ENFORCEMENT OF FOREIGN JUDGEMENT IN TANZANIA

1.0 The meaning of foreign judgment

A foreign judgment is a judgment rendered by a court of a state or country different from that
where the judgment or its effect is at issue. 1 In other words, a foreign judgment is a judgment
that has been pronounced by a foreign court of competent jurisdiction. 2 Hence foreign judgment
is a judgment with foreign element which is enforced by another court differ from that gives a
decision, and it operate outside it jurisdiction.
1.2 Recognition of foreign judgment

The issue of enforcement of foreign judgment it goes together with the issue of recognition of
judgment. This means that the court cannot enforce judgment of another jurisdiction if it cannot
recognize it as a judgment. Therefore there are several element which can be used to determine if
the court can recognize a certain judgment to be enforced, 3 this mean that not all foreign
judgment can be enforced in the expected country, these elements are;-

Jurisdiction of the court, the jurisdiction of the court is very important to determine before
recognize the foreign judgment. In this the court will look whether the foreign court had a
jurisdiction to determine the matter. This is provided under section 6(1) (a) (ii) 4 of Cap 8 and
section 11(a) of Cap 335 whereby the court will not register the judgment if the original court
found to lack of jurisdiction. As stated in the case of Buchanan vs. Rucker6 it was stated that;-

“…a court asked to recognize and enforce a foreign judgment has to have some criteria
for determining whether the assumption of jurisdiction was proper…”

Public policy, in order to recognize a certain judgment to be enforced the issue of public policy
is of very important. The judgment must be with conformity with public policy. As provided
under Brussels Convention it gives emphasis that the court which asked to enforce the foreign
judgment must not recognize the judgment contrary to public policy. 7 In the case of Phrantzes

1
Garner, B.A. (2004). Black’s Law Dictionary, 8th Ed. New York: West Publishing Company.
2
Piggott, F, T. (1879). Foreign Judgments: Their Effect in the English Courts, Vol.1.Oxford: Stevens and Sons.
3
Noronha F.E. (2010) Private International Law in India; Adequacy of principles in comparison with common law
and civil law system. Universal Law Publishing Co PVT Ltd.
4
Cap 8 R.E 2019
5
Cap 33 R.E 2019
6
(1809) 9 East 192
7
See section 6(1) (a) (v) Cap 8 RE 2019 and Article 27(1) of Brussels Convention of 1968.
vs. Agent8 Lord Parker CJ refused to enforce a claim by a Greek daughter against his father for
provision of a dowry on her marriage as required by Greek law.

Contrary to natural justice, the foreign judgment must be in conformity with the principle of
natural justice.9 It is provided under section 11(d) 10 of Cap 33 as it shown in the case of Adams
vs. Cape industry11 it was held that the concept of procedural natural justice was not limited to
cases in which the defendant receives no notice or given no adequate opportunity to make a
defense.

The judgment must be final and conclusive, it is provided under section 11(d) 12 of Cap 33 and
section 3(2) and 3(313) of Cap 8 that in order to enforce a judgment the judgment must be final
and conclusive. It also held in the case of Mohamed Enterprises (T) Ltd vs. Freudenberg &Sea
Saigon Shipping Ltd14. In this case the High court of Tanzania refused to enforce a foreign
judgment as it satisfy itself that the judgment was still on appeal.

The issue of fraud, if the judgment is obtained by fraud then the court will deny it enforcement.
This is provided under s. 6(1) (iv) 11(f)15 of Cap 33 and that if the judgment is obtained by fraud
that could not be neither registered nor enforced.

1.3 procedure for recognition of foreign judgment in Tanzania

In Tanzania the enforcement of foreign judgment is an issue to do with the procedural matter
where by both civil procedure code and Reciprocal Enforcement of foreign judgment is
governing the process. After the registration and recognition of foreign judgment the following
is enforcement where it provided under section 4 16 of Cap 8, this section provides for the
application for and effect of registration, whereby the judgment creditor has an obligation to
institute a new claim by way of an action for debt in order to enforce his judgment.

