Lalwani v. Indian Overseas Bank
v.INDIAN OVERSEAS BANK
COURT OF APPEALISMAIL, J. ((P/CA)
C. COLOMBO NO. 3110/SPL
Reciprocal Enforcement of Foreign Judgments – Judgment of the Supreme Courtof Hongkong ~ Hongkong ceased to be a part of Her Majesty's Dominions witheffect from 1.7.97 – Could the judgment be registered
The learned District Judge answered the issue of Registration of the HongkongJudgment in favour of the petitioner-respondent. It was contended in appeal thatthere has been a severance of reciprocity and consequently registration proceed-ings would have to be terminated, as Hongkong is now no longer any part of'Her Majesty's realms and Territories outside the United Kingdom.
In terms of S. 3 (3) of the Reciprocal Enforcement of Foreign JudgmentsOrdinance the effect of registration of the said judgments is that they hadceased to be foreign judgments from that date (31.5.96) and furtherproceedings are taken thereon as if they were judgments originally obtainedor entered upon in the District Court of Colombo.
The Rights of the parties must be determined as at the date of the action.
Since the requirement of reciprocity must only be established when theinitial order is made, its disappearance by the repeal of the reciprocallegislation in a particular jurisdiction will not affect the validity of theextension order in favour of that jurisdiction.
Leave to APPEAL from the Order of the District Court of Colombo.
Cases referred to:
Silva v. Fernando 15 NLR 499.
Kader Mohideen <8 Co. Ltd., v. Gany 60 NLR 19.
Hettiaratchi v. Motha CA 1329/92 with CALA 141/82.
Carolis v. Piyadasa CALA 82/90 CAM 16.7.83.
Sri Lanka Law Reports
[1998) 3 Sri LR.
S.Mahenthiran for respondent-petitioner.
K. Kanag-lswaran P.C. with Ariam Britto – Muthunayagam for petitioner-respondent.
Cur. adv. vult.
November 4, 1998.
The petitioner-respondent filed an application in the District Court on25.05.90 in terms of the Reciprocal Enforcement of Foreign JudgmentsOrdinance (Cap 94) praying that the judgments of the Supreme Courtof HongKong dated 10th June, 1989, and 9th March, 1990, beregistered. The said judgments were ordered to be registered by anOrder made on 31.5.90 and the respondent-petitioner became entitledto apply to set aside the said registration. Accordingly, the respondent-petitioner applied on 20.7.90 to set aside the registration of the saidjudgments.
When the inquiry commenced on 2.8.95 the parties suggested inall 21 issues. Thereafter, on 28.10.97 two further issues that wereagreed to be tried as preliminary issues were raised. They were inregard to questions as to whether the petitioner-respondent Bank couldmaintain this application and whether the registration of the judgmentsshould be set aside and/or whether the execution of the said judgmentsshould be suspended, as Hong Kong had ceased to be a part ofHer Majesty's Dominions with effect from 1.7.97.
The District Judge by his order dated 13.3.98 answered the saidissues in favour of the petitioner-respondent Bank. The respondent-petitioner now seeks leave to appeal from the said order.
Section 6 (1) of the Reciprocal Enforcement of Foreign JudgmentsOrdinance provides that if the Minister is satisfied that reciprocalprovisions have been made by the Legislature of any part of "HerMajesty's realms and Territories outside the United Kingdom" for the
Lalwani v. Indian Overseas Bank (Ismail, J.)
enforcement of judgments obtained in this country, he is empoweredto declare by an order published in the Gazette that this Ordinanceshall extend to judgments of a Superior Court of that territory. Ac-cordingly an order was published in the Gazette on 23.01.1925 interms of section 6 (1) that the said Ordinance be extended to HongKong. It is the contention of the respondent-petitioner that as HongKong is now no longer “any part of Her Majesty's realms and Territoriesoutside the United Kingdom" and in the absence of any furtheragreement, there has been a severance of reciprocity and conse-quently that these proceedings would now have to be terminated. Itwas contended in reply that there is no requirement that reciprocityhas to continue to exist throughout the proceedings and that, in anyevent, in terms of section 6 (1) of the Ordinance, the requirementof reciprocity is a matter to be considered by the Minister.
K. W. Patched in Recognition of Commercial Judgments and Awardsin the Commonwealth (1984), at page 93, states that ". . .the de-termination as to whether the legislation or the treatment accordsreciprocity is that of the Executive and not the Courts. Moreover, sincethe requirement of reciprocity must only be established when the initialorder is made, its disappearance, as for example by the repeal ofthe reciprocal legislation in a particular jurisdiction, will not affect thevalidity of the extension order in favour of that jurisdiction. That isa circumstance in which the Executive would be justified in revokingthe order".}
Again, at page 96, in dealing with the effect of changes in con-stitutional status upon extension orders, it is stated as follows: “Anextension order validly made at its creation will normally continue tohave effect notwithstanding the change in the constitutional status ofthe enacting jurisdiction and/or that of the jurisdiction to which theorder relates".
It was pointed out by Counsel for the petitioner-respondent thatin terms of section 3(3) of the Reciprocal Enforcement of ForeignJudgments Ordinance, the effect of the registration of the said judg-
Sri Lanka Law Reports
(1998) 3 Sri LR.
merits on 31.5.90 is that they had ceased to be foreign judgmentsfrom that date and further proceedings are taken thereon as if theywere judgments originally obtained or entered upon in the District Courtof Colombo.
Section 3(3) (a) is as follows:
“Where a judgment is registered under this section:
(a) the judgment shall, as from the date of the registration, be ofthe same force and effect, and proceedings may be taken thereon,as if it had been a judgment originally obtained or entered upon thedate of registration in the registering court".
Section 3(3) (b) provides further that the registering court shall havethe same control and jurisdiction over the judgment as it has oversimilar judgments given by itself, but in so far only as relates toexecution under this section.
The submission of the petitioner-respondent is that as at 25th May1990, when the order for registering the said judgment was made,the District Court was vested with statutory jurisdiction to make theorder and that subsequent events and changes cannot take away rightsof the parties as at the date of the action. The petitioner-respondentrelied on the principle that the rights of the parties must be determinedas at the date of the action. It was so held in Silva v. Fernandaand was referred to with approval in Kader Mohideen & Co., Ltd. v.Gan/21.
The respondent-petitioner, however, relied on upon two judgmentsof the Court of Appeal in Hettiaratchi v. MothsF and in Carolis v.Piyadasaf*'. These two judgments relate to cases whether there hasbeen a frustration of the subject matter of the dispute by stateintervention by acquisition or a vesting in terms of a statute subse-quently enacted. These judgments are not relevant and do not affectthe principle relating to the rights of the parties as at the date of the
Sirisena v. Doreen de Silva and Others
action and to a matter which, in this instance, is governed entirelyby a separate statute.
We accept the submissions tendered on behalf of the petitioner-respondent and we take the view that the learned District Judge wasjustified in holding that, notwithstanding the change of the status ofHong Kong, the petitioner-respondent is entitled to proceed with thisapplication to enforce the said judgments. He has accordinglyanswered the preliminary issues correctly. We therefore refuse leaveto appeal from the order made on 13.3.98.
The application for leave is dismissed with costs fixed atRs. 2,100.
TILAKAWARDANE, J. – I agree.