008-NLR-NLR-V-54-MILLER-Appellant-and-MURRAY-Respondent.pdf
Miller v. Murray
25
1952Present: Rose G.J. and Gunasekara J.
MILLER, Appellant, and MURRAY, RespondentS. C. 440—D. C. Kandy, 3,818
Jurisdiction—Cause of action arose in Ceylon—Defendant resident abroad—'Right ofplaintiff to sue in Ceylon—Civil Procedure Code, ss. 9, 69—Private InternationalLaw.
XJnder section 9 of the Civil Procedure Code an action may be instituted inCeylon against a defendant who is resident abroad and is not domiciled inCeylon. The jurisdiction of a Court of any particular State depends uponthe local municipal law and is unaffected by the consideration as to whethera judgment once obtained is enforceable in the Courts of a foreign State.
A PPEAL from a judgment of the District Court, Kandy.
V. Perera, Q.C., with P. Somatilakam and S. Sharvananda, for theplaintiff appellant.—This is an action for breach of promise of marriage.The promise was made within the jurisdiction of the Kandy Court.Thereafter the defendant went to Australia. Summons was duly servedunder section 69 of the Civil Procedure Code. The defendant gaveproxy to a Proctor at Kandy to defend the action. The proctor filedanswer denying liability and alleged that as defendant had gone toAustralia the Court had no jurisdiction to hear the action. The questionfor decision in this appeal is one of jurisdiction. The cause of actionarose in Ceylon. Therefore the question of jurisdiction is determinedby the law of Ceylon. Section 69 of the Civil Procedure Code gives the-power to Court to issue summons out of the Island, the condition pre-cedent being that the Court must have jurisdiction. Jurisdiction isdealt with in section 9 of the Civil Procedure Code. In the present caseauthorities relating to actions on foreign judgments were erroneouslycited before the trial Judge. The moment a person is properly servedwith summons under section 69 he is precisely in the same position asa person who is in this country. See Schibsby v. Westenholz 1 and In reLiddell’s Settlement Trusts 2. Emanuel v. Symon 3 and Worman & Co. v.Noorbhai4 relate to actions on foreign judgments and are thereforedistinguishable.
E. B. Wikramanayake, Q.C. {N. E. Weerasooria, Q.C., with him, IvorMisso and P. Colin Thome), for the defendant respondent.—Where oneparty to a dispute is a foreigner domiciled abroad the question of juris-diction must be decided according to the Rules of Private InternationalLaw. Section 9 of the Civil Procedure Code presupposes the existenceof a defendant subject to the jurisdiction of the Court. Jurisdiction islimited to persons who are subjects of the Sovereign. See Cheshire:Private International Law, 2nd. ed., Ch. 3, and Sirdar Gurdyal Singh v.Rajah of Faridkote 5. Section 69 of the Civil Procedure Code presupposesthat the Court has jurisdiction under section 9. Section 9 is further“ subject to limitations prescribed by law ”, which would include the
(1870) L. R. 6 Q. B. 155.2 (1908) 1 K. B. 302.
(1936) 1 Ch. D 365.4 (1912) 15 N.L.R. 355.
6- (1894) A. C. 670.
2LTV
-J. N. B 18636-1,490 (7/52}
26
ROSE C.J.—Miller v. Murray
Rules of Private International Law. Acccording to Private InternationalLaw the Courts of any country liave no jurisdiction over any matter with,regard to which they cannot give an effective judgment—Tattack v.Tallack1. See also Schibsby v. Westeriholz (supra) ; Worman <& Go. v.Noorbhai (swpra) ; Hukm Chand : Res Judicata, p. 373. Section 69only applies to persons domiciled in the country who are at the momentabroad. It does not apply to persons who are permanently outside thecountry.
V. Perera, Q.O., replied.
Cur. adv. vult.
July 10, 1952. Rose C.J.—.
The appellant seeks to recover damages from the respondent for breachof promise of marriage. The matter went to trial on the followingissues :—
Did tfie defendant by his letters dated 19th November, 1947,
9th December, 1947, 29th June, 1949, 11th July, 1949, 9thAugust, 1949, and 19th September, 1949, promise to marry theplaintiff ?
Has the defendant repudiated his said promise and refused to marry
the plaintiff ?
If so, what damages is the plaintiff entitled to 1
In view of the fact that the defendant has been residing outside
Ceylon from April, 1948, has this Court jurisdiction to hear theplaintiff’s action 1
The fourth issue was heard as a preliminary issue of law.
The appeal was argued on the basis that if the matter was justiciablein Ceylon at all the Kandy District Court was the appropriate Court.
Service of summons out of the island was duly effected, having beenpermitted under Section 69 of the Civil Procedure Code on the ground,no doubt, that the cause of action arose in Kandy, or that the contractsought to be enforced was made there. (Section 9 of the Code)
The respondent contends that Section 9 applies only to personsdomiciled in Ceylon and purports only to allocate jurisdiction as betweenthe various courts of the island in respect of such persons. He submitsthat the words ££ subject to the pecuniary or other limitations prescribedby any law ” introduce the limitations of international law and should not,as the appellant argues, be taken to refer exclusively to municipal law.
