International Law

• Pages: 899-942

INTERNATIONAL LAW

(1) AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHT

2201. African Charter on Human and Peoples Right and the Constitution of

the Federal Republic of Nigeria 1999.

“I wish to digress, albeit briefly to mention that African Charter on Human and People’s

Right was ratified by and brought into force in Nigeria on 17/3/1983 by the African

Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap. 10

laws of the Federation of Nigeria; 1990. Essentially, the Charter provides for those

areas, which are covered by our own constitution in its Fundamental Human Rights

Provisions in Chapter 4 of the 1999 constitution as well as the same chapter in the

1979 constitution.” - Per Galadima, J.C.A. in Danbaba v. The State Suit No. CA/L/

231/2000; (2000) 19 W.R.N. 1 at 13.

2202. Deprivation of person’s liberty under article 6 of the African Charter

on Human and People’s Rights and Section 35(4) of the Constitution of the

Federal Republic of Nigeria 1999.

“I find that the provisions of Article 6 of the Charter relied upon by the appellant is the

same as that of S. 35 (4) of the 1999 constitution. The section provides that a person’s

liberty may be deprived for the purpose of bringing him before a Court or upon

reasonable suspicion of having committed a criminal offence. The process of being

brought before the Court is not the same as the process of the trial when being

conducted; up to the conclusion stage. The trial commences from the time a charge

is laid against a suspect. The suspect in the case at hand was first taken to Court and

charged, though his plea was not taken on 23/ 11/99, which is clearly within the

constitution of time limit. The application for bail was brought on the 16/12/1999

while the information charging the suspect is dated 9/12/1999. To my mind the consti-

tutional right of pre-trial bail in Section 35(4) is applicable where the suspect has not

been charged before a Court of law within the stipulated time. See: C.O.P. v. Amalu

(1982) 2 N.C.L.R. 402.

It would appear that the provision does not mean that a suspect must be re-

leased on bail if trial is not concluded within 2 or 3 months as the case may be. The

learned counsel for the appellant relied on the authority of the High Court in Obekpa

v. C.O.P. (1981) N.C.L.R. 420 to buttress his argument that for non-capital offences,

bail is a constitutional right. An interpretation of Section 35(4) suggesting that the

constitution intended an obligatory release, under any circumstances after 2 or 3

months, without giving the trial Judge before whom the application is brought any

discretion in the matter cannot be supported. I do not think the Courts have so inter-

preted the section. In the case of Eyu v. State (1988) 2 N.W.L.R. (Pt. 78) at 612 my

learned brother Oguntade, J.C.A. agreed with the view of the appellant’s counsel in

that case that a liberal approach should be adopted in the consideration of an accused’s

entitlement to bail in non-capital offences having regard to Section 32(1) of the 1979

constitution yet he duly cautioned thus: - “This is of course not laying it down that in

all events, bail should be granted. There are cases in which even if liberal approach is

followed, discretion may still indicate it better to refuse a bail.” - Per Galadima,

J.C.A. in Danbaba v. The State Suit No. CA/L/231/2000; (2000) 19 W.R.N. 1 at 14.

899

African charter on human and peoples right Paras. 2201,2202

(2) CONFLICT OF LAWS

2203. Action for declaration of title to land not per se action in rem.

“The fact that jurisdiction over an action for declaration of title to land is confined to

the forum rei situe does not eo ipso make the action one in rem, for the judgment in

such an action binds only the parties to the action and does not dec ide the status or

the title of the land as against persons generally, and does not bind those persons who

are not parties to the action. We do not think that the case of Nana Ofori Atta II v.

Nana Bonsora Agyei (1952) 14 W.A.C.A. 149, on which learned counsel for the

first and second respondents relied for the proposition that an action for a declaration

of this type is an action in rem supports his submissions or propositions or indeed the

argument which he has put forward as a bar to the jurisdiction of the High Court of

Lagos State. In the case in hand, it is clear that what the appellants sought in the first

claim is a declaration as between the parties on the legality of the ruling referred to.

The claim is aimed at the respondents and what they considered their entitlement by

virtue of the ruling aforesaid. A defendant is within the jurisdiction and the plaintiff

wants him compelled to do something personally even though the subject-matter of

the compulsive action is situate outside the jurisdiction of the Court. We think on this

basis that the first item of claim on the plaintiff’s writ is an action in personam and

not being an action for a declaration of title to foreign land it is one over which the

High Court of Lagos State should have exercised jurisdiction.

