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Foreign Orders and Local Land: The Caribbean Gets its Own Version of Duke v. Andler

Published online by Cambridge University Press:  17 January 2008

Winston Anderson
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Extract

The general principle, best articulated in the leading case of British South Africa Company v. Companhia de Mocambique,1 is that a court in the Commonwealth will not entertain an action involving the title to foreign realty. However, there are two established exceptions. First, a court of equity will not refuse jurisdiction if the plaintiff's claim is based on contract, trust or fraud affecting the foreign land, and the court has jurisdiction in personam over the defendant.2In personam jurisdiction may be established if the defendant is present within the jurisdiction, submits to the court, or the court grants leave to serve notice of the writ out of the jurisdiction under Order 11, rule 1(1) (or its equivalent) of the Rules of the Supreme Court. Second, “in the exercise of the undoubted jurisdiction of the courts it may become necessary incidentally to investigate and determine the title to foreign lands”.3 Thus, if the court has jurisdiction to administer a trust or the estate of a deceased person, and the property includes property (whether movables or immovables) situated locally, and immovables situated abroad, the court will have jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.4 No contractual or fiduciary relationship need exist between the parties, and it seems unlikely that in personam jurisdiction is required.5

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 1 , January 1999 , pp. 167 - 176
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. [1892] 2 Q.B. 358Google Scholar; [1893] A.C. 602.Google Scholar

2. Penn v. Lord Baltimore (1750) 1 Ves. Sen. 443.Google Scholar

3. Mocambique, supra n.1, at p.626 (per Lord Herschell).Google Scholar

4. McClean, J. D., Morris: the Conflict of Laws (4th edn, 1993), p.308.Google ScholarSee also Nelson v. Bridport (1846) 8 Beav. 547Google Scholar; Hope v. Carnegie, (1866) L.R. 1 Ch. App. 320Google Scholar; Re Moses. [1908] 2 Ch. 235Google Scholar; Re Hoyles [1911 ] 1 Ch. 179Google Scholar; Re Ross [1930] 1 Ch. 377Google Scholar; Re Duke of Wellington [1948] Ch. 118.Google Scholar

5. Note e.g. that jurisdiction over the administration of estates is normally based upon the presence of property within the jurisdiction but there is now statutory authority to make a grant notwithstanding that the deceased left no estate, “providing, probably, that the testator died domiciled in” the forum. See North, P. M. and Fawcett, J. J., Cheshire and North's Private International Law (12th edn, 1992), pp.827–828. The question of jurisdiction is not normally discussed in relation to trusts.Google Scholar

6. [1932] 4 D.L.R. 529.Google Scholar

7. (1890) 141 U.S. 87.Google Scholar

8. High Court of Antigua and Barbuda, Suit No.6 of 1988. Judgment dated 20 Mar. 1997.

9. [1969] 3 All E.R. 929.Google Scholar

10. [1986] Fam. 11.Google Scholar

11. Neither case, however, concerned the issue of enforcing a foreign order in respect of local land.

12. Gordon, D. M., “The Converse of Penn v. Lord Baltimore” (1933) 49 L.Q.R. 547, 553–554.Google Scholar

13. Text accompanying supra n.5.

14. No mention was made of renvoi in such cases as Penn v. Lord Baltimore, Razelos v. Razelos or Hamlin v. Hamlin.

15. For the criteria of a “true” incidental question, see McClean, , op. cit. supra n.4, at pp.424–427.Google Scholar

16. Cases such as Re Duke of Wellington [1948] Ch. 118Google Scholar raise the precise question whether determinalion of title to the foreign land was a mere incident of the English proceedings.

17. Winston, Anderson, “The Non-Marriage Union in Private International Law” (1996) 6(2) Caribbean L.Rev. 366.Google Scholar

18. Ibid.

19. [1986] Fam. 11, 21G.Google Scholar

20. (1909) 215 U.S. 1.Google Scholar

21. Quoted in Gordon, , op. cit. supra n.12, at p.550.Google Scholar

22. Idem, p.554.

23. Ibid.

24. Peter, Malanczuk, Akehurst's Modern Introduction to International Law (7th rev. edn, 1997), p.75.Google Scholar

25. Idem, p.73.

26. Op. cit. supra n.4, at p.411Google Scholar: “If the question before the English court is whether a person has acquired a title to land situated abroad, the court (so far as it has jurisdiction to deal with the matter at all) will apply the lex situs, the law of the place where the land is situated. One of the reasons for applying the lex situs is that any adjudication which was contrary to what the lex situs had decided or would decide would in most cases be a bruttum fulmen, since in the last resort the land can only be dealt with in a manner permitted by the lex situs. This reason requires that the lex situs should be interpreted to mean the law which the lex situs would apply.”

27. Winston, Anderson, “Double Renvoi and the Circulus Inextricabilis” (1992) Commonwealth Caribbean Legal Studies 313.Google Scholar

28. (1840) Mont. & Ch. 239, 250–251.Google Scholar

29. Supra n.6, at p.539.Google Scholar

30. Note that immediately before the dictum paraphrased in the passage in the text, the Lord Chancellor had said: “If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act”

31. It is of course the case that Commonwealth courts do not accept the doctrine of comity in relation to the establishment of jurisdiction under R.S.C Ord.11. However this is an aberration which, hopefully, will be undermined in time. Moreover, in personam jurisdiction in the type of case being considered may be established pursuant to presence and submission; in both these cases reciprocity and comity allow for the recognition of equivalent jurisdiction in a foreign court.

32. Goddard v. Gray (1870) L.R. 6 Q.B. 139.Google Scholar

33. See e.g. Harris v. Taylor [1915] 2 K.B. 580Google Scholar and Henry v. Ceopresco International Ltd [1976] Q.B. 726. Note: these cases did not deal with the question of recognition of foreign judgments affecting local land but are good authorities on the meaning of submission to in personam jurisdiction.Google Scholar

34. (1994) 33 I.L.M.Google Scholar

35. See the Treaty Establishing the Caribbean Community (CARICOM). Text in Winston, Anderson, Caribbean Instruments on International Law (1994), p.243.Google Scholar

36. See Civil Jurisdiction and Judgments Act 1982, Sched.1 as substituted by S.I. 1989 No. 1346 (UK).Google Scholar

37. See e.g. Sanders v. Van der Putte Case 73/77 [1977] E.C.R. 2383Google Scholar; Rosler v. Rottwinkel Case 241/83 [1985] E.C.R. 99Google Scholar; [1988] Q.B. 33.Google Scholar

38. McClean, , op. cit. supra n.4, at pp.302–303Google Scholar; North and Fawcett, op. cit. supra n.5, at pp.262–263.Google Scholar

39. Although, in relation to forum non conveniens, there may be constitutional constraints: see Winston, Anderson, “Forum Non Conveniens and the Constitutional Right of Access: A Commonwealth Caribbean Perspective” (1993) 2 J. Transnational Law and Policy 51.Google Scholar