Principles

·  CONFLICT OF LAWS — Foreign Judgment — Contract — Foreign Court has no jurisdiction over absent defendant.

·  CONFLICT OF LAWS — Jurisdiction — In personam actions — Presence of defendant and proper service required.

Plaintiff obtained judgment against defendant in the High Court of Tanganyika for breach of a contract concluded in Tanganyika. Defendant, domiciled and resident in the Sudan, was in the Sudan when the action was brought and was served by substituted service. Plaintiff brought this action to enforce the Tanganyika judgment in the Sudan.
Held: A foreign judgment in an in personain action obtained against a defendant neither domiciled, resident nor present in the foreign country, is not enforceable in the Sudan for want of jurisdiction of’ the foreign court.

Judgment

Advocates: G. Greenwood……………………… for plaintiff

Obeid Hassan Hamid ………………………….for defendant

R. C. Soni, J., March 11, 1958:- This is a suit brought by plaintiff Fairweather against defendant Gabrielides oil the following allegations.

It is alleged: that the plaintiff, carrying on’ business in Tanganyika, entered into a written agreement of sale of certain goods at Dar es Salaam, Tanganyika; that the defendant having failed to carry out his agreement to take delivery of the goods and to pay the purchase price, the plaintiff sold the goods to mitigate the damages, and later brought a suit against the defendant in the High Court of Tanganyika at Dar es Salaam for loss and damages, claiming from the defendant a certain sum of money, interest and costs; that the said High Court of Tanganyika adjudged on December 21, 1954 that the defendant should pay the plaintiff the sum of East African Shillings 109,000.79 with interest at 6% from the date of the judgment till payment.

The plaintiff alleges in the present suit that the judgment was properly obtained from the High Court of Tanganyika, and bases his present suit here in Khartoum on the said foreign judgment, alleging that the defendant had made no payment. He claims £S.53,103.750 m/ms. with interest at 6% from December 21, 1954 and costs.

The suit is founded on Civil Justice Ordinance, s. 44 and was brought in Khartoum on February 13, 1956 to enforce that foreign judgment.

The defendant admitted that no payment was made, but denied the jurisdiction of the High Court of Tanganyika over him, and submitted that he had received no summons or notice from the said Court, that that judgment was not given on the merits of the case, offended the laws of the Sudan, and was opposed to natural justice, and was therefore not enforce able in this country.

Issues were framed accordingly. It is however not necessary to go into all the issues, except the issue of jurisdiction of the High Court of Tanganyika, to which is allied the issue regarding the service on the defendant of a summons or notice of the case against him in the said High Court. These issues are:

(1) Had the Court in Tanganyika jurisdiction to hear the suit?        (Onus On plaintiff)

(2) Was the defendant properly served for a hearing in the Court of Tanganyika

(Onus On Plaintiff)

Mr. Greenwood, learned counsel for the plaintiff, produced a certified copy of the decree dated December 21, 1954 of’ the High Court of Tanganyika. He also produced an affidavit sworn on December 20, 1956 before a Commissioner of Oaths at Dar es Salaam by William James Lockhart Smith. an advocate of the Court there, who was one of the counsel  for the plaintiff in the High Court of Tanganyika in the plaintiff’s suit against the defendant. To this affidavit are attached a copy of the plaint as put in the High Court there, and a copy of the Proceedings of the High Court on December 21, 1954, which were short and read thus:

“John George Fairweather, Christian, sworn.

I have read plaint and signed verification of plaintiff. All that is

stated is true. Shs. 105,191 are due to me from the defendant.”

On this evidence the claim was decreed by the High Court of Tanganyika No copy of the reasons of the High Court has been put in. In paragraph 4 of the affidavit it was stated that the defendant “having been duly served by substituted service with a copy of the said plaint, and summoned to appear in the High Court to answer the claim therein made, failed so to appear,” whereupon the plaintiff was called upon to appear “as a witness formally to give evidence to prove his said claim as made in the said plaint, which the plaintiff duly did.”

