DOMICILE IN PRIVATE INTERNATIONAL LAW

By

Professor Ikponmwonsa O. Omoruyi, PhD, BL, FICMC

Department of Jurisprudence and International Law
University of Benin, Benin City, Nigeria.

Meaning of Domicile
In the courts of the common law tradition, Domicile is a very important connecting factor
between a person and the relevant legal system. It is an idea of law, which takes three forms as
follows: Domicile of origin, Domicile of dependence and the Domicile of choice. A person’s
domicile is the permanent home, which upon a careful consideration of the circumstances of the
case the law attributes to him or her at a given moment of time. In English as well as Nigerian
law, every person must at all times have a domicile and no person can have more than one
domicile at any time. It denotes the relation between a person and a particular territorial unit
possessing its own system of law.1
The domicile of origin is the domicile which the law attributes to every person at his or
her birth; this domicile depends solely on the domicile of his or her parents or of one of them at
the date of his or her birth, except where he or she is a foundling. A domicile of origin can never
be lost though it will be in abeyance during its super-cession by a domicile of choice or of
dependence.2 The tenacity of the domicile of origin has frequently been criticised. Domicile of
dependence is the domicile which the law attributes to a person while he or she is in a state of
dependence; in English law the states of dependence are infancy and lunacy (for individuals of
both sexes) and until 1974, marriage for women. The domicile of choice is the domicile which
the law attributes to every person whom it regards as capable of exercising a voluntary choice
and who has in fact exercised a voluntary choice of a permanent home. A person does not
acquire a domicile of choice in a place unless he both resides and intends to remain permanently
in that place. Underlying all three types of domicile is the notion of a permanent home. Domicile
must be properly proved. English courts decide by English law what facts are sufficient to prove
domicile.3
The law of a person’s domicile governs personal status and its incidental rights and
capacities, for example, the essential validity of a marriage, the mutual rights and obligations of
husband and wife, parents and child relations and guardianship, the effect of marriage on the
proprietary rights of the husband and wife, divorce, annulment, though only to a limited degree,
legitimacy and adoption,4 Certain aspects of capacity, Wills of movables and intestate succession
to movables. The domicile of an individual affects issues relating to marriage and divorce; it also
affects liability to pay income tax, estate duty and bankruptcy proceedings. Upon it may depend
the title to movables and the formal validity of a will.
With regards to the question of whether domicile affects jurisdiction, whether the court
has jurisdiction at all must be settled before any question of the proper law to apply to the rights
and liabilities in question is settled. Yet, the Matrimonial Causes Act 5 specifically provides that

1
J.G. Collier, Conflict of Laws, (2nd edn, C.U.P. 1994) 40
2
Bell v Kennedy (1868) L.R. 1 Sc & Div. 307
3
Re Martin (1900) P. 211
4
North and Fawcett, Cheshire and North’s Private International Law (13th edn, Butterworths 1999) 134
5
Cap M7 LFN 2004, Section 2
1
in matters of matrimonial causes, the jurisdiction of the court shall be based on whether the
petitioner is domiciled in Nigeria. In some legal systems the alternatives to domicile as basis of
jurisdiction are nationality, residence and presence.
Domicile is understood by English law to mean that place in which a person, whether
through the exercise of his own will or through the circumstances of his birth or through the fact
of dependence on other members of his family, has permanent home and with which, as a result,
he has the closest personal connection in matter of personal and domestic life. It is the concept of
domicile which is employed by English law to establish the legal relationship between an
individual and that legal system with which he is most closely connected.
Most continental countries have adopted nationality as the determinant of the personal
6
law. The chief merit is that nationality is easily ascertainable. On the other hand, it is possible
for a person to have more than one nationality or to be stateless and have none. But in English
law, every person must at all times have a domicile and no person can have more than one
domicile at any time for the same purpose. Again, a person may be a national of one country and
live all his life in another and it is appropriate that the law of the community in which he lives,
that is his domicile, should govern his personal status and relationships.
Domicile may be difficult to ascertain in individual cases and the tenacity accorded to the
domicile of origin by English law has not been helpful. It is, however, the only practicable
determinant of the personal law in communities like the British Commonwealth, the United
States of America and Nigeria, which are comprised of multiple systems of law. The application
of nationality as test of a person’s status may lead to strange results if applied to members of the
commonwealth.
In the case of Re Martin,7 a spinster, after making a will, married a man domiciled in
England and subsequently died domiciled in France. By English internal law a will is revoked by
marriage, but this is not so under French law. In order to decide whether the will was revoked it
was necessary to decide whether this was a matrimonial or testamentary question, for upon this
depended whether the applicable law (lex causae) was English or French. Vaughan-Williams
L.J. in the court of Appeal held that the question should be categorised under matrimonial law.
Thus, English law governed.
The ascription of a particular domicile to a person under English (and Nigerian law) is
governed by the rules of the forum and not those of any other connected legal system. This rule
was clearly illustrated by Re Annesley,8 a case that was concerned with the intrinsic validity of a
will. In that case, an English woman was domiciled at the time of her death in France, according
to the principles of English law, but was domiciled in England in the eyes of French law, since
she had not obtained the authorization of the government which, before 1927, was necessary for
the acquisition of domicile. Her testamentary dispositions were valid by English internal law, but
invalid by French internal law, since she had failed to leave two-thirds of her property to her
children. Russell J. held that the validity of the dispositions must be determined by French law.
Her domicile was held to be French.

General Principles
a. No person can be without a domicile.
6
I.O. Agbede, Themes in the Conflict of Laws (Shaneson 1989) 49
7
(1900) P. 211
8
(1926) Ch. 692
2
b. No person can at the same time have more than one domicile for the same purpose. A
person can, however, have more than one residence or nationality.
c. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired. Thus, the burden of proving a change in domicile lies on the party who
assets such a change: Hanspeter Ackermann v Sandra Ackermann Schaufler9
d. In the Nigerian court, the domicile of a person is determined according to the
characterisation of the lex fori and not according to any foreign concept of domicile.