8
[1960] 2 QB 19
9
Morris (2009) Conflict of Laws 7th Thomson Reuters (Legal) Ltd Publisher, London UK
10
Cap 33 R.E 2019
11
[1990]Ch. 433
12
Cap 33 R.E 2019
13
Cap 8 RE 2019
14
Civil case No 37 of 2004 High court of Tanzania, commercial division at DSM(Unreported)
15
Cap 33 R.E 2019
16
Cap 8 RE 2019
Then next the burden will lie on judgment debtor to show if no obligation has on the said
judgment. As stated in the case of Willow Investment vs. Mbomba Ntumba and Another 17 in
this case Mapigano J held that a judgment creditor who sought to enforce a foreign judgment at
common law could not do so by direct execution of the judgment: enforcement had to be sought
by bringing an action on the debt. The proceedings instituted in the present matter were bad as
they did not comply with this requirement.

The application is done by ex-parte to the high court judge within six years. 18 The judgment
creditor is required to file application at any time within six years.

As the matter of practice any application in form of civil litigation when instituted in the high
court is filed by way of chamber summons in support by affidavit. A certified copy of the
Judgment issued by the original court and authenticated by its seal and a translation of the
judgment certified by a notary public or authenticated by affidavit.

Application done on behalf of someone. Section 6(1)19 of Cap provides that; on application in
that behalf by any party against whom a registered judgment may be enforced, the registration of
the judgment shall be set aside if the registering court is satisfied. The registered judgment may
be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the
original court had prior to the date of the judgment in the original court, been the subject of a
final and conclusive judgment by a court having jurisdiction in the matter.20

ARBITRATION PROCESS OF INTERNATIONAL COMMERCIAL DISPUTES

1.0 The Arbitration Agreement

17
[1996] TLR 377
18
Cap 8 R.E 2019
19
Cap 8 of R.E. 2019
20
Cap 8 R.E 2019
Section 321 of the Act provides the meaning of arbitration agreement as follows;-

“An agreement by the parties to submit to arbitration all or certain disputes which have
arisen or which may arise between them in respect of a defined legal relationship,
whether contractual or not.”

Basing on this provision, it seems that arbitration agreement refers to the desire of the parties to
the dispute to waive their rights of bringing the dispute before the Court instead take it to arbitral
tribunal for resolution.

It’s to be noted that the arbitration agreement or clause has to be incorporated in the main
contract or as a separate written agreement ‘by which the parties to a contract agree that disputes
between them which have arisen or may arise in the course of the execution of the contract
between them shall be referred to arbitration and that the arbitrator’s decision (referred to as
“award”) arising from such reference shall be final and binding upon the parties.’22

Hon. Nchimbi, J (as he then was) in Wembere Hunting Safaris Limited vs. Registered Trustees
of Mbomipa Authorized Association Commercial Case No. 40 of 2013 (High Court
Commercial Division-DSM) (unreported), said:-

“It is also significant to state with emphasis that for a matter to be referred to arbitration
there must be an arbitration agreement ordinarily in writing, which illustrates or
expresses the intention of the parties to submit themselves to that process of dispute
resolution."

In addition, such a clause usually must set out the number of arbitrators to be appointed, the
manner of appointing them, the powers of the arbitrators, their qualifications, the place and
language of the arbitration, the applicable law, and so on.23

1.2 Agreement to Arbitrate under International Perspective

21
Act No. 2 of 2020
22
C. J Mashamba. “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at pg., 121.
23
C. J Mashamba. “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at pg, 122.
An ‘agreement to arbitrate’ is usually expressed in an arbitration clause in a contract.
Arbitration clauses are drawn up and agreed as part of the contract before any dispute has arisen,
and so they necessarily look to the future. The parties naturally hope that no dispute will arise,
but agree that if it does, it will be resolved by arbitration, and not by the courts of law.24

1.3 Law applicable to the arbitration agreement

The foundation stone of modern international arbitration is (and remains) an agreement by the
parties to submit any disputes or differences between them to arbitration, for the parties to submit
the dispute to arbitration tribunal there must first be a valid agreement to arbitrate. This is
recognized both by national laws and by international treaties. Under both the New York
Convention25, and the Model Law26, recognition and enforcement of an arbitral award may be
refused if the parties to the arbitration agreement were under some incapacity or if the agreement
was not valid under its own governing law.27

1.3.1 Geneva Protocol of 1923 and Geneva Convention 1927

The 1923 Geneva Protocol and the 1927 Geneva Convention dealt with the recognition and
enforcement of international arbitration agreements and the execution of foreign arbitral awards.
These were then followed by various regional conventions, until eventually the most important
convention in the field of international commercial arbitration, the New York Convention, was
promulgated in 1958.

