MTUI v. MTUI 2000 (1) BLR 406 (HC)

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Citation: 2000 (1) BLR 406 (HC)
Court: High Court, Lobatse
Case No:
Judge: Lisimba J
Judgment Date: April 14, 2000
Counsel:
Dr. Lever for the applicant. Omotoye for the respondent.
Flynote
Conflict of laws - Foreign judgment - Divorce decree - Recognition - Law applicable - Common law - Non-application of Judgments (International Enforcement) Act (Cap. 11: 04), s. 2(2).

Conflict of laws - Foreign judgment - Divorce decree - Domicile - Divorce jurisdiction - Respondent husband domiciled in  C  Tanzania - Parties nationals of Tanzania - Matrimonial home of parties in Botswana - Divorce decree granted by High Court of Tanzania - Whether Tanzania court jurisdiction to grant decree of divorce.

Conflict of laws - Foreign judgment - Divorce decree - Enforcement - Distribution of matrimonial property - Decree granted in Tanzania - Action in Botswana to enforce decree - Tanzania court decreeing assets of parties acquired and  D  situate in Botswana to be distributed according to Botswana law - Whether decree enforceable in Botswana.
Headnote
The applicant and respondent, both nationals of Tanzania, were married in Tanzania in 1970. They left Tanzania for Botswana where they set up their matrimonial home in 1983. In the course of time, the couple through their  E  joint efforts built up considerable assets in Botswana. In 1987, the respondent left the matrimonial home, and in 1990 he instituted divorce proceedings in Tanzania which was granted by the High Court of Tanzania on 31 August 1998. That court decreed that since the courts in Tanzania did not have jurisdiction to distribute the assets of the parties which were located in Botswana, those assets should be distributed to them in accordance with the law obtaining in Botswana where the properties were acquired and located. The applicant applied to the  F  High Court for an order that the court should apply the law of Botswana to distribute the matrimonial property. Counsel for the respondent raised a number of points in limine against the grant of the application. The respondent, in his answering affidavit to the application, averred that he was a citizen of Tanzania and that he had not abandoned his domicile of origin in favour of Botswana. He further stated that in accordance with the  G  statutory provisions relating to marriages in Tanzania, the courts of Tanzania had competent jurisdiction to grant divorce by virtue of the parties domicile and that any claim to a division of assets as claimed by the applicant must be determined by the courts of Tanzania. A practising advocate of the High Court of Tanzania filed an affidavit on behalf of the applicant in which he averred that the High Court in Tanzania had the power to order the division of any assets acquired by spouses during their marriage by their joint efforts and in doing so the courts  H  favoured an equal division of the assets so acquired. The main issues for the consideration of the court were: (a) whether the Tanzania court had jurisdiction to grant the decree of 31 August 1998; and (b) whether the decree, being an extra-territorial judgment, could be recognised and enforced in Botswana in respect of property situated in Botswana.

Held: (1) although foreign matrimonial decrees are unenforceable under the Judgments (International  A  Enforcement) Act, and there are no statutory provisions in Botswana for the recognition of foreign divorce decrees, they are, however, recognisable and enforceable under the common law. Consequently, the court had jurisdiction to recognise such foreign divorce decrees provided they met the common law principles for recognition of foreign judgments.

(2) The common law of Botswana on recognition of foreign divorce decrees is a mixture of the Roman Dutch  B  common law and English common law. The principle of law for the recognition of foreign decrees is that only decrees granted by the courts of the domicile of the parties at the time of their marriage should be recognised, and that a married woman takes on the domicile of her husband on her marriage. Dictum of Aguda C.J. (as he then was) in Egner v. Egner 1974 (2) B.L.R. 5 at p.6 and of Nganunu J. ( as he then was) in Ndzinge v. Ndzinge,  C  High Court (MC. 268/90), unreported, applied. Le Mesurier v. Le Mesurier [1895] A.C. 517, P.C.; Wilson v. Wilson (1872) L.R. 2 P. & D. 435; Armitage v. The Attorney -General [1906] P.135; Travers v. Holley [1953] P. 246, C.A.; Indyka v. Indyka [1967] 2 All E.R. 689, H.L. (E.) and Ex parte Stern 1976 (2) S.A. 273 (C) considered.

