Question:
A
divorce decree obtained in Australia Federal Circuit Court is to be registered
in the District Court of Kurunegala as claimed by the judgment-creditor. What
are the relevant laws, act, ordinances and case laws with regard to the above situation
that recognizes such legal ground?
Reciprocal Enforcement
of Judgments Ordinance, No.41 of 1921, provides provisions for the enforcement
in Sri Lanka of judgments obtained in the Superior Courts of the United Kingdom
and of other parts of Her Majesty’s realms and territories. The Ordinance which
governs the instant case as Australia is also a part of Her Majesty’s
dominions.
Section 3 of this
Ordinance recognizes the legal validity of enforcing in Sri Lanka of judgments
superior courts in the United Kingdom. As it states,
3 (1). Where a judgment has
been obtained in a superior court in the United Kingdom, the judgment-creditor
may apply to the registering court at any time within twelve months after the
date of the judgment or such longer period as may be allowed by the court to
have the judgment registered in the court and on any such application the court
may if in all the circumstances of t he case they think it is just and
convenient that the judgment should be enforced in Sri Lanka and subject to the
provisions of this section, order the judgment to be registered accordingly.
(2) No judgment shall be
ordered to be registered under this Section if-
a)
the
original court acted without jurisdiction; or
b)
the judgment-debtor,
being a person who was neither carrying on business nor ordinarily resident
within the jurisdiction of court did not voluntarily appear or otherwise submit
or agree to submit to the jurisdiction of that court; or …………..
(3) Where a judgment is
registered under this section-
a)
the
judgment shall as from the date of registration, be of the same force and
effect, and proceedings may be taken thereon, as if it had been a judgment
originally obtained or entered up on the date of registration in the
registration court;
b)
the
registering court shall have the same control and jurisdiction over the
judgment as it has over similar judgments given by itself, but in so far only
as relates to execution under this section;
c)
the
reasonable costs of and incidental to
the registration of the judgment (including the costs of obtaining a certified
copy thereof from the original court and of the application for registration )
shall be recoverable in like manner as if they were sums payable under the judgment;
d)
the same
stamp duties shall be payable in respect of proceedings under this Ordinance as
would have been payable if the judgment had been an original judgment of the
registering court.
(4) Rules of court shall provide-
a.
for
service on the judgment-debtor of notice of the registration of judgment under
this section and;
b.
for
enabling the registering court on an application by the judgment-debtor to set
aside the registration of a judgment under this section on such terms as the
court thinks fit and,
c.
for
suspending the execution of a judgment registered under this section until the
expiration of the period during which the judgment-debtor may apply to have the
registration set aside.
As these above
provisions are applicable only for the judgments of superior courts in the
United Kingdom , this ordinance extends the provisions for the judgments of the
other parts of Her Majesty’s realms and territories to be registered in Sri
Lanka.
As Subsection 2(1)
recognizes “United Kingdom” means the United Kingdom of Great Britain and
Northern Ireland and “superior courts in the United Kingdom” means the High
Court in England or Northern Ireland and the Court of Session in Scotland.
As the section 6
states,
6(1) Where the
Minister is satisfied that reciprocal provisions have been made by the
Legislature of any part of Her Majesty’s Realms and Territories outside the
United Kingdom for the enforcement within that part of Her Realms and
Territories of judgments obtained in any District Court or in the Supreme Court
of Sri Lanka, the Minister may, by order published in the Gazette declare that
this Ordinance shall extend to judgments
obtained in a superior court in that part of Her Realms and Territories in like
manner as it extends to judgments obtained in a superior courts in the United
Kingdom, and on any such Order being made this Ordinance shall extend
accordingly.
For the execution of
this Ordinance the relevant Minister published the countries to which this
Ordinance applies on 23.01.1925 and then since the section 3 of the Ordinance
no.41 of 1921 regulates regarding the recognition, setting an application to be
registered, effects of such registration and the rules of court are extended
accordingly to the other parts of Her Majesty’s dominions under the section 6
(1).
These statutory
provisions pave the way for a registration of judgments of a country like
Australia as a part of Her Majesty’s dominions, unlike it is for the U.K. ,the
other parts are governed by the very Section 6(1) which expands for the former.
To the question as to
how the Ordinance 1921 interprets terms, explanations are as follows,
The
section 2(1) does it the way hereinafter, in this Ordinance, unless the context
otherwise requires-
a
‘judgment’ means any judgment, decree or order given or made by a court in any
civil proceedings, where before or after
the passing of this ordinance……
a
judgment-debtor means the persons against whom the judgment was given and
includes any person against whom the judgment is enforceable in the place where
it was made.
the
‘original court’ in relation to any judgments means the court by which the
judgment was given.
the
‘registering court’ in relation to any judgment means the District Court
of Colombo.
In the context of
this act recognizes and enforces judgments of Australia as a colony under Her
Majesty’s realms and territories, the next legal requirement is to be
considered is what the superior courts in Australia are which this Ordinance
states in its subsection 6(1).
