UNIV ERSIT Y O F IB ADAN L IB RARY JOURNAL of law and DIPLOMACY ISSN 1117-1685 Volume 7, Number 2, 2010 EDITORIAL BOARD Editor DR. T. F. Ycrima Associate Editors G. C. Nwakoby C. A. Omaka B. F. Jemilohum A. O. olaleye U. Udok S. O. Ayewa R. A. Olaoye G. Onu A. N. Nwazuoke A. M. Adejo J. Oladosu A. J. Ikpang O. K. Edu E. B. Omoregie Assistants to the Editors Edikan Bassey . Maurice Essien An Official Publication of the International Research and Development Institute www.irdionline.com UNIV ERSIT Y O F IB ADAN L IB RARY http://www.irdionline.com JOURNAL of law and DIPLOMACY ISSN 1117-1685 Volume 7, Number 2, 2010 EDITORIAL BOARD Editor T. F. Ycrima Faulty of Law, Department of public and International Law Kogi State University, Anyingba, Kogi Stale, Nigeria Associate Editors G. C. Nvvakoby Faculty of Law Nnamdi Azikiwe University Awka, Anambra State, Nigeria C. A. Omaka Faculty of Law Ebonyi State University Abakaliki, Ebonyi State, Nigeria B. F. Jemilohum Faculty of Law University of Ado - Ekiti Ado - Ekiti, Ekiti State, Nigeria A. O. olaleyc Department of Political Science University of Ado - Ekiti Ado - Ekiti, Ekiti State, Nigeria U. Udok Faculty of Law University of Uyo Uyo, Akwa Ibom State, Nigeria S. O. Aycwa Faculty of Law- Delta State University Abraka, Delta State, Nigeria R. A. Olaoyc Department of History University ofllorin Ilorin, Kwara State, Nigeria G. Onu Department of Political Science. Nnamdi Azikiwe University Awka, Anambra State, Nigeria A. N. Nwazuoke Faculty o f Law Ebonyi State University Abakaliki, Ebonyi State, Nigeria A. M. Adcjo Department of History Benue State University Makurdi, Benue State, Nigeria J. Oladosu Department of Philosophy Obafemi Awolowo University He - Ife, Osun State, Nigeria A. J. Ikpang Faculty of Law University of Uyo Uyo, Akwa Ibom State, Nigeria O. K. Edu Faculty of Law Delta State University Abraka, Delta State, Nigeria E. B. Omoregie Faculty of Law. University of Benin Benin City, Edo State, Nigeria Articles for publication should be Send to: The Managing Editor, International Research and Development Journals, Kan Educational Boohs, No. 63 Itiam Street, P. O. Box 790, Uyo, Alova Ibom State, Nigeria. www.irdionlinc.com ii UNIV ERSIT Y O F IB ADAN L IB RARY http://www.irdionlinc.com JOUIMAL OF LAW AND DIPLOMACY ISSN 1117-1685 Volume 7, Number 2, 2010 Published by the International Research and Development Institute in Association with Kan Educational Books, No. 63 Itiam Street, P. O. Box 790, Uyo, Akwa Ibom State, Nigeria. First Published 2005 Copyright © 2010 International Research and Development Institute. vvww.irdionline.com All right reserved. No part of this Journal may be reproduced or transmitted in uny form or by any means without the written permission of the International Research and Development Institute. Printed and B ound in Nigeria. UNIV ERSIT Y O F IB ADAN L IB RARY JOURNAL OF LAW AND DIPLOMACY i S S . V I I I ~ 16X5 Volume Xiimber 2. JO 10 S/No. Contents | Author(s) Pages 1. An Overview of the Law and the Protection of Children against Abuse in Nigeria B. 0 . Alioh 1-5 1 Human Right and Employment Discrimination: A Comparative Examination of Equal Job Opportunities Kihindc l lassan Bamiwola 6-15 J . The Scope of Law, Religion and Human Rights in Nigeria Olayinka Olaniyi Felix 16-25 4 . Enforcement of Intellectual Property Rights in the Third World Countries: An Overview C. C. Nwabachili 26-30 5. Challenges to Effective Protection of Copyright in Nigeria C. C. Nwahachili 31-36 6. Jonathan's Acting Presidency: of Political Expediency or Constitutional Impunity? Ojomu Sunday Femi-Ola 37-41 7. Planning as a Penacea for Achieving the 7- Point Agenda in Nigeria! Focus on Education Mark 0 . Omu 42-45 8. The impact of Military Rule on Human Rights Violations in Nigeria: 1983 - 1999 in Focus Efebeh. Eseoghene Vincent 46-51 9. Understanding Modern Trends in Penology: Implications for the 21st Century Omede Philemon Iko-Ojo 52-57 10. In Personam Jurisdiction in Internet Transactions M. A. Araromi 58-66 1 1 . Geneva Convention and its Relevance in International Humanitarian Law' in the 21s1 Century Akpoghome Theresa U. 67-76 12. The Domestic Application of Human Rights Norms A. 0 . E. Filani 77-86 13. Towards the People’s Constitution in Nigeria Alhaji Aro Olaide Ismail 87-92 14. Religion in a Scientific Society: Critical Considerations for Continued Relevance Okechukwu (MH) Izumva 93-100 15. Redefining ‘Children of Marriage’ under Section 69 of the Matrimonial Causes Act 1970 for Child Custody Placements in Nigeria Michael Attah 101-111 16. Regulation of Corporate Social and Environmental Behaviour in Developed and Developing Countries Grace Abosede Oladele 112-1-36 17. A Case for Priest-Penitent Privilege in Nigerian Jurisprudence Ikenga K. E. Oraegbunam 137-150 18. A Critical Analysis of Universality of Human Rights in the International Human Rights Law Enobong F. Eyo 151-164 IV UNIV ERSIT Y O F IB ADAN L IB RARY Journal of Law and Diplomacy, Volume 7, Number 2, 2010 ISSN: 1117-1685 IN PERSONAM JURISDICTION IN INTERNET TRANSACTIONS M.A. Araromi Faculty of Law University of Ibadan, Ibadan, Oyo State, Nigeria ABSTRACT The fundamental nature o f jurisdiction cannot be overlooked in giving effectiveness to judgments or orders given by a court, as no court will want to act in vain. Power to exercise jurisdiction in a matter presupposes a boundary or territorial limit within which such a power can be exercised. In civil matters under the common law system the traditional basis o f in personam jurisdiction is the service o f the process(es) o f a court on the defendant. The Internet, by nature, has no definite boundaries, as it has no physical sitting place but only exists or resides in a virtual cosmos, and its ubiquitous nature makes it to be present everywhere, thus accessible in different jurisdictions. The nature o f man in exploring beyond borders to make business gains and to acquire necessities has been made possible and easier through the internet. There is an undisputable tendency that many states have attempted to apply tcrws traditionally made for transactions that take place in the physical world to those that are executable on the internet. Hence these states will always want to assume jurisdiction in internet transactions on the basis o f their traditional lerws, in which case such laws are twisted out o f shape to heed this call. The basis upon which jurisdiction can be assumed in internet transactions is therefore explored in this work with a view o f suggesting viable solutions to the evasive nature o f the in personam jurisdictional concept in the internet. Keywords: Jurisdictions, Transactions, Internet, In personam.