(3) The court was satisfied on the evidence that the domiciliary law was applied in granting the divorce decree and that the High Court of Tanzania had competent jurisdiction in the action between the parties, and therefore,  D  recognition would be given to the decree of the Tanzania High Court dated 31 August 1998.

(4) The decree of the Tanzania court was an extra-territorial judgment. The respondent, having chosen that court as his forum, could not object to the decree being enforceable against him. What the Tanzania court did was to create a right and the applicant wanted that right to be enforced by the court. Such right was recognised under  E  the Roman Dutch common law. Dictum of Dove-Wilson J.P. in Estate Seedat v. R. 1916 N.P.D. 535 at p. 540 applied.

(5) Since the courts of Tanzania did not have jurisdiction to distribute the assets of the parties which were located in Botswana, those assets would be distributed to them in accordance with the law obtaining in Botswana.  F
Case Information
Cases referred to :

    (1)    Le Mesurier v. Le Mesurier [1895] A.C. 517; [1895-9]  All E.R. Rep. 836; 72 L.T. 873, P.C.
    (2)    Wilson v. Wilson (1872) L.R. 2 P. & D. 435.
    (3)    Armitage v. The Attorney-General [1906] P. 135; 94 L.T. 614.
    (4)    Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794, C.A.  G
    (5)    Indyka v. Indyka [1969] 1 A.C. 33; [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689, H.L. (E.).
    (6)    Ex parte Stern 1976 (2) S.A. 273 (C).
    (7)    Egner v. Egner 1974 (2) B.L.R. 5.
    (8)    Ndzinge v. Ndzinge, High Court (MC. 268/90), unreported.  H
    (9)    Adams and Others v. Cape Industries plc and Another [1991] 1 All E.R. 929, C.A.
    (10)    Estate Seedat v. R. 1916 N.P.D. 535.
    (11)    Mthethwa v. Lebang [1990] B.L.R. 615.
    (12)    Cargo Motor Corporation Ltd. v. Tofalos Transport Ltd. and Another 1972 (1) S.A. 186(W).
(13)    Sunnyface Marine Ltd. v. Hitoroy Ltd. (Trans Orient Steel Ltd. and Another Intervening) 1992 (2) S.A. 653 (C).  A
    (14)    Bi-Hawa Mohammed v. Ally Sefu (1983) Tan. L. R. 32, C.A.

APPLICATION for recognition and enforcement of a foreign divorce decree. The facts are sufficiently stated in the judgment.

Dr. Lever for the applicant.   B
Omotoye for the respondent.
Judgment
Lisimba J.:
By a notice of motion dated 3 May 1999 the applicant seeks an order that paragraph (c) of the decree of the High Court of Tanzania delivered at Moshi under Matrimonial Cause No. 5 of 1990 on 31 August 1998 be made the  C  order of this court and for an order appointing a liquidator of the matrimonial property of the parties and for an interdict.
The application is supported by an affidavit to which there is annexed the said decree and paragraphs (b) and (c) thereof state as follows:
    "(b)    That the Court of the Resident Magistrate at Moshi should distribute to the parties their jointly acquired assets  D  which are located in Tanzania under the marriage Law of Tanzania;
    (c)    That since the Courts in Tanzania do not have jurisdiction to distribute assets of the parties which are located in Botswana, the said properties be distributed to them in accordance with the Law obtaining in Botswana where the properties were acquired and are located;. . . "  E
At the hearing of this application counsel for the respondent, Mr. Omotoye, raised a number of points in limine in which he argued that the application made by the applicant for an order that the court implement Botswana law to distribute the matrimonial property should be dismissed with costs for the following reasons.  F
Firstly, that the matrimonial regime at the time the parties contracted the marriage was governed by the English common law as that is the common law which is applicable in the Republic of Tanzania; secondly, that under the English common law there is no recognition of the concept of community which is unique only to the Roman Dutch system; thirdly, that in English law there is no particular rule applicable to disputes involving property of  G  spouses or former spouses, the courts there apply general principles applicable in any dispute over property; fourthly, that the parties are peregrinus to this honourable court and this matter is one where there is a conflict of laws at issue. The position of Roman Dutch law is that where there is no ante-nuptial contract the proprietary consequences of a marriage are governed by the law of the husband's domicile at the time of the marriage;  H  fifthly, that the applicant has failed to cite interested parties to these proceedings, namely Msutse (Proprietary) Limited and Mana Construction (Proprietary) Ltd. and such failure was an irregularity on account of material non-joinder. When counsel raised these points I was of the view that these were not genuine points in limine as they were matters

