10.6092/issn.2531-6133/15830
Significant strides have been made in efforts to facilitate the resolution of international disputes in Africa. However, cross-border issues that concern private litigants have remained challenging. One major reason is the legal history of relevant countries which often makes it difficult to contextualize legal principles inherited before independence. It is sometimes unclear how African courts determine the current law and how their discretionary powers should be used. This challenge is complicated where scholars focus on what they consider that the law ought to be without first accepting what the law is. Any sustainable growth of private international law requires a systematic approach to legal developments. Using the main comparators of South Africa and Nigeria, this article examines the connections between legal traditions and the legal methods that are required to ensure that there is a sustainable development of private international law in Africa. The core enquiry is set on a tripartite structure. Law in context, fidelity to context and functionalist approaches are essential elements that should drive the resolution of disputes in private international law matters. A dominant theme is how the recognition and enforcement of foreign judgments should be examined through appropriate interpretational mechanisms.
application/pdf
2531-6133
15830
2
en
Pontian Okoli
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Foreign Judgments
Former British Colonies: The Constructive Role of African Courts in the Development of Private International Law
Text.Serial.Journal
https://bolognalawreview.unibo.it/
7
Articles & Essays
2022-11-22
2022-11-22
2022-11-22
2022-12-13
113-146
UBLR
Pontian Okoli
2022/11/22
10.6092/issn.2531-6133/15830
113
University of Stirling
2531-6133
2
Foreign Judgments
en
146
Former British Colonies: The Constructive Role of African Courts in the Development of Private International Law
https://bolognalawreview.unibo.it/article/download/15830/14916
7
llVOLUME 7                                    llISSUE 2                        ARTICLES & ESSAYS



                           UNIVERSITY OF BOLOGNA LAW REVIEW
                           https://doi.org/10.6092/issn.2531‐6133/15830

            Received: 14 Feb. 2022 | Accepted: 31 Mar. 2022 | Published: 22 Nov. 2022

                                                   A
   Former British Colonies: The Constructive Role of African
    Courts in the Development of Private International Law

                                           PONTIAN OKOLI
Dr Pontian Okoli, PhD and LLM from the University of Dundee (Scotland), is a lecturer in Private
International Law and Commercial Law at the University of Stirling (Scotland). He is a Barrister
and Solicitor, his practice being mainly focused on international commercial/corporate dealings
and investment risks. He has also published in several areas of law, including a special focus on
Private International Law, International Commercial Law, and how access to justice concerns such
areas.

 @ pontian.okoli@stir.ac.uk
  ID
       0000-0003-2704-4161

                                              ABSTRACT
Significant strides have been made in efforts to facilitate the resolution of international disputes
in Africa. However, cross-border issues that concern private litigants have remained challenging.
One major reason is the legal history of relevant countries which often makes it difficult to
contextualize legal principles inherited before independence. It is sometimes unclear how
African courts determine the current law and how their discretionary powers should be used.
This challenge is complicated where scholars focus on what they consider that the law ought to
be without first accepting what the law is. Any sustainable growth of private international law
requires a systematic approach to legal developments. Using the main comparators of South
Africa and Nigeria, this article examines the connections between legal traditions and the legal
methods that are required to ensure that there is a sustainable development of private
international law in Africa. The core enquiry is set on a tripartite structure. Law in context,
fidelity to context and functionalist approaches are essential elements that should drive the
resolution of disputes in private international law matters. A dominant theme is how the
recognition and enforcement of foreign judgments should be examined through appropriate
interpretational mechanisms.


                                             KEYWORDS
           Comparative Law; Legal Context; Common Law; Judicial Discretion; Foreign Judgments




                                                  113
           FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


                                             TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   114
1. The Paradox of Legal Existence . . . . . . . . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   118
        1.1. What Common Law? . . . . . . . . . . . . . . . . . . . . . . . . .               .   .   .   .   .   .   .   .   120
        1.2. Threshold for Automatic Application of the English Common Law                    .   .   .   .   .   .   .   .   122
2. The Paradox of Legal Interpretation . . . . . . . . . . . . . . . . . . . . . .            .   .   .   .   .   .   .   .   123
        2.1. A Nigerian Perspective . . . . . . . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   124
        2.2. A South African Perspective . . . . . . . . . . . . . . . . . . . . .            .   .   .   .   .   .   .   .   128
3. The Importance of Judicial Discretion . . . . . . . . . . . . . . . . . . . . .            .   .   .   .   .   .   .   .   134
4. Potential for Contradictions . . . . . . . . . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   141
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   145




      INTRODUCTION

Generally, national laws cannot be divorced from the history and legal development of
jurisdictions within which such laws exist.1 Laws are in many cases not purely
autochthonous,2 and private international law cannot be divorced from relevant
interactions with public international law.3                    In this regard, a distinction between
imperialism and colonialism has its merits because both concepts have shaped African
legal developments in different ways.4 Imperialism may be understood in an industrial
and capitalist context, while colonialism may be expressed in a more political sense. In
the nineteenth century context of international law in Africa, it was persuasively argued
that British protectorates did not distinguish between imperialism and colonialism even
though both were different.5 The British focused on “stability, tax revenue, and the flow
in inter-colonial and transitional commerce” but adopted a more flexible approach in
matters of culture and religion.6

1
  Knop, Michaels and Riles argued that “many conflicts problems are, in one way or another, a product
  of histories or present-day forms of colonization”. See Karen Knop et al., Transdisciplinary Conflict of Laws
  Foreword, LAW & CONTEMP. PROBS., 2008, at 1, 12. (discussing the importance of colonial laws on conflicts
  problems).
2
  See Friedrich K. Juenger, American and European Conflicts Law, 30 AM. J. COMP. L. 117 (1982), (arguing that U.S.
  conflict of laws developed into “an indigenous crop of conflicts law and literature”).
3
  Knop et al, supra note 1, at 12. María Julia Ochoa Jiménez, Conflict of Laws and the Return of Indigenous Peoples’
  Cultural Property: A Latin American Perspective, 26 INT’L. J. CULT PROP. 437, 438 (2019).
4
  Especially by European countries which colonized about ninety percent of Africa.                          Ethiopia
  successfully resisted colonialism, although occupied by Italy for half a decade. Free blacks in
  the U.S. were resettled in Liberia. 10 Countries Who Were Never Colonized by Europeans, WORLD ATLAS,
  https://www.worldatlas.com/articles/10-countries-who-were-never-colonized-by-europeans.html (last
  visited Sept. 7 2021); Founding of Liberia, 1847, OFFICE OF THE HISTORIAN (U.S. DEPARTMENT OF STATE)
  https://history.state.gov/milestones/1830-1860/liberia (last visited Sept. 7, 2021).
5
  See James Thuo Gathii, Imperialism, Colonialism and International Law, 54 BUFFALO L. REV. 1013, 1014 (2007).
6
  See John R. Schmidhauser, Legal Imperialism: Its Enduring Impact on Colonial and Post-Colonial Judicial Systems, 13
  INT’L. POL. SCI. REV. 321, 323 (1992) (discussing how the British adopted different approaches depending on
  the end sought).
                                                        114
2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 7:2


Imperialism and colonialism have had distinct influences on legal developments in
Africa. For example, the Portuguese engaged in international commerce in parts of
Africa long before the British and French, who were the predominant colonial powers in
Africa.7 While the former decided to focus on international commerce,8 the latter went a
step further to make political decisions in favor of their colonial conquests. However,
even in the Portuguese context, the colonialists were involved in military campaigns
usually only to promote their commercial interests in West Africa.9 It may be suggested
that in the context of national laws in Africa, colonialism usually involved some form of
imperialism while imperialism did not necessarily lead to colonialism.10                                   Thus,
Portuguese law is not a part of Nigerian jurisprudence despite Portuguese commercial
activities. By contrast, the English common law was introduced and gained traction in
Nigeria and South Africa (the latter to a limited extent) because of the colonial
approaches adopted in both countries.11 This illustrative context is important because
the development of transplanted law is interwoven with the need for its establishment
and the functions that it serves.12 Conscious decisions have been pivotal in shaping the
legal development in former colonies.                    Legal history, development and conscious
decisions extend to private international law, including the recognition and enforcement
of foreign judgments, which have gained renewed attention partly due to the Hague
Judgments Convention.13
           Considering legal traditions, the central question is what legal methods are
required to ensure that there is a sustainable development of private international law in
Africa. This question is significant because it is foundational and there is no clarity on
how legal development should take place in an area of law that has practical
implications. The nature of private international law suggests that comparison during
legal development is often inevitable - a point more self-evident in the alternative term

7
   See The Portuguese had already traversed West Africa in the fifteenth century. See J. Okoro Ijoma, Portuguese
   Activities in West Africa before 1600 The Consequences,11 TRANSAFRICAN J. HIST. 136 (1982).
 8
   Also inspired by “the crusading spirit and the scientific enquiry” see id. For an insight into “the days of the
   Lagos market in the fifteenth century”, see Eduardo Moreira, Portuguese Colonial Policy, 17 J. INT’L. AFR. INST.
   181, 185 (1947), (describing trade in the Lagos area at the time).
 9
   For example, the Portuguese helped the Oba of Benin to “ward off a strong threat” through supply of firearms
   and direct involvement. See Ijoma, supra note 7, at 145.
10
   Unlike the West African context, the Portuguese adopted a colonial power status in areas that include today’s
   Mozambique and Angola. See Moreira, supra note 8, at 185.
11
   E.g. British conquest in South Africa. See BEAT LENEL,THE HISTORY OF SOUTH AFRICAN LAW AND ITS ROMAN DUTCH
   ROOTS 10 (2002).
12
   See Mathias Reimann, Comparative Law and Neighbouring Disciplines, in THE CAMBRIDGE COMPANION TO
   COMPARATIVE LAW 13, 23-24 (Mauro Bussani & Ugo Mattei eds., 2012).
13
   Hague Conference on Private International Law, Convention on the Recognition and
   Enforcement of Foreign Judgments in Civil or Commercial Matters, July 2, 2019,
   https://www.hcch.net/en/instruments/conventions/full-text/?cid=137.



                                                       115
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


“conflict of laws”.14 Legal development has necessitated the evolution of laws generally,
but this is particularly so for private international law in Africa because of colonial
influences. This evolution has presented some challenges and contradictions in some
former British colonies including Southern and West Africa. With a primary focus on
South Africa and Nigeria, this article articulates such challenges and contradictions in
two main categories: “the paradox of legal existence” and “the paradox of legal
interpretation”. A major argument is that there are two emergent schools of thought
concerning both categories of paradoxes. First, with respect to the existence of law, legal
commentary and even case law suggest that there is some conflict between the evidence
of absence and the absence of evidence.15 In other words, whether laws cease to exist
merely because scholars or even courts do not mention them. Second, with respect to
legal interpretation, there are significant concerns as to how relevant private
international rules should be interpreted. For example, it is sometimes unclear what
approach to legal interpretation should be applied.
           Nigeria and South Africa are important jurisdictions for several reasons,
including economic and political ones. For the purposes of this article, South Africa is
also strategic because it has inspired calls for the “common law” to promote the
development of private international law.16 The recognition and enforcement of foreign
judgments constitute a paradigm in this regard. Conventional wisdom suggests that a
comparative approach is essential in private international law matters. For example, the
laws of a Commonwealth African country may be compared with the English common
law, considering former British colonialism. Also, the laws of such a country may be
compared with those of other African countries or other parts of the Commonwealth.
However, comparative approaches that do not factor in the contexts in which the
relevant laws exist have created a gap from which significant challenges in dealing with
the paradoxes of legal existence and legal interpretation follow. Not only is there
considerable legal uncertainty, but there is also a questionable approach to sustainable
legal developments, especially since scholars at times have different views on what the
law is. It is a significant concern that scholars are sometimes divided as to what the law



14
   See Arthur Taylor von Mehren, The Contribution of Comparative Law to the Theory and Practice of Private
   International Law, 26 AM. J. COMPAR. L. 32, 33 (1978).
15
   Various fields have contained examples of the evidence of absence/absence of evidence dichotomy over
   centuries. But the presumption of innocence in law is a classic exception to the requirement of evidence.
   For a multi-disciplinary context, see Efraim Wallach, Inference from Absence: The Case of Archaeology, PALGRAVE
   COMMC’N, 2019, at 1.
16
   See Muyiwa Adigun, Enforcing ECOWAS Judgments in Nigeria through the Common Law Rule on the Enforcement of
   Foreign Judgments, 15 J. PRIV. INT’L L. 130, 161 (2019); see also Richard Frimpong Oppong, The High Court of Ghana
   Declines to Enforce an ECOWAS Court Judgment, 25 AFR. J. INT’L COMPAR. L. 127, 132 (2017).