__________________________ INTRODUCTION The issue of jurisdiction is so fundamental to the exercise of power of a court over any matter brought before it for adjudication that it gives effectiveness to the decision given by such a court. If a court lacks jurisdiction its decision will only be a product of a vain exercise. It is therefore essential that a court must possess jurisdiction to entertain any matter brought before it. More often than not jurisdiction is territorial based, whereof a court will only have power to exercise jurisdiction on matters touching on its territory. This territorial phenomenon will only be unproblematic where there are clear and physical boundaries. However, problems arise in matters where conducts that lead to a dispute occur on the Internet, which has no physical territorial significance, and is otherwise called a cyberspace. The issue of personal jurisdiction in Internet transactions will thus be treated in this write up. . TRADITIONAL BASES OF IN PERSONAM JURISDICTION Jurisdiction is the power of a court or a judge to entertain an action, petition or proceedings.1 It can be described as the power of a court to hear and determine an issue upon which its decision is sought.2 Traditionally, in civil proceedings in the common law system the defendant is required to be physically served with court process in the state where the court sits for it to be able to exercise personal jurisdiction over such a defendant. The jurisdiction exercised by the court in this situation is referred to as jurisdiction in personam in conflict of laws. An action is said to be in personam when its object is to determine the rights and interests of the parties between themselves in the subject matter of the action, and the effect of a judgment in such an action is merely to bind the parties to it. A good example is an action for a breach of contract brought by one or more of the parties to the contract against another. In an international situation, Graveson has suggested that the expression ‘choice of jurisdiction in the conflict of laws means choice of the country that should exercise jurisdiction.3 The concept of personal jurisdiction is fundamental. Due process is offended when someone is sued in a state with which there were no “minimum contacts; or is sued where the exercise of jurisdiction would offend traditional notions of fair play and substantial justice. The courts may in some cases consider factors like the nationality of the parties or their domiciles, the physical presence in the state or forum, place of entering or making a contract, place ‘ Alade v Alemuloke 1 NWLR, (1988) Pt. 69, 207. ' Cheshire and North’s Private International Law, 10th ed., Butterworths, 1979, p. 77. J Graveson, Conflict of Laws, 7th ed. Sweet & Maxwell London, 1974, p. 95. 58 UNIV ERSIT Y O F IB ADAN L IB RARY of performance of a contract, the situation of a business of either of the parties within the forum, etc, in determining the existence of minimum contacts. Basically, ordinary jurisdiction over any person under the English common law is based upon the doctrine of power i.e. the power of the sovereign to, seize such a person and imprison him to await the sovereign’s pleasure. This is the general principle of in personam jurisdiction in most common law systems. In the words of Lord Russel in the case of Carrick v Hancock1 the jurisdiction of a court is based upon the principle of territorial dominion, all persons within any territorial dominion owe their allegiance to its sovereign power and obedience to all its laws and to all lawful jurisdictions of its courts. While there is a general principle, under the traditional rules, that the service of writ renders the person subject to the in personam jurisdiction of the court, the application of this principle differs according to whether the defendant is an individual, a partnership or a corporation. The writ must be served personally on the defendant, and where impossible, by substituted service.* 5 In essence, the basic consideration of jurisdiction under the common law system is procedural and it is devoid of the consideration of factors like nationality, domicile or residence of the parties. In effect, in personam jurisdiction under the English common law depends on the presence of the defendant within the forum, even if such presence is temporary or transient, and notwithstanding that the claim has no other connection with England and the English law. In other words, the service of the writ on the defendant within the court’s jurisdiction gives the court power to assume jurisdiction over him. It is noteworthy, however, that an exception to this rule comes under Order 11 Rule 1 of the Supreme Court of England Rules which gives authority to the court to assume jurisdiction over absent defendants in certain cases. Also in the United States of America there is a limit to the set of persons over whom a court may exercise its power. Under personal-jurisdiction law, unless a defendant has some relationship with the territory in which a court is a valid decision maker, he is not subject to the power of that court. In the United States, the Due Process Clause of the Federal Constitution constrains courts’ ability to issue