In a civil case involving a foreign element technically known as ‘conflict of laws’, the trial court will have to determine whether it has jurisdiction both over the parties and the cause of action, also it will have to examine the cause of action to determine whether the case is one of breach of contract, matrimonial cause or commission of a tort so as to determine which appropriate rule of law is applicable.
The process of determining those issues is what under Private International Law known as classification
- Meaning of Classification
- How do Courts use Classification in Conflict of Laws?
- Process of Classification in Private International Law
- How Classification was applied in Gharib Abdallah Juma v Kay Mlinga case?
Meaning of Classification
Classification in terms of Private International Law is the selection or classification of causes of action and rule of law applicable to disputes involving foreign elements.
This means the allocation of the question raised by the factual situation before the court to its correct legal category. In the process of Classification, the court is required to analyze the pleadings prepared by the parties and to assign each component element to the most appropriate juridical concept or category.
The rules of any given system of law are arranged under different categories, addressing procedure, status, contract, tort, divorce, nullity, and so on.
How do Courts use Classification in Conflict of Laws?
When Courts faced with a case of the foreign element, have a two-stage process; first, the court will apply the law of the forum lex fori (lex fori means the domestic law of the court dealing with the case) to all procedural matters including, evidence rules and the choice of law rules.
Further, the court has to count the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection.
- The law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity of the parties.
- The law of the state in which land is situated (lex situs) will be applied to determine all questions of the title.
- The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive.
Process of Classification in Private International Law
Generally, the process of classification involves two things namely; classification of cause of action and classification of the rule of law.
Classification of Cause of Action
Every legal system arranges its rules under different categories which must form the basis of a plaintiff’s claim.
These categories may be concerned with tort, contract, property, status, succession, and so on.
Therefore the classification of cause of action means the allocation of the question raised by the factual situation before the court to its correct legal category.
The aim or object of doing this is to reveal the relevant rule for the choice of law. Thus, once the forum court has decided that it have jurisdiction to hear the case, it then must characterize or classify the cause(s) of action.
This is regarded as the most important and difficult problem in the Conflict of Laws.
Classification of Rule of Law
Once the legal category of a given case has been identified, the next stage is to apply the relevant choice of law rules in order to identify the law of the place where the cause of action was raised (lex cause.)
However, even at this stage, it may be necessary to classify a particular rule in order to determine whether it falls within one choice of law rule or another.
Generally Classification of rule of law applicable in a case will depend basically on the ultimate reasoning of a judge. There is no hard and fast rule on this.
Nevertheless, the correct choice of law will depend on some connecting factors such as domicile, the situation of immovable, and definite legal systems.
Read the following case to understand how the court applies the consent of application. Here I will share a summary.
Gharib Abdallah Juma v Kay Mlinga[Civil Appeal No 10 of 2001] CAT at Zanzibar
Gharib Abdallah Juma, a Zanzibarian, lived in Denmark, married Kay Mlinga, a Tanzanian from the mainland, in Denmark.
Denmark practiced the system of community of property to married people. At that time he owned a flat in Copenhagen, so Gharib Abdallah Juma decided to enter into a pre-marital agreement with Kay Mlinga to exclude it from the matrimonial property. Before marriage, he had other properties (two Houses) situated in Zanzibar.
After the marriage, Kay Mlinga went to live in Zanzibar. The marriage lasted some 14 years and the two were obtained judicial separation and were formally divorced. Both the judicial separation and the divorce occurred in Denmark.
There was no order for the division of matrimonial property in Denmark.
After divorce Kay brought a suit for the division of matrimonial properties in the High Court of Zanzibar. She wanted the division of properties that Gharib owned before and after marriage especially properties situated in Zanzibar.
To claim for the property which Gharib had before marriage, Kay based her claim on the pre-marital agreement which, after excluding the flat in Copenhagen, provided for a ”complete community of property” between them.
In his defense, Gharib said that Kay had contributed nothing to the acquisition of the properties of which she was claiming a share. Further, he contended that the pre-marital agreement being a ‘Danish Contract’ could not be enforced in Zanzibar.
Apparently High Court found that found the pre-marital agreement valid and enforceable in Zanzibar. The high court found that the Agreement covered ”All the properties owned by the parties before and after the marriage be it in Denmark, Tanzania or anywhere.”
It ordered that all the properties mentioned by Kay be valued and distributed between the parties.
Gharib was aggrieved by that judgment and appealed to the Court of Appeal of Tanzania at Zanzibar, which quashes and sets aside the judgment of the High Court.
In the memorandum of appeal, he listed eleven grounds with an alternative ground that the learned judge of the High Court had erred in law and fact in including as matrimonial property liable for distribution the properties of which ownership had not been established.
According to the appellant, only the properties which were acquired subsequent to the marriage were matrimonial property that could be distributed according to contribution and that the marriage settlement was intended only for properties in Denmark and was void as regards properties in Zanzibar.
The main issues before the Court of Appeal was
- Whether the Danish pre-marital agreement can be enforced in Zanzibar?
- Whether the pre-marital agreement covers all the properties owned by the parties before and after the marriage is it in Denmark, Tanzania, or anywhere?
The Danish pre-marital agreement may be enforced in Zanzibar.
The pre-marital agreement covered only the flat in Copenhagen
Court of Appeal quash and set aside the order of the trial court that all properties in the judgment be – valued or estimated and distributed between the parties. However, the respondent can get the monetary value of her share of the immovable assets in Zanzibar after such value has been ascertained by a competent Government Valuer.
The appeal failed Kay to get her cost.
How Classification was applied in Gharib Abdallah Juma v Kay Mlinga case?
What happened, in that case, is known as conflict of laws in Private International Law. Classification is applied to solve that conflict. The following is how the High Court of Zanzibar and the Court of Appeal of Tanzania applied the classification to handle the case.
First, the High Court applied the law of Zanzibar (lex fori) to all procedural matters, for example, procedure on the admissibility of the evidence, where the court admitted them pre-marital agreement which was formed in Denmark by using the forum (Zanzibar) law.
Second, the Court of appeal applied the law of Denmark to determine the validity of the contract. It stated that “once it is accepted that the validity of a contract depends on the law of the place where the contract was entered into – “lex loci contractus” –“
Third, in relation to the rule of law applicable in ownership of immovable properties, High Court applied the law of domicile (lex domicilii) to determine the legal status and capacity of Ray to own immovable properties situated in Zanzibar. Court of Appel cement on that issue by stated that all questions that arise concerning rights over immovable, (land) are governed by the law of the place where the immovable property is situated (lex situs).
Generally the above discussion revealed that the concept of classification under Private International Law means the selection or classification of causes of action and rule of law applicable in disputes involving foreign elements.
It involves the classification of cause of action and classification of the rule of law. The main aim to apply classification is to solve the conflict of laws.
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