                                                        116
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:2


is rather than what it should be. There are also implications for other African countries,
especially former British colonies.
           This article examines such paradoxes by using the recognition of foreign
judgments as the main subject. This subject also highlights a major question: the extent
to which an aspect of private international law (for example, foreign judgments) can be
interpreted as inextricably connected with the law. Comparative insights may be sought
but, generally, private international law is a part of domestic law and national
approaches thereto may differ.17 Colonial legal history and the peculiar challenges or
experiences of countries require a contextual approach which is often missing in
practice.18 Thus, an overarching argument in this paper is that a tripartite contextual
approach is necessary. First, a “law in context” approach requires an examination of the
“special problems a legal order faces at a given time in its history”.19 Second, a “fidelity
to context” approach requires “the analysis of particular institutions and social spheres”
vis-à-vis the appropriateness of rules and procedures.20 “Legal rules and judgments” also
require adaptation to ensure “effectiveness, fairness as well as efficiency”.21 Third, a
functionalist approach considers how “functions can serve as an interpretive
cross-systemic perspective” in understanding different laws and in developing
knowledge of legal rules and institutions.22                       To ensure legal comparison that is
underpinned by a contextual approach, African courts should first determine and accept
the current law as the law. This approach is critical to ensuring legal comparison that
factors in contextual differences. Second, there should be a clear understanding of the
courts’ discretionary powers to amend the law. Third, courts need to decide how they
want to use such powers. In all cases, there are several layers of context to be considered
as African countries continue the journey of legal development in a sustainable manner.




17
   The Hague Conference is mandated to “work for the progressive unification of the rules of private
   international law”. See Statute of the Hague Conference on Private International Law art 1, adopted Oct.
   31, 1951 (entered into force July 15, 1955). Many African countries are not members of the Hague Conference
   including Nigeria. South Africa is a member.
18
   For insights into the approach, see O. Kahn-Freund et al, Reflections on Public Policy in the English Conflict of
   Laws, 39 TRANSACTIONS GROTIUS SOC’Y 39, 48 (1953); WALTER WHEELER COOK, THE LOGICAL AND LEGAL BASES OF THE
   CONFLICT OF LAWS 457-58 (1942); Ronald J. Daniels et al., The Legacy of Empire: The Common Law Inheritance and
   Commitments to Legality in Former British Colonies, 59 AM. J. COMPAR. L. 111, 115 (2011); Mark van Hoecke and
   Mark Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine: Towards A New Model for Comparative Law,
   in LEGAL THEORY AND THE LEGAL ACADEMY 495, 496-7 (1998).
19
   Philip Selznick, Law in Context Revisited, 30 J. L. SOC’Y 177, 180 (2003).
20
   Id. at 181.
21
   Id.
22
   See Ralf Michaels, Explanation and Interpretation in Functionalist Comparative Law - a Response to Julie de Conick,
   74 RABEL J. COMPAR. INT’L PRIV. L. 351, 357 (2010).


                                                         117
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


Drawing on these major thematic aspects, this article concludes that sustainability in
this regard requires African courts to take control of legal developments in a deliberate
manner. The foundational task is to consider what laws exist.




       1. THE PARADOX OF LEGAL EXISTENCE

It may appear basic to find out what laws apply, but this inquiry can be complex
especially in a private international law context.23 It is not always easy to draw a neat
distinction between what the law is and how it is interpreted. This is also because
judicial interpretation of the law represents the law in many cases. The difficulty in
determining legal existence will be mainly illustrated through two jurisdictional bases
for the recognition and enforcement of foreign judgments: domicile and mere presence.
           Traditionally, persons are domiciled where they have their “permanent home”,24
although important modifications were introduced as the traditional meaning could
affect those who have never been in a forum.25 Mere presence implies that defendants
may be served with court documents such as a writif they are physically present in the
foreign jurisdiction.26            Unlike other jurisdictional bases such as submission and
residence, domicile and mere presence have proven to be divisive among courts and
scholars. For example, it was argued that “under the current common law regime in
Nigeria, South Africa, and many other African countries, only presence, residence and
submission qualify as indirect bases of jurisdiction – no other basis of jurisdiction
utilized by the foreign court, including service out of the jurisdiction, matters”.27 This
argument means that domicile is not a ground of indirect jurisdiction in South Africa,
but the case law clearly points to the contrary. In Government of the Republic of Zimbabwe v
Fick [hereinafter Fick],28 the South African Constitutional Court (the highest appellate
court) observed that:
             The principles recognised by our law with reference to the
             jurisdiction of foreign courts for the enforcement of judgments
             sounding in money are: 1. at the time of the commencement of the
             proceedings the defendant [. . .] must have been domiciled or

23
   Larry Kramer, More Notes on Methods and Objectives in the Conflict of Laws, 24 CORNELL INT’L L. J. 245, 247 (1991).
24
   See Whicker v. Hume (1858) 7 H.L.C. 124 (H.L.).
25
   Civil Jurisdiction and Judgments Act 1982 § 41(2)-(6) (UK.), considering the EU Brussels regime.
26
   Also called causal, temporary, or transient presence.
27
   Richard Frimpong Oppong, The Dawn of the Free and Fair Movement of Foreign Judgments in Africa? 16 J. PRIV.
   INT’L L. 575, 580 (2020).
28
   Government of the Republic of Zimbabwe v. Fick 2013 (5) S.A. (C.C.) at 325 (S. Afr.).
                                                         118
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:2


             resident within the State in which the foreign court exercised
             jurisdiction; or 2.          The defendant must have submitted to the
             jurisdiction of the foreign court.29
Some other authors have, however, conceded that domicile is a ground of indirect
jurisdiction even though they have also argued that domicile should be rejected.30 There
is merit in this approach of first accepting what the law is. This is also a good example of
the tensions that sometimes exist between what the law is and perceptions of what the
law ought to be. Relevant legal developments in South Africa have inspired considerable
literature on how the common law can be used to further the recognition and
enforcement of foreign judgments.31                   However, as this article will argue, Fick itself
illustrates the contradictions that can emerge if the current law is glossed over or
omitted. It is a different matter altogether what judges may want to do regarding the
laws that exist considering any powers that they may have to exercise discretion.
           There is a question as to why there may be a difference of opinion regarding
what the law is. This is a crucial issue because the contestations should be more about
how the law is applied or what the law ought to be. One major reason for this complex
reality is the making of legal comparisons without contextualization. For example, it
may be considered that South Africa and Nigeria are members of the Commonwealth,
and therefore they should take similar or even the same positions on the same issues.32
This is not necessarily the reality, as this article argues, and it is critical to examine when
such laws may differ. There are two major justifications for examining the common law.
First, both South African and Nigerian private international law regimes include the
common law. Second, both regimes do not apply the common law in the same way.




29
   Id. para. 38. See also Purser v. Sales 2001) (3) S.A. 445 (S.C.A) paras 8-13 (S. Afr.); for a confirmation of the
   legal position: Cf. Maschinen Frommer v. Trisave Engineering & Machinery Supplies (Pty) Ltd. 2003 (6) S.A. at 69
   (C.P.D.) at 73 (S. Afr.) the argument that the latter is of no help because jurisdiction was not before the court.
   See Andrew Moran & Anthony Kennedy, When Considering Whether to Recognize and Enforce a Foreign Money
   Judgment, Why Should the Domestic Court Accord the Foreign Court International Jurisdiction on the Basis that the
   Judgment Debtor Was Domiciled There? An Analysis of the Approach Taken by Courts in the Republic of South Africa,
   16 J. PRIV. INT’L L. 549, 556 (2020).
30
   See Moran and Kennedy id. at 549.
31
   See Adigun; Oppong, supra note, at 16.
32
   E.g., South Africa joined in 1931 and Nigeria in 1960 – both upon removing the vestiges of British rule:
   Member Countries, THE COMMONWEALTH, https://thecommonwealth.org/member-countries (last visited Sept.
   18, 2021).


                                                        119
           FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


     1.1. WHAT COMMON LAW?

The English common law “was essentially autochthonous, based on known rule and
familiar practice. It owed very little to Roman law”.33 A distinctive feature of the English
common law is that “it is to be found not in codes, treatises, statutes or learned
compilations but in the decisions of the judges on the particular facts of particular cases
argued before them, and in the body of precedent built up over the years”.34 The generic
reference to “the common law” outside the judicial context of England has increasingly
led to the assumption that any reference to “the common law” is the English common
law. There may be a different understanding with respect to the “common law” and
“English common law especially where the later had limited influence35 and some
former British colonies.36 There has also been an emergent understanding of how the
“common law” may evolve in uniquely local contexts.37 The different evolutions of the
common law were not unique to Africa. In the United States [hereinafter U.S.], there was
no “federal common law”.38                 States were to apply the common law as “altered,
interpreted, or preserved by the state courts”.39 This does not mean that patterns did
not emerge, but such patterns were preceded by an adaptation of the common law to
particular contexts.40 Thus, it is a question of fact whether the development of the
common law in former colonies can or should be uniform.
           The possibility of developing “a Nigerian common law” was considered shortly
after Nigeria attained independence.41 This was so considering that Nigeria received the
English common law in force in England with a cut-off date of the 1st of January 1900.42
This substantive reception of English law is objective.                       In other words, as will be
demonstrated shortly, the reception of the English common law is determined by set

33
   RAOUL C. VAN CAENEGEM, THE BIRTH OF THE ENGLISH COMMON LAW 91 (2nd ed. 1988). This law is “so different”
   from the “common learned law of the European universities” See id. at 88.
34
   Thomas Bingham, The future of the Common Law, 18 CIV. JUST. Q. 203, 208 (1999). See also Robert L.A. Goff, The
   Future of Common Law, 46 INT’L. COMPAR. L. Q. 745, 748 (1997).
35
   See, e.g., Scotland. Smith argued that “one result of the consequent hostility [there were intermittent wars
   over centuries] between the two countries was a certain revulsion in Scotland against English methods,
   including those of English law”. Thomas B. Smith, English Influences on the Law of Scotland, 3 AM. J. COMPAR. L.
   522, 523 (1954).
36
   Such as South Africa which is a mixed jurisdiction.
37
   For a detailed analysis of case law on the need for a “Malaysian common law” see, e.g., Tun A.H. Mohamad &
   Adnan Trakic, The Reception of English Law in Malaysia and Development of the Malaysian Common Law, 44 COMMON
   L. WORLD REV. 123 (2015).
38
   Morris L. Cohen, The Common Law in the American Legal System: The Challenge of Conceptual Research, 81 LAW
   LIBR. J. 13, 22 (1989).
39
   Id.
40
   See Lauren Benton & Kathryn Walker, Law for the Empire: The Common Law in Colonial America and the Problem
   of Legal Diversity, 89 CHICAGO-KENT L. REV. 937 (2014).
41
   For a detailed analysis of this issue, see A. N. Allot, The Common Law of Nigeria, INT’L. COMPAR. L. Q. (1965).
42
   See id. at 38.