binding judgments over persons’ liberty and property. The United States Supreme Court has held that a court may impose its will upon ‘foreign’ defendants (i.e. out-of-state or non-U.S. defendants) only when they have evidenced or had some ‘minimum contacts’ with the court’s territorial jurisdiction. The Supreme Court also came to the conclusion that non-physical contacts with a jurisdiction can be sufficient to satisfy this requirement - but only when the maintenance of the suit comports with ‘traditional notions of fair play and substantial justice’. The idea behind this principle is to subject persons to the jurisdiction of courts in states where they have “purposefully availed” themselves of the benefits of interacting with the jurisdiction in question. See for example the case of International Shoe v Washington 326 U.S. 310 (1945). Ir. Nigeria, under the received English law, courts may assume in personam jurisdiction over any person within the jurisdiction whenever a writ has been properly served on him. Wheeler J., basing his decisions on the judicial pronouncement in Benson v Ashiru,6 7 in the following case, namely, Barzasi v Visioni Ltd, Misr (Nig) Ltd. V Yesuf Ibrahim and Anor.8 9 and Jami A. Addas v Alhaji Bilal Maidugur 'i held that the basis of in personam jurisdiction is the proper service of a writ on the defendant. In the first case, the learned judge adopted as the law in Nigeria the legal proposition contained in Halsbury’s Laws of England that the [English] courts have (with very few exceptions) jurisdiction to entertain an action relating to a contract, wherever made, in all cases where the parties are effectively before the court, as where personal or substituted service of the writ has been effected on the-defendants in England (but in Nigeria, in our own case) or when leave has been given to serve the writ or notice of the writ out of the jurisdiction.10 The exception to the writ rule discussed above is the principle of submission whereby the defendant, though not served or properly served with a writ entered an unconditional appearance either personally or through h.s counsel to the suit.11 Where, however, the defendant has merely appeared to contest the issue of jurisdiction, he would not be deemed to have submitted to the court’s jurisdiction. However, under the High Court Law12 of the Eastern States, the civil jurisdiction of the courts over out-of-state transactions comes under two headings i.e. contractual and non-contractual obligations. For jurisdiction in contractual obligations, section 22(1) of the High Court Law authorizes the courts to hear and determine any suit for In Personam Jurisdiction in Internet Transactions j (1895) 12 TLR59, 60 5 J.H.C. Morris, The Conflict o f Laws, 3rd ed. London, Stevens and Sons, 1984, p. 65. 6 (1967) N.M.L.R. 363. 7 (1973) N.N.L.R. 1. 8 (Unreported) suit No. k/65/70 (Kano High Court) 9 (Unreported) suit No. k/67/74 (Kano High Court) 10 See also Ventujoi v Compannie Francaise de l’Afrique Occidentale, (1969), 19 N.L.R. 35. 11 See Jami A. Addas v Alhaji Bilal Maiduguri (supra) 12 E.R.N. 20 of 1955 as amended by the High Court Law 1956-1962 59 UNIV ERSIT Y O F IB ADAN L IB RARY specific performance of any suit founded upon a breach of contract if the contract was made within the jurisdiction of the court though the breach occurred elsewhere or if the contract ought to have been performed within the jurisdiction or if the defendant or one of the defendant resides within the jurisdiction. On the other hand, for jurisdiction is non-contractual obligations section 22(2) of the same High Court Law authorizes the court to hear and determine any civil cause or matter other than one referred to in sub-section (1) where the defendant resides or carries on business within the jurisdiction of the court. Thus, it seems that the Eastern states are probably the only common law jurisdiction where the common law ‘transient rule’ has been statutorily repudiated. Bye and large the basis of jurisdiction in Nigeria is also predicated on minimum contacts. JURISDICTION ON THE INTERNET The ability of the Internet to reach across borders has raised a host of questions; one of such questions, which is very germane to the development of the law, is the question of legal jurisdiction. Under the traditional system of jurisdiction under the common law, the basis of a court’s jurisdiction is dependent upon the presence of the defendant within the jurisdiction i.e. if a writ of the court is duly served on such a defendant in an in personam action. However, it is possible that the court may serve its process on the defendant even though the defendant is not present within the jurisdiction in situations that come under Order 11 rule 1(1) of the Rules of the Supreme Court of England. In such cases the court may exercise its discretion whether or not to grant a leave to serve the writ or process outside the jurisdiction. It is also pertinent to add that the court may allow service out of the jurisdiction in relation to a breach of contract in England. In addition, it covers actions to enforce, rescind, dissolve, annul or otherwise affect a contract in a number of situations: • where English law governs the contract (which is determined according to the English choice of law rules); • where the contract was made in the jurisdiction (issues as to the point of effective acceptance may arise, such as whether the acceptance is effective on receipt or dispatch. In this context, they will be resolved according to English law); • where the contract was made by or through an agent trading or residing in the jurisdiction on behalf of the defendant; ° where a contract term confers jurisdiction on the English courts.