Domicile of Origin.
This is the domicile of a person’s father, or mother (if illegitimate), at the time of his birth.
Under the received English law, a person’s domicile of origin can never be lost merely by
abandoning that place. It can only be in abeyance upon the acquisition of a domicile of choice.
Where a person loses his domicile of choice, his domicile of origin revives. This revival doctrine
is also known as the rule in Udny v Udny.10 In that case, Colonel Udny had his domicile of origin
in Scotland, he was later an officer in the guards and in 1802 succeeded to the family estate. In
1812 he married and at that time retired from the army and took a lease of a house in London
where he resided thenceforth until 1844, paying frequent, though short, visit, to Scotland. In
1844 the colonel was involved in difficulties with his creditors and to avoid their pressure sold
the lease of the London house together with all his furniture and effects. He went to Calais and
then to Bologna where he resided in a hired house until 1853. He formed in Bologna an illicit
relationship with a French woman which resulted in the birth of the respondent in these
proceedings. He later married the mother. The question in these proceeding was whether the
respondent was legitimated by the subsequent marriage. The municipal law of Scotland
recognised the possibility of such legitimation. But English law did not. The Court of Session in
Scotland held that Colonel Udny’s domicile of origin was Scotland and that he had never lost it.
Hence they concluded that the child, though illegitimate by birth, was legitimated by the
subsequent marriage. Even in cases where the propositus has stayed for so long in a country
outside his domicile of origin, the rule of English law still favours greatly, the continuance of his
domicile of origin. A good illustration of this principle is presented by the case of Ramsay v
Liverpool Royal Infirmary,11 which concerned one George Bowie who had left a will that was
valid if his domicile at death was Scottish but invalid if it was English. He had lived a rather
uneventful life. He was born in Glasgow in 1845 and therefore with a Scottish domicile of origin.
He gave up his employment as commercial traveler at the age of thirty –seven and refused to do
any more work during the remaining forty –five years of his life. In order to feed, he resided with
his mother and sisters in Glasgow, after which he moved to Liverpool in 1892 in order to live on
the wealth of his brother. At first he lived in lodgings, but moved to his brother’s house when the
latter died twenty-one years later, and resided there with his sole surviving sister until she died in
1920. He remained there until his own death in 1927. He always bought a Glasgow newspaper,
and he even called himself a Glasgow man in his will. The House of Lords held that he died
domiciled in Scotland, and that although his residence in England was lengthy, it was
unproductive and motivated only by his attachment to a family member who would keep him in
spite of his negative disposition to work.

9
(FCT/HC/PET/151/2017)
10
(1869) L.R 1 SC & Div. 441
11
(1930) AC 588
3
 Again in the case of Winans v Attorney General,12 An American, whose domicile of
origin was New Jersey left the United States in 1850. He spent some time in Russia, after which
he resided in England for a considerable part of every year until 1893 when he stayed fully in
England until he died in 1897. He never acquired a permanent residence but he took tenancies of
furnished houses in Brighton. At the time of his death he had been away from the United States
for thirty-seven years during which he also spent parts of the year in Germany, Scotland and
Russia. His two major passions had been taking care of his health and working on an idea of
building spindle shaped vessels for sale to the United States in order to wrest the carrying trade
from the British. He had actually acquired land in Baltimore, in furtherance of this scheme. He
talked about returning to the United States for this purpose. He disliked the English and never
mixed with them. The House of Lords held that he had died domiciled in New Jersey, his
domicile of origin.
The same principle of tenacity of the domicile of origin was applied in Omotunde v Omotunde,13
where the Supreme Court held that a United States-based Nigerian Medical Doctor who had been
resident there for 18 years, during which he had only visited Nigeria once (for 10 days) had not
acquired a domicile of choice there. In other words, his Nigerian domicile of origin remained
operative despite his long stay abroad. Thus, the fact that a propositus stayed long in a particular
country is not sufficient to ascribe the domicile of that country to him without more.
Closely connected with the tenacity of the domicile of origin is the revival doctrine. This
is also known as the rule in Udny v. Udny because that was the case in which the rule was
succinctly enunciated. Stating the rule in that case, Lord Westbury stated:

The domicile of origin is the creature of law and independent of the will of the
party, it would be inconsistent with the principle on which it 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 exists whenever there is no other
domicile and it does not require to be reacquired or reconstituted, animo et facto
in a manner which is necessary for the acquisition of a domicile of choice.14

This rule of revival is, however, rejected by American courts, as was revealed in the case of Re
Jones Estate.15
In that case, Jones had an English domicile of origin. In order to escape the responsibility
for an illegitimate daughter he had sired he went to the United States in 1883. He married there,
and prospered financially and became an American Citizen. His wife died in 1914 and he
decided to return to Wales (where he was born) to live with his sister. On the first day of May
1915 he sailed in the Lusitania from New York but it was sunk by a German Sub-marine on the
high Seas, off the coast of Ireland. Under Iowa law, his illegitimate daughter succeeded to his
estate, but by English law, his brothers and sisters were entitled. The Supreme Court of Iowa
held that since his Iowa domicile of choice continued until he acquired another he was still
domiciled in Iowa at the time of death since he had not reached England.
Reacting to this decision Collier declares that:

12
(1904) AC 28
13
(2001) 5 WRN 148
14
(n 10)
15
192 Iowa 78
4
 This is hardly satisfactory in that it frustrated Jones’ intentions which were to
reacquire his connection with English law and to avoid having responsibility for
his illegitimate daughter. It is also just as artificial as the revival of the domicile of
origin, since it makes the devolution of a person’s estate depend on the law of a
country, which he had left, wishing never to return to it.16

The case of Bell v Kennedy,17 on the other hand illustrates the tenacity of the domicile of
origin. In that case Bell was born in Jamaica of Scottish parents domiciled in Jamaica. At the age
of 35, he left Jamaica for Scotland with an intention never to return. However, between 1837
when he left Jamaica and 1839 when he finally found an estate to dwell in, he lived with his
mother-in-law. Also, during that period he was undecided as to whether to settle in Scotland or in
England or elsewhere. He hated the weather in Scotland. It was clear that from 1839 when he
settled in his house in Scotland he became domiciled there; but the question before the Court was
as to where he was domiciled in 1838 when his wife died. The House of Lords held that he had
not lost his Jamaican domicile of origin at that time.
The rule of revival, being a necessary corollary of the tenacity of the domicile of origin,
does not apply to the domicile of choice. Once that place is abandoned, it is lost and if the
propositus does not immediately acquire a new domicile of choice, his domicile of origin
revives. Herein lies one of the areas in which the practical utility of the English concept of
domicile has been severely criticised.
Cheshire, for instance, has queried:

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 upon
him at birth, independently of his own volition, superior to that which he has
voluntarily chosen and long retained?18

The absurdity of the revival doctrine cannot be divorced from the English doctrine of the
tenacity of the domicile of origin, which on its part has become incongruous by reason of
modern realities. With globalisation and the ease in communication and transportation,
movement of persons between different parts of the world has become so common that it is no
longer realistic to hold that a person’s domicile of origin holds tenaciously to that person until
death. The tenacity doctrine as revealed in the cases is no longer realistic in the light of
contemporary realities.19

Domicile of choice
Domicile is understood by English law to mean that place in which a person, whether through
the exercise of his own will or through the circumstances of his birth or through the fact of
dependence on other member of his family, has his permanent home and with which, as a result,
he has the closest personal connection in matters of personal and domestic life. It is the concept
of domicile, which is employed by English law to establish the legal relationship between an

16
(n 1) 57
17
(n 2)
18
(n 4) 153
19
I.O. Omoruyi, ‘Domicile As A Determinant of Personal Law: A Case for the Abandonment of the Revival
Doctrine in Nigeria’ Uniben Law Journal [2004] 7 (1) 40
5
individual and that legal system with which he is most closely connected. 20 The domicile of
choice is one which is acquired by a person of full age and capacity in a country other than that
in which he was originally domiciled. In order to acquire a domicile of choice, there must be a
combination of the element of residence with that of intention of permanent or indefinite
residence. According to Morris, these two factors must coincide before the law will recognize a
change of domicile. He points out further that residence no matter how long in a country will not
result in the acquisition of a domicile of choice if the necessary intention is lacking. 21 On the
other hand, the strength of intention to acquire a domicile of choice will not matter unless it is
combined with the requisite residence. In Bell v Kennedy22 Lord Chelmsford declared, “A new
domicile is not acquired until there is not only a fixed intention of establishing a permanent
residence in some other country, but until also this intention has been carried out by actual
residence there.” In the same vein, it was submitted in Udny v. Udny23 that a domicile of choice
cannot be acquired in itinere. It is not just enough to travel, the propositus must arrive at his
destination.