Mr. Greenwood was asked whether he had any information as to what the substituted service in this case was. He said he had none. Mr. Greenwood was also asked whether he had information as to the presence of the defendant in Tanganyika on October 20, 1954 when .the plaint was put in the High Court of Tanganyika or as to the defendant’s presence in Tangan when the Court’s summons or notice was issued. To both these questions Mr. Greenwood replied that he had none.

On Mr. Greenwood’s being asked to state his reasons as to the jurisdiction of the High Court of Tanganyjka, Mr. Greenwood submitted that he relied on:

(1) the decree of the High Court of Tanganyika at Dar es Salaam (2) the fact that the contract of sale was made at Dar es Salaam,

(3) the fact that the sale was to have been completed and payment made to the plaintiff at Dar es Salaam,

(4) the fact that the plaintiff had submitted to the High Court of ‘Tanganyika at Dar es Salaam that the said High Court had jurisdiction and that the said High Court had assumed jurisdiction and had given its decree.

Mr. Greenwoo placed his reliance on.certain rulings of the courts in England and on a ruling of the High Court at Bombay. Mr. Greenwood also relied on Civil Justice Ordinance, s. 43.

Civil Justice Ordinance, ss.42 and 43 are word for word the same as Indian Civil Procedure Code 1908, ss.13 and 14, except that for the word “India” the words “the Sudan” are substituted. Civil Justice Ordinance, s.44 is merely an enabling section to allow a plaintiff to bring a suit on a foreign judgment executory in nature against a defendant resident in or having property in the Sudan. Civil justice Ordinance, s. 43 on which Mr. Greenwood relies, reads thus: “The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a foreign Court of competent jurisdictions unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.”

Mr. Greenwood’s argument is that Exhibit P.1 is the certified copy of the foreign judgment and he is entitled to have it presumed that the High Court of Tanganyika was a Court of competent jurisdiction. The case of Robertson v. Struth, (1844) 5 Q.B. 941, quoted by Mr. Greenwood, is mentioned in Dicey, Conflict of Laws 400 (6th ed. 1949) which also talks of this presumption. Civil Justice Ordinance, s. 43, however, is not absolute in its terms regarding the drawing of the presumption. There is a proviso therein saying “unless the contrary appears on the record.” And of course .the presumption is rebutable The burden of the issue on jurisdiction was placed on the plaintiff because it had appeared: (1) that the defendant when sued in the High Court of Tanganyika was described as a merchant resident of Khartoum, and no Tanganyika address was given there in the plaint, and (2) that the decree of the High court of Tanganyika was exparte and the plaintiff had to show proper service.

The burden of proof was therefore plàce on the plaintiff. This matter, however, need not detain us, as even if the burden was on the defendant the burden has been discharged by the defendant’s going into the witness box and giving evidence on oath. The defendant stated on oath as follows:

I am Sudanese by nationality. I have with me a certificate of naturalization No. 1524, dated November 16, 1952, which shows that I was a Sudanese national since at least that time, and I have always been a Sudanese national. I never had any other nationality. I am domiciled in the Sudan. I do my business in Khartoum and Port Sudan.i am still domicIled in the Sudan.

“          On May 2, 1954 I left here for Tanganyika and I made the agreement which is now being alleged at Dar es Salaam on May 20, 1954. On May 24, 1954 1 Left Dar es Salaam and came back to Khartoum. I have never gone back to Tanganyika since then. I never received any summons from the High Court at Tanganyika regarding the plaintiff’s case there against me, nor from any other Court at Tanganyika. Whenever I travelled to Tanganyika I had with me the Sudanese passport and a visa from a British Consul for my stay in Tanganyika, which is endorsed on the passport. If I cannot get a visa I cannot go to Tanganyika. I can produce my passport if desired. [the  witness produced his passport No.14815, dated October 7, 1952, showing the date of his entry into Tanganyika and his date of return to the Sudan as deposed by him]

There was no cross-examination by Mr. Greenwood. In examination by the court the witness stated, “I did not have any office for any business of mine anywhere in Tanganyika.”