* 14 Some Internet legal scholars have opined that it would not be palatable to strictly apply the traditional jurisdictional rules to cases or matter evolving from internet dealings. The procedural issue with significant implications for the application of substantive law of cyber-acts is the question of conflicts of laws. It is trite that different geographic sovereigns commonly have different policy preferences which are implemented through law. It is also not unusual that different sovereign states are jealously interested in their laws being used to govern disputes involving their citizens or territories. However, Internet activity commonly involves persons and computer networks located in many territories whose laws may be very different. Traditionally, U.S. courts decide conflict of laws cases by reference to the principle of lex loci delicti i.e. the law of the place of the wrong. However, in the geographically fluid environment of cyberspace, the place of the wrong is not often clear. Most legal systems recognize certain limitations on courts’ power to compel defendants to appear and defend themselves. The fundamental principle in personal action is that a court cannot validly act if it does not validly possess personal jurisdiction over the parties to the suit. The Internet raises several troublesome personal jurisdiction problems. For instance, a website hosted in Canada can be viewed anywhere on the globe where an access is enabled. Courts have the duty to decide in which locations, under what circumstances, the exercise of personal jurisdiction over the citizen for claims arising from the website comports with traditional notions of fair play and substantial justice. THE NATURE OF THE INTERNET AND ITS LEGAL IMPLICATIONS: JURISDICTIONAL CRISIS The growth of the Internet in recent times has brought about the possibilities of accessing a tremendous amount of materials, communicating and transacting business in the cyber-space without the parties involved being physically present. Computer technology by virtue of its unique and volatile nature, Journal of Law and Diplomacy, Volume 7, Number 2, 2010 lj The ‘transient rule’ is to the fact that any individual/defendant may be served with a writ in an action in personam, however short or fleeting his presence may be. 14 Diane Rowland and Elizabeth Macdonald, Information Technology Law, 2nd Edition, Cavendish Publishing Ltd., London, 2000, p. 269. 60 UNIV ERSIT Y O F IB ADAN L IB RARY has posed novel and complex legal problems. Most times, the law has been found wanting when dealing with the issues raised by computers and the efforts of the legislators and the courts to come to terms with technology have sometimes appeared clumsy13 Internet transaction can be described as a subset of electronic commerce which is defined as a broad concept that covers any commercial transaction that is effected via electronic means and would include such means as facsimile, telex, EDI, Internet and telephone.* 16 However, e-commerce does not simply provide a new means of making contracts, but also provides new methods of performance. Electronic commerce, specifically via the Internet, is not restricted by geographical boundaries in the same way as traditional business forms. The Internet has created, for instance, the possibility of parties in different jurisdiction to enter into contract mentally, without being physically involved, and this has led to disputes involving elements from different jurisdictions, or countries. Indeed, it may be at first difficult to determine the legal regime to apply to transactions via the Internet. This is based on whether to consider the activities on the internet as substantially different from those conducted through the traditional means. A veritable answer to this quest may provide a reliable inference from the nature of such transaction. It may be at first important to determine whether the internet allows people to do ‘new things’ or whether it largely allows people to do existing things in new ways, albeit in greater volumes. This has been considered as a necessary distinction to be drawn, as the answer directly impacts upon the manner in which the Internet should be regulated.17 Different views have been aired by legal scholars concerning the nature of activities on the Internet. Jack Goldsmith for instance, in his article18 argues that cyberspace (Internet) transactions are no different from “real-space” transnational transactions. He submitted that such transactions involve people in real space in one jurisdiction communicating with people in real space in other jurisdictions in a way that often does good but sometimes causes harm. Goldsmith’s position is quite contrary to that of many other Internet legal scholars who argue that the internet is ‘exceptional’ and that the questions raised by Internet conduct are indeed different, and more difficult, than the analogous questions raised by its real-space counterpart, and the jurisdictional dilemmas posed by the Internet cannot be resolved by applying the traditional legal tools developed for similar problems in realspace.19 However, treating the Internet as a separate ‘space’ that should be regulated distinctly from ‘realspace’ would require a significant departure from traditional legal principles.20 To legal scholars, like Goldsmith and Post, the solution to jurisdiction on the Internet turns on whether the Internet is “no different” or “indeed different” to real space. Goldsmith, believing that the Internet is no different from the real space, claims that the Internet is not deserving of distinct jurisdictional rules. Post, on the other hand, having decided that the Internet is Efferent proposed that “decentralized self governing institutions should regulate the Internet. Menthe, however, appears to suggest a third-way.21 He claims that the Internet should be regulated in the same way as the other established “international spaces”, namely Antarctica, outer-space and the high-seas. Accordingly, jurisdiction should be determined according to the nationality of the parties. He rules out the traditional rules as a basis for determining jurisdiction on the internet. He considers jurisdiction