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Published online by Cambridge University Press: 28 July 2009
The division of state inhabitants into communities living under different laws opens up possibilities of conflicts problems on an unprecedented scale. These problems may arise not only when members of different communities enter into legal relationships, but also when the parties, whether members of the same community or not, choose to regulate their legal relations in accordance with another personal law. The occurrence of either of these circumstances poses some problems for which the law is difficult or uncertain. This study attempts to examine with particular reference to the Sudan the problem of choice of law to be administered.
In examining the problem of choice of law I shall attempt to show and compare how different systems of personal laws (i.e., where personal laws are administered in their respective courts of nationality, religion or ethnic community and courts which administer two or more personal laws) try to solve choice of law problems. It is apparent that the existence of the lex fori in the former and its absence in the latter should affect the approach to the problem of choice of law. The contrast between the two approaches is striking. The contention here is that systems of personal laws always apply their lex fori and treat questions of choice of law as mere questions of competence.
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9 Id.
10 S. 6(c). Apart from two cases of succession to property between Copts whose law of succession resembles Sharia law, this rule of jurisdiction has not been relied on in practice: see Guttman, , The Reception of Common Law in the Sudan, 6 International Comparative Law Quarterly 401 (1957)Google Scholar; Lutfi, Ali, The Future of English Law in the Sudan, (1967) L.J., Sudan & Rep. 219Google Scholar
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20 Id., s. 12(l)(c), (2) and (3).
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25 These records were collected by the Sudan Law Project Team drawn mainly from Faculty of Law, University of Khartoum, under a series of financial grants from the Ford Foundation. The documents are now deposited with the Central Archives, Khartoum.
26 According to one view the local courts handle about 55 per cent of the decided cases in the Sudan: see Nur, El, supra note 17, at 78.Google Scholar According to another view their work constitutes between 55 to 75 per cent of all the cases decided in the Sudan: see Thompson, , The Formative Era in the Law of the Sudan, (1965) J., Sudan L. & Rep. 474, at 477Google Scholar.
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35 Kollewijn, , Conflict of Western and Non-Western Law 4 Int'l L. Q. 307 (1951)Google Scholar; Bartholomew, supra note 2. These studies do not consider the problem of choice of law when the laws prima facie relevant were both non-European.
36 The African Courts Ordinance 1951, s. 10.
37 The Local Courts Ordinance 1951, s. 12.
38 XIX Parl. Debates, 531 (1833)Google Scholar.
39 (1868) 1 B.L.R. (O.C.) 87.Google Scholar
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43 I.L.R. (1881) 6 Cal. 794, 806, 808.
44 I.L.R. (1885) 7 All. 775, 778.
45 Id., at 778 where he stated: “The principle of applying the native laws … with reference to the accident of (the parties) being arrayed as parties-plaintiffs or parties-defendants in the litigation, is an illustration of the simplicity which marks some of our oldest legislative enactments.”
46 S. 4.
47 Ss. 5, 6 and 7.
48 (1967) Sudan L. J. & Rep. 70.Google Scholar
49 A territorial law is one which is not limited on the grounds of race, religion, ethnic community or other non-territorial concept.
50 Emphasis added. This Act appeared for the first time as the Courts Act 1960.
51 Bennion, , Constitutional Law of Ghana, 447 (1963)Google Scholar.
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54 Id.
55 (1921) Full Court 48. The court also cited Allott, Essays in African Law, 186 (1960)Google Scholar.
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57 Id., at 72.
58 (1963) Sudan L. J. & Rep. 182.Google Scholar
59 HC-CS-259–1952 (unreported).
60 Section 5 reads:
Where in any suit or other proceedings in a civil court any question arises regarding succession, inheritance, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs, the rule of decision shall be:
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity and good conscience and has not been by this or any other enactment altered or abolished, and has not been declared void by the decision of a competent court;
(b) the Sharia law, in cases where the parties are Muslims, except in so far as that law has been modified by such custom as is above referred to.
The difference between the old and new section 5 is that the former uses the words “Mohammedan law” and “Mohammedans” for the words “Sharia law” and “Muslims” in the latter.
61 Now renamed the Non-Muslims Marriage Act 1926, 2 Laws of the Sudan 13 (5d. 1981)Google Scholar.
62 HC-CS-86–1950 (unreported).
63 See the English cases of Gray v. Formosa (1963) P. 259Google Scholar and Adams v. Adams (1970) 3 All E.R. 572Google Scholar; Read, The Recognition and Enforcement of Foreign Judgments, 203–216 (1938)Google Scholar; Kahn-Freund, , Domicile of Married Women 5 Modern Law Review 66 (1941)Google Scholar; Morris, , Recognition of Divorce Granted outside the Domicile, 24 Canadian Bar Review 73 (1946)Google Scholar; Cowen, , Divorce and Domicile 68 Law Quarterly Review 88 (1952)Google Scholar.
64 By the Domicile and Matrimonial Proceedings Act 1973, s. 1 of which gives the wife capacity to acquire a separate domicile.
65 See, e.g. Bamboulis v. Bamboulis (1953–1954) Digest of Cases in the Court of Appeal and High Court, Digest No. 25 and at p. 76Google Scholar where it is reported fully; Kattan v. Kattan (1957) J., Sudan L. & Rep. 35Google Scholar.
66 Supra note 58.
67 The judgment at p. 185 mentions 11 insisted of 9 years but this is probably a misprint. Later in the judgment the learned Province Judge points out that these age sets can be extended by two years in each case to 9 and 11 respectively, thus repeating 11.
68 Id., at 185.
69 Id., at 185.
70 Supra note 48.
71 Id., at 75.
72 S. 4 of the Wills and Administration Act 1928.
73 For the list of the excepted communities, see the Non-Muslims Marriage Act 1926, Second Schedule, Part I.
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