2000 (1) BLR p409
LISIMBA J
that must be embodied in the answering affidavit and accordingly I ruled that counsel should incorporate them in  A  his submission on merit.
The brief background to this case is that the applicant and the respondent got married on 29 December 1970 in the District of Moshi, Tanzania. In June 1982 the respondent came to Botswana and the applicant followed him in February 1983, and they set up a matrimonial home in this country. According to the applicant the couple through a joint effort built up considerable assets in Botswana but in 1987 the respondent left their common home in  B  Gaborone. The respondent disputes the existence of a joint matrimonial estate and says that he was forced to leave in 1987. Anyway irrespective of who is telling the truth what transpired is that in or around April 1990 the respondent instituted divorce proceedings in the Resident Magistrate's Court at Moshi, Tanzania. On 9 July 1993 the resident magistrate granted a decree of divorce wherein the court declared, inter alia, that as the parties had  C  acquired property in Botswana it was desirable for a commission to be established in Botswana to inquire into those assets. The respondent, being dissatisfied with the decision of the magistrate, lodged an appeal in the High Court of Tanzania and on 31 August 1998 the decree was granted as shown above. The applicant comes to this court seeking orders as specified in the notice of motion.  D
In his answering affidavit, which he wrongly called the founding affidavit, the respondent alleged that there are disputes of fact which could not be resolved on the papers and which required evidence. However, this point was not canvassed in argument, and I believe, rightly so, because most of the alleged disputes of fact are issues that were raised before or relevant before the Tanzanian court. These include the questions as to whether the  E  respondent left the common home or was evicted therefrom; the allegations upon which the decree of divorce was granted; the grounds of appeal to the High Court in Tanzania. What is relevant to this court is whether the decision of the High Court of Tanzania of 31 August 1998 can be recognized and enforced in this jurisdiction in respect of the property situated here. In deciding on this issue I will not deal point by point as raised by Mr.  F  Omotoye but rather I will examine the law as it is and give the correct position as I see it.
At the outset I wish to say that the issue of non-joinder does not arise in this matter because this is a matrimonial matter to which the companies mentioned were not party. If any matrimonial property has been unlawfully  G  dissipated into these companies such property may be traced by separate proceedings and not by joining the companies to this action. Besides, this court is dealing principally with the decree of divorce granted by the Tanzanian High Court and the recognition and enforcement thereof and not a new cause of action requiring joinder of new parties.
I also see that on 28 February 2000, the respondent filed in this court, copies of the chamber summons and  H  affidavit purportedly issued by the High Court of Tanzania. I do not know the reasons why these documents were filed but as they were lodged after this matter had been tried and adjourned for judgment, I have not considered them. In any case those summons are for an extension of time within which to apply for review and they may well be unsuccessful when they are considered by that court.