in the cyberspace as the overriding conceptual problem for domestic and foreign jurisdictions alike. He posits that unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-laws and reduces them to absurdity. Menthe, considering the problem of scale as the basis for the need of a different approach to the Internet, and the millions of websites found on the Internet, believes Internet conduct, (whether it is akin to real space conduct or not) in potentially causing a nightmare conflict-of-laws scenario, needs to be regulated separately. The authors22 * believe that the traditional rules of jurisdiction will be unworkable on the Internet, and thus devise a plan for ensuring it does not disintegrate under the weight of overlapping jurisdictional claims. However, it has been observed that Menthe’s analogy does not seem convincing enough because he compares two relatively disused international spaces (Antarctica and outer-space) with a very heavily used space (the internet).20 In Personam Jurisdiction in Internet Transactions b David Bainbridge, Introduction to computer Law, 5th Edition, Pearson Longman, 2004, p.l 16 Report of the Electronic Expert Group to the Attorney General (Austria), Electronic Commerce, Building the Legal Framework, 1998 available at '' Michael Saadat (2005), “Jurisdiction and the Internet after Gutnick and Yahoo!”, The Journal of Information, Law and Technology (JILT). Also available at 18 J. Goldsmith (1998), “Against Cyberanarchy”, 65 Chicago Law Review 1239. 19 See. D. Post (2002), “Against ‘Against Cyberanarchy”, 17 Berkley Technology Law Journal p. 1390. 20 D. Post and D. Johnson, “Law and Borders: The Rise of Law in Cyberspace”, 48 Standford Law Review, 1367. 21 D. Menthe (1998), “Jurisdiction in Cyber space: A theory of International Spaces”, 4 Mich. Telecomm. Tech. L. Rev 69. 22 D. Post and D. Menthe. 2o Michael Saadat, op. cit. p. 5. 61 UNIV ERSIT Y O F IB ADAN L IB RARY Journal of Law and Diplomacy, Volume 7, Number 2, 2010 Under the traditional rules the rules of jurisdiction can be divided into the following categories: the jurisdiction to prescribe (or ‘legislative’ jurisdiction); the jurisdiction to adjudicate (or- ‘judicial’ jurisdiction); and the jurisdiction to enforce (or ‘enforcement’ jurisdiction).24 The jurisdiction to prescribe “is the right of a state to make its law applicable to the activities, relations, status of persons, or interests of persons in things”.2' However, with respect to the Internet, the jurisdiction may make regulating rules anywhere on the Internet. Consequently, prescriptive jurisdiction may involve states seeking to apply their laws extra-territorially, i.e. to activities that take place outside their physical boundaries.26 The jurisdiction to adjudicate refers to the power of a state to require a defendant to appear before a court and defend a claim. As earlier noted, the power of the court to adjudicate in a matter in personam in most common law countries has to do with the sendee of a writ on a defendant present within the jurisdiction, or outside the jurisdiction after fulfilling the requires conditions. Note however that the service of a foreign writ is illegal in some jurisdictions, like Switzerland which does not permit a writ to be served by international post, considering it a breach of its sovereignty.27 Thus, even if the defendant is legally served, by the provisions of the laws of the forum court, outside its jurisdiction the defendant may choose not to enter a court appearance. The third type of jurisdiction is the enforcement jurisdiction of courts. The courts of other jurisdictions may not readily enforce judgments given by courts outside their jurisdictions except on some bases, which may vary' from comity to the provisions of their laws or conventions. States may enact laws to voluntarily limit the jurisdiction of their courts, both unilaterally and multilaterally. This is evident under the Civil Procedure Rules of the United Kingdom which only permit service of a writ outside jurisdiction in certain circumstances.28 On the multilateral front for examples the member states of the European Union have passed the Brussels Regulation, which prevents overlapping assertions of jurisdiction by the signatory' countries to the Regulation, by providing rules, for determining which court or country shall have jurisdiction.29 Based upon the provisions of this convention, the pow er of the courts of the member-states is basically predicated upon the principle that jurisdiction is generally based on the defendant’s domicile. In most cases, European persons can only be sued in the member state within which they are domiciled. However, for persons not domiciled in a member state, the national rules of jurisdiction continue to apply/0 Bye and large the basis of a court exercising jurisdiction in cases involving multi-jurisdictional colouration is predicated upon the defendant or the subject matter of litigation having at least a “minimum contact” with the jurisdiction of the court exercising power to litigate on such legal dispute. However, determining whether activity taking place on the Internet constitutes the necessary “minimum contact” between a defendant and the forum state is problematic. The issue therefore is whether the ability of accessing a website transitionally gives all the nations where the website is viewed a jurisdiction to entertain matters resulting from internet interactions based on such w'ebsite. So far it can be established that the minimum contact required o fa defendant in order to confer a jurisdiction on a forum court is satisfied by the ability of accessing such a website within that forum. Taking this stance will however confer multiple jurisdictions on all the courts within whose for a w'ebsite can be accessed. This will inadvertently lead to forum shopping, and may also lead to putting the defendant in a situation where he will have to defend his case in a forurrt that is not