Every part of
Australia as a federal country New South Wales, Victoria, Australia Capital
Territory, Northern Territory of Australia, Queensland, Western Australia,
South Australia and Tasmania are under her Majesty’s reign to which Reciprocal
Enforcement of Judgments Ordinance is applicable and extends.
The Act of Foreign
Judgments No.112 of 1991 connects the nexus between the Australian Jurisdiction
to the Sri Lankan Act of 1921. Part 3 of Foreign Judgments Act no.112 of 1991
says there are miscellaneous matters relating to the above mentioned
enforceability.
Its Section 15
provides among other matters, states of the issuing of a certificate of
judgments obtained in Australian Courts.
15(1).
Subject to this Section, where an application is duly made by a judgment
creditor who wishes to enforce in a country a judgment that has been given in
an Australian Court, the Registrar of the court must issue to the judgment
creditor;
a)
a
certified copy of the judgment and
b)
a
certificate with respect to the judgment containing such particulars including,
I.
the
causes of action to which the judgment relates and
II.
the rate
of interest (if any) payable on any amount payable under the judgment;
as
are prescribed by the regulations or by Rules of Court.
Per se, Section 3 of
this Act 1991, it interprets what an “action in personam” is as, one does not
include a matrimonial cause or proceedings in connection with,
a)
matrimonial
matters; or……..
and what a “judgment”
means a.) a final or interlocutory judgment or order given or made by a court
in civil proceedings; or….
and who a “judgment
creditor” means the person in whose favour the judgment was given,….
and who a “judgment
debtor” means in relation to a judgment means the person against whom the
judgment was given ( whether or not a sum of money is payable under the
judgment) and includes a person against whom the judgment is enforceable under
the law of the original court.
and what an “original
Court” is in relation to a judgment, means the court by which the judgment was
given.
There
is no contravention in the case laws with regard to the statutory provisions.
In the case of Lalwani v. Indian Overseas Bank. 1998 (3) Sri LR 197, the
petitioner‐respondent Bank obtained two judgments
of the Supreme Court of HongKong dated 10th June, 1983 and 9th
March, 1990. On 25/05/1990 the Bank came to the District Court of Colombo
claiming the registration of the duo citing the above mentioned section 3(1)
and section 6(1) of 1921 No.41 Act. And in terms of the both sections of the
Reciprocal Enforcement of Judgments Ordinance, the District Court of Colombo
ordered to be registered by an Order. The way the circumstances unfolded was
subsequently HongKong ceased to be a part of Her Majesty’s Dominions in 1997.
As
the petitioner‐respondent’s counsel contended, the
recognition of the said foreign judgments under the Sec.6(1) said Ordinance was
connected with the submission of the Gazette on 23/01/1925 by the relevant
minister.
In
spite of the change in the state of HongKong, K.W.Petchett in his book
Recognition of Commercial Judgments and Awards in the Commonwealth (1984) at
page 39, cites that repealing the statute in which country the original court
is situated does not affect the jurisdiction under what initial order was
given. Validity of the order is not harmed in any way.
Simultaneously, the Section 3(3) (a) of the
Act No. 41 of 1921 is as recognized the original court’s judgment, be of the
same force and effect after the date of the registration. And in Section 3(3)
(b) recognizes the same control and jurisdiction of the registering court over
the judgment.
With
this statutory legal background the Court of Appeal judges dismissed the appeal
with costs and accepted the District Court’s registration order.
In the
case of Prins Gunasekera v. The Associated Newspapers of Ceylon Ltd.
2000 (3) Sri LR 122, three Supreme Court judges recognized the validity of the
Ordinance. In the circumstances as stated, the petitioner had obtained an ex‐parte
judgment from the High Court of England against the respondent newspaper
limited.
And
claimed the registration of the judgment under the Section 3(1) of the
Reciprocal Enforcement of Judgments Ordinance.
In
the counter argument on the registration, the respondents said they are not
obliged to act on the judgment as they are neither engaged in any business nor
resident in the jurisdiction of the original court. They cited Section 3(2) (b)
which as follows,
“the
judgment‐debtor,
being a person who was neither carrying on business nor ordinarily resident
within the jurisdiction of court did not voluntarily appear or otherwise submit
or agree to submit to the jurisdiction of that court; or…”
So the court stated
there is no sufficient information on deciding this case whether the respondent
company is either resident or engaged in any business in England and if so they
have to submit to the jurisdiction of that court.
In the near future,
the Supreme Court decided there is no jurisdiction to register a judgment of
Canada. Varuna Jayasuriya v. Krishanjini Jayasuriya 2005 (2) Sri LR 382 did
not even cite the above mentioned Ordinance. And however the court set aside
the appeal claiming for the revoke of the District Court Judge’s order not to
register it. Be that as it may, the said Ordinance does not recognize any
judgment from any country other than the ones mentioned earlier. Canada is also
of such kind.
W.M.D.Bandara
2018/10/20
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