Residence
Length of residence is only important as an evidence of intention. Thus it is possible for a person
to acquire a domicile of choice even if the person has only resided in the country for half a day
so long as there is proof of intention to be permanently so resident. Cheshire submits, based on
this rule that, if a man clearly intends to live in another country permanently, as for example,
where an immigrant, having wound up his affairs in his country of origin, flies off with his wife
and family to Australia, his mere arrival there will satisfy the element of residence. 24 In the
American case of White v. Tennant,25 a man abandoned his home in State X and took his family
to a house in State Y, about half a mile from State X, intending to live there permanently. Having
deposited his belongings there, he and his family returned to State X, in order to spend the night
with a relative. He fell ill and died there. It was held that his domicile at death was in State Y.
As a general rule residence is relevant so long as it is not illegal residence. Thus, it has
been held that in order to be considered resident in a country a person needs not own or rent a
house there. It is sufficient if the person lives in a hotel 26 or the house of a friend 27 or even a
military camp.28

Intention
According to Collier,

The requisite intention may be defined as that of permanent or indefinite

residence; the person must intend, at the relevant time, to stay in a country for
20
Casdagli v Casdagli (1919) AC 145
21
J.D. McClean, Morris: The Conflict of Laws (4th edn, Sweet & Maxwell 1993) 17
22
(n 2) 319
23
(n 10)
24
(n 4) 138
25
31 W Va 790 (1888)
26
Levene v. I.R.C (1928) AC 217
27
Stone v. Stone (1958) 1 WLR 1287
28
Willar v. Willar (1954) S.C. 144
6
 good, or at least for an unlimited period. If he does so, it does not matter that he
later changes his mind, so long as he does not actually leave the country.29

He goes on to submit that if, however, the propositus intends to reside in a country for a
fixed period, or for an indefinite time, but thinks that he will leave some day, then he will not
acquire a domicile of choice there. 30 Where there is a possibility that the propositus will someday
depart, that possibility must depend on a real contingency and not a fanciful or vague one. In the
case of I.R.C. v. Bullock31 Bullock, a Canadian, lived in England for forty-four years. He had
married an English woman and in line with her wishes had set up a home in England. He often
expressed an intention to return to Nova Scotia should she predecease him. The English Court of
Appeal held that since Bullock’s intention depended on a contingency which might not happen,
he had not acquired a domicile of choice in England. However, in Re Furse,32 an American
owned a farm in England where he lived and worked and had his family after 1923. There was
evidence that he had considered returning to New York from time to time but after the 1940s had
abandoned his search for a house in America. From then on he stayed on his farm and said
nothing except that he might go back to America if he ceased to be capable of leading an active
life on the farm. Fox J. held (distinguishing I.R.C. v. Bullock), that he had acquired a domicile of
choice in England since his intention to leave was vague and indefinite. There was no pressure
on him to stay in England and had been wholly integrated into the community in which he lived.
On what is required to establish a domicile of choice, the Nigerian courts have also held
that the two elements discussed above must be present. In Fonseca v. Passman,33 the court
declared:

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.

This point was re-echoed in Udom v. Udom34 where Coker J., stated:

The subject must not only change his residence to that of 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. The animus is the fixed and settled intention permanently to reside.
The factum is the actual residence.

Elements of Animus Manedi

The animus manendi is the requisite intention to make a particular place a permanent home. In
order for the court to pronounce its existence, it must be shown that the propositus has an
intention to reside for unlimited time or for an indefinite time in a particular country. As soon as
it can be inferred that the propositus has formed an intention to stay in a place indefinitely then
the domicile must have been established. This intention cannot be destroyed simply because the
29
(n 1) 44
30
ibid
31
(1976) 1 WLR 1178
32
(1980) 3 All E.R. 838
33
(1958) W.R.N.L.R. 41,42
34
(1962) L.L.R. 112, 117
7
motive was one which could be described as an ulterior one. Morris submits that as a general rule
it does not matter whether a man’s motive for leaving one country for another is good or bad,
“the question is, has he the requisite intention for a change of domicile?” 35 He goes on to state
that “his motive may be, for instance, to enjoy the benefit of a lower rate of taxation (Wood v.
Wood36), or of a better climate either for himself or for his troupe of performing chimpazees, 37 to
evade the rule against accumulations, to get a divorce (Drexel V. Drexel38), to prevent his wife
from getting maintenance39: in none of these cases has the particular motive prevented the
acquisition of a new domicile.40 It is however, conceded that where the motive is suspect, the
English court may be reluctant to concede a change in domicile and in such cases, it may hold
that there was really no animus manendi but merely the appearance of a change made in order to
secure some personal advantage.

Is naturalization an indication of a change in Domicile?

In the case of Ugo v. Ugo41 the Court of Appeal held that a Nigerian, Dr Roy Ugo who had
naturalised as an American citizen lacked the competence to file a petition for the dissolution of
his marriage to the respondent since he was an American citizen. The court practically stated that
Dr Ugo’s status as an American citizen had robbed him of his Nigerian domicile of origin in
favour of a domicile of choice in the state of New York. Indeed, Adekeye JCA (as she then was)
expressed her views thus:

The issue of domicile of the petitioner forms the foundation or pivot of

adjudication in the petition. Jurisdiction of court to hear a divorce petition is
governed by the domicile of the husband and not by his residence. By operation
of law, a married woman on marriage takes on the domicile of her husband. If
the parties have acquired American citizenship and have not abandoned same,
their domicile of choice remains valid and subsisting and endures until their
Nigerian citizenship which is held in abeyance and being their domicile of
origin, is revived.42

It is submitted, with respect that this statement is confusing and there is need for
clarification. Nationality and domicile are two different concepts that are mostly concerned and
deal respectively with the political and civil status of an individual. In Wahl v. A. G.43 Lord
Atkin stated that it is not the law that a change of domicile is always a condition for
naturalization nor that naturalization necessarily involves a change of domicile.
Although nationality is a possible alternative to domicile as the criterion for the
determination of personal law, as is indeed the case in some countries, 44 these are two different
concepts. While nationality represents a person’s political status, by virtue of which he owes

