GYIMAH v THE ATTORNEYGENERAL In re EX PARTE APPLICATION OF VIVIAN GYIMAH 2010 1 BLR 646 HC

Export to PDF
Export to Word
Export to print
Citation: 2010 1 BLR 646 HC
Court: High Court, Francistown
Case No: Misca F58 of 2010
Judge: Motswagole J
Judgment Date: April 14, 2010
Counsel:
K Obeng for the applicant.rnN N Balule with him L Moagi for the respondent.rn
Flynote

Practice and procedure - Foreign judgment - Enforcement - Both parties  H  peregrines - Judgment of Ghanaian court in matrimonial cause altering ownership of immovable property in Botswana - Applicant's ex-husband not joined to proceedings - Whether enforceable.

Headnote

The applicant launched an urgent ex parte application for leave to register a judgment of the High Court of Ghana in Botswana and leave to give effect to that judgment by making an endorsement on the relevant

2010 (1) BLR p647

title deed. The judgment altered the ownership of immovable property  A  in Botswana and arose in a matrimonial cause. Prior to the hearing of the matter the applicant served the papers on the Attorney-General (respondent) and brought an application to join her to the proceedings on the basis that her office was responsible for the deeds registry in Botswana. The respondent objected in limine that the proceedings were irregular for want of compliance with Order 12 rule 12(2) of the  B  Rules of the High Court (Cap 04:02) (Sub Leg), ie they were not urgent, and for failure to serve on the respondent a notice in terms of s 4 of the State Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap 10:01).

Held: (1) The applicant was not seeking any relief against the respondent. Nor was it correct that the respondent's office was  C  responsible for the deeds registry in Botswana. There was thus no basis upon which the respondent could be joined to the proceedings and the application for joinder had to fail.

(2) The applicant's ex-husband, who was currently the title-holder of the property, ought to have been joined as a necessary party to the proceedings as he had a vested right in the property. First National  D  Bank of Botswana Ltd t/a Wesbank v Ditshotlo (Practice Note) [2000] 2 B.L.R. 233 and Moerane v Phiri [2000] 2 B.L.R. 219 applied.

(3) The application was not urgent. The applicant had failed to satisfy Order 12 rule 12 of the Rules of the High Court. The application had to fail on that ground alone.

(4) Both the applicant and her ex-husband were peregrines. It was doubtful that a foreign court had jurisdiction over immovable property in  E  Botswana, especially where the parties were peregrini. The applicant had not shown that the Ghanaian court had jurisdiction.

Case Information

Cases referred to:

Barclays Bank of Swaziland v Koch [1997] B.L.R. 1294

Big Game Development Company (Botswana) (Pty) Ltd v De Kock [1997] B.L.R. 301  F  

Botswana Ash (Pty) Ltd v Zuzumbe (Pty) Ltd [2003] 1 B.L.R. 58

Carlton Motors (Pty) Ltd and Others v Stanbic Bank Botswana and Another [2003] 1 B.L.R. 307

Cloete v Brink [1996] B.L.R. 224

First National Bank of Botswana Ltd t/a Wesbank v Ditshotlo (Practice Note) [2000] 2 B.L.R. 233  G  

Kgosiencho and Others v Sechele and Others [2000] 2 B.L.R. 344

Letsoalo v Lesuma Trading Co (Pty) Ltd and Another [1993] B.L.R. 214

Moerane v Phiri [2000] 2 B.L.R. 219

Mtui v Mtui [2000] 1 B.L.R. 406

Pretorius v Sweiger (ii) 1979-1980 B.L.R. 129

T Schouten's Imports (Pty) Ltd v Wintercom Botswana (Pty) Ltd [1984] B.L.R. 111  H  

APPLICATION to enforce a foreign judgment. The facts are sufficiently stated in the judgment.

K Obeng for the applicant.

2010 (1) BLR p648

N N Balule (with him L Moagi) for the respondent.  
Judgment

MOTSWAGOLE J:

The applicant in the substantive matter is Vivian Gyimah, a national of Ghana residing in Accra, hereinafter referred to as the applicant. The applicant brought a purported urgent ex parte application in terms of Order 12 rules 4(1) and 13 of the Rules of the High Court (Cap 04:02)  B  (Sub Leg) as read with ss 2 and 3(b) of the Evidence (Commonwealth and Foreign Acts of State and Judgments) Act (Cap 10:03) of the Laws of Botswana, seeking an order in the following terms:

    '1.      That this Application be heard as a matter of urgency dispensing with the normal rule as to service and set down of matters;  C  

    2.       That the Applicant be granted leave to register in the Republic of Botswana the Judgment granted by Mr Justice Patrick Baageh J setting at the High Court of Justice of Ghana in Accra, Ghana on the 21 January 2009.

    3.       That to give effect to this Judgment the applicant be granted leave to make an endorsement to the deed of transfer no 1803/98 dated 15th  D  day of December 1998.