                                                       120
2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 7:2


legal parameters. The need for a contextual approach to the English common law is
illustrated by the evolution of the law in two West African countries that had similar
colonial experiences, but significantly different approaches on approaching the English
common law. On the one hand, after the attainment of independence, the Ghanaian
legislator stated that “in deciding upon the existence or content of a rule of common law
[. . .] the Court may have regard to any exposition of that rule by a court exercising
jurisdiction in any country”.43 On the other hand, the Nigerian legislator stated that
subject to Nigerian federal law and competence, “the common law of England and the
doctrines of equity, together with the statutes of general application that were in force
in England on the 1st of January 1900” shall apply in Nigeria.44 This legal provision is
consistent with a legal analysis provided just after Nigeria attained independence.45 The
different legislative approaches to the English common law by the two countries, Nigeria
and Ghana, having very similar colonial experiences is a cautionary tale for a
non-contextual approach to comparative analysis.
           Unlike the Nigerian context, the South African common law has been long
established. The British maintained the Roman-Dutch law as the common law of the
Cape Colony.46 This was later extended to the whole of the British Dominion which
would become South Africa. The English common law complemented the Roman-Dutch
law.47 The South African common law encompasses South African judicial decisions but
is also shaped by treatises of Roman-Dutch jurists as well as commentaries on Roman
law.48 This context is important because it will be demonstrated how, unlike Nigeria, the
South African courts historically have not only had a more limited scope to apply the
English common law but also had a wider berth to develop the South African common
law. It is necessary to consider whether there is any scope for an automatic application
of the English common law.




43
   Ghanaian Interpretation Act (1960) § 17(4). This was passed into law in 1960 but remained in the law after
   several amendments over decades. In a 2009 version of the Act, there were detailed provisions on how to
   deal with statutes of general application including “requisite alteration, modification or adaptation so as to
   make that statute or instrument applicable to the circumstances”. See § 11(2) of the 2009 version.
44
   See Nigerian Interpretation Act § 32(1). Cf. §32(3) of the Nigerian Interpretation Act that any such alteration
   should not affect the substance.
45
   See Allot, supra note 41, at 37-88.
46
   See Lenel, supra note 11, at 9.
47
   See Elspeth Reid, Mixed but not Codified: The Case of Scotland, in THE SCOPE AND THE STRUCTURE OF CIVILE CODES
   343 (Julio César Rivera ed., 2013).
48
   Customary law featured much later (centuries after the establishment of the Cape colony) and even then
   was subject to Roman-Dutch law and did not apply to foreign judgments. See Lenel, supra note 11; see also
   JOAN CHURCH ET AL., HUMAN RIGHTS FROM A COMPARATIVE AND INTERNATIONAL LAW PERSPECTIVE 58 (2007).


                                                       121
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


     1.2.      THRESHOLD FOR AUTOMATIC APPLICATION OF THE ENGLISH
     COMMON LAW

Legal history suggests that the need for a contextual application of the English common
law is sometimes glossed over. Even when appeals still lay to the Privy Council in certain
jurisdictions, the Privy Council could decide that a jurisdiction was entitled to a legal
development different to that of the English common law. In Australian Consolidated Press
Limited v. Uren [hereinafter Uren],49 the Australian High Court had to determine whether
the law with respect to libel developed in Australian law should be changed considering
Rookes v. Barnard.50 The House of Lords was more concerned about whether such law had
developed “by processes of faulty reasoning” or “founded upon misconceptions”.51
Otherwise, as the Privy Council observed, the focus should be on whether the policy of
the relevant law “calls for decision and where its policy in a particular country is
fashioned so largely by judicial opinion”.52                 The Privy Council concluded that the
Australian High Court could not be faulted in its view that a change in approach was
desirable. Uren is not a conflicts case but had clear implications for the development of
the English common law in former colonies. This liberal approach was taken when the
Privy Council had force in a former colony, to say nothing of when that appellate power
and default uniformity had ceased.53 In the absence of the Privy Council having powers
in any former colony, as this article will argue, it is difficult to accept any premise that
the current English common law should automatically apply to such a former colony.54
The roles of private and public international law are complementary but should not be
conflated.
            The relationship between comparative law and private international law is
“much more complicated” than that between comparative law and public international
law.55 It is critical to understand and develop rules of private international law within
appropriate contexts.56            This deliberate approach requires an acknowledgment of
existing laws, not an obfuscation or rationalization. The trouble with not acknowledging
existing rules of private international law is that mere disapplication of laws does not
necessarily help to develop the jurisprudence. However, laws that are acknowledged but
49
   See Australian Consolidated Press Ltd. v. Uren (1969) 1 A.C. 590 (P.C.) (appeal taken from Australia).
50
   See Rookes v. Barnard [1964] (H.L.), [1964]A.C. 1129.
51
   Australian Consolidated Press Ltd. v. Uren (1969) 1 A.C. 590 (P.C.) (appeal taken from Australia).
52
   Id.
53
   Australia stopped appeals to the Privy Council only in 1986, decades after Nigeria had done so.
54
   Exceptions include the U.K.’s overseas territories etc.                     See THE PRIVY COUNCIL OFFICES,
   https://privycouncil.independent.gov.uk/privy-council/committees/ (last visited Sept. 10 2021).
55
   See George A. Bermann et al., Comparative Law: Problems and Prospects, 26 AM. UNIV. INT’L. L. REV. 935 (2011).
56
   Writing in the context of “choosing” laws, Symeonides argued that an “intelligent choice” was predicated
   on knowledge. See the arguments of Symeonides in response to George Berman et al. at 263.


                                                      122
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                          [Vol. 7:2


consciously disapplied do potentially help to develop the jurisprudence where legal
guidance or jurisprudence is lacking or scanty. If modern rules of private international
law should be interpreted within appropriate contexts,57 then it is also necessary to first
understand other rules of private international law in their (English) common law
context where applicable.
           The experiences of the European Union [hereinafter E.U.] and the U.S. illustrate
deliberate approaches to private international legal development. While the E.U. and
U.S. approaches to aspects of private international law may be considered
“revolutions”,58 the reality is that both approaches represent the aspirations of certain
developing countries. Regional integration in the case of the E.U. and the assertiveness
of considering policy interests in the case of the U.S. are instructive,59 especially as the
latter engaged the common law in a deliberate manner.60 While the term “conflicts
revolution” is often used to describe choice of law aspects, it is also used to “capture the
jurisdictional elements as well”61 and foreign judgments to a more limited extent.62 An
appropriate approach to interpreting rules of private international law is essential.




       2. THE PARADOX OF LEGAL INTERPRETATION

The English common law was transplanted to relevant colonies, including Nigeria and
South Africa. As a transplant, the English common law can and should be adapted where
necessary to ensure that the law meets the individual needs of post-colonial States.63
Otherwise, such States will be default receptacles for rules which may not necessarily

57
   For the argument that E.U. rules of private international law must be understood in the context of European
   integration, see, e.g., Lydia Lundstedt & Erik Sinander, Enhancing Critical Thinking in Private International Law,
   54 LAW TCHR. 400 (2020).
58
   Mills largely focused on the choice of law aspect, but also considered how it related to other aspects of
   private international law such as jurisdiction. See Alex Mills, The Identities of Private International Law: Lessons
   from the U.S. and E.U. Revolutions, 23 DUKE J. COMP. INT. LAW 445, 445-446 (2013). For “a determined effort to
   build a new common law system of jurisdiction in the “proper forum”, see Albert A. Ehrenzweig, A Counter:
   Revolution in Conflicts Law? From Beale to Cavers, 80(2) HARVARD LAW REV. 377, 400 (1966).
59
   Mills argued that “identifying and pursuing state policy interests” could be associated with “the U.S. choice
   of law revolution”. See Mills, at 465.
60
   Mills for example argued that “The U.S. rightfully rejected the artifice of vested rights which had become
   foundational to common law private international law in favor of policy-oriented approaches” even though
   American legal realism may have pushed things “too far”. See id. at 447-48.
61
   Jesse M. Cross, Rethinking the Conflicts Revolution in Personal Jurisdiction, 105 Minn. L. Rev. 679 (2020).
62
   See Celia W. Fassberg, Realism and Revolution in the Conflict of Laws: In with a Bang and Out with a Whimper, 163 U.
   PA. L. 1919, 1921 (2015).
63
   See Luis F. Del Duca and Alain A Levasseur, Impact of Legal Culture and Legal Transplants on the Evolution of the U.S.
   Legal System, 58 AM. J. INT. L. 1 (2010); see also Joost Blom, Canadian Private International Law: An English System
   Transplanted into a Federal State, 39 NETH. INT. L. REV. 155 (1992).


                                                          123
           FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


promote solutions to conflicts issues. For example, some colonies had “very divergent
streams of common law transplantation and evolution”.64 Such nuances and
complexities are important because private international law is a part of national law
even though private international law is a technical area.
          This law may be found in judicial precedents, statutes developed by the national
legislator, or treaties incorporated into domestic law.65 In South Africa and Nigeria, judges
play a vital role in the development of private international law including common-law
approaches to varying degrees. One aspect of private international law cannot be entirely
separated from other aspects vis-à-vis the legal system within which the courts interpret
and apply laws in general. In Nigeria for example, as this article will demonstrate, certain
foundational statutory structures concern private international law in general, especially
the framework for applying the English common law where relevant. Legal interpretation
should be considered in relevant contexts (including South African and Nigerian), of which
a fundamental one is jurisdictional.



     2.1. A NIGERIAN PERSPECTIVE

There are two major questions with respect to the English common law. First, whether
Nigeria is anchored to a default application of the English common law. This This
question is partly justified because the Nigerian law is clear about the cut-off date for the
application of the English common law.66 In practical terms, there is no conflict between
this legal position and the need for Nigerian law to be adapted to factor in modern needs.
The argument that “as a matter of practice” Nigerian courts apply “the Common Law
which is currently in force at a particular time in England”67 cannot be accepted without
contextualization. To sustain this logic, it was further argued that the Nigerian courts
“determine what constitutes the current Common Law of England at a particular time”.68
It is potentially contradictory for Nigerian courts to subjectively ascertain the current
position of the English common law, which is itself an objective matter. Arguably, as the

64
   Sandra Fullerton Joireman, The Evolution of the Common Law: Legal Development in Kenya and India”, 44
   COMMONW. COMP. POLITICS 190 (2006). Comparing Kenya and India, Joireman argued that India had
   established common law courts more than a century before Kenya. This afforded the former an opportunity
   to adapt the common law to its context 199-200. Bennett argued that the common law was invariably applied
   where State interests were affected. See T.W. Bennett, Conflict of Laws – the Application of Customary Law and
   the Common Law in Zimbabwe, 30 INT. COMP. LAW Q. 59 (1981).
65
   On the incorporation of such international rules “in domestic law”, see, e.g., the Private International
   Law (Implementation of Agreements) Bill 2020-21 (HL) cl. 2 enacted on 14 December 2020: (UK)
   https://publications.parliament.uk/pa/ld5801/ldselect/ldconst/55/5503.htm (last visited Sept. 17, 2021).
66
   See Nigerian Interpretation Act, supra note 43; see also Allot, supra note, at 41.
67
   Adigun, supra note 16, at 156.
68
   Id.


                                                      124
2022]                         UNIVERSITY OF BOLOGNA LAW REVIEW                               [Vol. 7:2


next question will demonstrate, it is more accurate to state that the Nigerian courts in
practice interpret relevant Nigeria High Court laws including relevant references to the
English common law.69 The second question is whether the application of the English
common law should automatically change because the law has changed. This will lead to
major inconsistencies and undermine systematic legal development. The influence of
relevant statutes that regulate the operation of Nigerian state courts illustrates the need
to understand possible complexities in navigating the English common law. For example,
the Lagos High Court is empowered to apply “law and equity [. . .] concurrently and in
the same manner as they are administered by the High Court of Justice in England”
subject to any contrary enactment in Nigeria.70 This is the premise upon which an
important case illustrative of this point was decided. The case is Benson v. Ashiru.71 In
1967, well after Nigeria had become independent and a republic, Justice of the Supreme
Court Brett observed that “[t]he rules of the common law of England on questions of
private international law apply in the High Court of Lagos”.72 The case concerned
defamation. In applying the English common law, this case has provided an important
basis to amplify relevant provisions of the Lago State High Court Law. In Zabusky v. Israeli
Aircraft Industries, the Court of Appeal considered Sections 10 and 11(1)(a) of the High
Court Law to have “concurrent jurisdiction with Her Majesty’s High Court of Justice”.73
          While this approach may have seemed expedient at the time, it creates the real
potential for both legal uncertainty, contradictions, and inefficiency. This approach
creates legal uncertainty because, by way of illustration, the Nigerian appellate courts
can apply the current English common law in January and the law in England is then
amended in June. The issue here is that a Nigerian appellate decision in January will
remain binding on the lower courts due to stare decisis. Lower courts can only decide
cases on similar facts but based on the English common law position.                       To decide
differently based on the English common law position in June, lower courts must then
wait for the Nigerian appellate courts to change the law to the English common law
position in June. Distinguishing cases is a valid strategy in litigation. However, the art of
distinguishing can be a double-edged sword as it can be easily politicized. More so, the
absence of specific evidence concerning existing law does not necessarily mean that such
certain laws do not exist. Thus, any recourse to a default application of the English
common law should be scrutinized in specific legal contexts. This complex situation
contrasts with the South African approach in terms of developing the common law.