            Between the dates October 20, 1954 and December21, 1954  I was never in Tanganyika. I never appeared before the High Court or any other Court in Tanganyika. I never asked anyone to appear on my behalf in the Courts there. During this interval I had no office of business in Tanganyika, nor did I have any agent of any kind in Tanganyika during this interval, whether empowered to accept service or otherwise on my behalf

It was also stated by learned counsel on both sides that the agreement of sale of May 20, 1954 did not provide for any submission to the jurisdiction of the Courts in Tanganyika, nor was there any other agreement between the parties to submit to the jurisdiction of the Courts there.

On these facts, it is clear to me that the High Court of Tanganyika at Dar es Salaam had no jurisdiction, as jurisdiction is understood in the international and not in the municipal sense. All the authorities are unanimous on this point. The ruling of the High Court of Bombay cited by Mr. Greenwood does not help him. In fact it goes against him.

We have to consider jurisdictioh in its international sense, and have to consider jurisdiction not only over the subject matter of the suit, but also jurisdiction over the defendant. All authorities are unanimous on this point, whether it be Dicey, Colflict of Laws, Cheshire, Private International Law or Haisbury, Laws of England which I have consulted.

The rules Internationally recognised have been adopted by the British Parliament The present suit is based on a foreign judgment in an action personam, and the rules will be found in Foreign Judgments

(Reciprocal Enforcement) Act, 1933, 23 & 24 Geo. 5, Ch. 13. Section 4(2) (a) states that in case of a judgment given in an action in personam the Courts of the country of the original Court shall be deemed to have had jurisdiction subject to the provisions of Foreign Judgments (Reciprocal Enforcement) Act 1933, s.4 (3), which do not apply in the case before me:

(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court; or

(ii) if the judgment debtor was plaintiff in, or counter_claimed in, the proceedings in the original or

(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of the country of that court, or

(iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court;or

(v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place.

These rules are the rules recognised by English, Indian and American Courts, so far as I have been able to find them out. In the Bombay judgment cited by Mr. Greenwood, Vithalbhai Shivabhai Patel v. Labbhai Shimbhai(1942)  A. I. R. (Bombay) 199, Kania, J., recognises similar rules. In Berkle.V. Thompson, (1884) 10 A. C. 45, 49, Lord Selborne said:

because the general principle of law is, ‘Actor sequitur forum Rei’; not only must there be a cause of action of which the tribunal can take cognizance, but there must be a defendant subject to the jurisdiction of that tribunal; and a person resident abroad, still more, ordinarily resident and domiciled abroad, and not brought by any special statute or legislation within the jurisdiction is prima facie not subject to the process of a foreign Court,—he must be found within the jurisdiction to be bound by it.”

Lord Selborne elaborated this at great length in the case of Sirdar Gurdyal Singh v. The Rajah of Foridkote. (1894) A. C. 670, 682- 84, 22 Calcutta 222, 21 A. I. K. 171. This is the leading case on the subject. In the advice tendered by Lord Selborne to Her Brittanic Majesty, it is stated as follows:

The appellant was for five years, beginning in 1869, in the service of the late Rajah of Faridkote as his treasurer; and the causes of action, on which the suits in the Faridkote Court were brought, arose within that State, and out of that employment of the appellant by the late Rajah. The claim made in each of the suits was merely personal, for money alleged to be due, Or recoverable in the nature of damages, from the appellant. It is immaterial, in their Lordships’ view, to the question of jurisdiction(  which is the only question to be now decided) whether the case, as stated, ought to be regarded as one of contract or of tort.

