Action No. 516 of 2000

O. Sabido S.C. for Plaintiff/Respondent
C. Ramirez for Defendant/Applicant

AWICH J:

J U D G M E N T

A Preliminary Application

(Objecting to Jurisdiction of the Court)

Was it the business of Guatemala or was it the business of Belize? That question in common expression has, in this case, become a question of law about the extent of the jurisdiction of the Supreme Court of Belize. I have to answer the question in a preliminary application made by Mr. Robert Boles, the applicant/defendant, who objects to proceedings being taken against him in Belize Court about business transactions which took place in Melchor, a town in the neighbouring country, Guatemala, between him and Mr. Cesar Augusto Casanova, the respondent/plaintiff, a national of Belize resident in Guatemala.

Mr. Casanova, had writ of summons issued out of the Supreme Court of Belize on 24.11.2000, against Mr. Boles. In the statement of claim specially indorsed on the writ of summons, Mr. Casanova claimed against Mr. Boles the sum of Guatemala Quetzales ($) 115,545.50. Learned attorney Mr. C. Ramirez, for the applicant/defendant, filed a memorandum of conditional appearance on 20.12.2000 and on 28.12.2000 filed application by summons, "for an order that the action .... be struck out on the grounds, inter alia, that the Court has no jurisdiction to hear the action and that the defendant did not contract or make any agreement with the plaintiff." Then after filing the application, Mr. Ramirez filed a defence on 2.1.2001 and an amended defence on 10.1.2001. The latter ought to have been by leave of Court.

I take it that by the expression, "the action .... be struck out," the applicant meant that the writ of summons be set aside for want of jurisdiction. The question does not arise to set aside the writ of summons (or any writ of summons) on the contention that the defendant did not enter the contract with the plaintiff. The only other ground to set aside a writ of summons is irregularity of the writ of summons. Service of a writ may also be set aside. The contention that the applicant did not enter the contract of sale personally, but on behalf of a limited company, a separate legal persona may possibly raise the question of striking out the averment (pleading) in the Statement of Claim, which can then be followed by dismissal of the action. To secure an order to strike out the averment about the contract, the applicant must contend that the averment does not disclose a cause of action - see O. 28 r4 of the Supreme Court Rules. There is no such contention in the application.

The defendant filed his application to set aside on 28.12.2000, 7 days after filing the conditional appearance, on 20.12.2000, and that was well within the
14 days time limit. He was not obliged to file defence. Strictly, he ought not to, lest it be taken that he submitted to jurisdiction of the Court by filing a defence.
A conditional appearance must be followed by an application to set aside. In this case, the defendant (now applicant) has duly made his application challenging the jurisdiction of this Court, the Supreme Court of Belize, in the case brought by Mr. Casanova against the defendant.

At the hearing of the application, Mr. Ramirez realised that the second part of his application, which second part was based on the facts as to whether the transactions of sale were carried out between the plaintiff and the defendant personally, or between the plaintiff and a corporate persona, involved questions of facts to be resolved first on evidence since parties had not agreed on the facts of the transactions. He abandoned that part of the application. The single question that remained in the application was whether this Court has jurisdiction in the suit arising out of the sale of motor fuel on numerous occasions in the border town, Melchor, Guatemala, by the plaintiff who is a national of Belize and carries on the business of a gas station owner in Guatemala, to the defendant who is a resident of Belize. If the answer is that the Supreme Court has no jurisdiction, the ancillary question as to whether, despite lack of jurisdiction, the defendant may be regarded as having given up the right to challenge jurisdiction by the defendant filing defence and thereby to be taken as having submitted to the jurisdiction, will be considered.

Mr. Ramirez relied on S:17 of the Supreme Court Act, Cap. 82 in the Statutory Laws of Belize, which states:

"17.- (1) There shall be vested in the Court, and it shall have and exercise within Belize, all the jurisdictions, powers and authorities whatever possessed and vested in the High Court of Justice in England; including the jurisdictions, powers and authorities in relation to matrimonial causes and matters and in respect of suits to establish legitimacy and validity of marriages and the right to be deemed natural-born British subjects, as are by the Supreme Court of Judicature (Consolidation) Act 1925, vested in the High Court of Justice in England:
............