The 1923 Geneva Protocol had two objectives. Its first and main objective was to ensure that
arbitration clauses were enforceable internationally, so that parties to an arbitration agreement
would be obliged to resolve their dispute by arbitration rather than through the courts. This was
done, in effect, by requiring national courts to refuse to entertain legal proceedings brought in
breach of an agreement to arbitrate. The second and subsidiary objective of the 1923 Geneva
Protocol was to ensure that arbitration awards made pursuant to such arbitration agreements
would be enforced in the territory of the states in which they were made.

24
A. Red fern & M. Hunter, International Commercial Arbitration. Op. Cit. at p, 10.
25
New York Convention, Art. V.
26
UNCITRAL Model Law, Art. 35.
27
New York Convention, Art. V (1) (a); see also, Art. 36(1) (a) (i) of the UNCITRAL Model Law.
1.3.2 Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958,
famous known as ‘the New York Convention’

The New York Convention, which provides for the international recognition and enforcement of
arbitration agreement, as well as of arbitration awards, insists that arbitration agreements should
be ‘in writing’.

Indeed, references to the need for ‘writing’ occur throughout the New York Convention. Article
II (1)28 requires each state party to the Convention to recognize ‘an agreement in writing’ under
which the parties have undertaken to submit to arbitration disputes that are capable of being
settled by arbitration. Article II (2) defines an ‘agreement in writing’ to include arbitration
clauses and submission agreements; Article IV states that to obtain enforcement of an arbitral
award the winning party must produce the written agreement to arbitrate or a duly certified copy.

1.3.3 United Nation Commission on International Trade Law Model Law of 1985,
commonly known as UNCITRAL Model Law.

The Model Law, which came into force many years after the New York Convention, also
envisages arbitration as taking place only between parties who are parties29 to a written
arbitration agreement. Article 7(1) states that an arbitration agreement:-

… is an agreement by the parties to submit to arbitration all or certain disputes which

have arisen or which may arise between them in respect of a defined legal relationship,
whether contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.

Conclusions. The enforcement and recognition of foreign judgment it enable the parties to
restore their vested right, however this process is sometimes faced with the challenges due to the
procedural conflict and technicalities. The issue of jurisdiction and choice of law is still a
challenge to few cases whereby the parties to dispute does not submit themselves to a particular
forum.

REFERENCES

28
The New York Convention, 1958.
29
In case of Ad Hoc Arbitration.
Books
Garner, B.A. (2004). Black’s Law Dictionary, 8th Ed. New York: West Publishing Company.
Morris,J (2009) Conflict of Laws 7th Thomson Reuters (Legal) Ltd Publisher, London UK
C. J Mashamba. “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at pg., 121.
C. J Mashamba. “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at pg., 122.
A. Red fern & M. Hunter, International Commercial Arbitration. Op. Cit. at pg., 10.
Statutes

The Reciprocal Enforcement of Foreign Judgement Act [Cap 8 R.E 2019]

The Civil Procedure Code [Cap 33 R.E 2019[
The Arbitration Act No. 2 of 2020
Brussels Convention of 1968.
The New York Convention, 1958.
Case Laws

Buchanan vs. Rucker (1809) 9 East 192

Phrantzes vs. Agent [1960] 2 QB 19
Adams vs. Cape industry [1990] Ch. 433
Mohamed Enterprises (T) Ltd vs. Freudenberg &Sea Saigon Shipping Ltd Civil case No 37 of
2004 High court of Tanzania, commercial division at DSM (Unreported)
Willow Investment vs. Mbomba Ntumba and another [1996] TLR 377
Journals
Piggott, F, T. (1879). Foreign Judgments: Their Effect in the English Courts, Vol.1.Oxford:
Stevens and Sons.
Noronha F.E. (2010) Private International Law in India; Adequacy of principles in comparison
with common law and civil law system. Universal Law Publishing Co PVT Ltd.