    4.       There be no order as to costs.'

However, it appears sometime before the hearing of the matter, the applicant changed her mind and decided to serve the Attorney-General with the founding papers and a document set out hereunder:  E  

    'Amended originating motion the purpose of which is to cite and serve the Attorney-General as her office is in charge of the deeds registry of Botswana.
Be pleased to take notice that
An application is hereby made to amend the substantive application by
 F  making the Attorney-General a party to the proceedings by virtue of the fact that her office is responsible for the deeds of registry of Botswana.'

The Attorney-General then filed a notice of opposition together with a notice of points in limine, which reads:

    'Please take notice that the Respondent hereby file notice to raise points in  G  limine to the hearing of the application filed by the Applicant to the effect that the proceedings are irregular and not properly before the court due to:

    1.       Failure to comply with Rules of the High Court, Order 12 rule 12(2).

    2.       The application is not in compliance with provisions of State Proceedings (Civil Actions by or against Government or Public  H  Officers) Cap. 10:01 of the Laws of Botswana.

Wherefore, the Respondent pray that the application be dismissed with costs.'

After hearing both counsel, Mr Kenneth Obeng for the applicant and Mr Ndei Balule for the Attorney-General, I dismissed the applicant's case

2010 (1) BLR p649

MOTSWAGOLE J

with costs and undertook to furnish the reasons for such decision, as I  A  hereby now do. In reaching my decision I was concerned with three crucial issues, namely (i) the procedure adopted in joining the Attorney-General in these proceedings, which started essentially as an ex parte application; (ii) the urgency of the matter; (iii) the legal and factual basis for the application, which give rise to the jurisdiction of the court and the entitlement of the applicant to have access to the court.  B  

I will deal first with the application for the joinder of the Attorney-General. The order regulating issues of joinder or non-joinder of parties is Order 16 of the Rules of the High Court rules 4, 5, 10 and 11 provide:

    '4.      All persons may be joined as defendants against whom the right to  C  relief is alleged to exist, whether jointly, severally or in the alternative, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

    5.       It shall not be necessary that every defendant be interested as to all the reliefs prayed for, or as to every cause of action included in any  D  proceeding against him; but the judge may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

    10.     Any application to add to or strike out or substitute a plaintiff or defendant may be made to the judge at any time before trial by  E  motion, or at the trial of the action in a summary manner and may be granted on such terms as the judge deems fit.

    11.     Where a defendant is added or substituted, the writ of summons, petition or motion shall be amended accordingly, and the plaintiff shall, unless otherwise ordered by the judge, file a copy of the writ of summons, petition or motion as amended and serve the new  F  defendant with such amended writ of summons, petition or motion in the same manner as original defendants are served, and the proceedings shall be continued as if the new defendant had originally been made a defendant.'

It seems to me that Order 16 in rule 4 entitles the plaintiff or applicant to  G  join any person 'against whom the right of relief is alleged to exist' as a defendant or respondent, as the case may be. However, the applicant has not sought any relief against the Attorney-General in her substantive application. Contrary to what is stated on the applicant's notice dated 26 March 2010, amending her notice of motion of 24 March 2010, the deeds registry is no longer under the office of the Attorney-General but has been relocated to the Ministry of Lands and  H  Housing following the 2003 restructuring of the office of the Attorney-General, and this is a matter of public knowledge. In any case, the Registrar of Deeds derives his or her power from the Deeds Registry Act (Cap 33:02) and exercises such power independently. The Registrar of Deeds is appointed by the President in terms of s 4 of the Deeds Registry Act and has 'the power to do any act or thing which may lawfully be done under the [Deeds Registry]

2010 (1) BLR p650

MOTSWAGOLE J

Act or any other law, by the Registrar of Deeds'. Sections 5 and 6 list  A  her or his specific functions and powers as follows:

    '5. Duties of RegistrarThe Registrar shall, subject to the provisions of this Act  -

    (a)     take charge of and preserve all records which were prior to the commencement of this Act, or may become after such date, records of the deeds registry;  B  

    (b)     examine all deeds of other documents submitted to him for execution or registration, and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act or by any other law, or to the execution or registration of which any other valid objection exists;  C  

    (c)     register grants or leases of land lawfully issued by the Government or grants issued by any other competent authority (and register amendments, renewals and cancellations of such leases, and releases of any part of the property leased);

    (d)     attest or execute and register deeds of transfer of land, and execute and register certificates of title to land;  D  

    (e)     attest and register mortgage bonds;

    (f)      register cessions (including cessions made as security) of registered mortgage bonds, and register cancellations of such cessions if made as security;

    (g)     register cancellations of registered mortgage bonds, releases of any part of the property hypothecated thereby or of all such property if  E  the debt is further secured by a collateral bond, releases of any joint debtor or of any surety in respect of any such bond, the substitution of another person for a debtor in respect of any such bond, reductions of cover in respect of any such bond intended to secure future debts, and part payments of the capital amount due in respect of any such bond other than a bond intended to secure future debts;  F  