(2) Subject to the rules of court, the jurisdictions, powers and authorities hereby vested in the Court shall be exercised as nearly as possible in accordance with the law, practice and procedure for the time being in force in the High Court of Justice in England.

(3) Where any jurisdiction, power or authority is by this Ordinance [now Act] vested in the Court, the grounds upon which the same may be exercised and other provisions relevant to the subject-matter in respect of which the jurisdiction, power or authority is so vested may be prescribed."

Mr. Ramirez's submission which I put in my own words, is that the jurisdiction of this Court according to S:17 (1) of the Supreme Court Act, is limited to within the geographical territory of the country, Belize, and I add, the territory as defined and specified in S:1 (2) of the Constitution of Belize, read together with Schedule 1 to the Constitution.

The Grounds on which the Application is Opposed

Mr. O. Sabido, learned senior counsel, for the respondent/plaintiff, on the other hand, submitted that the jurisdictions of the Supreme Court of Belize extend to extraterritorial transactions such as the sale of fuel by Mr. Casanova to Mr. Boles in Melchor, Guatemala. He also premised his submission on S:17 of the Supreme Court Act. Mr. Sabido explained, in his submission, that the extent of the jurisdictions of the High Court of Justice in England, which is adopted for the jurisdictions of the Supreme Court of Belize by S:17, included jurisdictions to hear cases between "one Englishman and another," for a wrong done, in any corner of the world," and also to hear cases between one alien friend and another, provided the wrong is, "actionable," in the territory where it is alleged to have occurred, and so the Supreme Court of Belize must have similar jurisdictions.

Mr. Sabido further submitted that the defendant having filed defence and amended defence, he "is precluded from pleading irregularity .... due to want of jurisdiction." By that, Mr. Sabido meant that the defendant had submitted to the jurisdiction of the Supreme Court of Belize by filing defence, so he could not challenge the jurisdiction.

Determination

(The Law Generally)

S:17 of the Supreme Court Act is of course derived from S:94 and 95 (1) of the Constitution, which state:

"94. There shall be for Belize a Supreme Court of Judicature and a Court of Appeal.

95.(1) The Supreme Court shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law."

The question occurred to me as to whether the jurisdiction of the Supreme Court in original civil or criminal matter can be limited at all, given the provision of S:95 (1) of the Constitution that, "the Court shall have unlimited original jurisdiction," in civil and criminal matters. The question was not raised by both learned counsel and was not submitted on. I shall decide this application on the provisions of the Supreme Court Act which in my view was adequate to answer the question raised in the application in a manner not inconsistent with constitution on the face of it.

The Supreme Court Act was enacted pursuant to and by authority of S:95 of the Constitution. The Act is the law in detail. By the expression, "there shall be vested in the Court, and it shall have and exercise within Belize, all the jurisdictions, powers and authorities .......," S:17, no doubt starts with limiting the jurisdictions, powers and authorities of the Supreme Court of Belize to the geographical territory of the State of Belize as defined by S:1 (2) of the Constitution. Notwithstanding, the section goes on to extend the jurisdictions, powers and authorities by equating them to the jurisdictions, powers and authorities of the High Court of Justice in England; it gives the Court, "all the jurisdictions, powers and authorities whatever possessed and vested in the High Court of Justice in England." So to know the full extent of the jurisdictions of the Supreme Court of Belize, the full extent of the jurisdictions of the High Court of Justice in England has to be explored. In that we are faced, as usual when tracing the law in England, with the enormous search beyond the Statutory Laws of England. It would be rare indeed that Statutory Laws in England record the full extent of the law on a particular subject. It is to case law where Statutory Laws and the Common Law of England are applied that we must then turn. It is my view that if the Legislature in Belize intended to limit the jurisdictions of the Supreme Court of Belize to the territorial boundaries of Belize, and no more, it could have stated unambiguously so and without relating it to, "all the jurisdictions, powers and authorities whatsoever possessed and vested in the High Court of Justice in England ......," a clause which extends the jurisdictions beyond what is specified in the Act.