“          The appellant left the late Rajah’s service, and ceased to reside within his territorial jurisdiction, in 1874. He was from that time generally resident in another independant native State, that of Jhind, of which he was a native subject and in which he was domiciled; and he never returned to Faridkote after he left it in 1874. He was in Jhind when he was served with certain processes of the Faridkote Court, as to which it is unnecessary for their Lordships to determine what the effect would have been if there had been jurisdiction. He disregarded them and never appeared in either of the suits instituted by the Rajah, or otherwise submitted himself to that jurisdiction. He was under no obligation to do so, by reason of the notice of the suits which he thus received or otherwise, unless that Court had lawful jurisdiction over him.

“Under these circumstances there was, in their Lordships’ opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit (Actor sequitur forum rei); which is rightly stated by Sir Robert Phil limore (International Law, vol. 4, s. 891) to ‘lie at the root of all international, and of most domestic, jurisprudence of this matter.’ All jurisdiction is properly territorial, and extra territorium jus dicenti impune non parezur. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreign who owe no allegiance or obedience to the Power which so legislates.

“in a personal action, to which none of these causes of jurisdiction apply, a decree pronounced In absentem by a foreign Court, to the Jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every’ nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.

“          These are doctrines laid down by all the leading authorities on international law; among others, by Story, Conflict of Laws, ss. 546, 49, 553, 554, 556, 586 (2nd ed.) and by 1 Kent, Commentaries 284 n. C. (10th ed.) and no exception is made to them, in favour of the exercise of jurisdiction against a defendant not other wise subject to it, by the Courts of the country in which the cause of action arose, or (in cases of contract) by the Courts of the locus solut lonis. In these cases, as well as all others, when the action is personal, the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice.”

I might also mention the case of Phillips v. Batho, (1913) 3 KB. 25, 29, which refers to the case of Emaisuel v. Symon, (1908) 1 K.B. 302, and to Sirdar Gurdyal Singh’s case, supra, stating: the fact that the procedure of service out of the Indian jurisdiction is authorised by the Indian statute does not itseif avail the plaintiff.” In a case before the English House of Lords, Employers’ Liability Assurance Corp. v. Sedgwick, Collins & Co., (1927) A. C. 95, 114-15, Lord Cave said:

“          My Lords, in the case of actions in personam, in which a writ has been regularly served on foreigners or foreign corporations, when present in this country, and a judgment has been obtained, it seems to be clear, as a general rule, that, under the obligations of that branch of international law which governs the application of foreign judgments, other countries, whose Governments have been recognised dejure and defacto by the Go of this country, will accept the jurisdiction of the Courts of this country, and regard their judgments as valid. In the case of such actions, it may also be stated negatively that, where a writ cannot be served on a defendant foreigner, or foreign corporation, when in this country, and no submission to jurisdiction is proved, any consequent judgment has no validity in any other country, on the ground that the Courts of this country have no jurisdiction under international law over the person of an absent foreign defendant. In other words, the right to serve a writ, in an action in personain, on a foreign defendant, only becomes effective, as a source of jurisdiction to be recognised in other countries when. at the date of service, such defendant is within the territorial jurisdiction of the English Courts. The Privy Council decided in the case of Sirdar Gurdyal Singh v. Rajah of Faridkote that no territorial Iegislation can give jurisdiction in a personal action which any foreign Court should recognise against absent foreigners owing to allegiance or obedience to the Power which so legislates.”

Lord Cave then quotes Lord Selborne in Sirdar Gurdyal Singh’s case, supra, and also refers to Emanuel v. Symon, supra, and to the case of Rousillon v. Rousilon, (1880) 14 Ch. D. 351.

Dicey, Conflict of Laws 362 (6th ed. 1949), states as follows:

In an action in personam the courts of a foreign country do not acquire jurisdiction either:

(1) from the mere possession by the defendant at the commencement of the action of property locally situate in that country or

(2) from the presence of the defendant in such country at ‘the time when the obligation in respect of which the action is brought was incurred in that country.” Clause (2) is applicable in the case before us.