    (h)     register waivers of preference in respect of registered mortgage bonds and notarial bonds in favour of other bonds, whether registered or about to be registered and waivers of preference in respect of registered notarial bonds in favour of other notarial bonds whether registered or about to be registered;

    (i)      register waivers of preference in respect of registered real rights in  G  land, in favour of mortgage bonds, whether registered or about to be registered;

    (j)      register notarial bonds, and cancellations and cessions thereof (including cessions made as security) and cancellations of such cessions if made as security;

    (k)     register releases of any part of the property hypothecated by any  H  registered notarial bond or of all such property if the debt is further secured by a collateral bond, releases of any joint debtor or of any surety in respect of any such bond, reductions of cover in respect of any such bond intended to secure future debts, and part payments in respect of the capital amount due in respect of any such bond other than a bond intended to secure future debts;

2010 (1) BLR p651

MOTSWAGOLE J

    (l)      register antenuptial contracts, and register such notarial deeds of  A   donation (including a donation to be held in trust), and such other notarial deeds having reference to persons and property within the area served by the registry as are required or permitted by law to be registered;

    (m)    register grants or leases lawfully issued by the Government, of rights to minerals;  B  

    (n)     register notarial cessions, leases or sub-leases of rights to minerals, notarial cessions of such registered leases or sub-leases, notarial cancellations of such leases or sub-leases, certificates of registration of such rights, and reservations of such rights made in grants or transfers of land;

    (o)     register on the title deeds of the land and of the rights to minerals  C  affected, and in the relative registers, the issue of mijnpachtbrieven;

    (p)     register any servitude, whether personal or praedial, and record the modification or extinction of any registered servitude;

    (q)     register notarial leases, sub-leases, and cessions of leases or of sub-leases, of land, and notarial amendments of such leases and  D  sub-leases, and notarial renewals and notarial cancellations of such leases and sub-leases and notarial releases of any part of the property leased;

    (r)      register notarial prospecting contracts and notarial cessions thereof and cancellations of such contracts;

    (s)     register any real right, not specifically referred to in this section, and any cession, modification or extinction of any such registered right;  E  

    (t)      register against any registered bond any agreement entered into by the mortgagor and the holder of that bond, whereby any terms of that bond have been varied;

    (u)     register general plans of subdivisions of land, and record in the registers kept under this Act any conditions upon which the subdivisions have been laid out or established;

    (v)     register powers of attorney whereby the agents named therein are  F  authorized to act generally for the principals granting such powers, or to carry out a series of acts or transactions registrable in the deeds registry, and register copies of such powers registered in any other deeds registry, which have been certified by the Registrar thereof;

    (w)     make, in connection with the registration of any deed or other document, or in compliance with the requirements of any law, such  G  endorsements on any registered deed or other document as may be necessary to give effect to such registration or to the objects of such law;

    (x)     record all notices, returns, statements, or orders of court lodged with him in terms of any law;

    (y)     remove from his records with the approval of the Master and after the  H  lapse of 10 years from the date of entry in such records, any entry made therein, whether before or after the commencement of this Act, in pursuance of the transmission to him of a notice of liquidation or an order of liquidation or sequestration or in pursuance of the lodging with him by the Master of a return under section 22 of the Administration of Estates Act;

2010 (1) BLR p652

MOTSWAGOLE J

    (z)      make such entries in the registers kept under this Act and any other  A  law as are necessary for the purpose of carrying out the provisions of this Act or such other law and of maintaining an efficient system of registration calculated to afford security of title and ready reference to any registered deed,

    and generally the Registrar shall discharge all such duties as by law may or are to be discharged by the Registrar of Deeds or as are necessary to  B  give effect to this Act.

    6. Powers of Registrar

    (1) The Registrar shall have power -

    (a)     to require the production of proof upon affidavit or otherwise of any fact necessary to be established in connection with any matter or thing sought to be performed or effected in the registry;  C  

    (b)     whenever it is in his opinion necessary or desirable to rectify in any deed or other document, registered or filed in the registry, an error in the name or the description of any person or property mentioned therein, or in the conditions affecting such property, to rectify the error:

            Provided that -  D  

          (i)       every person appearing from the deed or other document to be interested in the rectification has consented thereto in writing;

          (ii)      if any such person refused to consent thereto, the rectification may be made on the authority of an order of court;

          (iii)     if the error is common to two or more deeds or other documents, including any register in the registry, the error shall be rectified  E  in all those deeds or other documents;

          (iv)     no such rectification shall be made if it would have the effect of transferring any right;

    (c)     to issue, under prescribed conditions, certified copies of deeds or other documents registered or filed in the registry;  F  

    (d)     if in his opinion any deed or other document submitted to him has become illegible or unserviceable, to require that a certified copy thereof be obtained to take its place.

    (2) The Registrar shall perform, in case of dispute, all the functions of a taxing officer of the court in relation to fees charged by conveyancers and notaries public for performing any acts which are required or permitted under  G  this Act to be performed by conveyancers or notaries public in connection with deeds executed, registered or filed or intended to be executed, registered or filed in the deeds registry or in relation to fees charged by other legal practitioners in connection with the preliminary work necessary for the purpose of any such deed.'