convenient for him. Even if a court of a nation assumes jurisdiction to entertain a matter that arises out of a transaction on an Internet its judgment may not be recognized or enforced wherever such is being sought. The issue of enforcement of judgment is very fundamental to the jurisdiction of courts that its takes a centre stage in any given judgment, especially where such judgment is to operate extra-territorially. Many jurisdictions have however made efforts to ensure they establish a legal regime for the exercise that occur on the Internet. During the latter part of 1996, a wave of court decisions relating to personal jurisdiction surged out of United States trial courts, being a federal country with many sovereign states. But these decisions for the most part have failed to seriously grapple with the nature of the internet and the broader implication of stretching current legal doctrine to fit this new medium. It has also been observed that the geographical transparency of the Internet may well place such adjudication of trans-border disputes outside of any jurisdictional analysis yet contemplated by territorially-bound law. Furthermore, the unique nature of the Internet has triggered a designed approach to handling matters arising from the Internet 24 Ibid, p.5. 25 Ibid. Ibid. Ibid, p. 6. Rule 6.20, Civil Procedure Rules. Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Michael Saadat, op. cit., p.6. 62 UNIV ERSIT Y O F IB ADAN L IB RARY In Personam Jurisdiction in Internet Transactions medium in the U.S.A. A business currently on the Internet or contemplating some form of electronic commerce must consider at least two jurisdiction related issues which are: (1) whether and to what extent establishing a presence on the Internet makes it “present” in any jurisdiction from which its website may be accessed; and (2) how to limit the risk of liability in multiple jurisdiction. In the U.S. some states’ courts traditionally have jurisdiction over a non-resident defendant under the states’ long-arm statutes which permit courts to “reach out” and render judgments against non-resident defendant when that defendant’s conduct and contact with the forum fits within certain prescribed parameters, while some have long-arm Statutes which permit courts to exercise jurisdiction to the full extent due process allows. For the due process requirements to be satisfied a defendant must have “minimum contacts” with the forum and the courts exercise of personal jurisdiction must comport with “traditional notions of fair play and substantial justice”. There are three practical analyses to the testing of minimum contact. First, the defendant must have purposely availed itself of the privilege of doing business in the forum state, thus invoking the benefits and protection of the state’s laws. Second, the defendant activities within the forum state must have given rise to the cause of action. The third is that the exercise of jurisdiction must be reasonable. These traditional tests have also been applied by courts in the U.S. to internet commerce. For instance, in CompuServe, Inc. v. Patterson' 1 Sixth Circuit found personal jurisdiction in Ohio proper over an Internet user from Texas who subscribed to a network service based in Ohio. User “specifically targeted” Ohio by subscribing to the service and entering into separate agreement with the service to sell his software over the Internet, and advertised his software through the service and repeatedly sent his software to the service in Ohio. The court concluded that the user “reached out” from Texas to Ohio and “originated and maintained” contact with Ohio.32 The courts have however been reluctant to hold that a defendant’s mere presence on the Internet, without more, permits the courts to exercise jurisdiction over a defendant. In other words, the courts consider other factors in order to be able to exercise jurisdiction over the defendant on the Internet. Basically the rules designed based on these factors are strictly applied to interstate web presence in the U.S.A. This is achieved by categorizing websites into three in order to determine whether a defendant has purposely availed itself of a forum. These are passive websites, interactive website and the middle spectrum (which is neither interactive nor passive).31 * 33 These categories will later on be discussed herein. But at this juncture it suffices to say that it is probably far too early to suggest that concrete rules have yet emerged for personal jurisdiction in the cyberspace.34 It is germane therefore to state in general terms that presence on the World Wide Web is not sufficient, in and of itself, to suppc t the exercise of general jurisdiction over non-resident defendants.35 It is important to also consider whether having a web-page accessible in other states constitute the “purposeful availment necessary to confe' a jurisdiction over an out-of-state defendant. Can it then be said that having a defendant’s website presence in another state signifies that the defendant has “entered” that state to reap the benefits of the state? It can be logically concluded that if an act of setting up a web page does constitute the web owner “purposefully availing himself’ of the privileges of doing business in a state where such a web page is accessed the web owner should be made subject to that jurisdiction, since he has achieved that minimum contact required. It can be said, therefore, that a sliding scales for the evaluation of Internet contacts, under which the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the “nature and quality of commercial activity” that an entity conducts over the Internet. This standard -has been supported by a number of courts, and may be in the process of becoming a generally - accepted standard for evaluating the exercise of personal jurisdiction based on contacts over the internet?6 This standard is expressed in terms of passive, interactive and the middle spectrum website, as earlier mentioned. 