The Law in England, The Supreme Court of Judicature (Consolidation) Act, 1925 of England, at S:1, also limits the jurisdictions of the High Court of Justice in England by territory, to England (including wales) and territorial waters - also see Territorial Waters Jurisdiction Act, 1878 of England. Further, people on the high seas on ships registered in England are regarded as being within the territory and therefore within the jurisdiction of the Court in England. Notwithstanding the limitation by territory, the High Court of Justice in England has exercised jurisdictions in some cases that arose outside England and between parties who were nationals or one of them was, and even between parties who were non-nationals. So is the sale of fuel by Mr. Casanova to Mr. Boles in Guatemala a case that the High Court of Justice in England would accept jurisdiction over and so the Supreme Court of Belize should accept jurisdiction over?

Determination

(The Law and Answer in this Application)

First the starting point in this application is that the sale of fuel over a period of time took place in Melchor, Guatemala, outside Belize territory. According to the first part of S:17 of the Supreme Court Act, the Court shall have and exercise all jurisdictions, powers and authorities within Belize. So the starting rule is that the Court should not exercise jurisdictions, powers and authorities over a case such as this one that occurred outside Belize's geographical territory. However, given the rest of the provisions in S:17, we cannot stop at that point. I have already stated that the High Court of Justice in England would exercise jurisdictions over some cases that occur outside England. Similarly our Court, the Supreme Court of Belize, may also exercise jurisdictions in such cases; that is because the jurisdictions of our Court has, by the rest of S:17, been equated to the jurisdictions of the High Court of Justice in England.

Apart from admiralty action in rem in which arrest of a ship within the jurisdiction founds jurisdiction, and apart from action about carriage by air which are governed by international convention legislated into domestic law, the Court in England and therefore the Court in Belize, when dealing with a claim in personam will apply the general rule that: the Court has jurisdiction even over cases that arose outside the territory (of Belize) between nationals or between a national and a non-national or between non-nationals, provided the alleged wrong would, by the Law of Belize, be actionable in Belize had the wrong taken place in Belize, and provided the alleged wrong is, by the law of the foreign territory where it is alleged to have taken place, not justifiable or not excusable.

The rule was recorded in the writings of Dicey, an English jurist, in the book, Dicey's Conflict of Laws, 7th Edition, (1958) at Page 175. The rule is said to be based on the reason, (I may say assumption by present days impression), that everyone within the territory of the King of England, including a non-subject, owed allegiance to the King and in return enjoyed protection by the King. Cited as authority for that assumption is a very old case, Calvin's Case (1608)

7 Co. Rep. 1a, wherein a passage reads:

"When an alien in amity cometh into England, because so long as he is within England he is within the King's protection; therefore so long as he is here he oweth unto the King local obedience or aligence, for the one (as it hath been said), draweth the other."

The general rule has since been restated in many cases in the Court of Appeal and House of Lords in England. The judgments of Willes C.J., in Phillips v Eyre L.R. 6 Q.B.1, 18, and of all the judges of appeal in, The M. Moxham 24 W.R. 597, 6501 P.D. 107 are regarded as having settled the general rule stated above as the law of England, which law we take to be the law of Belize. That the general rule was settled as the law of England was specifically stated in the separate judgments of Rigby L.J. and Lopes L.J. in the House of Lords appeal case, Machado v Fontes (1897) 2Q.B. 231, an appeal against an order in an application to the master for leave to amend defence to introduce a plea in defence that libel in Brazil was not actionable there, but a subject of the criminal law, or alternatively, that only special damages would be available in the action. The contention would then be that the libel would not be actionable in England, the Court in England would have no jurisdiction. Rigby L.J. at page 566 after posing the question: does it mean that a libel published in Brazil is not actionable in this country (England), went on to say:

"....... that the plaintiff and the defendant are here within the jurisdiction of the English Court - I think it does not follow. In Phillips v Eyre,

