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Enforcement of foreign judgments on the basis of international comity

In what is a significant judicial development, the High Court of Uganda has decided that even in the absence of reciprocal arrangements, a foreign judgment can be registered and enforced in Uganda on the basis of international comity and the international law theories of obligation and reciprocity.

This was the decision of Justice Eldad Mwangusya (now a Justice of the Appeal) in High Court Civil Suit No 91 of 2011: Christopher and Carol Sales v Attorney General in a judgment delivered on 1 February 2013.

In Civil Suit No 91 of 2011, the plaintiffs filed suit against the Attorney General for a declaration that the judgment entered by the Southern District of New York District for a sum of approximately US$ 2 million against the Permanent Mission of the Republic of Uganda to the United Nations and the Ambassador is enforceable in Uganda. It was argued for the Attorney General while the judgment was valid and subsisting, Uganda does not have a reciprocal arrangement with the United States of America for the mutual enforcement of judgments entered in their respective jurisdictions.

The position of the law is that foreign judgments must be from a court of record of the courts of the Commonwealth or from a court of the country with which Uganda has reciprocal arrangements in place for the judgment to be registered and enforced in Uganda.

If a country is a member of the Commonwealth, it will enjoy reciprocal enforcement of its judgments in Uganda courtesy of Rule 2 of the Foreign Judgments (Reciprocal Enforcement) (General Application) Order 35/2002. If a country is not a member of the Commonwealth, the enforcement of such judgments hinge on reciprocal arrangements between Uganda and that country in question in accordance with the Foreign Judgments (Reciprocal Enforcement) Act. This reciprocal arrangement is manifested in the form of an Order signed by the Minister of Justice and Constitutional Affairs. Two Orders have so far been issued extending the application of the Foreign Judgments (Reciprocal Enforcement) Act to the Commonwealth of Nations and Grenada.

In deciding that a judgment from the United States of America is enforceable in Uganda even without reciprocal arrangements in place, Justice Mwangusya observed that:

  • Such a judgment can be enforced on the basis of international comity; international comity being the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation having due regarding both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
  • The judicial system under which the case was tried is beyond reproach and a judgment creditor armed with such a judgment should be  allowed to realise the fruits of his judgment which should be afforded recognition by Ugandan courts even in the absence of reciprocal arrangements.

Justice Mwangusya also accepted the plaintiff’s arguments on the theories of obligation (the judgment of a foreign court creates a debt and liability to pay) and reciprocity.

It is clear that a court will only have recourse to these principles where the judgment was delivered under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries. However, there is no objective test to determine what “impartial administration of justice” means and this appears to be a matter for the judicial officer’s discretion.

In addition, it is also important that the judgment debtor voluntarily submitted to the jurisdiction of the foreign court and there has been an opportunity for a full and fair trial.

This article is intended as a general overview and discussion of the case dealt with. This information is not intended to be, and should not be used, as a substitute for taking legal advice in any specific situation. Sebalu & Lule is not responsible for any actions taken or not taken on the basis of this article.