2000 (1) BLR p410
LISIMBA J
My starting point is to say that there are no statutory provisions in Botswana for the recognition of foreign  A  decrees and as such the common law rules apply. In his article "Recognition of Foreign Divorce Decrees in Botswana" E.K. Quansah states that the common law of Botswana is a "mixed" system of Roman-Dutch and English law hence the recognition rules are derived from these sources (see "Botswana Notes and Records" volume 23 at p. 108). It was held in the Privy Council case of Le Mesurier v. Le Mesurier [1895] A.C. 517 at p.  B  540 that at common law the sole test for recognition of a divorce decree is the domicile of both spouses at the time of the grant of the decree. In an English case of Wilson v. Wilson (1872) L.R. 2 P. & D. 435 at p. 442, Lord Penzane stated that:
    "[T]he only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring  C  their matrimonial differences to the courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those  D  laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another."
The domiciliary rule has been extended in the English courts to include recognition of a divorce decree obtained  E  in a state or country where a husband was not domiciled, if the court of the country or state of his domicile would recognize the validity of the decree (see Armitage v. The Attorney-General [1906] P. 135). Again in Travers v. Holley [1953] P. 246, C.A. a rule was laid down by Hodson L.J. that a foreign decree of divorce obtained in factual circumstances where mutatis mutandis an English court would have had jurisdiction would be  F  recognised in England, for it would be contrary to principle and inconsistent with comity if the courts of England were to refuse to recognize a jurisdiction which mutatis mutandis they claim for themselves. The domiciliary rule was further extended by the House of Lords in Indyka v. Indyka [1967] 2 All E.R. 689, H.L. (E.) when it stated that a foreign decree would be recognized if there was a "real and substantial connection" between the plaintiff or  G  defendant and the country where the divorce was obtained. That was a case in which the decree of divorce was granted in Czechoslovakia. This decision was quoted with approval by Van Winsen J. in the case of Ex parte Stern 1976 (2) S.A. 273 (C) at p. 277 E-G.
The English common law was codified in 1986 to provide that a divorce obtained in a country outside the British  H  Isles is entitled to recognition in England if, firstly, it is effective under the law of that country and effective here presumably means effective to dissolve the marriage. Secondly, if at the date of the commencement of the proceedings, the other party to the marriage was habitually resident or domiciled in, or was a national of that country (see Family Law Act, 1986, ss. 46(1)(a) and 46(1)(b)).

2000 (1) BLR p411
LISIMBA J
In this country the domiciliary rule was applied by Aguda C.J. (as he then was) in the case of Egner v. Egner  A  1974 (2) B.L.R. 5 at p. 6. This case was quoted with approval by Nganunu J. (as he then was) in Ndzinge v. Ndzinge, High Court (MC. 268/90) unreported, when he stated that:
    "The law of Botswana, which is in line with the laws of most civilized countries I know of, is this, that the domicile of a marrying couple is the law of the domicile of the husband at the time of marriage."  B
In the case before me the respondent states in paragraph 3.3.1 of his answering affidavit that he is a citizen of Tanzania, and has not abandoned his chosen nor domicile of origin in favour of Botswana. The respondent further adds in para. 18.3:  C
    "that in accordance with the statutory provisions relating to marriages in Tanzania, it being the court of competent jurisdiction, in addition of [sic.] that court granting divorce by virtue of domicile, any claim to a division of assets as claimed by applicant must be a power exercisable by the courts of Tanzania."  D
The respondent therefore accepted the jurisdiction of the Tanzanian court by virtue of his domicile and I find that was a court of competent jurisdiction.
The other question which must be answered is whether the decree of 31 August 1998, being extra-territorial can be enforced by this court? Under the English common law a court will enforce a judgment of a foreign court  E  (save on grounds of public policy) if the court is one of "competent jurisdiction". In deciding this issue the English court does not apply the laws of the foreign court itself but rather its own rules (see Adams and Others v. Cape Industries plc and Another [1991] 1 All E.R. 929, C.A. at p. 1006) and this may be done in the following situations:  F
    (i)    where the defendant is a subject of the foreign country;
    (ii)    where the defendant was resident there when the action began;
    (iii)    where the defendant has selected the forum in which he was sued;
    (iv)    where he had contracted to submit himself to the forum;  G
    (v)    where he has appeared voluntarily.
It is common cause that the Tanzanian court passed the decree on 31 August 1998. The respondent having chosen that court as his forum, cannot therefore object to the decree being enforceable against him. The position I take is that what the Tanzanian court did was to create a right and the applicant wants that right to be enforced by this court. This is recognized under the Roman Dutch law as seen from the words of Dove-Wilson  H  J.P. in Estate Seedat v. R. 1916 N.P.D. 535 at p. 540, when he said:
    "But the extra-territorial recognition of rights has of course its place in the administration of the Roman Dutch Law in South Africa as it has in the administration of the laws of other civilised communities."

