Admissibility of Foreign Law as Opinion Evidence: The Position of Nigerian Law

J U Ebuara

doi:10.7176/jlpg/99-02

Abstract

The world has become a global village wherein free movement of people, goods and services across boundaries has become highly pronounced. The present position of law in Nigeria is that for a foreign law to be proved in Nigerian court such law must be specifically pleaded and proved by the party relying on it. This is an antithesis to globalization. By this rule foreign law is required to be proved like any other fact. To prove the foreign law the party intending to rely on the foreign law is required to call an expert whose opinion the court will rely in arriving at a decision. The obvious challenges are manifold. Firstly, where a foreign law is not proved to the satisfaction of the Nigerian court, such law will find no application in that court, even where the foreign law would have been the most appropriate law. By insisting on opinion evidence of an expert, the Nigerian conflict rules completely undermine the techniques of proving foreign law by citing the decision of a Nigerian court in which the same foreign rule was at issue, or by referring to previous decisions of foreign courts on the subject matter or the specialized knowledge of the court. Finally, the article has analyzed the proof of foreign law in Nigeria with comparative references to other jurisdictions. The suggestions made in the article will go a long way in easing the burden of proving foreign law in Nigeria. Keywords : Foreign Law, Opinion Evidence, Nigerian Law. DOI: 10.7176/JLPG/99-02 Publication date: July 31 st 2020

Highlights

The world has become a global village wherein free movement of people, goods and services across boundaries has become highly pronounced
Where a foreign law is not proved to the satisfaction of the Nigerian court, such law will find no application in that court, even where the foreign law would have been the most appropriate law
What this suggests is that to advance the interest of international co-operation and the promotion of trade, commerce and tourism, domestic courts have to change their attitude with regards to the present position that foreign laws are facts which requires proof like any other fact in the domestic jurisdiction

Summary

Introduction

The world has become a global village wherein free movement of people, goods and services across boundaries has become highly pronounced. One of the challenges that will inevitably arise from the phenomenal globalization is that domestic courts will be confronted with legal issues that cannot be resolved without dealing with foreign elements The implication of this is that Nigerian courts while interpreting local legislations will need to take cognizance of relevant foreign laws. The legal position as enunciated above, crystallized to the established principle of law that for a Nigerian court to recognize and enforce a foreign law, such law must be pleaded must be proved by credible evidence by the party relying on same.[3] The requirement of proof of foreign law as a fact meets with the common law rules of evidence that a witness is bound to testify as to what he saw or heard and to give evidence of his opinion as to what he heard or saw.[4] But the Evidence Act creates an exception to the admissibility of opinion evidence which makes the opinion of an expert as to foreign law admissible in evidence. The legal requirement that notice of foreign law www.iiste.org should only be given through the medium of pleadings places an unnecessary burden on the party to engage in avoidable investigation with the adversary engaging in similar futile investigation. 1

Methods

Conclusion