Conflict of Laws-Domicile of parties-Jurisdiction 0/ Egyptian religious court
Execution-Foreign judgement-Egyptian religious court

Judgement-Egyptian religious court-Execution 0/ judgement ill Sudan
Iurisdictionr'Religious court-Egyptian courts jurisdiction over a Sudanese of
anothe;-religious group

The respondent was betrothed to the appellant in the Sudan accord-
ing to the formalities of the Coptic Church. A dowry of £E.80 was fixed.
Desiring to be released, the respondent applied for the Meglis Milli in
Cairo for the annulment of the betrothal. ' The appellant counterclaimed
for the dowry and damages. The respondent objected to jurisdiction on the
counterclaim. The Meglis, after hearing both parties, annulled the be-
trothal and found the appellant entitled to the dowry. The appellant
sought execution of the order for payment in the High Court of the Su-
dan.

Held: (i) The respondent consented to the jurisdiction on the issue
of annulment only, and not as to the money counterclaim, and was not
therefore "a defendant who has appeared" within section 8 (1) of the
Egyptian Judgement Ordinance 1901, and is not bound by a money judge-
ment of that court.

(ii) An express certificate under the seal of the Ministry of Justice
that the judgement is executory in Egypt is essential. An executory judge-
ment is a judgement which could be but has not been executed.

Owen C.J. dissenting, Judges Owen and Gorman, in their respective
opinions, expressed fully their conflicting views on the extent to which a
Sudanese court may look behind an Egyptian judgement presented for exe-
cution pursuant to the Egyptian Judgements Ordinance 1901, with particu-
lar reference to judgements of Egyptian religious courts,

Egyptian Judgements Ordinance 1901, 5S. 3, 4, 5, 6, 8, 9 and 14.

Revision

The appellant applied for revision of an order of the High Court
dismissing her application for the execution of the judgement of the
Meglis Milli, Cairo.

Advocate: Mr. Francoull ... for respondent.

. Court: Owen C,J.

dowry and damages. In the hearing today fixed for determina-
tion of the case, both parties appeared, and each insisted on his
statement as recorded in the record of hearing.

THE MEGLIS:

After hearing the arguments and perusal of the papers and
discussion:

Whereas it appeared that an engagement was entered into by the
male plaintiff and the femaJe defendant on December 7, 1930,
and it was made a condition in the engagement contract that the
dowry should be £E.80 to be paid two months before the
marriage;

And whereas the marriage was not concluded owing to some
reason not imputable to the bride, but it appeared that the bride-
groom was the author thereof, as he was anxious to cancel the
engagement-he having submitted, as an excuse for getting rid
of the engagement, the allegation that a brother of his has gone
mad owing to his desire to get married to this bride, and there-
fore applied for cancellation of the engagement so as to enable his
aforesaid brother to marry this bride, and that the bride has
refused;

And whereas, if what the bridegroom has alleged be true, the
bride is at liberty to refuse his offer;

And whereas in these circumstances the female plaintiff is entitled
to judgement for the dowry;

And whereas this Meglis is not competent to deal with the ques-
tion of damages, the application therefore should be dismissed;

For these reasons the Meglis has given judgement in the presence
of the parties declaring the cancellation of the engagement and
the right of the bride Zakia to the dowry and has dismissed the
claim for damages.

This executory copy is a copy of the original made on application
by Zakia Hanna.

Wakil of the Patriarchate
Seal

June 20, 1933

Member of Meglis Am
EI Montadab
(Sgd) Wahba Hanna

VUe' its No. 6653, the Legal Section of the Ministry of Interio

it is an executory copy (tanfisia), but no formal certificate that the
judgement is executory. On the other hand there is an exchange of
letters between the applicant through the Sudan Agent and the Minis-
try, from which ·the court is entitled to infer that the judgement has
not been satisfied in Egypt in whole or in part, and in my view this
is enough to fulfil the requirements of the section, which is intended
obviously to guard against the possibility of double recovery of the
money, i.e., both in Egypt and in the Sudan.

"The next argument was addressed to the judgement itself. It was
said that this judgement was not a judgement within the meaning of the
Ordinance at all, firstly because it did not contain an "executory
formula," and secondly because it was not a judgement for a definite
sum of money, but merely an ennunciation of rights. { In Egypt, ap-.
parently, a decree-holder cannot execute his decree until it is clothed
with what is known as an "executory formula." This formula is in
effect an endorsement on the judgement, authorising the official charged
with the execution of the decree to take the necessary steps. But
even apart from the fact that it is expressly provided by the Coptic
C'$pe of Procedure that it is 'unnecessary that religious court should
~elf endorse this formula, I am of opinion that its presence is not an
essential part of a judgement. This formula is merely the order which
allows process of execution to issue. A judgement or order for pay-
ment of a sum of money is no less a judgement or order because the
court delivering it has not given the holder leave to execute. In
this country application for execution followed by leave to execute is
the proper procedure. In Egypt endorsement of the "executory for-
mula" on the decree itself is correct, and the reason why religious
courts do not themselves endorse it on their decrees is that they have
no procedure for executing their decrees at all: their decrees must
be sent to the Mixed Courts or the administrative authorities for ex-
ecution. The judgement before us is expressed to be an "executory
copy of the original," and this is all that is necessary.

