What is the Law of Persons?

The study of law as a subject becomes more decipherable given its classifications.  The classification ranges from public and private law to municipal and international law to procedural and substantive law et cetera. Law of persons particularly relate to private law. The whole gamut of private law deals with the law that has to do with persons. In this discourse, seriatim, to expose knowledge, relevant perspectives would be highlighted.

The Law of Persons

As earlier reasoned, the law of persons is one phase of the law subject. In view of the overlapping nature of the classified heads, a contradistinction becomes pertinent to be drawn – There is a law that ensures the smooth running of the machinery of the state, and consequently, caters for cases where the interests of society is directly involved. This is public law. Private international law deals with the internationalisation of the law of persons. The law of persons is generally private law. It is only the presence of what has been variously referred to as the ‘foreign element’ that signifies the discrepancy. Private international law, notably, must not be confused with law of persons.

In a pluralistic state like the Nigerian federation, the term ‘conflict of law’ should be technically applied. Apart from the traditional matters of immovables where lex situs governs, it is to be appreciated that conflict of law issues are especial ones for judicial discussion. Perhaps as a result of the procedural inclination, states have scarcely taken up any legislative initiative vis-à-vis the ‘the internationalisation of the law of persons’.

B CATEGORIZATION: WHAT NECESSITATES ‘CATEGORIES’ VIS-À-VIS LAW OF PERSONS?

Characterization, variably known and called classification, categorization or qualification is better illustrated than defined. Characterization  is  the  process  of  allocating  the  issue  raised  before  a  court  into  its correct legal category for the purpose of determining the appropriate choice of law rule. It is the preliminary stage in the process of choosing the applicable law for the purpose of reaching an acceptable or just decision.

The differences in the system of law and classification of legal transactions, consequence events have led to the need to determine the nature of the issue before the court. Thus the factual situation has to be  determined  in  order  to  know  the  head  of  the  law  it  falls  into  after  which  the appropriate connecting factor or rule of law for the determination of the issue has to be determined.

 

In Re Cohn4 (1945) Ch. 5 61 LQR 340 provided a good example to this argument:

“A  mother  and  daughter,  both  domiciled  in  Germany  but  resident  in  England,  were killed in an air raid on London by the same high explosive bomb. The daughter was entitled to movables under her mother’s will if and only if, she survived her mother.

By  the  English  conflict  rules,  succession  to  movable  is  governed  by  the  law  of domicile, but questions of procedure are governed by the lex fori. By S.184 of the Law of Property Act 1925, the presumption was that the elder died first, but by Article 20 of the Germany Civil Code the presumption was that the deaths were simultaneous”. The main issue is what has to be characterized is the issue in the case, the ‘question in issue’. AsAuld L.J (as he then was) puts it Macmillan Inco V Bishops gate Investment Trust Plc (where the issue concerned a claim viewed as either restitutionary or proprietary -

“The proper approach is to look beyond the formulation of the claim and to identify … the true issue or issues thrown up by the claim and defence. This requires a parallel exercise in classification of the relevant rule of law”

C. MOST PROBABLE CATEGORIES

Invariably, the conflict of law court finds matters for categorizations in these particular substantive law issues viz:

1. Succession

Wolf posited that “every legal rule takes its characterization from the legal system to which it belongs”. This view  was  applied  in  Re  Maldonado  (1954)    where  the  Court  of  Appeal  had  to decide whether the Spanish Government’s claim to the movable in England of a Spain intestate  who  died  without  next  of  kin  was  a  right  of  succession  in  which  Spanish Government was entitled to the  movable or  a jus regale in which  English Crown is entitled to them.

Read: The Right of Widows in the Nigerian Society

It was held that this question must be decided as a matter of fact and law in accordance with Spanish Law with the outcome that the Spanish Government was entitled. Succession may be related to moveable or immovable property. In matters relating to realty the courts have often endorsed lex loci.

2. FAMILY MATTERS (legitimacy, adoption, Matrimonial Causes, maintenance, custody, guardianship)

Matrimonial Causes

In Jorden Diengdeh, the parties belonged to Hindu and Christian religion and marriage had taken place under the Indian Christian Marriage Act, 1872. The case concerned a nullity decree which could not be passed under the existing Christian law, i.e. Indian Divorce Act, 1869. The court compared matrimonial causes available under the various personal laws in India and helplessly recommended for a uniform civil code.

Formal Validity of Marriage

The validity of a second marriage of a Hindu husband after his conversion to Islam was in issue in Sarla Mudgal. Interestingly, we found the apex court in a dilemma in this case. The court, though it held the second marriage 'invalid', could not boldly pronounce it as 'void', as Muslim Law allowed a second marriage. In the issues of marriage, the validity of any marriage is cumulatively determined by the law of place of celebration as to formal validity and the laws of the anti-nuptial domiciles of the parties in respect of their capacity.

Adoption , Custody, Legitimacy

In a series of cases, known as Lakshmikant Pandey v Union of India™ the Supreme Court has laid down principles and norms to be followed in inter-country adoption procedures involving Indian children and foreign adoptive parents with the object of ensuring the welfare of the child. The guidelines do not, however, include or refer to conflicts principles notwithstanding the invariable presence of the foreign element.

Agbede I. O observed that,

 "in situations of peaceful co-existence effect was given to transactions concluded under ‘foreign’ customary laws such as concluded marriages, legitimacy of children and ownership of property. Validity of inter-ethnic marriages was governed and still governed by the customary law of the bride under which the marriage is invariably celebrated.

To be continued