Commercial Bank of Kuwait, Sar v Central Bank of Iraq

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeGeorge, J.A.
Judgment Date01 May 1998
Neutral CitationBS 1998 CA 20
Date01 May 1998
Docket NumberCivil Appeal No. 38 of 1996

Court of Appeal

George, J.A., Zacca, J.A., Hall, J.A.

Civil Appeal No. 38 of 1996

Commercial Bank of Kuwait, Sar
and
Central Bank of Iraq

Conflict of laws - Enforcement of foreign judgment — Application for service out of jurisdiction — Whether judgment obtained in the U.S. against non — resident defendant for in excess of U.S. 35 million could be enforced in the Bahamas — Whether U.K. legislation which allowed for service on a non — resident was incorporated into the laws of the Bahamas — Whether the Bahamian law which did not allow for such service prevailed — Reciprocal Enforcement of Judgments Act, Cap. 67, ss. 28 and 29 Supreme Court Act, O. 11, r. 1. Held: Section 28 of the Supreme Court Act limits the reception of English statutes to the extent that the jurisdiction of the court or local circumstances permit. Section 29 empowers the Rules Committee to make rules in the amplest manner for regulating the conduct of court business. The Rules Committee has taken no steps to expand those instances in which permission ought to be sought to actions or proceedings outside jurisdiction as it could have done. There was accordingly no room for the extension of that jurisdiction unless the Committee or Parliament so determined.

George, J.A.
1

The facts of this appeal are simple and uncomplicated. The appellant had obtained judgment against the intended defendant in a U.S. court for a considerable amount of money -- in excess of U.S. $35 million. It claimed that the latter has deposits of substantial sums of money in excess of that judgment in banking institutions in The Bahamas and desired to obtain judgment here in order to enable it to levy execution against those amounts. But the prospective defendant does not reside in The Bahamas and as the provisions of the Reciprocal Enforcement of Judgments Act Chapter 67 do not extend to judgments obtained in U.S. Courts, counsel on behalf of the appellant applied to the Supreme Court for leave to serve out of the jurisdiction notice of an action to enforce the American judgment.

2

As the jurisdiction of a court to try proceedings is ordinarily territorial, any extra-territorial proceedings, such as the institution of an action against a non-resident, is an assumed jurisdiction and must be expressly, or by necessary implication, sanctioned. In this regard the Rules of the Supreme Court which were made in the year 1978, pursuant to the section 29 of the Supreme Court Act, Chapter 41, do make such provisions. Order 11, r. 1 detailed twelve instances in which such an application could be made to the Supreme Court. But unlike its current English counterpart no provision is made for actions based on a claim against a non-resident to enforce a foreign judgment or arbitral award. This notwithstanding counsel submitted that as the current English Rules so provide (see Order 11, r.(1)(m)), section 17(1) of the Supreme Court Act is wide enough to vest the court with this extended jurisdiction. Barnett, J. (ag), before whom the application was heard, refused it. Hence the present appeal.

3

The short point for consideration is whether, despite its omission from Order 11, r. 1, section 17(1) permits for the incorporation of the English Rule. Section 17(1) reads as follows:

“(1) The court shall be a superior court of record and in addition to any other jurisdiction conferred by any other Act of Parliament or by any Act of the Parliament of the United Kingdom, shall, subject to this Act mentioned, possess and exercise the jurisdiction which is vested in or capable of being exercise by:

  • (a) Her Majesty's High Court of Justice in England, and

  • (b) the Divisional Courts of that court as constituted by the Supreme Court of Judicature (Consolidation) Act 1925 or any Act of Parliament of the United Kingdom...

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