35
(n 21) 22
36
(1957) P. 254
37
ibid
38
(1916) 1 Ch. 251
39
ibid
40
(n 21) 22
41
(2008) 5 NWLR (Pt. 1079) 1
42
ibid
43
(1932) 147 L.T. 382
44
For instance, Italy
8
allegiance to some particular country; domicile indicates his civil status and it provides the law
by which his personal rights and obligations are determined. One of the reasons for the confusion
which has attended the issue of whether domicile and nationality have the same meaning is the
fact that in some legal systems domicile is required for naturalisation. For instance, by section 27
of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), anyone desiring to
naturalise as a Nigerian citizen must have “shown a clear intention of his desire to be domiciled
in Nigeria.” Thus under Nigerian law, domicile is a requirement for naturalisation. Consequently,
where a person has obtained Nigerian citizenship by naturalisation, he would be deemed
domiciled in Nigeria. This does not however imply that every Nigerian citizen is domiciled in
Nigeria. Moreover, some legal systems do not require domicile as a requirement for
naturalisation. Nationality depends, apart from naturalization, on the place of birth or on
parentage: domicile, as we have seen, is established by residence in a particular country with
animus manendi. It follows that a man may be a national of one country but be domiciled in
another. Thus the confusion that exists with regard to the two concepts is unwarranted.

Determining Animus Manendi

In deciding whether there is animus manendi all acts of the person must be considered, no matter
how trivial, for a trivial act might possibly be of more weight in determining the presence of
animus manendi. The questions that the courts have to consider include the following: Where did
they live and for how long? Was it in a fixed place or several different places? Did they build or
buy a house, or live in furnished lodgings or hotels? Did his wife and children accompany the
husband? Did they vote in elections there? Which church did they attend? A person’s actions,
ambitions, health, and projects are all regarded as keys to discovering his intention.
When the courts are trying to determine the intention of a propositus there are no hard
and fast rules. Any evidence may be relevant in proving the intention of the propositus45 Collier
asserts that “No piece of evidence is necessarily decisive, and evidence which is decisive in one
case may be entirely discounted in another.”46 With regards to the declarations made by the
propositus, he submits that such evidence should be viewed warily since they may be self-
serving. He further submits that although they may be admissible it should be so only after
careful scrutiny in order to ascertain the person to whom, the purpose for which and the
circumstances in which they are made. “A person who is not a private international lawyer who
is asked by, for example, the Inland Revenue where he is domiciled, may not appreciate what the
question means and his answer may not be held against him.” 47 Any declaration must be
consistent with the person’s other behaviour, and must be put into effect by conduct. In Ross v.
Ross,48 the question was whether a Scotsman who had no fixed home was domiciled in New
York. He told his business associates that he intended to remain there. But he always referred to
Scotland as home, and in an affidavit he swore that he was a domiciled Scotsman. The House of
Lords held that although the statements made by the propositus to his associates were admissible
in evidence, a New York domicile had not been established since they were inconsistent with the
rest of the evidence.

45
(n 1) 47
46
ibid
47
ibid See also Buswell v. I.R.C. (1974) 1 WLR 1631
48
(1930) AC 1
9
 Agbede49 has condemned the criteria utilized by the English courts in ascertaining a
person’s domicile as conferring such latitude of discretion on the courts with the unfortunate
result that “their decisions appear arbitrary and often inconsistent.” In fact, Graveson has rightly
queried: “Must our domicile continue to be kept a legal secret from us until we either invoke
divorce jurisdiction or die?”50

Burden and standard of proof

The standard of proof that lies on those who allege a change in domicile varies with the
circumstances. In this regard there are two observations that may be made. First, The English
courts usually require far stronger evidence to establish the abandonment of a domicile of origin
in favour of a fresh domicile (of choice) than to establish a change from one domicile of choice
to another.51 Secondly, under English law, there is authority for the view that a change of
domicile from one country to another under the same sovereign, as from Scotland to England is
easier to prove than a change to a foreign country.
He who asserts a change of domicile must prove it. 52 Generally, with regards to the
standard of proof it seems what is needed is that which is required in ordinary civil cases, that is,
proof upon a balance of probabilities. There is however, no general agreement on this, for
instance, in the case of Henderson v. Henderson53 the court said that a higher standard was
required. But Scarman J. in Re Fuld (no. 3),54 declared that the standard required is not that of
proof beyond reasonable doubt as in criminal cases. What seems clear, however, is that unless
the judicial conscience is satisfied of the change, the domicile of origin remains operative.

Voluntary residence
Generally, in order to establish domicile the standard of residence which would suffice is
voluntary. It requires that the propositus must have exercised a freedom of choice in deciding to
stay there. However, the following situations need specific mention.

a) Soldiers –Member of the Armed Forces

Soldiers compulsorily posted to duty posts outside their countries normally do not intend the
place of their duty post to be permanent home. However, it is possible that a soldier compulsorily
posted to a particular place could form an intention of making that place his permanent home. In
Donaldson v. Donaldson55 the English court held that a soldier compulsorily posted to place
could make that place his permanent home. Donaldson, a British soldier was post to Florida in
U.S.A. After his demobilization he decided to remain there and he brought in his wife and child.
After a while a filed a petition for divorce which was granted by the Florida court. He then
married another wife. His first wife went to England and filed a petition for divorce in the
English courts on ground of adultery with his new American wife and Donaldson can only
commit adultery if the divorce granted by the Florida court was null and void. She contended
that at the time of their marriage, Donaldson was serving in Florida, and therefore it could not be
stated that he had a permanent intention to stay there. Evidence was adduced that when he had an
49
(n 6) 54
50
Graveson, The Law of Domicile in the Twenthieth Century (Five Sheffield Jubilee Lectures 1960) 110
51
(n 4) 149
52
(n 1) 45
53
(1967) P. 77
54
(1968) P. 675
55
(1949) P. 363
10
affair with his American wife one condition for their marriage was that Donaldson intended to be
domiciled in Florida. The fact that his service duty will take him away from Florida for some
time would not affect the matter, so long as he had this settled intention. The fact that he may be
sent away for a long time did not prevent him from forming the requisite intention of
permanently residing there.56

b) Fugitives from justice

Whether a fugitive can acquire domicile depends on the nature of the offence and its prosecution,
and where the person has been prosecuted, the length of the sentence. A long sentence may
prevent him from making that place his permanent home. With regards to offences that have time
limits, Lindley L.J said in Re Martin57 that in cases of fugitives, an important factor is whether
there is a time limit after which the person may come home. Thus, according to Cheshire, “if the
crime ceases to be punishable or the sentence to be enforceable after a number of years residence
in another country unless fortified by other facts, it does not affect a change of domicile,; but if
the fugitive remains perpetually liable to proceedings then the new place of residence becomes
the new domicile.”58 Thus, the fact that that a person has fled from a particular country is not
conclusive evidence of animus manendi. Other evidence must be given to show that he had an
intention to make that place his permanent home. But where there is evidence that the person in
question is still nursing the desire to go home, this will refute the possibility of an animus
manendi to make the place his permanent home.