I am of the opinion further that the argument that this decree
of the Meglis Milli was not a judgement for a definite sum of money,
but a mere enunciation of rights, has no real substance. The words
used are: "and whereas in these circumstances the female plaintiff
is entitled to judgement for the dowry . . . For these reasons the
Meglis has given judgement ... declaring the cancellation of the en-
gagement and the right of the bride, Zakia, to the dowry and has

"'" dismissed the claim for damages." As the amount of the dowry is

clearly stated in the finding of fact, I think the judgement declaring
the right of the bride, the female plaintiff, to that dowry, is as much
a judgement for a fixed sum as if the amount of that sum had been
therein expressed in words and figures. I think the proceedings should
be read as whole for this particular purpose.

The most important and difficult point in this appeal arises on
the question of the interpretation of the Ordinance with special
reference to jurisdiction. Apart from the contention that the Meglis
Milli had no jurisdiction over the respondent-an argument that to
my mind was answered conclusively by his submission to that court-

it was urged that, the parties not being domiciled in Egypt, the Meglis
Milli was not a competent court according to international law for
the determination of a matter of personal status, and that the judge-
ment was therefore not a valid one and should not, and could not

be recognised by our courts. The question at issue is this: can we in

a proceeding under the Egyptian Judgements Ordinance question the
competence of the courts in Egypt whose judgement is before us for
recognition or execution? I do not think we can, and I do not think
that the legislature intended that we should. :.' I can find nothing in the
Ordinance from which it can be inferred that the judgemer:t sought

to be given recognition or executed should be a valid judgement, in
the sense that it must be pronounced by a court of competent juris-
diction, i.e., a court which may rightly, according to the principles >
maintained by our courts, determine or adjudicate upon a given matter.
In my view the inferences are all the other way. There is no such
word, as "valid" in the Ordinance. The effect of every final judgement
pronounced by an Egyptian court is set out in section 4: it shall be
conclusive evidence of every matter decided by it and, subject to its
not having proceeded upon a rule of law or of procedure which
prevented the proceeding from being brought in the court by which

it was given (but which did not at the same time extinguish the
claim), it shall be a complete bar between the parties to any pro-
ceeding in the Sudan Civil Courts in respect of the same claim.
Section 5 provides for the right to bring an action on the Egyptian
judgment, and section 6 (l) provides as follows: "If the executory
judgment of an Egyptian Court mentioned in the last preceding section
be for a debt or other definite sum of money the judgment holder shan,
subject to the provisions hereinafter contained, be entitled to execution
of the judgment in the Sudan in the same manner as if the judgment
were a judgment of the Province Court of the Province in which
the person bound by the judgment is resident or in which any property

of his is situate without it being necessary to bring a new action on
the judgment."

In other parts of the Ordinance certain procedural requirements
are laid down, which, if not fulfilled, prevent the recognition of the
judgement in any event: finally, we have set out in section 3 (1)
three cases to which the provisions of this Ordinance shall not apply,
namely, judgements purporting to adjudicate upon title to land elsewhere
than in Egypt, judgements against the Sudan Government, and judge-
ments passed in exercise of bankruptcy jurisdiction. If this Ordinance
had no existence, our courts could never recognise the validity of a
foreign judgement on these three subjects-s-even if the parties were
domiciled there. Why then did the legislature enact in this way?
Why were these matters expressly excluded? Why was the effect of
a final judgement set out as it was? It seems to me that there is only
one answer, and that is that the principal object aimed at was the
denial of our court's rights, in cases prima facie within the definition
of an Egyptian judgement under the Ordinance, to question or dispute
the competence of the Egyptian Court. This object was attained in
my opinion by the provisions of section 4, and the other provisions of
the Ordinance were intended to provide all the exceptions and safe-
guards necessary for the protection of litigants who, but for the exis-
tence of the Ordinance, would have had to rely upon the ordinary
rules governing the recognition of foreign judgements in this country.
It seems to me that, if this view is not the correct one, Egyptian
judgements, so far as their recognition is concerned, would be in no
different position from those of England, Iraq or Greece. Provided
that the judgement does not come within the expressed exceptions, and
provided that all the expressed requirements of the Ordinance are
fulfilled, my view is that our courts are instruments only for recogni-
tion of Egyptian judgements, or machinery for their enforcement. The
judgement before us is a judgement of an Egyptian religious court for
a definite sum of money, and I am of opinion that by the combined
provisions of sections 6 and 14 the appellant is entitled to its execu-
tion in our courts, irrespective of domicile.

But even supposing that our courts, under some rule of Inter-
national Law; were at liberty to dispute the competence of the Egyp-
tian courts-supposing even this Ordinance did not exist-I hold the
view that the rule as to competency is not applicable in the particular
circumstances of this case or any other similar to it. I think it would
be going much too far to apply it in such a way as to declare that