2000 (1) BLR p412
LISIMBA J
Since Botswana is also under the Roman Dutch law I find that the decision of Dove-Wilson J.P. represents a  A  correct position of the law in this country.
Under the provisions of section 7(2)(b) of the Judgments (International Enforcement) Act (Cap. 11.04) the courts of the country of the original court has jurisdiction, in the case of a judgment given in an action of which the subject matter was immovable property or an action in rem of which the subject matter was movable  B  property if the property in question was, at the time of the proceedings in the original court, situated in the country of that court. But where the subject of the proceedings was immovable property outside the country of the original court that court has no jurisdiction (see section 7(3)(a) of Cap. 11.04).
In terms of subsection (2)(a) of section 7, the courts of the country of the original court shall be deemed to have  C  jurisdiction in the case of a judgment given in an action in personam under the circumstances outlined in that subsection. But under section 2 the action in personam does not:
    "include any matrimonial cause or any proceedings in connection with any of the following matters, that is to say, matrimonial matters, administration of the estates of deceased persons, insolvency, winding up of companies, lunacy, or  D  guardianship of infants."
My understanding of these provisions is that matrimonial decrees are outside the purview of the Judgments (International Enforcement) Act as that Act only deals with the maintenance orders as shown under Part III  E  thereof and judgments in civil proceedings or judgments or orders given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party including awards in proceedings on arbitration (see section 2).
This was also the conclusion reached by Aboagye J. in Mthethwa v. Lebang (Practice Note) [1990] B.L.R. 615 at page 617 F when he stated that:  F
    "[O]nly judgments and orders which decree payment of money by way of maintenance can, so far, be enforced under the Act after such judgments and orders have been registered."
Mr. Omotoye has argued that there was need to register the judgment of the Tanzanian court and the failure to  G  do so is fatal to this application. This also appears to have been the decision of my learned brother Barrington-Jones J. in his ruling of 14 October 1992 on this matter. I seem to hold a different view. Since the Judgments (International Enforcement) Act does not provide for matrimonial causes there will be no justifiable reasons why the Act would require registration of a matter for which it makes no provision. Indeed section 9  H  categorically provides that:
    "No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in Botswana."