c) Political fugitives
A political fugitive does not automatically take the domicile of the place where he has fled to for
there is a possibility that there might be a change of government which may grant him amnesty
and allow him go back home. In De Bonneval v. De Bonneval,59 De Bonneval. a Frenchman left
France because of the French Revolution and stayed in England for 22 years, after which he went
back to France. He kept visiting England and he left a will there. When he died, the validity of
the will had to be decided by the law of his domicile. It was held that De Bonneval had never
abandoned his French domicile. Again, in May v. May,60 a Jew fled from Germany to England in
1938 to escape persecution by the Nazis. His original intention was to move to the United States,
but this was frustrated by the outbreak of war in 1939. By 1941 the idea of going to the United
States of America had gradually faded from his mind. But he declared that he would never go
back to Germany, even if the Nazis were overthrown, it was held that he had acquired an English
domicile of choice from 1942.

d) Fugitives from Creditors

The question is whether the fugitive in question has an intention to make that place his
permanent home. The court may first consider the amount of the debt, the possibility of settling
it, whether the debt has become statue barred, how he has settled in his new home, whether his
family has joined him in the new home, (that is, if he was married). In cases where the debt has
become statute barred, if the person refuses to go back, the court might inquire into the reason

56
Cruickshanks v. Cruickshanks (1959) 1 All ER 889
57
(n 3)
58
(n 4) 147
59
(1838) 1 curt. 856
60
(1943) 2 All ER 149
11
for such refusal. Once the animus manendi is present, the fact that the propositus is an alien who
is liable to deportation does not prevent him from acquiring a domicile of choice. In May’s case
there was a possibility of deportation and where a person already has a domicile of choice, even
if his deportation has been decreed, he does not lose his domicile of choice until such a
deportation order is carried out.61

e) Invalids
In Re James62 a Welsh man was advised by Doctors to live in a warmer climate. He went to
South Africa, secured a job and took an apartment. When he was leaving Wales he told his
friends that he would not return to Wales. He returned for six weeks and told his friends that he
would not return again. He kept this vow but evidence showed that he always said that he would
end his days in Wales and it was also discovered that he had left a small farm in Wales and in his
letters he always referred to Wales as his home. It was held that he had never formed the
intention of making South Africa his domicile of choice. However, in Hoskins v. Matthews63 a
man whose domicile of origin was England went to Florence and lived there (except for three or
four months every year) in a villa he bought until he died 12 years later. He was suffering from
an injury to the spine and left England solely because he thought the warmer climate of Italy
would benefit his health. His Housekeeper deposed that he would have returned to England if he
had been restored to his health. Nevertheless, it was held that he had acquired a domicile in
Tuscany, because he was exercising a preference and not acting on necessity.
The difference between Hoskins and James is that Hoskins made his decision to stay in
Florence out of his free will while James went to South Africa out of compulsion. Also, it is
noteworthy that James had leases of apartments while Hoskins bought a villa in Italy.

Loss of Domicile of choice

A person abandons a domicile of choice in a country by ceasing to reside permanently or
indefinitely and not otherwise.64 It is not necessary to prove a positive intention not to return, it is
sufficient to prove merely the absence of an intention to continue to reside there indefinitely. A
domicile of choice is lost when both residence and the intention necessary for its acquisition are
given up. It is not lost merely by giving up the residence, 65 or merely by giving up the intention.
In the Goods of Raffenel,66 a widow whose domicile of origin was England acquired a French
domicile of dependence by virtue of her marriage. After a long stay in France she boarded a
cross-channel ferry at Calais with the intention of sailing to England to reside permanently.
While the ship was still in France, she fell ill and had to return to land where she died. It was
held that she had died domiciled in France for mere intention without physical departure was not
enough to warrant a loss of domicile of choice.
The burden of proving that a person has changed his domicile of origin rests heavily on
who is asserting that it has changed. Stronger evidence is required to displace domicile of origin
than a domicile of choice.67

61
Cruh v. Cruh (1945) 2 All ER 545
62
(1908) P. 98 LT 438
63
(1855) 8 De G.M & G 13
64
(n 10)
65
Bradford v. Young (1885) 29 Ch. D 617
66
(1863) 3 SW.TR. 49
67
(n 12)
12
Domicile of Dependence
Under Common law as in Nigerian law there are 3 classes of dependent persons as follows:
1. Children: Under Nigerian law a child is somebody who has not attained the age of 18 years.
2. Mentally disordered persons.
3. Married women.
Under English law, however, there are only two categories of dependent persons, namely,
Infants and mentally retarded persons.68
The general rule with respect to dependent person is that their domicile depends on that of
the person upon whom they are legally dependent. Under Nigeria law, in the case of married
women their domicile is that of their husband, any time the domicile of a person changes that of
the dependant also changes. In other words any time the domicile of the dominant person
changes that of the dependant also changes automatically.

Children
A child acquires the domicile of his father, if legitimate and if illegitimate the domicile of the
mother. Also the general rule is that the domicile of legitimate child whose father is deceased is
that of the mother. Where the Infant is a foundling, his domicile will be the place where he was
found.
Thus, the domicile of a child whether legitimate or illegitimate is transmitted to the child
either by the father or mother as the case may be, the child has no choice of his own. The only
exception to the rule that a dependent person has no capacity to change his or her domicile is the
case of females who get married before reaching the age of majority. Where this happens she
may be said to have changed her domicile of dependence by her own choice. The woman’s
decision to marry the man is seen as the exercise of choice.
There is a suggestion that the domicile of dependence of married woman is domicile
imposed on her by marriage and since she probably knows the position of the law that once she
is married she automatically acquires the domicile of her husband, her new domicile is one of
choice and not dependence, since the choice of marriage was her own. While the marriage
subsists the woman cannot change her domicile except she does something to change the
domicile of the husband.69

Where the parents are divorced

Even when the parents are divorced the domicile remains that of the father if legitimate and the
mother, if illegitimate. But it is hereby suggested that where the mother is granted custody her
domicile should be ascribed to the child. Where a mother takes charge of the children after their
father’s death such children remaining under her care, their domicile will follow whichever
domicile she may acquire, provided it is not motivated by a fraudulent intention to defeat
succession laws. When a father dies the children will still bear the domicile of their father
through their mother if she does not immediately change her domicile. However, their mother
may change this domicile if such change is without fraudulent intention. The validity of the
change of the domicile of the children is, thus, subject to the condition that it should not be with
an intention to change the law of inheritance to their disadvantage. Where such a fraud is
detected, their domicile will not change. The children acquire the domicile of her husband which
she acquires upon remarriage. She cannot change the domicile of the children except she changes
68
This is by virtue of the Domicile and Matrimonial Proceedings Act, 1973
69
(n 53)
13
her own. In Re Beaumont,70 Mr. and Mrs. Beaumont were domiciled in Scotland. They had
children all of whom had a Scottish domicile of origin and dependence. Upon the death of Mr.
Beaumont, Mrs. Beaumont remarried and went to live with her new husband in England, taking
all but one of the children along with her. Catherine was left in Scotland with her aunt. She later
attained majority and soon afterwards, died in Scotland. The question was: where was she
domiciled at the time of her death?
The Court of Appeal held that she had died domiciled in Scotland since her mother had
not exercised her power to change her domicile. The court would have answered the question
differently if she had gone along with the others to England.

