Recognition And Enforcement Of Foreign Judgements In East Africa

Recognition And Enforcement Of Foreign Judgements In East Africa

International arbitral awards are fundamental different from foreign judgments in terms of both recognition and enforcement the former being a result of arbitration proceedings and the later being a result of conventional litigation in court.

There is no regional legal framework for enforcement of foreign judgments in East Africa, The EAC Treaty does not cover this. In the absence of a legal regime at the regional level, countries will follow the rules on enforcement of foreign judgments in their jurisdictions under domestic laws. Majority of East African states have domestic legislation on recognition and enforcement of foreign judgments based on reciprocity, that a country shall recognize and enforce a judgement of a court of another country if that other country affords equal recognition and enforcement of judgments of that country.

In Uganda, there is legislation enabling the enforcement in Uganda of judgments given in foreign countries which accord reciprocal treatment to judgments given in Uganda. The legislation also facilitates the enforcement in foreign countries of judgments given in Uganda. This law is embodied in the Foreign Judgments (Reciprocal Enforcement) Act[1]. A judgement creditor may enforce a foreign judgement in Uganda in compliance with the prescribed procedures. Enforcement is preceded by registration. A judgement creditor will register the foreign judgment in court. It must be a judgement or order of a superior court of a foreign country given in civil or criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party.

What if there is no reciprocity, what happens to a holder of a foreign judgement seeking to enforce it in Uganda from a superior court of a country which does not afford reciprocal treatment to judgments given by the superior courts in Uganda, does it mean that such judgment cannot be  registered and enforced, and that the judgment holder will be stranded with their judgement? Courts in Uganda have been faced with such cases. One of them is the case of Christopher Sales and Carol Sales V The Attorney General[2]  where court had to decide whether a valid and unsatisfied judgement entered by a court in the USA was registrable and enforceable in the High Court of Uganda, in the absence of reciprocal arrangements with the United States on mutual enforcement of judgments entered in their respective jurisdictions.

Court noted that the issue on trial was not one of reciprocity because quite clearly there was no reciprocal arrangements between Uganda and the USA. The question that needed to be determined by court was as to what a judgment debtor ‘stranded’ with a judgment from a country with no reciprocal arrangements with Uganda like in that case is supposed to do with the judgment. What is such a judgement debtor supposed to do to enforce , if at all.

Court applied two theories in determining the matter, the theory of obligation and the theory of comity. The theory of obligations which states that the judgment of a foreign court creates a debt and liability to pay unlike the theory of reciprocity which states that the court of one country should recognise and enforce judgments of another country if the courts of such a country recognise the judgment of the other country.

While applying the theory of comity, court followed the position taken by the United states that when an action is brought in a court of the United States by a citizen of a foreign country against a US citizen to recover a sum of money adjudged by a foreign court of competent  jurisdiction of the cause and the parties’ and upon due allegation and proof; opportunity to defend against them and its proceedings are according to the course of a civilized jurisprudence and are stated in a clear and formal record, the judgment will be recognised and enforced in the United States unless some special ground is shown for impeaching it; or if it is proved that it was affected or obtained by fraud or prejudice or that, by the principle of international law and by comity  it is not entitled to full faith and credit (Hilton Vs Guyot 159 US 113 (1895)

Court agreed with the plaintiff’s submission that comity is concerned with maintaining amicable working relationships between nations, a shorthand for good neighborliness, common courtesy and mutual respect between those who labour in adjoining judicial vineyards where a point of law is raised, which if decided in one way would be decisive of litigation.

Court also followed earlier rulings in (Goddard v Gray (1870) LR 6 QB 139) that noted that it is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgment of a foreign tribunal. That several of the continental nations including France do not enforce judgment of other countries unless there are reciprocal treaties to that effect. But in England and in states which are governed by common law, such judgments are enforced, not by virtue of treaty, nor by virtue of any statute but upon a principle well stated that where a court of competent jurisdiction had adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained.

Court then conclusively held that the judicial system under which the case was tried was beyond reproach. That a judgment creditor armed with such a judgment should be allowed to realise the fruits of his judgment which should be afforded recognition by the courts of Uganda in absence of a reciprocal arrangement. The court went ahead to grant the prayer that the judgment is enforceable in Uganda, awarded interest from the date of the award till payment in full and costs of the suit.

 

There is also the Judgment Extension Act[3] which provides for the execution by the courts of Uganda of decrees and warrants in court cases made and granted by the courts of Kenya, Malawi and Tanzania. The courts in Uganda will therefore recognise and enforce decrees for any debt, damages or costs obtained in the courts of the above countries as if the same had been originally obtained in the courts of Uganda where the decree is to be executed against the person or property of the defendant in Uganda. The decree may be transfered to the High Court or other surbodinate courts for execution and provisions of the Civil Procedure laws of Uganda are applied. All costs and charges with regard to the transfer and execution are recoverable in the same manner as in ordinary court proceedings.

The Act also provides for enforcement in Uganda of any warrant for the arrest of a defendant in a civil case either before or after judgment from the above countries subject to the provision by the plaintiff of security for costs.

The Minister has powers extend the above provisions (by statutory order), to decrees passed or warrants issued in any other country of the Commonwealth.

There is lastly, the Reciprocal Enforcement of Judgments Act[4] which provides for the enforcement in Uganda of judgments made in the United Kingdom and other Commonwealth countries and the Republic of Ireland.

Where a Judgment has been obtained in a superior court in the United Kingdom or the Republic of Ireland, the judgment creditor may apply to the High Court of Uganda at any time within twelve months after the date of the judgment, or such other longer period as may be allowed by the court to have the judgment registered in the Court and executed. The original court must have acted with jurisdiction, the judgement debtor must have voluntarily appeared or submitted to the courts jurisdiction, and the judgement debtor must have been duly served with court process. The judgement should not also have been obtained by fraud or be against public policy and there must be no pending appeal. The judgment debtor must be served with a notice of registration of the judgement. Equally, the Act provides for issuance of a certificate of judgment to a judgement creditor who has obtained a judgement in Uganda and wishes to enforce the same in the above countries.

In Kenya, enforcement of foreign Judgments is the subject of the Foreign Judgments (Reciprical Enforcement) Act Cap 43 of the laws of Kenya which makes provision for enforcement of judgments given in countries outside Kenya which accord Reciprical  treatment to judgments given in Kenya. Under the Act, a judgment creditor in whose favour a foreign judgment from a designated country has been made may apply and register the foreign judgment at the High Court of Kenya. Once registered, such judgment is for purposes of execution treated as having the same force and effect as a judgment by the High Court of Kenya for all intents and purposes. Designated countries under Kenyan law include; Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, United Kingdom and Republic of Rwanda.

If a decree holder is from a non designated state, Kenyan law has a rigorous procedure for enforcement of a foreign judgement under its Civil Procedure Act as a claim at common law subject to the domestic laws on limitation of actions.

Tanzania, also has similar legislation, the Reciprical Enforcement of Judgments Act Tanzania cap 8 last revised in 2019 with 11 countries designated to enjoy reciprocity namely; Botswana, Lesotho, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Swaziland, United Kingdom and Sri Lanka.

[1] The Foreign Judments (Reciprocal Enforcement of Judments) Act, 1961, Chapter 9 Laws of Uganda.

[2] High Court Civil Suit No.91/2011

[3]  [1908] Chapter 12 Laws of Uganda,

[4] [1922] Chapter 12 Laws of Uganda.