upon the id iosyncrat ic inferences of a few judic ia l minds.‖28

28. In another deve lopment, i t i s beyond cav i l that the court s of one country wi l l not

enforce the penal and revenue laws of another count ry.29

As stated by Lord

Mansf ie ld, no act ion l ies in England for the enforcement of a foreign revenue

law.30

29. However, i t should be noted that the assert ion of Just ice Cardozo; a

dist ingu ished American ju r i st that ‗cour ts a re not f ree to re fuse to enforce a

fo re ign r ight at the p leasure of the judges, to sui t the indiv idual not ion of

expediency and fa i rness ‘ has received the judicia l nod of the Engl ish court s. In

Just ice Cardozo words:

―the cour ts are not f ree to refuse to enforce a fore ign r ight at the pleasure

of the judges, to su it the indiv idual not ion of expediency or fa i rness.

They do not close the ir doors un less he lp would violate some fundamenta l

pr incip le of jus t ice, some preva lent concept ion of good mora ls , some

deep- rooted tradi t ion of the common wea l.‖31

30. As noted by Morr i s, the Engl i sh court s have a res idua l power, to be exerci sed

except iona l ly and with greatest c i rcumspect ion, to disrega rd a prov is ion in the

27

Mo r r i s , The Conf l i c t o f Laws , S ix t h Ed i t io n, Sweet & Maxwe l l , London, 2005, p. 47.

28 Fende r v . St . John -Mi ldmay [1938] A.C. 1, 12; see a l so Mor r i s , The Conf l i c t o f Laws ,

S ix t h Ed i t io n, Sweet & Maxwe l l , London, 2005, p. 48.

29 Di cey & Mor r i s , The Conf l i c t o f Laws , Sweet & Maxwe l l , Vo l .1, London 1993, Chapt e r 6 ,

p. 97; see a l so Wi l l i ams & Humbe r t Ltd. v . W. & H. T radema r k s (Je r s ey) Ltd. [1986]

A.C. 368, 428, per Lo rd Templeman.

30 Ho lman v . Johnson (1775) 1 Cowp 341 a t 343.

31 Louck s v Sta nda rd Oi l Co . (1918) 224 N.Y. 99, 111; 120 N.E. 198, 202 c i t ed w i th

approva l i n Kuwa i t Ai rway s Co rpn v . I r aq i Ai rway s Co (Nos 4 and 5) [2002] UKHL 19;

[2002] 2 A.C. 883, a t pa ra . [17].

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fo re ign law when to do so otherwise would a ff ront bas ic pr inciples of just ice and

fa i rness which the Engl i sh court s seek to apply.32

Foreign Laws Repugnant To Engl ish Publ ic Pol icy

31. I t i s a t r i te pr inciple of Engl ish law that any act ion brought is subject to the

Engl i sh doct r ine of publ ic pol icy. As noted in Chesh ire and North‘s Pr iva te

Internat iona l Law, ―Certa in heads of the domest ic doctr ine of publ ic pol icy

command such respect, and cer ta in fore ign laws and inst i tut ions seem so

repugnant to Engl i sh not ions and ideal s, that the Engl i sh v iew must prevai l in

proceedings in thi s country, for SCARMAN J has sa id that ―an Engl i sh court

wi l l re fuse to apply a law which out rages i ts sense of jus t ice and decency‖.33

However he a l so st ruck a note of caut ion in suggest ing th at ―before i t exerci ses

such power, i t must consider the re levant fore ign law as a whole.‖34

32. Neverthe less, i t should be noted that i t is wel l -establ i shed that Engl i sh cour t s

should not invoke publ ic pol icy save in cases where fore ign law is mani fest ly

incompat ible with publ ic pol icy.35

The Ext rater r i torial Reach Of The Nigerian Labour Act

33. Sect ion 23(1) of the Labour Act c lear ly prohib it s the recrui tment of c it izens

for employment workers in Niger ia or el sewhere by any person or associa t ion

except in pu r suance of an employer‘ s permit or recrui te r ‘ s l icence. No cav i l

mani fest s in the appl icat ion of th i s prov is ion where the recru iter i s with in the

ter r i tory where the Act is appl icable – Niger ia, as undeniab ly, a l icence would

be required to perform recrui tment services.

34. However, the i s sue would ar i se where such a recru iter undertakes the recrui tment

of Niger ian c it izens f rom a locat ion outs ide Niger ia and the n the quest ion

whether a l icense is requi red, as per the Act, becomes pert inent.