Illegitimate Children;
The law, which determines whether or not the children are legitimate is that of the place where
they were born. It is possible that a child who was initially illegitimate later became legitimated
by subsequent wedlock. When an illegitimate child is legitimated, the domicile is treated
differently. Some legal systems hold that the child when legitimated is given the father’s
domicile ab initio, while in some other legal systems the domicile of the father is transferred
unto the child from the day of the legitimation. In this instance the domicile of the child will be
one of dependence.

Married Women
By the Domicile and Matrimonial Proceedings Act, 1973, in England, the domicile of a married
woman can now be changed like that of every other adult. 71 At common law a wife takes and
retains the domicile of her husband during the subsistence of their marriage. Even after the death
of her husband she cannot change this domicile unless there is a complete abandonment of the
husband’s domicile. That is, the wife must have stayed clear from the husband domicile, for
mere intention of leaving the place permanently is not enough.72
In Re Scullard,73 the parties were domiciled in England. For 47 years the woman left the
man, and were not living together. On the evidence, the court found that while she was living for
those 47 years she had formed an intention to be domiciled in Guernsey where she was living.
She died six weeks after the death of the husband although she was unaware of the husband’s
death. The House of Lords, upholding the judgments of the lower courts, held that she was
domiciled in Guernsey since she had formed an intention to live there permanently. Her
Guernsey domicile took effect immediately her husband died because she had lived apart from
him during all the years she settled in Guernsey. Even if the spouses are living apart by consent
or are judicially separated,74 even if the husband’s acts are sufficient for divorce, for example, if
the husband deserts the wife and bigamously marries another woman, or if the wife erroneously
believes her husband to be dead and marries another man, or if the husband obtains a divorce
from a foreign court which in the eyes of the English courts lack jurisdiction, the wife’s domicile
will remain that of the husband. The justification for this rule is that under common law the wife
has no independent existence of her own.

70
(1893) 3 Ch. 490
71
See Section 1(1)
72
Re Wallack (1959) 1 All ER 199
73
(1957) Ch. 107
74
A.G. of Alberta v Cooke (1926) AC 444
14
 The dependence of a wife’s domicile on that of her husband is so even where the
marriage is voidable.75

Domicile of Persons of unsound mind

A lunatic child has no capacity. An infant may form an intention to acquire a domicile of choice,
but that domicile does not come into effect until he attains the age of majority. A lunatic cannot
form an intention to change his domicile, thus he retains that which he acquired at birth. Until the
court certifies that he had lucid moments he cannot form the necessary intention to acquire a new
domicile.

Domicile and Personal Law in Nigeria

By virtue of the reception statutes the courts of Nigeria are to apply the rules of common law and
the principles of equity. The implication of this is that all the rules discussed above are
applicable in Nigeria except where they have been judicially or statutorily modified. Local
circumstances are also relevant to the application of the rules of common law and equity in the
Nigerian courts. The fact that the Nigerian society and legal system is different from that of
England places a responsibility on the Nigerian legal system to modify the rules to suit the
requirements of the legal system. In this chapter, we shall examine some ways in which the
Nigerian legal system differs significantly from that of England for which modification has
become necessary.

Customary Law as Personal Law in Nigeria

The concept of domicile as understood in English private international law is not exactly
appropriate in the Nigerian context. This problem is as a result of the fact that in Nigeria,
personal law is more or less equated with tribal or cultural groupings. Nigeria is a patrilineal
society and every child takes the root or personal law of his father, it is immaterial whether he or
she is posthumous as every child is considered legitimate. The cultural group or personal law of
his father is by the operation of the customary law in question attached to the child. Thus, it is
submitted, that both the domicile of origin and that personal law attaches to the child until he or
she is of age (that is 18) and capable of changing the said personal law. The issue as to whether
or not a person of full age and capacity can change his personal law was resolved by the
Supreme Court in Olowu v. Olowu,76 the deceased, Adeyinka Ayinde Olowu was a Yoruba man
by birth, belonged to the Ijesha cultural group. He had lived most of his life in Benin City. He
married Benin women who begot for him all his children who were the plaintiffs and the
defendants in the case. In 1942, the deceased applied to the Omo N’Oba of Benin (the traditional
ruler of Benin Kingdom) to be ‘naturalized’ as a Benin citizen. His application was granted. As a
result of his status as a Benin man, he was able to acquire landed property in Benin City and
elsewhere in the then Bendel State. The deceased died intestate in 1960. The defendants, two of
his children were granted letters of administration to administer the deceased’s estate. The first
defendant distributed the estate in accordance with the Benin customary law but the other
children – the plaintiffs and the 2 nd defendant were dissatisfied and claimed that the estate should
be distributed according to the Ijesha customary law rather than Benin customary law.
Plaintiffs brought an action against the defendants at the Benin High court to inter alia,
set aside the distribution according to the Benin customary law, and for a declaration that Ijesha
75
De Renneville v De Renneville (1948) P. 100
76
(1985) 3 NWLR (Pt 13) 372
15
customary law was the applicable law. They lost at the High Court, the Court being satisfied that
Benin customary was the applicable law. Upon appeal the decision of the High Court was
reaffirmed and the appeal was dismissed. Not being satisfied, the plaintiffs further appealed to
the Supreme Court and lost. The Supreme Court laid down the principle that a person may
change his cultural group, and therefore, his personal law, either by choice or assimilation.
Thus, the issue of succession in Nigeria is not only determined in accordance with the
rules of English law but in the majority of cases customary law is a determinant. The implication
of the decision in Olowu v. Olowu77 is that just as it is possible to change a domicile of choice it
also possible to change personal law under customary law through a process described as
culturalization. This question of personal law under native law and custom is a question of
evidence. It is submitted that when a Nigerian acquires a new personal law in another cultural
group, his children will automatically become members of that group until they change it.

Effect of Federalism on the English concept of Domicile

Apart from customary law, Federalism is also a factor in the application of the rules of domicile
in Nigeria. Nigeria being a federal state, every constituent unit is a law district within the
federation. The implication of this is that with the exception of matters arising under the
Matrimonial Causes Act,78 all other issues of personal law are determined with reference to the
law of a constituent State. Thus, it is possible, for instance, for a person to change his domicile of
origin from Edo State to a domicile of choice in Lagos State or to that of any other State of the
Federation. The rules as we received them from England also make it possible for such a
person’s domicile of origin to revive the moment he abandons his residence in Lagos (with the
relevant animus manendi) until he acquires a new one.
Thus, even if he has no intention of ever staying in Edo State for any part of his
remaining period on earth, he is nevertheless, held to have reverted to his domicile of origin by
the simple fact that he abandoned his domicile of choice for residence in a third state. In Udom v.
Udom79 it was held that a man from the eastern region had become domiciled in Lagos.