69
   Each of the thirty-six federating states (including the Federal Territory) in Nigeria has a High Court.
70
   See § 10 Lagos State High Court Law (1955) Cap. (80) § 10 (Nigeria), https://laws.lawnigeria.com/2018/
   09/10/lagos-state-high-court-law/ (last visited Jul 10, 2022). Cf. § 8 on general jurisdiction.
71
   See Benson v. Ashiru [1967] NSCC (SC) 198 (Nigeria).
72
   Id. at 201.
73
   Zabusky v. Israeli Aircraft Industries [2006] LPELR-11597 (CA) (Nigeria).
                                                  125
           FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


Legislative authority remains supreme in common law countries, and there is a
“preference for procedural rather than substantive justice”74 in restricting the exercise
of judicial discretion. However, procedural and substantive aims are not always easily
distinguishable, especially where the courts have been empowered to develop and
articulate mechanisms that can promote substantive justice. An appropriate approach to
developing private international law in African countries will ensure that there is
coherence between substantive laws and procedural laws. In Nigeria for example, the
same High Court Law that was interpreted by the Supreme Court to be the basis for
applying substantive English common law was also the basis for making High Court Rules
which are revised regularly. Private international law has been driven by the courts
either actively or passively. For example, there has been no statutory intervention in the
recognition and enforcement of foreign judgments for more than half a century.75 This
is essentially a common denominator between Nigeria and South Africa. This is so
because even though South Africa enacted a statutory law in this regard, only a
neighboring country has been a beneficiary of that extension.76
          There are advantages for the common law to develop along similar lines in
former colonies, especially in non-domestic matters such as trade. However, Nigerian
High Court laws do not necessarily create the same opportunity for jurisprudential
development.          Although there are many similarities, there are also significant
differences. Northern States are usually subject to Sharia law due to Islamic influence.
Clearly, English law does not apply to cases governed by Islamic law.77 Islamic practice
also exists in Southern States even though such express provisions are not contained in
relevant High Court laws. Even within Southern States, the High Court laws of Lagos
State and Abia State differ in some significant respects.78                    For example, the latter
provides that the High Court may be guided by “decisions and other pronouncements
made by any superior court with regard to like provisions on matters in “any common law
country”.79 But the provision is instructive and consistent with the argument that “the
law may be influenced from any one direction”.80 A more pressing reality is that the

74
   Kermit Roosevelt, Legal Realism and the Conflict of Laws, 163 U. PA. L. REV. 1939, 1938 (2015).
75
   See Reciprocal Enforcement of Judgements Ordinance (1922) Cap. (175) (Nigeria); Foreign Judgements
   (Reciprocal Enforcement) Act (1961)Cap. (F35) (Nigeria).
76
   Namibia. See R. KELBRICK, CIVIL PROCEDURE IN SOUTH AFRICA, para. 23 (3rd ed. 2015) (explaining the
   applicability of the South African Statute).
77
   See Kano High Court Law. Cap. (53) HCL § 58, (Nigeria).
78
   See Supra notes, at 69-73.
79
   Abia State High Court Law HCL § 15(1) (Nigeria). This is subject to other laws including the Interpretation
   Law which specifically mentions the English common law.
80
   Australian Consolidated Press Ltd. v. Uren (1969) 1 A.C. 590 (P.C.) (appeal taken from Austl.). For the
   argument that English law ought also to develop considering Commonwealth decisions, see David Jackson,
   The Judicial Commonwealth, 28 (2) THE CAMBRIDGE LAW JOURNAL 257, 259 (1970).


                                                     126
2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:2


express inclusion of “any common law country” in the Abia State High Court law, unlike
the Lagos law that refers to the English common law, underscores interpretational
challenges. The interpretation of specific High Court Rules of Lagos has been assumed to
apply always and in all situations. This is one issue with ignoring the 1900 threshold
specifically preserved by the Interpretation Act which is a federal statute.81 Otherwise,
foreign decisions including English case law are merely persuasive and can be used for
“expanding the frontiers of Nigerian jurisprudence”.82 Such frontiers can be expanded if
there is no established precedent in Nigeria.83
          Ogun State of Nigeria offers another useful illustration. Although the Ogun High
Court Law replicates many provisions of the Lagos High Court Law, it signals a clear
intention to chart its own path where it considers necessary and without recourse to
other High Court laws. Section 29 specifically provides for commercial transactions and
it states that the Court shall not enforce obligations against Nigerians if such obligations
arise from credit.84 In this regard, the Court has discretion to determine that it was not
“reasonably probable that the Nigerian was fully aware of the nature of the obligation
and the consequence of failure to perform the same”.85 When compared with the Lagos
High Court Law that specifically provides for enabling powers regarding foreign
judgments, this provision may have relevance to such obligations that arise in private
international law. This is especially so considering the express mention of Nigerians in
the provision. There is a possible argument that private international law is protected
from such intricate in-country differences, but not if there are cases that historically
evolved based on the interpretation of certain High Court provisions of a state.86 Apart
from the fact that relevant private international law statutes such as those on foreign
judgments are federal, there is no supporting jurisprudence to adopt an approach solely
determined by provisions of each High Court Law. Yet, if rules of private international
law have developed through an interpretation of such individual state laws, then it
means that they can be distinguished if other High Court laws with different provisions
are considered.         Most importantly, there are inadequate legal and institutional
frameworks for the sustainable development of private international law. The situation
is significantly different in South Africa. Since the analysis concerning the English
common law is also applicable to Nigeria, this will be done in the next Section.
81
   See Supra note 44.
82
   In Re: Abdullahi [2018] 14 NWLR (Pt 1639) 272 (CA), 290-292 (Nigeria). In this case, the Supreme Court was
   persuaded.
83
   See Id.
84
   “The Court shall not enforce against a Nigerian living in any area specified by the Order of the Executive
   Council [. . .]”.
85
   Id.
86
   E.g., Benson v. Ashiru [1967] NSCC (SC) 198 (Nigeria).


                                                    127
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


     2.2. A SOUTH AFRICAN PERSPECTIVE

The unique constitutional support for an active development of the South African
common law has created the basis to determine what law exists and how it should be
interpreted by searching for evidence. This approach may be illustrated through South
African case law on foreign judgments and how there is a real risk of “cherry-picking” in
a way that undermines legal certainty. The question whether the mere presence of a
judgment debtor in the foreign jurisdiction is a valid jurisdictional ground concerning
foreign judgments illustrates the need for appropriate methodology in determining the
existence and interpretation of relevant laws. The mere presence of a natural person is
relevant under the English common law where the person was served with process in the
foreign jurisdiction.87 This has been so since the nineteenth century,88 even though
doctrine law has been criticized.89 The position under the English common law has also
been accepted although there may be debates regarding the extent to which such a
person benefited from that country’s laws.90 Essentially, more recent cases have clarified
and confirmed the position on mere presence as valid.91 Of course, mere presence has
been questioned “as a desirable basis of jurisdiction if the parties are strangers and the
cause of action arose outside the country concerned”.92                              The concern from the
standpoint of forum conveniens is whether the foreign court was adequately equipped to
deal with factual or legal issues.93 Interestingly, the parties in Richman v. Ben-Tovim
[hereinafter Richman] (where the South African Supreme Court of Appeal enforced a

87
   See Buchanan v. Rucker, [1808] 103 E.R. 546 at 547 (KB) – this case was cited by the Court of Appeal in Pemberton
   v. Hughes, [1899] 1Ch 781 (UK); see also Singh v. Rajah of Faridkote, (1894) A.C. 670 at 683-684 (India). Relevant
   cases after the turn of the nineteenth century include Emanuel v. Symon, [1908] 1 KB 302.
88
   See the appellate case of Carrick v. Hancock, 12 T.L.R. 59 (Q.B. 1895). For the argument that important dicta of
   the English Court of Appeal (including the fact that “mere casual presence” will suffice) were correct, see J.G.
   Collier, Conflicts and Company Law Combine to Bar Enforcement of Asbestosis Damages, 43(3) CAMBRIDGE UNIVERSITY
   PRESS 416, (1990). For the point that Carrick was “the main authority for the principle that mere presence
   coupled with service of the claim form was sufficient to confer jurisdiction a foreign court”. See TREVOR C.
   HARTLEY, INTERNATIONAL COMMERCIAL LITIGATION: TEXT, CASES AND MATERIALS ON PRIVATE INTERNATIONAL LAW
   439 (3rd ed. 2020).
89
   See, e.g., Lord Collins, Dicey, Morris and Collins, The Conflict of Laws, para. 14-060 (15th ed. 2012).
90
   Fentiman relied on cases such as Buchanan, Singh and Rucker concerning the significance of mere presence
   under the English common law. This was so even though he noted that the explanation of such a defendant
   taking advantage of the foreign jurisdiction’s laws was undermined by the fact that it applied to natural
   persons. See RICHARD FENTIMAN, INTERNATIONAL COMMERCIAL LITIGATION 624 (2nd ed. 2015).
91
   See Adams v. Cape has been “accepted as an accurate statement of the current position on common law” with
   respect to temporary presence even though the case concerned companies. See also Hartley, supra note 87, at
   438. In confirming the position under the common law, the U.K. Supreme Court observed that Adams v. Cape
   and relevant authorities which it “re-states or re-interprets” remained the “leading decisions”. See Rubin
   v. Eurofinance SA, [2012] UKSC para. 108. The English Court of Appeal had analyzed and endorsed Singh v.
   Rajah of Faridkote concerning mere presence in its judgment. See Adams v. Cape, [1990] Ch 433 at 457-458. The
   U.K. Supreme Court thus endorsed the jurisdictional principles, including that of presence, stated in LORD
   COLLINS, supra note 89, at para. 14R-054.
92
   LORD COLLINS, supra note 91, at para. 14-060.
93
   See Id.
                                                        128
 2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:2