There is an elaborate discussion of this subject in Cheshire, Private International law 107-08 (5th ed. 1957)

“We will first deal with a personal action, i.e., one whose object is to settle the rights of the parties as between themselves, whether it relates to an obligation or, as in the case of detinue, to property. The principle of effectiveness is here triumphant. Jurisdiction depends upon physical power, and since the right to exercise power, or, what is the same thing in the present connexion, the power of issuing process, is exercisable only against persons who are within the territory of the Sovereign whom the Court represents, the rule at common law has always been that jurisdication is confined to persons who are within reach of the process of the court at the time of service of the writ. A Court cannot extend its process and so exert sovereign power beyond its own territorial limits. Even if the words of an English statute, literally interpreted, give the courts jurisdiction over foreigners, the jurisdiction will not be exercised unless the foreigner ‘is here’ .“

Quoting from Sirdar Gurdyal Singh’s case, supra, Cheshire states at page 609:

“The requirement is that the foreign court should have been a court of competent jurisdiction in the international sense, i.e., according to the principles of private international law as understood in England In other words, the inquiry with which we are now concerned is whether, in the view of English law, the foreign court was entitled to summon the defendant and subject him to judgment. We must now deal separately with actions in personam and actions in rem.

(a) Jurisdiction over actions in personam.

Since a foreign judgment is actionable only because it imposes

an obligation upon the defendant, it follows that any fact which

negatives the existence of that obligation is a bar.to the action. One of the negativing facts must necessarily be that the defendant owes no duty to obey the command of the tribunal which has purported to create the obligation. There must be a correlation between the legal obligation of the defendant and the right of the tribunal to issue its command.”

Again (at page 108), Cheshire states that “the fact that England is the forum domicilii or the forum rei gestae or the place where a business has been carried on by an individual person is insufficient at common law to found jurisdiction against an absent defendant.” And he adds:

“What is more important is that the court has no jurisdiction to entertain an action in personam? against an absent person merely because property. whether movable or immovable, belonging to him is situated in England. it is his presence not the presence of his property that is essential before an action in personam as distinct from an action in rem. can be brought against him.” [Italics added]

“The general doctrine of English Law is that the exercise of civil  jurisdiction, in the absence of an Act of Parliament, must in all cases be founded upon one or other of two principles namely, the principle of effectiveness or the principle of submission.

“The principle of effectiveness means that a judge is not competel to pronounce a judgment if he cannot enforce it within his own territory.’

Cheshire refers to “the elementary truth” several times stated by Holmes. J., that “the foundation of jurisdiction is physical power.” It is instructive to read a judgment of that eminent judge, Holmes, j., referr to by Cheshire, McDonald ‘ Mahee, 243 U. S. 90 (1917). In that case, which was a suit on a promissory note, the defendant Ma- bee was domiciled in Texas when the suit was begun, but had left the State with intent to establish a home elsewhere his family, however, still resided there. He subsequently returned to Texas for a short time and later established his domicile in Missouri. The judgment states: “The only service upon him was by publication in a newspaper Once a week for four successive weeks after his final departure from the State and he did not appear in the suit. The Supreme Court of the State held that this satisfied the Texas Statutes. and that judgment was a good personal judgment. overruling the plaintiff’s contention that to give it that effect was to deny the constitutional right to due process of law.” On this Holmes, J. said, quoting previous  authorities of the Supreme Court of the United States: “The foundation of jurisdiction is physical power although in civilized times it is not necessary to maintain that power throughout proceedings properly begun. and although submission to the jurisdiction by appearance may take the place of service upon that person .... No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance but the foundation should be borne in mind.” Later in that judgment, Holmes, J., stated: “There is no dispute that service by publication does not warrant a personal judgment against a non-resident.” Here Holmes, J., quoted previous authorities of the Supreme Court of the United States. He then continued: “When the former suit was begun, Mabee, although technically domiciled in Texas, had left the State, intending to establish his home elsewhere. Perhaps in view of his technical position and the actual presence of his family in the State, a summons left at his last and usual place of abode would have been enough. But it appears to us that an advertisement in a local newspaper is not sufficient notice to bind a person who has left a State, intending not to return. To dispense with personal service the substitute most likely to reach the defendant is the least that ought to be required if substantial justice is to be done. We repeat, also, that the ground for giving subsequent effect to a judgment is that the Court rendering it had acquired power to carry it out; and that it is going to the extreme to hold such power gained even by service at the last and usual place of abode. . . . Whatever may be the rule with regard to decrees concerning status or its incidents,” Holmes, J., said, quoting previous cases decided by the Supreme Court of the United States, “an ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the State as it is outside of it.” Holmes, J. concluded by saying: “The personal judgment was not merely voidable . but was void.”