I am satisfied, however, that the applicant has not sought any relief  H  against the Registrar. There is no complaint against her or him in the papers save for the following averment in para 7.9 of the founding affidavit:

    '7.9    I came to Botswana to engage an Attorney to make an application at the Deeds Registry of Botswana for me to make endorsement to give effect to the judgment of the Court and either lease it or sell it but the

2010 (1) BLR p653

MOTSWAGOLE J

            application was rejected on the grounds that the judgment has not  A  been registered in Botswana. Hence this application.'

In the draft order no 2 of the notice of motion in the substantive matter reproduced above the applicant 'sought leave to make an endorsement to the deed of transfer no 1803/98 dated 15th day of December 1998'. That order, if granted, will be in contradiction with the provisions of the  B  Deeds Registry Act as the applicant will be effectively usurping the powers entrusted to the Registrar of Deeds by an Act of Parliament. As I understand it, the applicant, once the foreign judgment has been recognised, need only present an application to the deeds office together with the order of the court for the necessary endorsement to be made and does not have the power to effect the endorsement  C  herself. Perhaps that is what is intended by order no 2, but I am of the view that the words used convey a different meaning.

It is clear to me that the applicant has not shown any basis upon which the Attorney-General or the Registrar of Deeds can be joined as parties. In the circumstances therefore, the application to join the Attorney-General is refused and such application is dismissed with  D  costs. Even if I am wrong in this conclusion, I would have upheld the preliminary points raised by the Attorney-General, the first of which deals with the urgency of the application and will be dealt with below in any event; the second point deals with the applicant's failure to give the Attorney-General or the Registrar of Deeds a statutory notice as prescribed in s 4 of the State Proceedings (Actions by or against  E  Government or Public Officers) Act, (Cap 10:01), although this is not apparent on the notice itself as it ought to be; that this was intended by point number 2 is made clear in the heads of argument filed along with the notice of points in limine and during argument before me. I will not pursue the matter any further as I have decided that the Attorney-General is not a necessary party. The applicant brought the Attorney-General before the court when in my view it appeared  F  unnecessary to do so, and it seems fair that she must bear all the costs incurred by the latter in opposing the substantive application.

The further aspect of this case is whether or not this is the kind of case that could properly be brought ex parte. I do not think so as the applicant's ex-husband is a necessary party as a person with a vested right in the property in question and ought to be given the opportunity to  G  be heard. I cannot imagine what prejudice the applicant will suffer if the title holder of the property was to be joined as a party, and there has been no suggestion to the contrary. I therefore make a finding accordingly. I rely in coming to this conclusion on the following cases: First National Bank of Botswana Ltd t/a Wesbank v Ditshotlo (Practice Note) [2000] 2 B.L.R. 233 at p 234; Moerane v Phiri [2000] 2 B.L.R. 219 at p 224.

The applicant purported to bring an ex parte urgent application in terms  H  of which she sought to register a foreign judgment altering the ownership of immovable property situate in the Republic of Botswana and arising in a matrimonial cause (divorce proceedings) instituted in Ghana, as well as obtaining an order granting leave to effect an endorsement on the Deed of Transfer No 1803/98 dated 15 December 1998.

I am not satisfied that the application is urgent as no basis for urgency has

2010 (1) BLR p654

MOTSWAGOLE J

been laid in the founding affidavit as required by Order 12 rule 12, which  A  provides:

    '12.  (1)      In urgent applications the judge may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time and place and in such manner, and in accordance with such procedure (which shall as far as practicable be in terms of these Rules) as to him seems meet.  B  

          (2)      In every affidavit filed in support of any application under subrule (1), the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.' (my emphasis)  C  

The applicant has not come anywhere closer to attempting to satisfy Order 12 rule 12 at all. The allegation of urgency is based on the averment that the applicant's visa expired on 29 March 2010, the day of the hearing of the application, without even stating when she came into the country. In my view the applicant does not even need to be present for the application to be moved before the court on urgency or, for that  D  matter, for the proposed endorsement to be effected as she can simply give a power of attorney to her lawyers, as indeed she has done in the institution of these proceedings. She has not said what circumstances render the matter urgent and why she cannot be given substantial relief in due course. I therefore find that no case of urgency has been made out and accordingly the application must fail on that ground alone.  E  

If any authority is needed for this conclusion at all, then I refer to the following: Letsoalo v Lesuma Trading Co (Pty) Ltd and Another [1993] B.L.R. 214 at pp 216-17; Big Game Development Company (Botswana) (Pty) Ltd v De Kock [1997] B.L.R. 301 at pp 303-6; Botswana Ash (Pty) Ltd v Zuzumbe (Pty) Ltd [2003] 1 B.L.R. 58 at p 62; Carlton Motors (Pty)  F  Ltd and Others v Stanbic Bank Botswana and Another [2003] 1 B.L.R. 307 at pp 310-11; Kgosiencho and Others v Sechele and Others [2000] 2 B.L.R. 344 at pp 345-6.