31 89 F. 3d 1257 (6th Cir. 1996) j2 See also Panavision Int’l, L.P. v Toeppen, 938 F. Supp. 616 (CD. Cal. 1996); EDIAS Software Int’l, L.L.C. v BASIS Int’l Ltd., 947 F. Supp. 413 (D. Ariz, 1996); Minnesota v Granite Gates Reports, Inc., No. C6-95-7227; Maritz, Inc. v CyberGold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996) and Inset Systems, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996). 33 See Thomas A. Dickerson (2000), “Consumer Law: The Internet and Its Impact upon Personal Jurisdiction”, , available at 34 David, G. Post (1998), “Personal Jurisdiction on the Internet: An Outline for the Perplexed”, Temple University Law School/Cyberspace Law Institute, available at . 35 Jolly v Weber Hotels, 977 F. Supp. 327 (DNJ 1997). JD David G Post, Ibid, 5. See Zippo Manufacturing co. v Zippo Dot. Com, Inc. 952 F. Supp. 119 (W.D. Pa., Jan 16, UNIV ERSIT Y O F IB ADAN L IB RARY http://www.courts.state.nv.us/tandv/JurisdictionAndTheIntemet.htm. http://www.temple.edu/lawschool/dpost/_outline.htm Generally, courts 47 have conferred personal jurisdiction in situations where “interactive” uses of the internet have taken place within the state. These are situations where a defendant clearly does business over the internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, then it is proper for the foreign court to exercise personal jurisdiction over the defendant.'8 Interact ive contact encompasses two-way online communication w'hich promotes an on-going business relationship. In short, a website can be characterized as interactive if business transactions can be conducted ov er the Internet or if information can be exchanged with the user for the purpose of soliciting business. A “passive” contact occurs where information is merely made available to interested viewers or users in foreign jurisdictions. A passive website that does little more than make information available to those who are interested in it is not a ground for the exercise of personal jurisdiction/9 Courts in the U.S. have generally declined to assert personal jurisdiction solely on the basis of website advertising or where the defendant’s website simply posted the future availability of his services and never sought to contract w'ith the residents of the forum state. Situations may also occur where certain contacts with the forum state can neither be regarded as interactive nor passive. Such cases occupy the middle of the spectrum, and include situations where a defendant operates information with the host computer by providing an e-mail address, a toll-free telephone number or other forms of activity that would enable an “ongoing relationship with the users in the future. In cases like this the court’s exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website.40 Courts’ decisions in the middle spectrum cases are hinged upon the readiness of the courts to view' the means of interaction as either attempts to transact business with the users, or not.41 It is safe to conclude that there cannot be a clear cut distinction between the contacts on the Internet into interactive and passive websites, as developed by the U.S. courts, especially w'here an operator of a website simply provides an information that can be accessed in the forum state, but w'hich does not serve as a platform for soliciting business or conducting electronic commerce, more so as there is no uniformity in courts’ decisions concerning the cases falling into the middle spectrum. NIGERIAN LAW AND FOREIGN JURISDICTION A nation cannot be an island to itself if it is to enjoin the basic benefits of international relationship, which undoubtedly has brought about economic, social and political fortifications to many nations. There is, therefore, a necessity for sovereign states to intermingle, more so that people now traverse the border lines in search for economic and social wellbeing. Moreover, advancement in technology in recent times has provided easiei means of transport and communication, such that the world has become a global village.42 Different jurisdictions have developed laws to answ'er for situations on cases involving inter-relationship between people of different origins or the platform of private international law. Nigeria as a nation with thirty six states and a capital territory is not an exception in the ploy to developing law's to suit intra and inter-border relationship between itself and other nations and between private citizens across borders. Three major problems of private international law have been highlighted, w'hich are: choice of jurisdiction; choice of law and recognition and enforcement of foreign judgment.43 In this paper emphasis in placed on the problem of jurisdiction. As earlier mentioned, for a court, especially in the common law states, to have in personam jurisdiction over defendant he must have been properly served with the court’s process(es). The service of writ within Nigeria is basically regulated by the provisions of the Sheriff and Civil Process Act4" and various High Court Civil Procedure Rules of the states. At the international scene, the High Court Civil Procedure Rules of the state also make provisions for the service of writs out of jurisdiction (i.e. out of Federal Republic of Nigeria). For instance, Order 12 Rule 13(e) (i) of the High Court of the Federal Capital Territory Abuja Uniform Civil Procedure Rules, which treats contractual situations, and which provision is similar to order 8 Rule 1(e) of the High Court of Lagos State Civil Procedure Law, provides that service out of jurisdiction of a w'rit of summons or notice of a writ of summons may be allowed * 40 41 42 43 44 * Journal of Law and Diplomacy, Volume 7, Number 2, 2010 United State of America’s Courts. j8 See CompuServe, Inc, v Patterson, 89 F. 2d 1257 (6th Cir. 1996). j9 See Bensusan Restaurant Corp. v King, 937 F. Supp. 296 (SDNY 1998); Weber v Jolly Hotels (supra). 40 David G. Post, op. cit., 5. 