 foreign judgment based on mere presence) were not “strangers” and the cause of action
 arose in England.94           The need for a contextual approach to the determination and
 interpretation of the law can be illustrated through the Constitutional Court case of
 Fick.95
            In Fick, the Zimbabwean Government expropriated the respondents’ farms. That
 Government denied the farmers compensation and access to court.96 The South African
 Development Community [hereinafter S.A.D.C.] Tribunal resolved the matter in favour of
 the farmers, but the government refused to comply with the decision of the Tribunal
 which then awarded a costs order. Again, the Zimbabwean Government refused to
 comply with the order and the farmers then sought recognition and enforcement in
 South Africa including the attachment of the Zimbabwean Government’s property.97 The
 Court observed that “[T]he origin of the costs order was a dispute that implicates human
 rights and the rule of law, which are central to the [S.A.D.C.] Treaty and our Constitution.
 A [c]onstitutional matter does therefore arise here in relation to access to courts which is
 an element of the rule of law”.98 Important issues such as the immunity that Zimbabwe
 claimed were considered. As statutory law was too restrictive,99 the Constitutional Court
 resorted to the common law.100 The Court simply quoted the jurisdictional grounds
 previously listed by the Supreme Court of Appeal (in 2000 and 1994): the defendant must
 have been either domiciled or resident in the foreign jurisdiction, or submitted to the
 jurisdiction of the foreign court. The Court neither made any commentary on Purser v.
 Sales101 (from which it quoted) nor Richman102 – both Supreme Court of Appeal decisions
 on jurisdictional grounds.
            In Richman,103 the judgment debtor was served with a writ when he was
 temporarily in England. The central issue was whether, considering South African law,
 the English Court had validly exercised jurisdiction based on the physical presence of the
 judgment debtor.104            The Supreme Court of Appeal then observed that “The South
 African conflict of law rules relevant to the present action are clear”105 and relied on Pollak
 concerning the rules on the foreign court’s “jurisdiction to entertain an action for a
 judgment sounding in money against a defendant who is a natural person”.106
94
    Id.
95
    See Government of the Republic of Zimbabwe v. Fick, 2013 (5) S.A. (C.C.).
 96
    See Id. para. 2.
 97
    See Id. para. 3.
 98
    Id. para. 21.
 99
    See Id. para. 37.
100
    See Id. para. 38.
101
    Supra note 28.
102
    Supra note 28, at 283.
103
    Id.
104
    Id. para. 1.
105
    Quoting an earlier case: Reiss Engineering Co Ltd. v. Insamcor (Pty) Ltd., [1983(1)] SA 1033 (W) at 103 (S. Afr.).
106
    Richman, supra note 94, paras. 7 and 9.
                                                          129
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 The Court listed physical presence, domicile, residence, and submission.107 The Supreme
 Court of Appeal enforced the English judgment. It is necessary to restate that the
 judgment debtor in Fick was the Zimbabwean Government. Even so, whether a company
 can be resident without being present is a different matter altogether. Practical logic
 suggests otherwise, which is in part why the United Kingdom [hereinafter U.K.] Supreme
 Court preferred the term “presence” to “residence” in the context of the English
 common law.108
            Despite its context, Fick inspired a new perspective on jurisdictional grounds and
 the recognition and enforcement of foreign judgments generally109 but also seemed to
 cause a bit of uncertainty. For example, it was argued that physical presence was “a
 well-established ground of international jurisdiction”110 in South Africa. However, it was
 also argued shortly after that “fortunately” Fick gave “no consideration to mere
 presence”.111 There is an argument that Fick has provided a list of indirect jurisdictional
 grounds and, therefore, since it omits mere presence, this ground should be deleted. In
 other words, the South African Constitutional Court “discarded” the jurisdictional
 ground of mere presence.112 “Discard” in this context suggests that mere presence was
 rejected in Fick. There are two major issues with this argument. First, this approach may
 seem practical but it has the potential undermine a systematic development of the law.
 Second, the approach does not consider the jurisprudential context of the relevant cases.
 The Supreme Court of Appeal enforced the foreign judgment as a matter of obligation.
 This decision drew criticisms not because the judgment debtor was not indebted, but
 essentially because the jurisdictional ground was considered as exorbitant.113 As earlier


107
    Id.
108
    Rubin v. Eurofinance SA, [2012] UKSC para. 89. Indeed, the S.A.D.C. Treaty referred to jurisdiction over disputes
    both between Member States and natural or legal persons. See Treaty of the Southern African Development
    Community art. 15(1), Oct. 21, 2015 [hereinafter S.A.D.C.]; see also Government of the Republic of Zimbabwe v.
    Fick 2013 (5) S.A. (C.C.).
109
    See Adigun; Oppong supra note 16.
110
    Zhu Weidong, The Recognition and Enforcement of Commercial Judgments between China and South Africa:
    Comparison and Convergence, 7 China Leg. Sci. 33, (2019).
111
    Zhu Weidong, Enforcing Commercial Judgments between China and South Africa in the Context of BRICS and BRI, 65
    J. AFR. LAW 1-13 (2020).
112
    Since it “exclusively referred to” the grounds stated in Purser v. Sales, (2001) (3) S.A. 445 (S.C.A). Saloni
    Khanderia, The Hague Conference on Private Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign
    Judgments: Should South Africa Endorse It?, 63 J. AFR. LAW 413, 419 (2019). By contrast, although Xaba rejected
    the decision in Richman, the author conceded that the Constitutional Court’s use of “the most relevant
    (grounds)” weakens the argument that court rejected mere presence. See GMN Xaba. Presence as a Basis for
    the Recognition and Enforcement of Foreign Judgment Sounding in Money: The ‘Real and Substantial Connection’ Test
    Considered, 36 OBITER 121, 125 (2015). See also Government of the Republic of Zimbabwe v. Fick, 2013 (5) S.A.
    (C.C.) para. 51 (S. Afr.).
113
    In rejecting the ground, Forsyth conceded that it promoted clarity and certainty. See C.F. FORSYTH, THE MO
    MODERN ROMAN-DUTCH LAW INCLUDING THE JURISDICTION OF THE HIGH COURTS 90 (5th ed. 2012). See also Christian
    Schulze, Conflict of Laws, 1 ANN. SURV. S. AFR. LAW 207, (2007); Moran and Kennedy supra note 29, at 573.


                                                         130
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:2


 stated however, this article is not concerned with the merits, weaknesses, or viability of
 any jurisdictional ground.
           A more poignant question is whether the ground is compatible with the South
 African common law. After all, the latter has also been influenced by the English
 common law which recognizes the jurisdictional ground. In Fick, the Constitutional
 Court in principle had the opportunity to overrule Richman but it did not do so. The
 Court endorsed the rationale of Richman on the need to secure the enforcement of
 obligations. However, the Court did not include presence as a jurisdictional ground.
 There are some possible reasons for this (in no order of importance). First, the Court
 took only what it needed from existing case law to decide the relevant issues. Richman
 was decided in the context of natural persons. The Zimbabwean Government is not a
 natural (or corporate person). Second, the Court did not want to overrule, perhaps for
 policy reasons. For example, that jurisdictional ground would usually be used as a last
 resort anyway. It would be pointless to serve a writ on a judgment debtor based on
 temporary presence if he resided within that foreign jurisdiction. Third, the Court may
 have considered it counterproductive to unduly curtail judicial flexibility to ensure that
 obligations are enforced. Fourth, the Court simply lacked the jurisdiction to overrule
 Richman.       Generally, the jurisdiction of the Constitutional Court is restricted to
 constitutional matters, in which regard it has developed an impressive reputation.114
 Since 2013 the court has had expanded jurisdiction to hear appeals upon granting leave if
 “the matter raises an arguable point of law of general public importance” 115 which the
 court ought to consider. But this jurisdictional expansion was after Fick. Fick was decided
 on 27 June 2013 while the expansion of the court’s jurisdiction took effect from 23
 August 2013.116 There is, therefore, merit in the view that mere presence remains a
 jurisdictional ground concerning foreign judgments in South Africa.117
           In South Africa, the courts have a constitutional duty to develop the common
 law “in respect of both the civil and criminal law, whether or not the parties in any
 particular case request the court to develop the common law under [S]ection 39(2)”.118
 As this is a solemn duty, the Constitutional Court has been deliberate, methodical, and
 thorough when it decides specifically to develop any aspect of the common law. There
 are examples in this regard including the development of the laws with respect to



114
    “Its reputation among constitutional courts in new democracies is second to none”, see Theunis Roux,
    Principle and Pragmatism on the Constitutional Court of South Africa, 7 INT. J. CONST. LAW 106, (2009).
115
    S. AFR. CONST., 1996, § 167(3)(b)(ii). This provision was absent in § 167(3) of the original version.
116
    S. AFR. CONST., Seventeenth Amendment Act of 2012.
117
    See Moran and Kennedy, supra note 29, at 573; HARTLEY, supra note 88, at 439.
118
    Carmichele v. Minister of Safety and Security, 2001 BCLR 995 (CC) para. 36 (S. Afr.). See also para. 66 of
    Government of the Republic of Zimbabwe v. Fick, 2013 (5) S.A. (C.C.).
                                                     131
             FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 family119 and delict.120 In the former case, the existing common law and the Marriage
 Act prevented same-sex couples from enjoying the same rights as heterosexual
 couples.121        The Constitutional Court developed the common law to surmount the
 challenges which existing restrictions posed to such couples with respect to marriage. In
 the latter case, the question was whether the law of delict should be developed to afford
 the applicant the right to claim damages if the police or prosecutor were negligent.122
 The Constitutional Court decided that, considering the complexity of the case, the High
 Court should deal with the issue in a factual context.123 In contract law, the majority of
 the Constitutional Court declined to develop the common law in such a manner that
 would impose a duty to negotiate in good faith.124 But the reason was technical as the
 case to develop the common law was made for the first time in the Constitutional
 Court.125 Otherwise, it was “necessary to infuse the law of contract with constitutional
 values, including values of ubuntu”.126                      This view was considered in another split
 decision of the Court but the applicants could not justify how enforcing the terms which
 they sought to avoid violated public policy.127
            In Fick, once again, the Constitutional Court expanded access to justice through a
 development of the existing law.128 The purpose of expanding access to justice in Fick was
 to enforce the costs order: “[T]he right to an effective remedy or execution of a costs order
 is recognized as a crucial component of right of access to courts”.129 The Constitutional
 Court further stated that an “observance of right of access to courts would therefore be
 hollow if the courts order were not to be enforced”.130 The Constitutional Court neither
 expressed any view on mere presence as a jurisdictional ground nor disapproved of it. In
 fact, references to Richman were only in approval.131 Fick ensured that judgment creditors
 reaped the fruits of their foreign judgment. In such novel cases, it is essential to develop


119
    See, e.g., Minister of Home Affairs v. Fourie, 2006(1) SA 524 (CC) para. 114 (S. Afr.).
120
    Carmichele v. Minister of Safety and Security, 2001 BCLR 995 (CC) paras. 78-80 (S. Afr.).
121
    See Minister of Home Affairs v. Fourie, 2006(1) SA 524 (CC) paras. 114 and 118 (S. Afr.).
122
    Carmichele v. Minister of Safety and Security, 2001 BCLR 995 (CC) para. 78 (S. Afr.).
123
    Id. para. 82.
124
    See Everfresh Market Virginia (Pty) Ltd. v. Shoprite Checkers (Pty) Ltd., 2012 (1) SA 256 (CC) (S. Afr.): no consensus.
125
    Id. paras. 65-67 and 74.
126
    Id. para. 71 (obiter) per Moseneke D.C.J. who also observed that the common law would have been developed
    if the case had been “properly pleaded”.
127
    See, e.g., Beadica 231 CC v. Trustees of the Time Being for the Oregon Trust, 2020 (5) SA 247 (CC) paras 43, 102, 205
    and 207 (S. Afr.).
128
    Access to the courts is a prerequisite to access to justice. On access to the courts, see Government of the Republic
    of Zimbabwe v. Fick, 2013 (5) S.A. (C.C.) paras. 2, 21, 60, 61, 62, 64, 66, 68, 69, 70, 71 (S. Afr.). In Minister of Home
    Affairs v. Fourie, 2006(1) SA 524 (CC) there were several references to access in terms of courts and marriage
    e.g. paras. 39, 49, 111.
129
    Government of the Republic of Zimbabwe v. Fick, 2013 (5) S.A. (C.C.) para. 61 (S. Afr.).
130
    Id. para. 62.
131
    Id. para. 55.


                                                            132
 2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:2


 the common law “beyond existing precedent”.132 In Fick, there was a need to develop the
 common law beyond existing precedent to include “the enforcement of judgments and
 orders of international courts or tribunals, based on international agreements that are
 binding on South Africa”.133 Otherwise the judgment creditors would not realize the fruits
 of their judgments.Mere presence poses some challenges that may overlap with domicile
 in terms of ascertaining the position of the law.
            As earlier noted, scholars have differed on the existence of domicile as a ground
 of jurisdiction concerning foreign judgments.134 The preferred approach is, as with mere
 presence, first to accept the current legal position. It is a different matter to argue, as
 some scholars have, that domicile should be rejected as a jurisdictional ground for
 foreign judgments in South Africa.135 The latter approach of first accepting what the law
 is (not necessarily the merits of the argument itself), is critical to developing private
 international law in a sustainable manner. In Nigeria, the default application of the
 English common law has made it easier to disregard domicile. While it is unnecessary to
 revive the debate,136 the point here is that principled rejection of any jurisdictional
 ground in Nigeria will first require an investigation into pre-1900 English case law.137 If it
 is the role of the Nigerian courts to determine the English common law then they cannot
 avoid such investigations into past or current law. This article remains only interested in
 legal validity and interpretation, including the pitfalls of comparative analysis without
 appropriate contextual underpinning.
            If “for the sake of argument” there is strict adherence to the analytical premise
 that the South African Constitutional Court has exclusively listed the grounds of indirect
 jurisdiction, then domicile is a ground and mere presence is probably not. However, this
 premise needs to be considered in the context of the jurisdictional scope of the South
 African appellate courts especially at the time of Richman and Fick. There are at least two
 possible ways of considering laws that have not been amended or removed. The first is
 that such laws remain valid, and anyone can use such laws as may be appropriate.
 Alternatively, the second is that even if such laws are valid, it is also necessary to see that
 they achieve substantive justice in a practical way that prevents parties from evading
 their legal obligations. Laws do not become invalid through lack of use or because the

132
    Carmichele v. Minister of Safety and Security, 2001 BCLR 995 (C.C.) para. 40 (S. Afr.).
133
    Government of the Republic of Zimbabwe v. Fick, 2013 (5) S.A. (C.C.) para. 43 (S. Afr.).
134
    See Oppong, supra note 27; Moran and Kennedy, supra note 29.
135
    See Moran and Kennedy, supra note 29, at 573.
136
    For the argument that jurisdictional grounds should be considered in terms of any functional substantive
    value in part or in entirety, see PONTIAN N. OKOLI, PROMOTING FOREIGN JUDGMENTS: LESSONS IN LEGAL
    CONVERGENCE FROM SOUTH AFRICA AND NIGERIA 192-195 (2019).
137
    On faint dicta in this regard, see Lord Collins supra note 89, at para. 14-086. See generally, Douglas v. Forrest,
    [1828] 130 ER 933 (CP).