The conclusion I reached on urgency should really dispose of the matter but, even if I was wrong on the conclusion I have reached, the applicant must still fail as she has not shown the jurisdictional basis for the substantive application. I now proceed to demonstrate why I say so.  G  

In para 4 of the founding affidavit the applicant described herself as a 'resident of Ghana, [who] came to Botswana solely for the purpose of this application'. By that description the applicant is therefore peregrinus par excellence. Granted, the applicant says, at one stage, she cohabited together with her husband, one Michael Wisdom Kwame Gyimah (who is also a citizen of Ghana), in Botswana when the latter  H  was working here, when house no 21614 Molapo Estate, held under the deed of transfer no 1803/98 was acquired. A copy of the title deed shows that the property in question is registered in the name of the said Michael Wisdom Kwame Gyimah, although the founding affidavit is silent on the issue of the title holder.

The marriage of the two appears to have been dissolved on 21 January 2009 by the High Court of Ghana sitting in Accra and the property was

2010 (1) BLR p655

MOTSWAGOLE J

purportedly granted to the applicant. The applicant's ex-husband is not  A  joined as a party, yet he still holds the title to the property in terms of the laws of the Republic of Botswana. I told counsel that, in the absence of any authority to the contrary, I would have great difficulty in appreciating how a foreign court can have jurisdiction over immovable property situate in Botswana when even both parties before it are in terms of the law of Botswana peregrines.  B  

I was then, and still I am, not satisfied that the Evidence (Commonwealth and Foreign Acts of State and Judgments) Act provides for the recognition of foreign judgments that seek to control immovable property situate in Botswana, as the learned counsel for the applicant sought to have me believe. This Act, in my view, deals with how certain foreign documents including court proceedings and  C  judgments may be proved in proceedings before the courts of Botswana. The applicant in the instant proceedings is not seeking to prove the existence and/or admissibility of a foreign judgment but to enforce the same, and that for me is an entirely different subject-matter. Contrary to what the learned counsel said, the case of  D  T Schouten's Imports (Pty) Ltd v Wintercom Botswana (Pty) Ltd [1984] B.L.R. 111 is not authority for the learned counsel's proposition. In that case a judgment creditor of a foreign judgment instituted liquation proceedings in the High Court of Botswana against the judgment debtor of a foreign judgment and sought to rely on the foreign judgment to prove the inability to pay. In other words, the debt and the inability to pay had to be proved before the court and the foreign judgment was relied upon as part of the evidence. Hannah ACJ, as he then was, in the  E  T Schouten's Imports case, made the following statement at pp 113-14:

    'The second point made by the presiding officer is that a judgment of the Supreme Court of South Africa will not suffice to prove a claim unless its enforcement has been authorised by this court. I have been unable to find  F  any authority for this rather novel proposition and with great respect to the learned Assistant Master I doubt very much whether any exists. It seems to me that the reasoning, based as it is on lack of reciprocity of enforcement of judgments between South Africa and this country, is faulty. The presiding officer should not be concerned with the question whether a judgment  G  obtained elsewhere is enforceable in this country: his concern should be whether the judgment is sufficient proof of the indebtedness of the company in liquidation. And the Evidence (Commonwealth and Foreign Acts of State and Judgments) Act (Cap. 10:03) (1973 Rev.) makes it clear that judgments of courts of justice in all foreign states may be proved in courts of justice in Botswana or, for that matter, before any person having by law authority to  H  hear, receive and examine evidence, and that they may be proved by the production of authenticated copies of the judgment purporting to be sealed with the seal of the foreign court. Once such a judgment is proved it becomes evidence and in the case of a money judgment it would be good evidence of the existence of a debt at the time it was given.' (my emphasis)

The T Schouten's Imports case seems to have been correctly decided on its

2010 (1) BLR p656

MOTSWAGOLE J

facts, but, if it was intended to suggest that you can enforce a foreign  A  judgment through the provisions of the Evidence (Commonwealth and Foreign Acts of State and Judgments) Act, I will disagree and will not follow such decision especially in the light of other local authorities on the subject. It was held by Edward J, as he then was, in the case of Pretorius v Sweiger (ii) 1979-1980 B.L.R. 129 at p 130:  B  

    'If both plaintiff and defendant are peregrines and there is no ground of jurisdiction ratione rei sitae, rei gestae or contractus - none has been averred - the Court will not entertain the action and would not even if the defendant were to submit to the jurisdiction. The time of the Court should not be taken up with disputes, having nothing to do with Botswana, between persons  C  neither domiciled nor resident here. See Springle v. Mercantile Association of Swaziland Ltd., 1904 TS 163; Frank Wright (Pty.) Ltd v. Corticas "BCM" Ltd., 1948 (4) SA 456 (C), at 465; Towers v. Paisely 1963 (1) SA 92 (E); Greater Services (Pty.) Ltd. v. Du Toit 1974 (1) SA 260 (C). As no ground of jurisdiction has been disclosed, the application is dismissed.'