41 See the decisions in Rannoch. Inc. v Rannoch Corporation, 52 F. Supp. 2d 681 (E.D. Va. 1999); Inset Systems, Inc. v Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996); Minnesota v Granite Gate Resorts, Inc. (supra). 42 I.O. Agbede, Themes on conflict o f Laws, Shaneson C.I. Ltd., 1995, p.l. 43 Ibid, 3. 44 See, especially sections 96 and 97 of the Sheriff and Civil Process Act Cap. 56, vol.14, L.F.N. 2004. See also Amanabu &. Okafor (1966)1 All N.L.R. 205, Such is also regulated by the Sheriff and Civil Process Laws of the States. 64 UNIV ERSIT Y O F IB ADAN L IB RARY oy the court or a judge in chambers whenever the action is one brought against the defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a breach of a contract made within the jurisdiction.43 This Order further provides under Rule 13(e) (iii) that such contract may by its terms or by implication be governed by the law in force in the jurisdiction, or is brought against the defendant in respect of a breach committed within the jurisdiction of a contract wherever made even though the breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction. The provisions of this order seem to give a blanket power to cover any contract which breach occurs within the jurisdiction whether made within or outside the forum state notwithstanding the nature of the contract. Though one may conclude that these provisions are designed for the traditional means of making contract and the transactions through the means of an Internet does not come within the purview of the lawmakers. Determining the place of contract (lex loci contractus) in the traditional settings is less problematic than that occurring on the Internet because there are more glaring border lines in the traditional domain than the seamless borders existing on the cyberspace. Hence, Nigeria also finds herself in the same predicament as many other nations across the globe in the matter of determining which country should exercise jurisdiction on business transaction that occurs on the Internet, especially as it would be uncertain where the contract is made or the breach occurred. Therefore, the provisions of the High Court Civil Procedure Rules of States in Nigeria are not enough to determine if a state can effectively serve its writ on a defendant outside the jurisdiction based on a contract executed on the internet. Even if a country decides to exercise jurisdiction on contracts agreed over the internet based on some grounds, the judgment given by the courts of that country may not be recognized nor enforced by a foreign court. This may be contingent upon the fact that the grounds for exercising jurisdiction in this foreign court may be quite different from the one given cognizance to by the court giving that judgment. This may also lead to disparity of decisions between different nations or states which may tussle for jurisdiction over the same transactions. This condition will therefore, inadvertently snowballed into unpredictability of decisions, which is one of the problems being guided against in conflict of laws. CONCLUSION Having discussed in personam jurisdiction over business transactions on the Internet, one may safely conclude that a jurisdiction like the United States of America has designed a somewhat desirable measure for determining in personam jurisdiction in Internet cases. Though attractive this measure may look, absent actual business transactions in the forum state, or evidence that residents are targeted, the distinction between active and passive contact becomes obscure in the context of interactive websites that gives the users opportunities to exchange information with the host computer. In actual fact the Internet has dramatically changed the way in which the courts decide what types of business contacts justify the assertion of personal jurisdiction.46 47 Availing one of the privileges of conducting business in the forum is established if a party' reaches beyond its state of domicile to create continuing relationships and obligations with citizens of another state. Justifying the required minimum contact in order to assume jurisdiction by the forum court has therefore “become the centre issue in commercial transactions over the Internet, which the laws applied to traditional business contacts may not be sufficient to carter for. In other words, the ubiquitous nature of the Internet has blurred the traditional concepts of jurisdiction. Therefore, as the Internet evolves so also is the need to develop a body of Internet law-including that relating to personal jurisdiction. It is suggested therefore that the whole nations of the world should adopt a regular Internet law that may take care of transactions in the cyber space, since the Internet has no sitting place. The much developed Internet laws of the U.S.A. may be taken as a starting point, which may be built upon to remedy the seeming anomalies inherent in such laws. This is because the minimum contact standard developed by the U.S. states, with its sliding scale approach, does indeed result in less aggressive assertions of jurisdiction than in countries such as the UK and Australia where minimum contacts does not exist.4' In essence, it is being canvassed that a convention should be adopted by the world nations to solve the problems of jurisdiction on the internet. This will undoubtedly facilitate the necessary adaptation and will In Personam Jurisdiction in Internet Transactions 43 Note that Rule 14 of that Order provides that “out of Jurisdiction” means out of the Federal Republic of Nigeria. 46 Thomas, A. Dickerson op. cit., p.4 47 Michael Saadat, op. cit., p. 18 65 UNIV ERSIT Y O F IB ADAN L IB RARY also infuse certainty into business transactions conducted over the Internet. This will inadvertently promote the world economy and encourage transborder transactions. F1RBDEV 2010 m Journal of Law and Diplomacy, Volume 7, Number 2, 2010 66 UNIV ERSIT Y O F IB ADAN L IB RARY