This s a very remarkable case, whose facts are much stronger than are the facts of the case before me. This was a case between parties living in two States of the United States itself. The defendant’s family was even living in the State where the original suit was brought. But the Supreme Court of the United States overruled the Supreme Court of the State by holding that the defendant was a non-resident, and service by publication in a newspaper of the State was not proper service.

Mr. Greenwood, as a part of his argument, had submitted that the agreement of sale in his case was with regard to goods in Tanganyika, and that that agreement had to be carried out there and money had to be paid there. That is to say, in effect Mr. Greenwood’s argument was that the contract having been made by the defendant in Dar es Salaam within the jurisdiction of the High Court of Tanganyika and that it was to have been carried out there, that is to say, that the contract was one which began within the jurisdiction and which was to end there, gave the High Court of Tanganyika  jurisdiction for all time to come afterwards.

In my opinion the evidence of the defendant Gabrielides in the case before me is too strong for argument. He is not domiciled in Tanganyika  he has been a Sudanese since 1952 and has remained so ever since; he paid only one single visit to Dar es Salaam or indeed to Tanganyika which was from May 2, 1954 to May 24, 1954; having made the agreement on May 20, he left Tanganyika never going there up to date; he was never served with a notice or summons of the case in thr high court of tanganyika he  never appeared or submitted to the jurisdiction  of the Court there; the parties had never agreed to the jurisdiction of the Courts of Tanganyika at the time of the agreement or ever afterwards; the defendant does no business in Tanganyika, nor has he an agent of any kind there.

Mr. Greenwood could not say in what manner was the substituted service effected, whether by publication in a newspaper, whether by nailing a copy of the summons on the courtroom, whether by beat of drum, or how. In whatever manner the local laws in force in Tanganyika may have allowed the service, it is the service as understood in international practice and law that I have to consider. I do not have to consider the local territorial jurisdiction, but jurisdiction over an absent foreigner in an international sense.

Giving these matters all my consideration I must come to the conclusion that in an international sense the High Court at Tanganyika had no jurisdiction in the case before it nor was the defendant properly served there.

In doing so I follow most respectfully the guides in the law whom I have quoted in this judgment. The English Statute referred to by me is of course not in force in this country, nor is there any reciprocal arrangement between this country and the United Kingdom or Tanganyika for the enforcement of judgments. But the rules of the English Statute, in so far as they help in the exposition of International Law and are in consonance with the rules of that law universally followed, are a most valuable guide and are entitled to the highest consideration by the courts of this country.

Before I conclude, I must mention that Mr. Greenwood, learned counsel for the plaintiff, mentioned in his arguments the case of Benaim and Co. V. Debono, 1924 A. C. 514. That case is not helpful as it deals with the applicability of lex loci solutionis, and had nothing to do with the question of jurisdiction, which was not involved in that case.

The result is that this suit will be dismissed with costs which learned counsel on both sides are agreed amount to £S.30. The defendant is entitled to this sum from plaintiff.