The respondent relies in the main upon two decisions, Worman d?Co. v. Noorbhai 2 and Emanuel v. Symon 3. It is to be noted that in theformer case the question to be decided was whether a judgment obtainedagainst the defendant in the Court of Small Causes of Calcutta was en-forceable in Ceylon. On this matter Lascelles C.J. said as follows :—“ The argument on appeal principally turned on a point which
does not appear to have been urged before the learned District Judge.
But as the consideration of that argument involves no further finding
of fact, I think we cannot refuse to entertain that argument. Now
* (1927) Probate 211.a (1912) 15 N. L. R. 355.
(1908) 1 K. B. 302.
it is urged by Mr. Hayley that, accepting the findings of the DistrictJudge on the two points in issue, namely, the competence of the Courtin India and the service of the summons in Colombo, the present actionis still one that is not maintainable on general principles of internationallaw. It is argued that, inasmuch as the defendant was not domiciledwithin the jurisdiction of the Indian Courts, and was not residentthere at the time of the action against him, and did not appear to theprocess or agree to submit to the jurisdiction of the Court of SmallCauses, he is not bound by the judgment of that Court. The authoritieswhich Mr. Hayley has cited to us are explicit on the point, and beingauthorities on questions of international law they are binding on us.Tn the case of Emanuel v. Symon the facts were on all fours with thefacts of the present case. The defendant had been in Western Australiaand had carried on business there. He then left Australia and wentto live in England. His former partners then obtained a judgmentagainst him in the Australian Court. The defendant was served withthe writ in England, but he entered no appearance, and did not defendthe action. The Australian Court gave judgment against him, andan action was brought in England against the defendant to enforce theAustralian decree, and it was held, on the grounds that I havementioned, that the defendant was not bound by the decree of theAustralian Court. In an Indian ease, Sirdar Gurdyal Singh v. TheRajah of Faridkote x, the same principles were enunciated. I regardthese judgments as binding on us, and I would set aside the judgmentof the District Court and dismiss the action against the defendant.”
It is to be noted that neither in that case nor in Emanuel v. Symon(supra) was the point taken that the original judgment, in Calcutta, orWestern Australia, as the case may be, was bad in itself. Indeed thecontrary would seem to be assumed and in Sirdar Gurdyal Singh v. TheRajah of Faridkote (supra) Lord Selbome said at page 684 :
“ In a personal action, to which none of these causes of jurisdictionapply, a decree pronounced in absentem by a foreign Court, to the juris-diction of which the defendant has not in any way submitted himself,is by international law an absolute nullity. He is under no obligationof any kind to obey it; and it must be regarded as a mere nullity bythe Courts of every nation except (when authorized by special locallegislation) in the country of the forum by which it was pronounced. ”
In other words, the jurisdiction of a Court of any particular State mustdepend upon the local municipal law and is unaffected by the considerationas to whether a judgment once obtained is enforceable in the Courts of aforeign State. That latter question will of course depend upon inter-national law or the local municipal law of the foreign State in question.This distinction would seem to be explained by Blackburn J. in Schibsbyv. Westenholz, 2 at page 159.
“ Should a foreigner be sued under the provisions of the statutereferred to, and then come to the courts of this country and desire tobe discharged, the only question which our Courts could entertain wouldbe whether the Acts of the British legislature, rightly construed, gave1 {1894) A. O. 670.* {1870) L. R. 6 Q. B. 155.
ROSE C.J.—Aliller v. Murray
28
Thangavelauthan v. Saverimuttu
us jurisdiction over this foreigner, for we must obey them. But if,judgment being given against him in our Courts, an action were broughtupon it in the courts of the United States (where the law as to the en-forcing foreign judgmets is the same as our own), a further questionwould be open, viz., not only whether the British legislature had giventhe English courts jurisdiction over the defendant, but whether hewas under any obligation which the American courts could recognizeto submit to the jurisdiction thus created. This is precisely thequestion which we have now to determine with regard to a jurisdictionassumed by the French jurisprudence over foreigners. ”
Moreover in a comparatively recent case in re Idddell’s Settlement Trusts *,Eomer L.J. has said, at page 374, in considering the effect of Order XIRule 1 (c) (of the United Kingdom Supreme Court),
“ The moment a person is properly served under the provisions ofOrder XI that person, so far as the jurisdiction of this court is concerned,is precisely in the same position as a person who is in this country. ”
It seems to me, therefore, that there is no good reason for acceptingthe respondent’s contention that section 9 applies only to personsdomiciled in Ceylon. The appellant is, in my opinion, entitled to succeedin her appeal. The appeal is therefore allowed, but, as the merits haveno't yet been adjudicated upon, the matter must be remitted to theDistrict Court for determination according to law. Tlje respondentwill pay the costs of this appeal and of the hearing in the District Courton 13th March, 1951.
Gtoaseoea J.—I agree.
Appeal allowed.