The Pretorius case involved an application for a default judgment in  D  an action for the payment of money. The sum claimed was alleged to represent the agreed price of goods sold and delivered, and also the amount for which a foreign judgment was granted.

The third case is Cloete v Brink [1996] B.L.R. 224, which involved a plaintiff who issued a provisional sentence summons to recover from a defendant the Pula equivalent of an amount expressed in South African  E  Rand and interest on the capital sum together with costs. The amounts claimed were said to be due 'in terms of the judgment obtained by the plaintiff against the defendant in the magistrate's court for the district of Pretoria in the Republic of South Africa'. It was further stated that the magistrate's court Pretoria was a court of competent jurisdiction to hear and determine the matter by virtue of the fact that  F  the cause of action arose fully 'within the district of Pretoria'. A copy of 'a request for default judgment' in the magistrate's court concerned was annexed and there was a stamp certifying that it is a true copy. On the Afrikaans version of the request for default judgment was endorsed by an official stamp that judgment had been granted as prayed and the figure 'R42 773' was written by a pen. No other documents were  G  attached to the usual form of the provisional sentence summons except a power of attorney authorising the institution of these proceedings. Nganunu J, as he then was, held at pp 227-8:

    'With regards to the other arguments advanced by the plaintiff on the issue of jurisdiction, I need not take too much time on them. Suffice to state that  H  on the face of it, there is a judgment from a court in South Africa dealing with a matter that had apparently arisen in South Africa. As pointed out earlier, the underlying cause of action has not been mentioned so that the court cannot say that the reason for the action and the subject matter has any connection with Botswana. As there is no description of the address of the parties there is no way of judging where

2010 (1) BLR p657

MOTSWAGOLE J

    they reside. When Mr. Madembo argued that the defendant was a  A  peregrinus as well as the plaintiff (the latter of which is admitted), Mr. Mckee said that equally there was no evidence that the defendant is not a resident of Botswana and he implied that it behoved the defendant to have brought evidence as to his place of residence. In my view, that cannot be so. As a minimum the plaintiff should have given some information as to the residential status of the defendant and only after the defendant has denied  B  that information, would it have been necessary for the defendant to prove the contrary; but where there is no allegation of residence as in this provisional summons, the defendant cannot be called upon to provide the information that the plaintiff should have provided in the first place. I deal with these points at length to demonstrate that the provisional summons has not  C  shown that this action has anything to do with Botswana or demonstrate that any of the parties are residents in Botswana. In such a case it seems obvious to me that the court is being asked to assume jurisdiction on a matter which may well have nothing to do with this country and of which this court can give no effective implementation after judgment is granted. In a  D  situation of this type a court in Botswana is entitled to refuse to assume jurisdiction even assuming, without deciding so, that the South African judgment does not fall under Act 11:04, but that nevertheless it ought to be recognised as a judgment of a competent court. What is written on the return of service does not carry the matter further, for it was written by the  E  deputy sheriff He does not purport even to ascribe that information to the defendant. The usual common law jurisdictional factors are lacking in the matter. See: Towers v. Paisley 1963 (1) S.A. 92 and Erasmus Superior Court Practice - A1-25 to A1-30.In the circumstances therefore I hold that it has not been shown that this court has jurisdiction in this matter. The case is dismissed with costs.'

The fourth case is Barclays Bank of Swaziland v Koch [1997] B.L.R. 1294, where it was held by Nganunu CJ, as he then was, at pp 1296-8:  F  

    'I need not deal with the preliminary and procedural points advanced by  A  either party in these proceedings because I think that there is one point that disposes of the plaintiff's case. Now a foreign judgment which is not recognised under Act 11:04 cannot have authority as a judgment in this  B  country. The judgment is not one that is registered under the terms of section 3 of the Act and, therefore, it has no force as a judgment in this country. The plaintiff's approach is that he sues by provisional sentence summons in terms of Order 14 of the Rules of the High Court. Rule 1 of that Order states as follows:  H  

            "Where by law any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons as near as may be in accordance with Form 9 in the First Schedule calling upon such person to pay the amount claimed, or failing such payment, to appear personally or by counsel upon the day named in such summons not being less than seven days after service upon him of such summons, to admit or deny his liability."

2010 (1) BLR p658

MOTSWAGOLE J

In my view that rule lays down that where under common law a litigant  A  can proceed against another by way of provisional sentence summons then such a person could issue a provisional sentence summons in the form as near as possible as that appearing in Form 9 in the First Schedule. Now it is recognised under the common law that claims brought for recovery under a provisional sentence summons should be supported by a liquid document. A foreign judgment is not a  B  liquid document however.