Turning to the other items of claim, it is impossible to resist the conclusion that

they are as well claims or actions in personam. ‘One of them deals with a declara-

tion that the respondents are holding certain assets admittedly situate outside the

territorial area of jurisdiction of the High Court of Lagos State as trustees for the

appellants, the respondents being within the territorial area of jurisdiction, and the

other claims ask for the taking of an account and payment over of sums or amounts

of money that are found due to the appellants. These are conventional equity claims

and come squarely within the provisions of Exception 1 to Rule 18 in Dicey’s conflict

of Laws. We have no hesitation whatsoever in coming to the conclusion that the

actions in both cases are actions in personam as between the parties and their

conduct.” - Per Coker, J.S.C. in N.P.A v. Panalpina (1973) N.C.L.R. 146 at 170 to

172.

2204. Actions in personam.

(1) “The fact that jurisdiction over an action for declaration of title to land is confined

to the forum rei sitae does not eo ipso make the action one in rem, for the judgment

in such an action binds only the parties to the action and does not decide the status or

the title of the land as against persons generally, and does not bind those persons who

are not parties to the action.

We do not think the case of Nana Ofori Atta II v. Nana Bonsra Agyei (1952)

14 W.A.C.A. 149; on which learned counsel for the first and second respondents

relied for the proposition that an action for a declaration of this type is an action in

rem supports his submissions or propositions or indeed the argument which he has put

forward as a bar to the jurisdiction of the High Court of Lagos state. In the case in

hand, it is clear that what the appellants sought in the first claim is a declaration as

Paras. 2203,2204 VOL. 11 : INTERNATIONAL LAW 900

between the parties on the legality of the ruling referred to. The claim is aimed at the

respondents and what they considered their entitlement by virtue of the ruling afore-

said. A defendant is within the jurisdiction and the plaintiff wants him compelled to do

something personally even though the subject – matter of the compulsive action is

situate outside the jurisdiction of the Court. We think on this basis that the first item of

claim on the plaintiffs’ writ is an action in personam and not being an action for a

declaration of title to foreign land it is one over which the High Court of Lagos State

should have exercised jurisdiction.

Turning to the other items of claim, it is impossible to resist the conclusion that

they are as well claims or actions in personam. One of them deals with a declaration

that the respondents are holding certain assets admittedly situate outside the territo-

rial area of jurisdiction of the High Court of Lagos State as trustees for the appel-

lants, the respondents being within the territorial area of jurisdiction, and the other

claims ask for the taking of an account and payment over of sums or amount of

money that are found due to the appellants. These are conventional equity claims and

come squarely within the provisions of Exception 1 to Rule 18 in Dicey’s conflict of

Laws. We have no hesitation whatsoever in coming to the conclusion that the actions

in both cases are actions in personam as between the parties and their conduct.”-

Per Coker, J.S.C. in N.P.A. v. Panalpina (1973) N.C.L.R. 146 at 170 - 172.

(2) “Etymologically an action in personam is an action brought against a person, an

action to compel him to do or not to do a particular thing or take or not to take a

particular cause of action or in action. Actions for damages in tort or for breaches of

contract are clearly directed against the person as opposed to actions which are

brought for the purpose of declaring or challenging a status, like proceedings under

the matrimonial laws of the country or of legitimacy laws or an admiralty action

directed against a ship or the res (and so known as an action in rem) or the like.

Generally therefore, all actions, which are aimed at the person requiring him to do or

not to do or to take or not to take an action or course of conduct, must be and are

actions in personam.” – Per Coker, J.S.C. in N.P.A. v. Panalpina (1973) N.C.L.R.

146 at 169.

2205. Conflict of laws.

(1) “A situation may arise even in municipal jurisprudence where two Courts have

jurisdiction in a matter. A situation may also arise where two Court in different coun-

tries have jurisdiction in the matter. In any of the above situations the Courts are said

to have concurrent jurisdiction in the matter. Where two Courts have concurrent

jurisdiction in a matter any of them can exercise jurisdiction, but once one of them

exercises jurisdiction, the other cannot exercise jurisdiction in the same matter. The

jurisdiction of the second Court must as a matter of law or as operation of law abate

where however the second Court still arrogates to itself jurisdiction the action will be

liable to the equitable relief of estoppel per rem judicatam, if the matter is finally

disposed of.” - Per Tobi, J.C.A., in Nahman v. Wolowicz Suit No. CA/L/207/88;

(1993) 3 N.W.L.R. (Pt. 282) 443 at 458.

(2) “From the wording of Exhibit ‘B’ above and the ordinary meaning of the words

used therein it is manifestly clear that the appellant confirmed that he was owing the

901 Conflict of laws Paras. 2204,2205