2000 (1) BLR p413
LISIMBA J
In this case I am not dealing with the recovery of a sum but rather with matrimonial property which, in my view, is  A  not envisaged under section 9.
Although foreign matrimonial decrees may not be enforced under the Judgments (International Enforcement) Act, I find that at common law, they are enforceable and this court has competence to recognize such decrees provided they meet the criteria, as outlined in the cases and authorities above.  B
Mr. Omotoye made another submission that the court in Tanzania, having granted the divorce, should have gone ahead to resolve the issue of distribution of property and should have given directions to the Botswana High Court as to how distribution of property will be determined. I think the issue as to what the Tanzanian court should have done must be raised with that court. It does not arise for my consideration. Also I doubt whether the  C  Tanzanian court has got competence to give directions to this court. What this court requires is the proof that the Tanzanian court had jurisdiction to grant the decree in question. In this sense the general principle is that the provisions of the foreign law have to be proved by way of an expert witness (see Cargo Motor Corporation Ltd. v. Tofalos Transport Ltd. and Another 1972 (1) S.A. 186 (W) at p. 194 G). It was held in the case of Sunnyface  D  Marine Ltd. v. Hitoroy Ltd. (Trans Orient Steel Ltd. and Another Intervening) 1992 (2) S.A. 653 (C) at p. 655 D that such evidence may be given by an affidavit. On behalf of the applicant there is an affidavit of Peter Eliuforo Shayo, a practising advocate of the High Court of Tanzania filed herein on 25 June 1999. In that affidavit, which is duly authenticated by a notary public in accordance with section 12 of the Authentication of Documents Act (Cap.  E  14:02), Mr. Shayo has averred that the High Court in Tanzania has the power to order the division of any assets acquired by spouses during their marriage by their joint efforts and in so doing the court favours an equal division of assets so acquired. He stated that these powers are provided for under section 114 of the Law of Marriage Act, 1971, a copy whereof was availed to this court. Section 114 provides inter alia, that:  F
    "(1)    The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale.  G
    (2)    In exercising the power conferred by subsection (1), the court shall have regard:
        (a)    to the custom of the community to which the parties belong;
        (b)    to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;  H
        (c)    to any debts owing by either party which were contracted for their joint benefit; and
        (d)    to the needs of the infant children if any, of the marriage, and subject to those considerations, shall incline towards equality of division."

2000 (1) BLR p414
LISIMBA J
Mr. Shayo also averred that in deciding whether the wife has contributed to the matrimonial estate, account is  A  taken of her domestic duties including the bringing up of the children, house cleaning and maintenance and the like as well as any contributions which she has made through direct income or goods acquired for use of the spouses and the children. The court can also order the sale of any such assets and divide the proceeds of such sale between the parties.  B
In support of his averments Mr. Shayo cited, in his affidavit, the case of Bi-Hawa Mohammed v. Ally Sefu (1983) Tan.L.R. 32 by the Court of Appeal of Tanzania in which Nyalali C.J. read the judgment of the court and gave a detailed interpretation of the provisions of section 114 confirming the position as stated by Mr. Shayo. A copy of that judgment was also filed in court.  C
I have considered the expert evidence of Mr. Shayo and I accept it. I am satisfied that the domiciliary law was applied and the High Court of Tanzania had competent jurisdiction in the action between the parties and I therefore give recognition to the decree of that court dated 31 August 1998.
In respect of the claims for an interdict and an appointment of a liquidator, I think these too are justifiable. It is  D  necessary to maintain the status quo and to have a professional person appointed as liquidator in view of the disagreement of the parties on the division of the family assets. Accordingly I will make the following orders:
    (1)    That since the courts in Tanzania do not have jurisdiction to distribute assets of the parties which are  E  located in Botswana, the said properties be distributed to them in accordance with the law obtaining in Botswana.
    (2)    That the Registrar do appoint an accountant or an attorney to act as liquidator of the matrimonial property of the parties with the following rights and duties:  F
        (a)    to take possession of all assets formerly belonging to the matrimonial estate, to collect all debts, moneys or incomes due to the estate and to determine and discharge the liabilities thereof;
        (b)    to demand from both parties a true and correct account of any portion of the said assets taken possession of or dealt with by either spouse and payment over or delivery of any balance or assets  G  still in his or her hands;
        (c)    to divide the said assets equally between the parties or to sell them and divide the proceeds where a division cannot conveniently or advantageously be effected;
        (d)    to apply to this court for special directions if the said liquidator is not satisfied with the information  H  supplied by either party or in the event of encountering any special difficulty.
    (3)    That both parties are interdicted from dealing in any way with the assets of the matrimonial estate, save with the permission of the said liquidator.

2000 (1) BLR p415
    (4)    That the order in terms of paragraph 3 hereof operates as an interim order with immediate effect and is  A  to remain in operation until the final division of the said estate or until otherwise directed by this court.
    (5)    That the costs of this application shall be borne by the respondent.

Judgment for the applicant.
O.M.M.

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