                                                         133
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 occasions have not arisen to use them. The role of the judge is critical and has a greater
 force in South Africa because the Constitution specifically mandates the judge to develop
 the South African common law. The courts have been very active in this area. The role of
 the judge is also important in Nigeria, but with less force than in South Africa. This is
 because, unlike South Africa, the Nigerian judge is largely circumscribed by statutory
 law. Thus, there is an even more pressing need in Nigeria to develop the English common
 law in a clearly deliberate manner.                    The Nigerian Constitution does not contain
 provisions that concern the common law, unlike the South African Constitution that
 contains specific provisions on the application and amendment of the English common
 law. In any case, the progressive South African experience in developing the common
 law that has inspired calls for such development needs to be placed in proper context.138
 The need to differentiate contexts should also be examined through the applicability of
 judicial discretion.




       3. THE IMPORTANCE OF JUDICIAL DISCRETION

 There are two major aspects of the legal regime on the recognition and enforcement of
 foreign judgments in Nigeria and South Africa: statute and common law. The statutory
 regimes of Nigeria and South Africa are of contrasting importance. While in Nigeria,
 statutory law is by far the more important regime, in South Africa the common law is of
 very limited significance because of its scope.139                     The English common law on the
 recognition and enforcement of foreign judgments contains a rather narrow scope for
 discretion. In this regard, the English Court of Appeal observed that it was “a mistaken
 but nevertheless real concern” to state that common law rules for enforcing foreign
 judgments were “largely discretionary”.140 But some discretion exists. Any justice
 system that completely excludes any space for discretion will almost invariably lead to
 unfair or illogical results at some point.141 Even under English common law, any exercise
 of discretion should factor in the need for different approaches to substantive and
 enforcement claims – the latter will not focus on the underlying cause of action.142 To
138
    Supra note 16.
139
    Supra note 76.
140
    The Greer Committee thought this made foreign courts reluctant to recognize foreign judgments. See para.
    36 of Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence,
    [2020] EWC. Civ 1604 (CA).
141
    For the argument that, in principle, “submission should not provide an automatic ground for enforcement
    where the parties have explicitly agreed to resolve their dispute elsewhere” (although the courts are usually
    lenient), see FENTIMAN, supra note 90, at para 18.21.
142
    See Lenkor Energy Trading DMCC v. Puri, [2021] EWCA 770 para. 40 (CA). The Court of Appeal enforced the Dubai
    judgment.
                                                         134
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 7:2


 exercise discretion properly, an element of fairness is essential, otherwise discretion will
 be abused. It may seem ironic that the statute on the same subject clearly provides for
 judicial discretion – more than the English common law which is essentially judge made.
 The exercise of discretion is a key and deliberate feature of the U.K. Act of 1920 of which
 the 1922 Nigerian Ordinance is essentially a rehash.143 As case law clearly illustrates, the
 1922 Ordinance has been the core of Nigerian jurisprudence on foreign judgments.144
 Under the Nigerian Ordinance, a court may enforce the foreign judgment if it is “just and
 convenient” to do so in all the circumstances of the case.145
           Although the “just and convenient” ground has been described as “frighteningly
 wide” in Nigeria,146 the concern exists because there has yet to be a clear articulation of
 how to exercise discretion on this ground. A careful navigation between this and public
 policy is also necessary and a purposeful sense of fairness is required to strike a
 balance.147 In Agbara v. Shell, the defendant sought to set aside the registration of the
 Nigerian judgment. The English High Court observed that it was “necessary to have some
 understanding of Nigerian procedures in order to judge the extent to which Shell may
 have been unfairly treated”.148 The English High Court decided that there had been a
 “serious breach of natural justice” and set aside the registration of the Nigerian
 judgment.149
           In South Africa, judicial discretion is an important element of developing the
 common law. Flexibility is required in developing the common law because the common
 law itself has evolved through organic growth as mandated by the South African
 Constitution. Nevertheless, the obligation to develop the common law is “not purely
 discretionary”.150 The exercise of this “general discretion” must be to promote the spirit
 and purpose of the Bill of Rights.151 South Africa’s neighbor, Swaziland, provides useful
 insights into the exercise of discretion, especially considering that both countries have a
 common Roman-Dutch law influence. Section 252(1) of the Constitution of Swaziland
 provides that the principles and rules of the Roman-Dutch Common Law that applied to
 Swaziland “since 22nd February 1907 are confirmed and shall be applied and enforced as

143
    The English Court of Appeal described discretion as a “critical difference” between the 1920 Act and the 1933
    Act. The latter Act was intended to promote reciprocity. There is an equivalent of the 1933 Act in Nigeria,
    but it has not been extended to any country. See the Foreign Judgments (Reciprocal Enforcement) Act 1961.
144
    As case law referred to in this article shows.
145
    § 3(1) of the Nigerian Ordinance.
146
    See the dissenting opinion of Muhammad J.C.A. in Shona-Jason Nigeria Ltd. v. Omega Air Ltd., [2006] 1NWLR (Pt
    960) 1, 63 (CA) (Nigeria).
147
    See also OKOLI, supra note, at 136, 227-228.
148
    Agbara v Shell, [2019] EWHC 3340 (Q.B.) para. 43 (Nigeria).
149
    Id. para. 45.
150
    Carmichele v. Minister of Safety and Security, 2001 BCLR 995 (CC) para. 39 (S. Afr.).
151
    S. AFR. CONST. § 39(1).


                                                       135
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 the common law of Swaziland” subject to the Constitution or statutory law.152 This
 constitutional empowerment has been important in the development of case law.
           In Mamba v. Mamba,153 the Swazi High Court had decided that foreign judgments
 obtained in the United States of America could not be enforced in Swaziland because it
 was not one of the Commonwealth countries listed in the relevant law on foreign
 judgments.154 To disapprove of that judgment, the court in Improchem Ltd. v. USA
 Distilleries [hereinafter Improchem] had to first observe that it did “not see any
 inconsistency between the common law procedure and the statutory procedure for the
 recognition and enforcement of foreign judgments” in Swaziland.155 In other words,
 both were different means to attaining the same end. The Swazi court observed that
 there was “no reason in logic or elsewhere” to deny enforcement merely because a
 country was not a part of the restricted list of countries.156 There are two statements in
 Improchem that suggest the realization for African countries to take control of their laws
 on foreign judgments. First, the court was not persuaded that mandament van reductie157
 was a part of Swazi law.158 “If it is a part of the law of South Africa, I think that this
 jurisdiction should be diffident towards it”.159 Second, in providing justifications that
 the legislator could not have intended the statutory regime to displace the common law,
 the court did not refer to South African law.160 It rather applied itself to consider “this
 era of frenetic globalization, where goods are purchased online from anywhere in the
 world”.161 To decide otherwise would have impeded international commerce. There is,
 however, scope for arbitrariness where there is no principled approach to the exercise of
 discretion in promoting foreign judgments.
           Fairness cannot be divorced from the recognition and enforcement of foreign
 judgments. In this context, it was argued that “[. . .] what must underlie a modern
 system of private international law are principles of order and fairness”.162 It was further
 argued that such considerations “compel more generous grounds for the enforcement of
 foreign judgments”.163           However, what amounts to fairness in the recognition and

152
    See The Constitution of the Kingdom of Swaziland Act 2005.
153
    Mamba v. Mamba, [2011] SZHC 43 (HC) (S. Afr.).
154
    Id.
155
    Improchem (Pty) Ltd. v. USA Distilleries (Pty) Ltd., [2020] SZHC 23 (HC) para. 19 (Swz).
156
    Id.
157
    The respondent had argued for a reduction in capital, but the court considered that this would have required
    to reopen the merits of the case. See id. para. 22.
158
    Id.
159
    Id.
160
    Id. para. 10.2 (vi).
161
    Id. para. 22.
162
    Richard Frimpong Oppong, Recognition and enforcement of foreign judgments in Ghana: A second look at a colonial
    inheritance, 31 Commonw. Law Bull. 1, 24 (2005).
163
    Id.


                                                        136
 2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:2


 enforcement of foreign judgments is debatable. A debt is an obligation and, to this
 extent, it has been persuasively argued that equity plays no role in “enforcement”.164
 This argument is given impetus if recognition and enforcement are separated for the
 purposes of analytical discourse.165 In reality, however, the court will not enforce a
 foreign judgment if it did not first recognize it. Thus, the English High Court has
 observed the need to consider “the question of whether it is just and convenient that the
 machinery of the High Court should be available for its enforcement.”166 The question of
 equity should not arise if a person is indebted and there is no dispute about the debt
 either by admission or because the courts have decided the dispute subject to any
 safeguards in the law. Thus, “actions for the enforcement of judgments are all but in
 name actions to enforce a debt”.167 Obligations should be enforced subject to applicable
 rules and a principled approach to the exercise of discretion where necessary.
            As argued above, the Nigerian courts have since realized the discretionary
 function contained in the 1922 Ordinance.168 Although there are different judicial views
 on its use, such views underscore the fact that judicial discretion is a matter of strategic
 importance. In IFC v. DSNL, the Nigerian Court of Appeal overturned the decision of the
 High Court because it decided that it was unjust or inconvenient to enforce, even though
 the High Court had observed that there was no violation of public policy. The Court of
 Appeal stated that this was a “contradiction in terms”.169 It is necessary to consider how
 English courts have dealt with discretion, which cannot be divorced from fairness.170
 Fairness should focus on producing results that are consistent with even initiating the
 dispute resolution process up to the outcome within legal limits. For example, “fairness
 to the defendant demands” that a claimant who applies to a tribunal must submit to its
 judgment.171
            The evolution of commercial realities has compelled the need for flexibility.172
 The discretionary scope in the Administration of Justice Act 1920 [hereinafter A.J.A.]
 (vis-à-vis the 1922 Ordinance) is crucial. In several cases, the discretion in the A.J.A. has

164
    Hayk Kupelyants, Recognition and enforcement of foreign judgments in the absence of the debtor and his assets within
    the jurisdiction: reversing the burden of proof, 14 J. PRIV. INT. LAW 455, 474 (2018).
165
    Kupelyants first separated both for the purposes of contextual analytical discourse. Id.
166
    Agbara v Shell [2019] EWHC 3340 (Q.B.).
167
    Kupelyants, supra note 164, at 455, 474.
168
    See, e.g., supra notes 145-146.
169
    IFC v. DSNL Offshore Ltd. [2008] 9NWLR (Pt 1093) 606, 637 (CA) (Nigeria).
170
    See generally ROGER A. SHINER, PRECEDENTS, DISCRETION AND FAIRNESS 93-136, 93 (M.A. Stewart ed., 1983).
171
    See GFH Capital v Haigh [2020] EWHC 1269 (Comm) para. 51 (HC. See also Lord Collins, supra note 89, at para.
    14-068.
172
    E.g., “the 1920 and 1933 Acts gave little scope for the registration of foreign judgments against states”. Per
    Lord Philips in NML Capital Ltd. v. Republic of Argentina [2011] UKSC 31 para 42 (SC). Lord Collins observed that
    “the English court had a discretion to exercise jurisdiction in an action on the New York judgment by virtue
    of C.P.R. 6.20(9) (now C.P.R. P.D. 6B para 3.1(10)). See id. para. 128.