Willes C.J., laid down the rule, which he expressed without the slightest hesitation. I cannot doubt that the change in that statement from 'actionable' to 'justifiable' was deliberate. The first requisite is that the act alleged to be a wrong must be actionable in England. It was long ago settled that an action for anything of a transitory nature - according to the old phrase - may be brought in this country. But when an act is committed in a foreign country, it may turn out to be, by the law of that country, an innocent act, and we in England pay such respect to the law of that country that we do not allow an action to be brought upon it here. But I conceive that that means exactly what it says; the act must be justified or excused by the foreign law. It is not of importance what may be the remedy provided by that law. The remedy of course must be according to the law of the country where the action is tried. ........ I think there is no doubt at all that this action for a libel is maintainable unless it can be shown that the alleged libel is justified or excused by some law of Brazil, either existing at the time of the publication or subsequent."

And Lopes L.J. at page 566 stated:

"Now, where the words complained of have been published outside the jurisdiction, the general principle applicable is that the publication alleged to be an injury must be wrongful both by the law of England and also by the law of the country where the publication took place. The first thing for us to do, then, is to see whether the conditions have been satisfied.

In Phillips v. Eyre; Willes, C.J., lays down very distinctly what the requisites are in such a case. He says: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England.

Secondly, the act must not have been justifiable by the law of the place where it was done." Then we find in, The M. Moxham, these words: "It is settled that if by the law of a foreign country the act is lawful, or is excusable, or even if it has been legitimized by a subsequent act of the Legislature, then this court will take into consideration that state of the law; that is to say, if by the law of the foreign country a particular person is justified, or is excused, or has been justified or excused, for the thing done, he will not be answerable here."

It is not necessary that the act complained about should be, "actionable" in the foreign country, as Mr. Sabido submitted. It is enough if it is not, by the law of the foreign country, justifiable or excusable. Even a subsequent law of the country making the act justifiable or excusable will defeat jurisdiction in our Court. A case in point is, Carr v Francis Times & Co. [1902] AC 176. In the case, a British navy officer stopped in territorial waters of Muscat, Middle East, a British ship belonging to the plaintiff/respondent and seized ammunitions destined for India or the Persian Gulf. The act would have been actionable if committed in England or on the high seas. Produced as evidence was proclamation from the Sultan of Muscat to the effect that he regarded the seizure within the territorial waters of Muscat as lawful. The House of Lords decided that the act of the British navy officer in territorial waters of Muscat was, by the law there, justifiable so the act of the officer was not actionable in England. Appeal was dismissed.

That very wide general rule that extraterritorial wrongs may be actionable in our Court, is in practice, not so wide; in each case the Court considers one of the several factors that will justify exercising or declining jurisdiction. Some of those factors actually create exceptions to the general rule.

In the first place the general rule requires that the defendant must have been within the jurisdiction, that is within the territory of Belize, at the time the writ of summons was served, but it matters not whether he was within the jurisdiction for only a short time and only temporarily, provided his presence was not secured by trick or fraud. The case of Colt Industries Inc. v Sarlie [1966] 1WLR 440, illustrates the point. In the case, appeal of the defendant against an order that his conditional appearance after he had lost application to set aside service of the writ of summons, was to stand as unconditional appearance, was dismissed. His grounds were that the cause of action arose outside the jurisdiction and that he was served when he was in London only temporarily on a short visit.

In cases concerning land, jurisdiction will be exercised only if the land is situate within the jurisdiction. The rule in International Law that the forum for land cases is the forum rei sitae, is followed. In contract cases, agreement of parties as to which Court (jurisdiction) parties agreed (not implied) to go to in the event of a dispute is usually conclusive.