The Rule on domicile of Dependence

Local Situations
Under Common Law, the domicile of a wife must be that of the husband, as a domicile of
dependence. But in the Nigerian situation it is submitted that in marriages under the native law
and custom the personal law of the wife does not change with marriage. If H a Benin man
marries W an Ibo, the personal law of W will not change. On death intestate, Ibo customary law
will govern the distribution of her property.

International Situations
In international situations, the recognition of the domicile of dependence by the Nigerian court
was once called into question by the statement of the Court of Appeal in the case of Bhojwani v.
Bhojwani.80

77
ibid
78
Section 2(3)
79
(n 34) 112
80
(1995) 7 NWLR (Pt 407) 349
16
 In that case, the Respondent who was the Petitioner at the High Court was born in
Singapore on the 27th of July 1960, while the Appellant who was the Respondent at the High
Court was born in Nigeria on the 10 th of May 1963. Both parties were Indians. They married in
London on the 15th of July 1987. They had two children. The Respondent registered the marriage
in Singapore within six weeks of the marriage. Problems developed and as a result, the
respondent sent the children to Singapore in mid-1994. The appellant resisted staying in
Respondent’s family house in Singapore and later took the children to London in November
1994. The children were made wards of the court in London. The Respondent later in London
sought to have the two children returned to Singapore. He swore to an affidavit that he had a
permanent attachment to Singapore and that he hoped to make Singapore his permanent home.
His bid to return the children to Singapore failed and the Respondent filed a petition for decree
of dissolution of marriage at the Lagos High Court. On the question of domicile and in proof of
his domicile in Nigeria, he stated thus:
1) The petitioner is employed in Nigeria in the responsible position of company director.
2) The petitioner is responsible for management of business interest and he has remained in
Nigeria since 1979 for both his livelihood and residence without interruption.
3) The petitioner has a settled intention to remain in Nigeria where he presently has his only
permanent residence and where he has established his matrimonial residence after meeting
his wife in Lagos, Nigeria, where she was born, maintained ordinary residence up to
marriage and feels perfectly at home.
4) The petitioner has ordinary right of residence or abode in Nigeria and has no intention for
this to cease.
The Appellant then took issue with Petitioner on the question of the domicile asserted by
him. He brought a motion to have that decided. She contended that petitioner had no
commitment to Nigeria and has never had the intention to stay here indefinitely. She swore an
affidavit in support. Her main thrust as it related to the domicile of the petitioner was that he
leaned decidedly towards Singapore which was his domicile of origin. She deposed that the
petitioner had several properties in Singapore but did not deem fit to own a single property in
Nigeria. The appellant in her affidavit carried some paragraphs of the respondent’s affidavit he
swore in London in December 1994. She later filed same as part of her contention against
respondent’s claim to Nigerian domicile. The respondent admitted swearing and relying on that
affidavit in the London proceedings. In its ruling, the trial High Court held that the respondent
had shown the fact of residence and the necessary animus manendi to remain in Nigeria thereby
holding that he was domiciled in Nigeria. The appellant was dissatisfied with this ruling and she
appealed to the Court of Appeal. Unanimously upholding the appeal, the Court of Appeal held
that “there are strictly two types of domicile viz: a) domicile of origin b) domicile of choice.
There is no separate domicile known as domicile of dependence.”
With due respect, it is submitted that this is a novel development in the Nigerian law of
domicile as there is neither statutory nor prior Nigerian judicial authority in support of this
position. The present state of the law is therefore, to the effect that domicile of dependence is no
longer part of Nigerian law. This differs from the present English position which recognises the
domicile of dependence but now gives married women the right to acquire their own domicile.
To hold that there is no category known as domicile of dependence under Nigerian law is to deny
the common law origins of our private international law rules under which it is recognized that
the domicile of infants and mentally disordered persons is that of dependence. The question one
may ask at this stage is what is now the domicile of a married woman in Nigeria? If it is true that
17
Nigerian law does not recognize the concept of domicile of dependence, then what is the basis
for the creation of a “special domicile” for the deserted wife in order for her to be able to bring a
divorce petition under section 7 of the Matrimonial Causes Act, 1970? 81 Professor Agbede82 has
rightly observed that the justification for the assignment of this special domicile is to enable a
deserted Nigerian woman who is married to a foreign domiciled man gain access to the divorce
jurisdiction of the court while still retaining her husband’s foreign domicile.
The point being made here is that the idea of a domicile of dependence is too well
establish under common law for the Nigerian Court of Appeal in the absence of statutory
modification, to claim ignorance of its existence under Nigerian law. By its decision on the issue
the Court has created a situation in which several lacunae now exists in ascertaining the domicile
of these categories of persons:
a. Married women
b. Infants, and
c. Lunatics.
It must be pointed out that when this matter got to the Supreme Court, the apex court
declined to express any opinion on the issue as to the recognition a domicile of dependence in
Nigeria. It merely stated that that would only constitute an academic exercise which was of no
practical value since the Petitioner had already obtained a decree nissi at the English court. As a
result of this situation, the Supreme Court lost the opportunity to make a categorical statement
with regards to the error committed by the Court of Appeal. However, some other cases decided
after Bhojwani have shown that the domicile of dependence is recognized by Nigerian law.

Succession cases: The adequacy of the common law rules on domicile to Nigeria in succession
cases depends on whether the issue is International or domestic.

International Succession: At Common law the law of the deceased’s last domicile generally
governs succession to his movable property. Therefore, if a Nigerian dies domiciled in Nigeria,
Nigerian law would normally control how their personal assets (bank accounts, chattels,
investments) are distributed. If a Nigerian dies domiciled in another country, then that country’s
law would govern the succession of movables (potentially displacing Nigerian customary or
statutory rules). In colonial times, this rule was applied by Nigerian courts to British expatriates:
e.g. an Englishman dying domiciled in England but with assets in Nigeria would have his estate
administered per English law. Conversely, a Nigerian domiciled in England at death might have
English law govern their movables, which could be problematic if that Nigerian had multiple
wives or other family under custom. Few reported cases deal explicitly with this in Nigeria,
likely because most Nigerians die domiciled in Nigeria itself, and Nigerian courts have primarily
dealt with internal conflicts. However, as more Nigerians emigrate and acquire foreign
domiciles, this could become significant. Suppose a Yoruba man emigrates to the US and
becomes domiciled there, but still owns property in Nigeria. If he dies intestate, an American
court (and by extension a Nigerian court through recognition) would treat US law as governing
his personal estate (including Nigerian bank accounts), which might result in a distribution very
different from Yoruba customary law or Nigerian statutes. Nigerian courts would generally

81
Cap M7 LFN 2004
82
(n 6) 64
18
respect that under conflict of laws, unless it contravenes public policy. This illustrates that
domicile can fundamentally alter whose inheritance rules apply.