                                                          137
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 been used merely to extend the time within which a foreign judgment may be registered
 which has been anything from five months173 to up to ten years.174 But the English
 courts have also exercised discretion in other complex substantive issues. The English
 High Court judgment in Ogelegbanwei v.                         Nigeria [hereinafter Ogelegbanwei] is
 illustrative.175   The Court did not just decide that it was “fair” to allow the claimants an
 extended time to apply for registration of the order.176 The claimants were also deemed
 to have submitted the application under the right statute although they had already
 applied under the wrong one.177                 The Court further decided that it was just and
 convenient to enforce the Nigerian judgment against a Nigerian general who was
 believed to have assets in England.178                  There was therefore no question of state
 immunity.179 In LR Avionics Technologies Limited v. the Federal Republic of Nigeria,180 the
 English Court of Appeal decided that the defendants were immune with respect to the
 application for registration and enforcement of the Nigerian judgment.181                                 Thus,
 discretion was exercised to enforce the foreign judgment.182 The scope for discretion
 under the English common law may be narrow, but the practical role of courts would be
 undermined without such scope.183 In Rubin v. Eurofinance,184 the U.K. Supreme Court
 observed in a majority opinion that “the introduction of judge-made law extending the
 recognition and enforcement of foreign judgments would only be to the detriment of
 United Kingdom businesses without any corresponding benefits”?185 Nevertheless, the
 court further added that there was unlikely to be “any serious injustice if this court
 declines to sanction a departure from the traditional rule”.186 Thus, recognition and
 enforcement should not be left to judicial discretion as a rule. What amounts to “serious
 injustice” is debatable. It is instructive that the court declined to postulate absolute
 rigidity. In any case, there was no reference to the A.J.A. which contains a significant
 scope for judicial discretion. This is consistent with the position that the A.J.A. must be

173
    See Lavallin v Weller [2019] 3672 (Q.B.) para. 13 (HC).
174
    See generally Tenaga Nasional Berhad v. Fraser Nash Research Ltd. [2018] EWHC 2970 (Q.B.). In deciding that
    it was just and convenient to enforce a ten year old foreign judgment, the court however order a stay as a
    “safeguard”, just in case the Federal Court of Malaysia decided to entertain a further appeal. See paras 78-79.
175
    See Ogelegbanwei v. Nigeria [2016] EWHC 8 (Q.B.) para 12 (Nigeria).
176
    Id.
177
    Id.
178
    Id. para. 13.
179
    Id.
180
     See, e.g., Avionics Technologies Ltd. v. the Federal Republic of Nigeria [2016] EWHC 1761 (CA) (Nigeria).
181
    Id. para. 27.
182
    This was done pursuant to § 9 of the 1922 Act.
183
    On the “unfettered discretion” with respect to granting a stay of judgment at common law, see para. 12 of
    Leicester Circuits Ltd. v Coates Brothers Plc [2002] EWCA Civ 474 (CA).
184
    See, e.g., Rubin v. Eurofinance SA [2012] UKSC.
185
    Id. para. 130.
186
    Id. para. 131.


                                                        138
 2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:2


 construed not only “on its own terms” but also considering the purpose of the
 legislation.187
            There is no fixed standard for what would amount to a “judicial overreach for
 judges to incrementally develop the common law foreign judgment enforcement
 regime”188 in any direction. What is more likely to amount to an overreach is if courts
 cannot consider the need to be flexible in trying to ensure that obligations are enforced.
 Rigid rules are likely to overreach because they “tend to produce arbitrariness or
 unfairness when applied to new or unanticipated problems”.189 A comparison to what
 happens in other jurisdictions would help, but it is for the judges involved to resolve
 disputes considering challenges that they face. Courts have a “general obligation” to
 develop the common law.190 This is not “purely discretionary”,191 but it is not so even
 under the English common law in England or in Nigeria. The South African Constitution
 provides that “every court, tribunal or forum may develop the common law or
 customary law to promote the Bill of Rights”.192 The development of the common law is
 connected to general legal development in a jurisdiction. Judicial decisions to amend the
 common law can hardly be said to be unilateral. Legal exceptions have been developed
 because courts needed to deal with difficult issues in particular cases. Real concerns thus
 emerge if legal exceptions become general rules. Courts should adopt a common-sense
 approach to solve glaring problems that confront them. In South Africa, the common law
 must be developed within its own “paradigm”,193 even though it will favor international
 law such as treaties that it has ratified.194 In Nigeria, as already explained, the English
 common law and certain statutes were incorporated into Nigerian law. Otherwise, it is
 etched in Nigerian jurisprudence that “foreign decisions are only of persuasive
 authority, and even then as long as the legislation in question is in pari materia with a
 Nigerian legislation”.195
            The development of the common law in African countries may be shaped by its
 own challenges or realities.196               The need for fidelity to context is not merely a


187
    Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence [2020]
    EWCA. Civ 1604 (CA) para. 47.
188
    Oppong, supra note 27, at 586.
189
    Cass R. Sunstein, “Two Conceptions of Procedural Fairness” 73 SOC. RES. 619 (2006).
190
    See Carmichele v. Minister of Safety and Security 2001 BCLR 995 (CC) para. 39 (S. Afr.).
191
    Id.
192
    S. AFR. CONST., supra note 116, para. § 39 of the South African Constitution.
193
    Carmichele v. Minister of Safety and Security 2001 BCLR 995 (CC) para. 55 (S. Afr.).
194
    See Government of the Republic of Zimbabwe v. Fick 2013 (5) S.A. (C.C.) para. 66 (S. Afr.).
195
    SIFAX Nigeria Ltd. v. MIGFO Nigeria Ltd. [2018] 9 NWLR (Pt 1623) 138, 179 (SC) (Nigeria).
196
    For the argument that certain presumptions regarding statutory interpretation constitute “a departure
    from its common-law origins”, see Marius van Staden, A Comparative Analysis of Common-Law Presumptions
    of Statutory Interpretation, 26 STELL. L. R. 550, 560 (2015).


                                                         139
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 sociological issue.197         How certain rules are applied can depend on an “analysis of
 particular institutions”. The analysis of “social spheres” is more common.198 If a court
 seeks to develop the common law, then it should be because existing precedents do not
 help to deliver justice in particular cases. This is in part how the English common law
 itself developed. Indeed, “the life of the law has not been logic: it has been experience”
 which requires a consideration of prevalent, contextual, and institutional issues.199 The
 law may also be developed to promote clarity. Otherwise, the court would have acted in
 vain as losing parties would very easily appeal and secure different outcomes. Common
 law rules should be applied not only considering the needs of society, but also
 considering the institutional capacities of the jurisdictions involved.
            Litigation easily lasts many years in Nigeria and reversal of legal principles is
 relatively rare.200 In the U.K., on the contrary, the U.K. Supreme Court has reviewed its
 own decisions up to twenty-five times in just over forty years.201 One challenge of relying
 on an automatic change of the English common law is that English courts may not have
 had the chance to decide an issue. For example, the English Court of Appeal observed
 that the question of whether there could be a “registration of a judgment on a judgment”
 was one of which “the position at common law has never been decided”.202 Thus, African
 courts cannot escape the responsibility of developing national laws considering peculiar
 challenges. While it is desirable that similar provisions (through the influence of British
 colonial heritage for example) are interpreted in a similar manner, this approach may
 not always guarantee fairness or a sustainable growth of private international law. There
 is a real risk of contradictions, legal uncertainty, and unfairness where there are no
 systematic efforts to develop the law in a deliberate manner. This is where the South
 African courts and Nigerian courts have largely contrasted.




197
    But the “sociological circumstances” are also important as well as other factors” are important. See Okon v.
    State (1988) 1 NWLR (Pt 69) 172, 180 (SC) (Nigeria).
198
    Selznick, supra note 19, at 181.
199
    See generally OLIVER WENDELL HOLMES, THE COMMON LAW (Little Brown and Company, 1st ed. 1881).
200
    This point will be expanded in the next Section.
201
    See Lord Hodge “The Scope of Judicial Law-Making in the Common Law”. Max Planck Institute of
    Comparative and International Private Law Hamburg, Germany 28 October 2019. He observed that “In the
    43 years between 1966 and 2009, the House of Lords used this power on about 25 occasions”. See para. 30.
202
    Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence [2020]
    EWCA. Civ 1604 (CA) paras. 1-2 and 67.


                                                         140
 2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:2


       4. POTENTIAL FOR CONTRADICTIONS

 Statutory reform and the development of the common law need not compete, which
 could undermine solutions to practical problems. Rather, they can be complementary.
 In Nigeria, for example, any clear statutory amendment of the English common law,
 where necessary, will immediately circumvent the challenges of stare decisis.                                        A
 contradiction in rejecting statutory reform is that in Nigeria treaties take effect through
 legislative action. If Nigeria ratifies the Hague Judgments Convention (or any other
 treaty), it will be domesticated through a statute.203 It then depends on how much scope
 the Nigerian legislator wants such a treaty to have, subject to the provisions of that
 treaty and the terms of ratification.204 Even where a treaty does not specifically amend a
 certain regime, it may influence the interpretation of parts of that regime. For example,
 this could be to focus on substantive analysis rather than mere labelling.205 For example,
 there was a pragmatic argument in the context of Scots private international law that “it
 may be logical for the Scottish courts to accept an indirect jurisdiction that is equivalent
 to the harmonized position of the domicile of a non-natural person under art. 60 of
 Brussels I”.206 That is, domicile at the statutory seat, central administration, or principal
 place of business.207 If domicile is applied to non-natural persons, there would be a risk
 of that ground applying to individuals who were never in the forum.208 A ratification of
 the Hague Judgments Convention can also lead to a more secure development of the
 English common law in Nigeria or the South African common law for two reasons. First,
 judges will be guided by explanatory reports which help to ensure a compliance with the
 intention of the legislator.209 Second, there will be a more compelling justification to see
 how judges in other jurisdictions that have ratified the same treaty. To emphasize the
 development of the common law at the expense of statutory intervention would
 perpetuate these contradictions.                  Beyond treaties, the scope for contradictions is
 influenced by the legislative history of former colonies.
            A statute may deliberately allow certain issues to be amenable to judicial
 development. In this context, the U.K. Supreme Court observed that the common law of

203
    See African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Ch. 10 LNF, 1990 (n.2 of 1983).
204
    Application and effectiveness will also depend on how many countries ratify.
205
    See OKOLI, supra note 136, at 216.
206
    PAUL BEAUMONT & PETER MCELEAVY, ANTON’S PRIVATE INTERNATIONAL LAW ¶ 9.26 (W. Green, 3rd ed. 2011).
207
    Id. For a similar argument in favor of domicile where a company is registered, see LORD COLLINS, supra note
    89, paras. 30-002 and 30-003. See also OKOLI, supra note 136, at 194.
208
    See also OKOLI, supra note 136, at 193.
209
    See generally Paul Beaumont, Hague Choice of Court Agreements Convention 2005:                          Background,
    negotiations, analysis and Current Status 5 J. PRIV. INT. LAW 125 (2009) (discussing the importance of
    explanatory reports). It is also instructive that the Hague Judgments Convention “does not prevent the
    recognition or enforcement of judgments under national law”. See Art 15 of the Convention supra note 13.