The comity of nations and international commerce require that foreign judgments be recognised and enforced in each other's country as far as possible. In Botswana as in other countries this is usually achieved by a statute which under certain conditions recognises as judgments decisions of foreign courts. Further and above that, the common law  C  permits the enforcement of such judgments indirectly through the expeditious procedure of a provisional sentence summons. Certain conditions must, however, be satisfied by a litigant who proposes to take advantage of that procedure. The main points to be satisfied as far as they are relevant to this case are that the judgment must be final and conclusive; see Ismail v. Strandling 1911 T.P.D. 428; Jones v. Krok 1954 (1) S.A. 677. In addition all documents necessary to  D  prove the judgment must be in order and the judgment relied upon as a cause of action should be annexed. See Westdeutsche Landesbank Girozentrale (Landesbausparkasse) v. Horsch 1993 (2) S.A. 343 where at 344 Levy J said, relating to provisional sentence summons:

    "However, because this is an extra-ordinary remedy, the court is strict  E  about the compliance with certain prerequisites. These prerequisites include annexation to the summons of a certified copy of such judgment and, where the judgment is in a foreign language, a duly and proper translation thereof. All foreign documents must be duly authenticated in terms of the Rules of the Court."

That the court is strict about compliance with the necessary conditions  F  is clear from the following passage at p. 1000 of the Civil Practice of the Supreme Court of South Africa - 4th ed. - by Van Winsen:

            "It is essential that all the papers should be in order before a foreign judgment will be enforced. The plaintiff must, therefore, have before the court a properly authenticated copy of the judgment upon which provisional sentence is sought...."  G  

I have already detailed the documents annexed to the provisional sentence summons of the plaintiff. These do not include the simple summons referred to in the particulars of claim presumably issued in the Swaziland High Court, nor more importantly, is the judgment itself enclosed. There is no explanation for failing to enclose the judgment. There is enclosed the Registrar's certificate which discloses that a  H  judgment was indeed granted in the foreign court and that it was final, that no appeal has been made against it and it remains unsatisfied. In my judgment the actual judgment of the court is required to be enclosed and certified by the relevant officer of the court. There are many things that the judgment will disclose which may be essential to its enforcement here, for instance, just to give one example, the judgment must not be based on

2010 (1) BLR p659

MOTSWAGOLE J

a cause of action which is contrary to public policy in Botswana or  A  contra bonos mores. That the annexation of the actual judgment is a necessary prerequisite is underscored by the requirement that if it is in a foreign language it must be properly translated by a sworn translator of the court. Several other minor criticisms can be levelled at the plaintiff's documents. These include the fact that it is not mentioned anywhere in his documents where the court that delivered the judgment  B  sat and why the summons was not enclosed. The authentication of the Registrar's certificate remains in doubt under our law.'

The fifth case is that of Mtui v Mtui [2000] 1 B.L.R. 406. The facts of the case as summarised in the head note are as follows:  C  

    '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 joint efforts built up considerable assets in Botswana. In 1987, the respondent left the matrimonial home, and in 1990 he instituted divorce  D  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 High Court for an order  E  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 statutory provisions relating to marriages  F  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 of Tanzania had the power to order the division of any assets acquired by  G  spouses during their marriage by their joint efforts and in doing so the courts favoured an equal division of the assets so acquired.'

Lisimba J, as he then was, held at pp 411-14 as follows:

    'The other question which must be answered is whether the decree of  H  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 (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

2010 (1) BLR p660

MOTSWAGOLE J

    E.R. 929, C.A. at p. 1006) and this may be done in the following situations:  A  

     (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;

    (v)     where he has appeared voluntarily.  B  

    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  C  Dove-Wilson 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."

    Since Botswana is also under the Roman Dutch law I find that the decision of Dove-Wilson J.P. represents a correct position of the law in this country.  D  

    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 property if the property in  E  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 jurisdiction in the case of a  F  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 guardianship of infants."  G  

    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 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  H  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 617F when he stated that:

            "[O]nly judgments and orders which decree payment of money by way

2010 (1) BLR p661

MOTSWAGOLE J

            of maintenance can, so far, be enforced under the Act after such  A  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 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  B  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 categorically provides that:

            "No proceedings for the recovery of a sum payable under a foreign  C  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."

    In this case I am not dealing with the recovery of a sum but rather with matrimonial property which, in my view, is not envisaged under section 9.

    Although foreign matrimonial decrees may not be enforced under the  D  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.

    Mr. Omotoye made another submission that the court in Tanzania, having granted the divorce, should have gone ahead to resolve the issue of  E  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 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 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  F  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. 194G). It was held in the case of Sunnyface Marine Ltd. v. Hitoroy Ltd. (Trans Orient Steel Ltd. and Another Intervening) 1992 (2) S.A. 653 (C) at p. 655D that such evidence may be given by an  G  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. 14:02), Mr. Shayo has averred that the High Court in Tanzania has the power  H  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:

    "(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

2010 (1) BLR p662

MOTSWAGOLE J

            parties of any assets acquired by them during the marriage by their  A  joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale.