35. The broad and far reaching word ings of the provis ion suggest that a recru iter ‘s

l i cense i s requi red regardless of where the recru itment exerci se i s conducted .

Notwithstanding, i t i s important to consider two poss ib le result s – one where

32

Mo r r i s , The Conf l i c t o f Laws , S ix t h Ed i t io n, Sweet & Maxwe l l , London, 2005, p. 48.

33 Re Fu ld ‘ s E s t a t e (No. 30 [1968] P 675 a t 698.

34 Re Fu ld ‘ s E s t a t e (No. 30 [1968] P 675 a t 698.

35 Gotcha C i ty v . Sot heby ‘ s (No. 2) 1998 T imes , 8 Octobe r

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the presumpt ion aga inst ext ra-ter r i tor ia l i ty i s upheld and one where such

presumpt ion has been rebut ted on an acceptab le pr inciple of inte rnat iona l law. .

36. As pointed out above, laws genera l ly have te r r i tor ia l e f fects and apply st r ict ly to

acts occur r ing within the ter r i tory for which the law was made. In compliance

with the pr inciple that laws do not have extrate r r i tor ia l appl icat ion, i t means that

persons conduct ing recru itments of Niger ian ci t izens outs ide Niger ia are not

caught by the prov is ion of the Labour Act and indeed do not run a foul of the

law by engag ing in recrui tment without a l icense.

37. On the other hand, there i s the appl icat ion of the pr inc ip le of ext rater r i tor ia l i ty

which would mean that the recru iter would in fact be in breach of the law i f he

recrui ts Niger ians without a l icense and shal l be l iable to the prescr ibed

punishment for such breach. This pos it ion, to the authors, wi l l be wel l grounded

on the extra te r r i tor ia l pr inc iple of the e f fects doctr ine as ear l ier di scussed.

38. On the bas is of the ef fect doctr in e, one could say that to the extent that the

act iv i t ies of the recru iter have any substant ia l and detr imenta l e f fects whether

intended or not, the Niger ian Court may have the ju r i sd ict ion to pena l ise such

conduct rega rd less of the fact that the recru i tment act iv i t ies have taken p lace

outs ide of i t s te r r i tory . Although it i s d i f f i cult to perce ive the poss ible

detr imenta l ef fects recrui tment may have, where such might ar ise the e ffects

doctr ine may be invoked. We however note that for such an act to be

enforced on the bas i s of ext ra -ter r i tor ia l i ty of the Labour Act, the a l leged

of fenders must be present with in the Niger ian ter r i tory and where th is is not the

case the only other a l te rnat ive i s to enforce the part icula r prov i s ion of the Act in

a fore ign cour t. This would present a great degree of di f f icul ty as the pr inc ip les

on the conf l ict s of laws which have developed i l lus t ra tes that the foreign court s

are not inc l ined to enforce the pena l or revenue laws of another sta te.

enforcement of the provis ion ag ainst ‗of fenders‘, so long as they remain outs ide

the te r r i tory, would be near imposs ib le because the fore ign States are not

inc l ined to enforce the pena l or revenue laws of another Sta te.

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Conclusion

39. Whilst there i s a genera l presumption against the appl icab i l i ty of a statue to

conduct which has taken place abroad such presumpt ion may be rebut ted i f i t can

be show that there is a legi s lat ive intent that the statue i s appl icab le to extra -

ter r i tor ia l conduct .

40. Where th is presumption has been rebut ted, th e pr incip les of inte rnat ional law

permit enforcement of a statute where the acts in cont ravent ion have produced

substant ia l e f fects within i t s ter r i tory. This is one of the internat ional law

pr incip les under which the ext ra-ter r i tor ia l appl icat ion of a statute may be

just i f ied.

41. Any enforcement based on the extra -ter r i tor ia l i ty of a sta tue may only be

poss ib le where a fter the unlawfu l acts have taken place abroad, the a l leged

of fender is subsequent ly present within the geographica l ter r i tory of the sovere ign

which seeks to apply it s laws to the prohibi ted conduct which took p lace beyond

it s te r r i tory.

42. Where the offender i s not present within the geographica l de l ineat ion of the

sovere ign, enforcement of such a law in a fore ign cour t wi l l render such subject

to the pr inc ip les on conf l ict of laws. The pr inciples have shown that no foreign

cour t wi l l enforce the laws of another sovere ign where such laws are cont rary to

publ ic pol icy, aga inst the pr inc ip les of fa i rness and just ice and where the laws

sought to be enforced a re pena l and revenu e laws.