                                                          141
            FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 England and Wales can “keep pace with change” by factoring in international
 commercial practice.210 The 1996 Arbitration Act is an example of a statute deliberately
 left incomplete to allow judges to develop the common law in areas that the law has not
 addressed.211 This illustration is relevant to Nigeria because there has been no statutory
 intervention in foreign judgments in six decades. Similarly, there has been no such
 intervention in South Africa in four decades. Statutory intervention in the latter case is
 rather inconsequential because the South African Act has been extended only to
 Namibia, a neighboring country.212 Despite the pivotal role of the English common law,
 the recognition and enforcement of foreign judgments-system has benefitted from
 statutory development.213 Statutory intervention has also been used to address specific
 issues that have private international implications. For example, the U.S. Congress
 responded to the English common law position214 concerning defamation on the
 Internet by enacting the Securing the Protection of our Endured and Established
 Constitutional Heritage [S.P.E.E.C.H.] Act 2010. The U.K. in response to the criticism of
 English libel law passed the Defamation Act which “contains a test reminiscent of forum
 non conveniens” only three years after the U.S. legislation.215 The question of how or to
 what extent statutes may be amended vis-à-vis the common law also requires contextual
 consideration.
           A common denominator between the English common law in former colonies
 and many of their current statutes is that both legal regimes were essentially in place
 before such countries attained independence.                      Statutes were often enacted in a
 rubber-stamp manner, not because conscious efforts were made as to what might work.
 This was not by itself a problem at the time as the relationship with the outside world
 was often shaped through the lens of the colonialists. It is necessary to use examples of
 other areas of private international law to demonstrate that foreign judgments cannot
 be divorced from the jurisprudence of other such areas. Family law and human rights
 law reflect core policy issues that have implications for private international law. The
 South African Constitutional Court decided that “the common law offence of sodomy”
 was “inconsistent with the provisions of the 1996 Act and invalid”.216 One efficient way

210
    Halliburton Company v Chubbs Bermuda Insurance Ltd. [2018] UKSC 48, [162].
211
    Id. at [47].
212
    Kelbrick, supra note 76.
213
    See the introduction to the Civil Jurisdiction and Judgments Act 1982 (c. 27) (UK). This Act made
    “further provision about the jurisdiction of courts and tribunals in the United Kingdom and certain other
    territories and about the recognition and enforcement of foreign judgments given in the United Kingdom
    or elsewhere”.
214
    This focused only on the material published in England, however minimal. See, e.g., King v Lewis [2004] EWCA
    Civ 1329 (CA).
215
    See HARTLEY, supra note 88, at 376.
216
    National Coalition for Gay and Lesbian Equality v Minister of Justice (1999) 1 SA 6 para 106 (1.1) (S. Afr.).


                                                       142
 2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 7:2


 of developing the common law is to ensure that there are no contradictions.                                   For
 example, in      amending217       the common law to include gay rights the South African
 Constitutional Court also declared statutory law to be inconsistent with the provisions of
 the 1996 Act and invalid.218 Yet, in this regard, a comparative analysis between South
 Africa and Nigeria without a contextual approach will lead to patent contradictions.
           Nigerian law on same sex relationships contrasts with South African law.
 Nigerian law criminalized homosexual relationships for decades. However, the Nigerian
 legislator consolidated this position by specifically prohibiting marriage contracts or
 civil unions between people of the same sex.219                      Any person who administers the
 solemnization of such contracts or unions or even merely witnesses commits an
 offence.220 Provisions of the Act have clear implications for public policy which is
 important in the recognition and enforcement of foreign judgments.221                                   The Act
 specifically provides that any marriage or civil contract certificate “issued by a foreign
 country is void in Nigeria” and no “benefit” that accrues therefrom can be enforced in
 Nigeria.222 This has implications for any attempt to enforce money orders that may
 result from such relationships in Nigeria.                    Thus, important arguments including
 “Nigerian courts should be free to enforce a wider range of foreign judgments such as an
 order for specific performance, injunctions and account”223 also require a contextual
 approach which is the more complex part.                       For example, that argument was also
 extended to South Africa “subject to appropriate conditions”224 but no condition was
 suggested. Even in the context of enforcing money orders arising from non-commercial
 transactions, a non-contextual comparison will be problematic because no benefit can
 derive from same sex marriages or unions. But it can even get more complicated in
 commercial matters because it is doubtful that the core northern states of Nigeria would
 enforce foreign judgments if such transactions concern alcohol.225 To this extent, there
 is no federal public policy although the federal legislator has covered the field in the

217
    For the fine distinction that the Court exercised its powers under s 172(1)(a) rather than develop the common
    law, see Minister of Home Affairs v. Fourie 2006(1) SA 524 (CC) para. 121 (S. Afr.).
218
    See Section 20A of the Sexual Offences Act 1957, Section 1 of the Criminal Procedure Act 1977 and Security
    Officers Act 1987 (S. Afr.). See para. 2.1-3.2 and para. 4.1-4.2.
219
    The punishment is fourteen years imprisonment for such parties, see Same-Sex Marriage (Prohibition) Act
    2013 Section 5(1) (Nigeria). Same sex marriage is also illegal in many parts of Africa. Cf. Monica Karheiti &
    Frans Viljoen, An Argument for the Continued Validity of Woman-to-Woman Marriages in Post-2010 Kenya, 63 J. AFR.
    L. 303 (2019) (discussing the constitutional validity of woman-to-woman marriage).
220
    10 yrs. See Same-Sex Marriage (Prohibition) Act 2013 s 5(3) (Nigeria).
221
    The statutes on foreign judgments.
222
    See Sections 1 and 2(1) of the Same-Sex Marriage (Prohibition) Act 2013 (Nigeria).
223
    This argument was made in the context of law reform. CHUKWUMA OKOLI & RICHARD OPPONG, PRIVATE
    INTERNATIONAL LAW IN NIGERIA 354 (2020).
224
    Oppong, supra note 27, at 582.
225
    Thus, Kano and Lagos courts may have contrasting positions on this point.


                                                        143
             FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 enforcement of foreign judgments226 as federal statutory law exists on the subject.227
 Such complications serve as a reminder that the genius of English common law
 adaptability requires appropriate contextual and institutional mechanisms to thrive.
            A contextual approach should consider institutional realities. Courts do not
 require formal evidence to take notice of “obvious realities” such as any “substantial
 extra burden of costs or delay”.228 In Ogelegbanwei, for example, the English court
 considered it an important argument that the Nigerian judgment debtors controlled “the
 apparatus of judgment execution” (including the Nigerian President and the Attorney
 General).229 There is also the tyranny of judicial inefficiency. Several foreign judgments
 cases lasted about a decade in the courts. Halaoui lasted a decade after the judgment
 creditor applied to enforce an English judgment in a Nigerian High Court.230 That case
 was decided in 2009, but there is no indication that much has changed in terms of judicial
 efficiency.231 In February 2021, the Nigerian Supreme Court decided a matter concerning
 the oil and gas industry (a strategic part of the Nigerian economy) a decade after it
 commenced at the Federal High Court.232 In South Africa, Fick took less than half a
 decade even though it had to go to the Constitutional Court.233 Arbitration has become
 more attractive to stakeholders in the business sector and this trend is expected to
 continue as private international law cases generally remain exposed to the perennial
 challenges of inefficiency that the Nigerian courts face. Other mechanisms such as
 exclusive jurisdiction agreements may be considered.234 The question of inefficiency has
 direct implications for sole reliance on the courts for the incremental development of
 the law. Sole reliance on such incremental development may be weakened by inadequate
 law reporting or access to law reports because access can also influence how law
 develops.       Commenting on why Scottish references to English law was “relatively
 infrequent” between the sixteenth and eighteenth centuries, Smith argued that “English
 decisions were neither readily accessible nor comprehensible outside England”.235

226
    The enforcement of foreign judgments is on the exclusive legislative list. See Item 57 of the Exclusive
    Legislative List; Part 1 of the Second Schedule. 1999 Constitution (as amended).
227
    See The 1922 Ordinance and 1961 Act.
228
    Nasser v. United Bank of Kuwait [2001] C.P. Rep. 105 para 64 (CA).
229
    See Ogelegbanwei v. Nigeria [2016] EWHC 8 (Q.B.) para 12 (Nigeria).
230
    In VAB Petroleum v. Momah [2013] 14 NWLR (Pt 1347) 284 (Nigeria), the first High Court ruling on the foreign
    judgment application was in 1993. The Supreme Court concluded the matter in 2013.
231
    Id.
232
    In a non-conflicts case. See Statoil Nigeria Ltd. v. Inducon Nigeria Ltd. [2021] 7 NWLR (Pt. 1774) 1 (SC) (Nigeria).
233
    See Government of the Republic of Zimbabwe v. Fick 2013 (5) S.A. (C.C.), at 24-29 (S. Afr.). Most matters end at the
    Supreme Court of Appeal anyway.
234
    The English CA decided, in the context of an exclusive jurisdiction agreement, that it had jurisdiction to
    grant a worldwide anti-enforcement injunction to refuse compliance with a foreign judgment. See Bank St
    Petersburg OJSC v. Arkhangelsky [2014] EWCA 593 para. 39 (CA).
235
    Smith, supra note 35, at 522-542.


                                                          144
 2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:2


 The Scottish legal system was safeguarded eventually,236 and continued efforts to forge
 its own path are instructive.237
           A contextual approach to private international law is necessary; whether it is a
 “broader context” considering the “underlying aims and objectives” generally or more
 regional approaches.238 While the exercise of discretion may have its grey areas and thus
 should attract caution, the exercise of discretion is inevitable where the law expressly
 allows it and rules are not mathematically clear. For example, in the era where the
 Internet continues to drive innovation at short notice, African judges need to deal with
 such matters quickly. Traditional rules remain inapplicable even where it is conceded
 that traditional rules of private international law can hardly be adapted to the Internet
 era.239 To attain substantive justice, flexibility is required and flexibility cannot be
 divorced from the exercise of discretion. The notion that former colonies should change
 their laws merely because the English common law has changed needs contextualization.
 A principled contextual approach should underpin comparative analysis that is often
 inevitable in private international law issues.




       CONCLUSION

 Courts need to develop the law in a systematic manner. Considering the legal history of
 many former British colonies, the first step is to determine and accept the current legal
 position. The next step is to develop it systematically.                              Inconsistencies and
 contradictions should be tackled through a principled exploration of the discretionary
 space available to judges, which is a pivotal component of legal development in private
 international law. As more complex issues arise in private international law, especially
 those driven by technology and assertions of individual liberty, it is increasingly difficult
 to predict the specific challenges with which courts may be confronted. In Nigeria, there
 is a general default recourse to the English common law. Unlike Nigeria, South African
 courts have been more consistent in actively developing the South African common law.
           African courts can benefit from a comparative approach to decide difficult cases.
 However, this should be done in a principled and purposive manner. Indeed, there is a

236
    The Treaty of Union ratified in 1707 would then help to guarantee the independence of the Scots legal
    system. Id.
237
    On Scotland’s engagement with presence and residence, see Zigal v. Buchanan [2019] CSIH 16 paras 7-10 (Scot.).
    There were no references to English cases. Cf. Service Temps Inc v. Macleod [2013] CSOH 162 (Scot.).
238
    See Lundstedt & Sinander, supra note 57, at 404.
239
    See Oppong, supra note 27, at 580.


                                                       145
              FORMER BRITISH COLONIES: THE CONSTRUCTIVE ROLE OF AFRICAN COURTS


 limit to comparison.240 A contextual approach should be complementary. The English
 common law has been developed in the context of the English legal system, even if such
 law may have implications for other jurisdictions with which the English common law
 interacts. There is a growing realization that courts need to consider how they want to
 deal with various aspects of private international law. For example, the international rise
 of commercial courts can promote a contextual approach.241 While what amounts to a
 commercial matter ought to be expanded to fit with the evolution of the times, such
 expansion should always be made considering the relevant contexts. Thus, commercial
 matters should be considered differently but always with the knowledge that such issues
 exist within certain contexts.
             The role of African judges is at the center of building a resilient private
 international law framework.             The discretion in discharging that role is not only
 inevitable, but also critical if a sustainable development of private international law is to
 be attained in Africa.         The question is more about what should be done with the
 discretion and what policy should drive the adaptation of the English common law. The
 role of scholars is important but it should complement, and not displace, the role of
 courts in legal systems where judicial precedents are critical to legal developments. One
 reason for this is that courts, unlike scholars, are legally required to be objective since
 they have constitutional functions of interpreting statutes and resolving disputes. Other
 African countries can draw lessons from proffered solutions to the challenges that
 former British colonies face.




240
      See Moran and Kennedy, supra note 29, at 572.
241
      Standing International Forum of Commercial Courts, Second SIFoCC COVID-19 Memorandum 2021 (UK).


                                                    146