Internal Conflicts – Customary vs Statutory Succession: The situation at the domestic level is
very different. The courts have taken cognizance of the fact that the concept of personal law in
the English legal system which basically equates with domicile is a wider concept within the
Nigerian context, as it could refer to a person’s ethnic law or his religious law. Most contentious
issues in succession revolve around whether the estate of a deceased is governed by customary
law or by statutory law (often the Marriage Act and Administration of Estates Law). In Cole v
Cole83 it was held that a person who contracted a marriage under the Marriage Act (a Christian
monogamous marriage) would have the English-type statutory law apply to his estate, whereas a
person married under native law and custom would have customary law apply. In that landmark
case, a Yoruba man married statutorily; when he died, the court held that English law (which
allowed the widow to inherit) applied, rather than Yoruba customary law that could have
excluded the widow. This was a milestone in protecting widows’ rights, effectively using
marriage as the determinative factor for applicable succession law. Domicile in the technical
sense did not decide Cole – one might say he died domiciled in Colonial Nigeria regardless – but
by choosing a statutory marriage, he was deemed to have submitted to English personal law (the
“lex domicilii” being treated as English law for a Christian marriage). Subsequently, cases like
Smith v Smith84 and Suberu v Sunmonu85 were decided in accordance with the principle that a
marriage under the Act “changes the personal law” of the parties for inheritance, thus
superseding ethnic customary law.

In cases where the person was not married under the Act, the colonial courts typically applied the
customary law of the person’s ethnic group or community, on the basis of the person’s paternal
lineage (domicile of origin in a sense). This could yield results akin to saying the person’s
domicile in the sense of tribal origin determines their succession law. For example, an Igbo man
who has lived all life in Lagos (who was not married under statute) might still have Igbo
customary law govern his estate upon his death intestate, because he is regarded as belonging to
that community. In conflict terms, one might describe that as the lex domicilii being the
customary law of his people. However, because all were domiciled in Nigeria, the courts actually
spoke in terms of personal law rather than domicile. This was the position until the Supreme
Court decision in Olowu v Olowu, which has been discussed above.

Inadequacy of English Rules to the Nigerian Situation –The Revival Doctrine

Before concluding this chapter, it must be pointed out that one thing which comes out clearly
from this essay is the fact that Nigerian law on the determination of personal law is not a replica
of the English position even though she acquired the rules on domicile from England. 86 The
socio-political structure of Nigeria greatly differs from that of England, hence, the concept of
domicile as received from English law cannot adequately meet the needs of our legal system.
The Federal principle as operated in Nigeria provides a fundamental departure from the English
legal system – so fundamental that the rules of English conflict of laws can only operate based

83
(1898) 1 NLR 15
84
(1924) 5 NLR 98
85
(1957) LLR 8
86
See Section 32 of the Interpretation Act, Cap. I23 LFN 2004
19
on the recognition of this fundamental difference and an adaptation of the rules to local
circumstances.87 With regards to the issue of domicile, the applicable rules in Nigeria must be
broken down to two different levels and in examining the adequacy and sustainability of the
revival doctrine, and these two levels need to be examined separately as follows:

(a) Inter – State situations:

In this regard it is necessary to state that by reason of the following under listed reasons there is
need for the Nigerian position to be reformed especially with regards to the doctrine of the
revival of the domicile of origin.
1. The needs of national integration presently demand that Nigerians should feel at home
anywhere they choose to make their permanent abode. There should be a judicial
acknowledgement of this imperative.88 Doing otherwise would be tantamount to a
strengthening of the primordial sentiments that tend to divide rather than unite. Thus, the
rigidity of the revival doctrine must be tempered in order to make room for situations in
which the propositus has a clear intention never to return to his domicile of origin, and
allow him to be domiciled in the State with which he is most closely connected.
2. At independence, Nigeria had a three - region structure. This was increased to four in
1963 and further broken down into twelve States in 1967. Between 1976 and 1995, a
thirty-six State structure (as well as a Federal capital territory) emerged. This instability
in the geopolitical configuration of Nigeria certainly has implications for the conflict of
laws, especially with regards to the law of domicile and its attendant doctrine of revival.
We can illustrate a likely problem that arises thus:

X was born in 1960 of parents domiciled in the Western Region of Nigeria. As at

the time of his death in 1999, the old Western Region had been divided into six
states. How do we locate his domicile of origin? If in the course of his life he had
acquired a domicile of choice in some other part of the country but had abandoned
it to settle elsewhere, how do we locate his domicile of origin in order for the
revival doctrine to apply?

The problem of locating X’s domicile in these circumstances is borne out of the fact that
domicile relates to Countries and States and not to localities within Countries and States.
As a result of this kind of problem and the hardship it will produce, it is suggested herein
that the element of intention (animus manendi), which is relevant for the acquisition of a
domicile of choice, should also be made relevant for the revival doctrine to be effected. Where
the propositus has abandoned his domicile of choice but does not have the intention of reverting
to his domicile of origin, the rule in Udny v. Udny89 should not be applied to hold that his
domicile of origin revives. The level of fluidity in settlements that existed in the time of Lord
Westbury (the nineteenth century) is certainly nothing compared to that of today. This should be
a guiding consideration.

(b) International Situations:

87
ibid
88
See I.O. Agbede’s comment on Udom v. Udom (1962) L.L.R. 112 (n 6) 52
89
(n 10)
20
The problems associated with the revival doctrine are even more serious in international
situations than in inter-state situation. This is because in many subjects, the laws of many States
in Nigeria are quite similar if not identical and so the result of ascribing the ‘wrong’ doctrine to a
person may not be as problematic as what mostly obtains in international situations where the
diversity is much more manifest. The need, therefore, arises to ensure that a person is not
ascribed a personal law with which he has no factual connection whatsoever. Criticising the rules
on domicile of origin and the revival doctrine, the Commonwealth Law Bulletin90 declares,

Another unsatisfactory feature is the technical rule that a person’s domicile of

origin automatically revives whenever he abandons his domicile of choice without
immediately acquiring another one. This rule (“the revival rule”) can produce
absurd results when a person has never had any connection with the country of his
domicile of origin. For example, a person born in England to parents domiciled in
India would acquire an Indian domicile of origin although he may never in the
course of his life set foot in that country. If when he died, he had abandoned his
current domicile, his Indian domicile of origin would revive and his moveable
estate would be distributed according to Indian Law, though he had never been
there.91

In recognition of this problem, the English and Scottish Law commissions recommended
the abolition of the revival doctrine.92 Furthermore, they have suggested that a new rule to the
effect that an established domicile continues until the acquisition of a new one should replace the
former rule as enunciated in Udny v. Udny93 and the other cases on the point. These
recommendations have now been adopted in England.
It is submitted that this suggestion by the Law Commissions is the right way forward in
the twenty-first century and the Nigerian Courts should adopt it, especially in international
situations.

90
January 1988, 341; See also July 1985, 951-952
91
ibid
92
ibid
93
(n 10)
21