    (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,  B  property or work towards the acquiring of the assets;

          (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."  C  

    Mr. Shayo also averred that in deciding whether the wife has contributed to the matrimonial estate, account is 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  D  and divide the proceeds of such sale between the parties.

    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.  E  

    I have considered the expert evidence of Mr. Shayo and 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.'  F  

It shall be seen that in all the cases referred to above the common feature among them is that an action was instituted against another person and a foreign judgment was either used as evidence of the existence of an entitlement by the party initiating the court process or sought to be enforced in Botswana. In the instant case there is no such  G  action, and this is so even if one assumed that the Attorney-General is the opposite party as the foreign judgment does not purport to affect her in any way whatsoever. The Mtui case is, however, different from the rest of the cases in that, unlike the rest of the cases which dealt with a debt, it deals with a foreign matrimonial order which has an effect on immovable property situate in Botswana, thus making the case similar to the case at hand. The further difference between the  H  two cases, other than the one already mentioned above, however, is that the immovable property had to be distributed in accordance with the laws of Botswana as the Tanzanian court did not have jurisdiction to distribute the property situate in Botswana according to Mtui's case, whereas, in the instant case it is the Ghanaian court which distributed the immovable property.

2010 (1) BLR p663

MOTSWAGOLE J

The question is whether or not the Judgments (International  A  Enforcement) Act (Cap 11:04) is applicable to a matter such as the current one and if so, whether or not such Act has altered the Roman-Dutch common law in any manner material to the case. Lesimba J held that the Judgments (International Enforcement) Act is inapplicable by virtue of the exclusion of foreign divorce decrees in s 7(2)(a), and that the only avenue is the common law. In coming to this  B  conclusion he differed with two of the decisions of this court and agreed with another decision of this court. Given the diversity of the opinions of this court and the unavailability of any decision of the Court of Appeal, the issue is still open for debate. I will not enter that debate now, but at the right time and in an appropriate case, save to say that it is doubtful that a foreign court can have jurisdiction over immovable  C  property situate in the Republic of Botswana even at common law, especially where the title is held by a peregrinus.

I have already made a finding that the title holder of the property has not been brought before the court, and that I cannot make the orders sought in his absence and participation unless he has shown lack of interest. I am further not satisfied that a basis has been laid in the  D  founding affidavit showing that the Ghanaian court had jurisdiction to deal with the immovable property situate in Botswana. The judgment in question bears no seal of the court and is not authenticated or signed by the judge and no note appears thereon showing that a court that issued it has no seal as required by s 3(b) of the Evidence (Commonwealth and Foreign Acts of State and Judgments) Act.  E  

The other issue that disturbed me greatly is that the immovable property in question is not described with any degree of precision at all in the purported judgment and cannot be linked to Lot 21614 Francistown. This is what is stated in the foreign judgment:

    '1.    That the Molapo (Botswana) house as part of the jointly owned  F  properties of the parties be for the Respondent [Vivian Gyimah]. However, the Respondent is to account for the rent of 6000 pula (equivalent to $1.200 in 2007) rented out by the Respondent effective from 24th August 2007 to 23rd August 2009 to be shared equally by the parties (see the attached) contrary to $750 the amount declared by the Respondent.'  G  

The above statement appears on p 1 in para 1 of six paragraphs, looking somehow like an order of court though without the signature part. Then the next page is numbered 19 at the bottom, wherein we find the following statement:  H  

    'The Respondent is to also take the Molopo house as her sole property. If the title deeds are in the couple's joint names or in petitioner's name same should be transferred or conveyed into respondent's sole name. However Respondent is to account for the rent she has collected from tenants in the house (which she said was from August 2007 to date) and the amount shared equally between the parties....'

2010 (1) BLR p664

MOTSWAGOLE J

The third page is numbered 20 at the bottom and the following appears  A  at the end thereof:

    '(SGD) Mr Patrick Baayeh
Justice of the High Court'

Below the above words appears a rubber stamp mark 'certified true copy', a signature and then the words:  B  

    'Registrar
High Court Accra'

It is clear that the attached document is incomplete and may well have been altered and I cannot say with any degree of certainty that it is  C  indeed the judgment of a court. In other words, the document does not speak for itself. No explanation has been rendered in the founding affidavit. Even if this was the judgment of a court, the applicant will still be bound to explain that she has carried the obligation to account for the rentals and shared the same with her ex-husband as directed, which seems to have been a condition attached to the order or at the  D  minimum the applicant should tender to pay the amount in question. Accordingly, I still would have refused to grant the order sought by the applicant even if I was wrong in my findings in the interlocutory applications. I therefore confirm the order I made on 29 March 2010 dismissing the application brought by the applicant. In conclusion, therefore, I make the following order:  E  

    (a)     that this matter is not urgent and, if resurrected, must follow the normal course;

    (b)     that the application to join the Attorney-General in the proceedings is refused with costs;

    (c)     the substantive application is dismissed with liberty to renew the application on new papers;

    (d)     costs to follow the event.  F  

Application dismissed.

<<Back