The Supreme Court Rules of practice at O. 30 r4, requiring leave for issuing of a writ of summons for service outside the jurisdiction, and at O. 12 rr1 to 9, especially r1, requiring leave to serve the writ or notice of it outside the jurisdiction, although are merely rules of practice, do operate to place extensive curtailment to the general rule that our Court has extraterritorial jurisdiction. Applications are made under the rules when it is alleged that the cause of action arises or partly arises within the jurisdiction and the authority of our Court is requested to be applied beyond the geographical territory to reach defendants who are outside the geographical territory of the Court. Leave is granted at the discretion of the Court if the Court is satisfied that the case is a proper one for issuing of a writ of summons for service outside the jurisdiction, or that the case is a proper one for leave to have the writ of summons or notice of it served outside the jurisdiction. Evidence by affidavit, to support the applications must establish an arguable substantive case; mere assertion that the plaintiff/applicant has a case is not sufficient. So to extend authority (jurisdiction) of our Court to get defendants resident outside the jurisdiction to answer a case in the territorial jurisdiction of our Court, the plaintiff has to face vetting of his substantive case at the stage of application for leave to issue the writ of summons for service outside the jurisdiction, and at the stage of application for leave to serve the writ of summons or notice of it outside the jurisdiction.

Even if the plaintiff establishes an arguable substantive case, granting of leave remains a matter of the discretion of the Court. When the cause of action may be regarded as having arisen partly within the jurisdiction of our court and partly outside the jurisdiction, an important factor that the Court takes into account in exercising discretion to grant leave to issue the writ or to have it served outside the jurisdiction is forum conveniens; that is, which jurisdiction is a convenient forum. It is not literal convenience that is meant. What is meant is, in which jurisdiction will the interest of justice be best served. Questions such as accessability and difficulty in executing the judgment order become relevant. An example is a 1936, wartime case, Oppenheimer v Louis Rosenthal & Co., AG. [1937] All ER 23. In the case, a German national who was Jewish employed in London, England, by a non resident Germany company, had been dismissed. He sued for wrongful dismissal in England, had leave to issue writ and leave to serve the writ in Germany. The company applied and got service and the writ of summons set aside on the ground that both parties were German nationals, the contract was entered into in Germany, German law applied and dismissal was effected in Germany. In addition to the Court deciding that the contract was terminated in England, and so the cause of action arose in England, the Court took into account the fact that the appellant, a Jew, might be detained if he went to Germany and might not be allowed to be represented by an advocate and the fact that there were German lawyers in London, knowledgeable in German law. The appeal was allowed. In effect the Court in England decided that it had jurisdiction over the case.

Two most important factors that qualify the general rule are abuse of the process of court and or oppression of the defendant. The Court will decline jurisdiction if the case is brought in this country for ulterior motive or in order to cause hardship to or to oppress the defendant in the conduct of his defence in any way. That is because the Court will not allow its process to be abused.

In my view the present case between Mr. Casanova and Mr. Boles is one over which the Supreme Court of Belize can apply the general rule and exercise jurisdiction. The claim is based on straight forward failure to pay for purchases of fuel in Guatemala; I doubt that the law of Guatemala would excuse that. It was not contended so anyway. On the other hand, the plaintiff has very good reason to choose our Court which has jurisdiction over the place where the defendant would have assets, should the plaintiff succeed in his claim. There appears to be no oppression intended to the defendant in conducting his case in Belize where he resides. He has not complained about that. In fact on the face of it there is much more convenience in the defendant conducting his defence in Belize instead of in Guatemala.

I need not go into detailed consideration of the submission by Mr. Sabido that should the Court decide that it has no jurisdiction, the Court should nonetheless, exercise jurisdiction because the applicant has submitted to jurisdiction by filing defence. It will suffice to say that in cases challenging jurisdiction, case law shows that the practice has developed and has been accepted whereby a defendant is required and thus allowed to specifically plead lack of jurisdiction if that will be part of his defence. That is despite the provision in O. 76 r2 that no application to set aside shall be allowed if the applicant has taken fresh step after knowledge of the irregularity. If it is allowed to plead jurisdiction in a statement of defence, it follows that jurisdiction will then be decided upon, either as a point of law in limine or in the judgment.

Determination

(The Order of Court)

The application of Mr. Robert Boles dated 27.12.2000, filed on 28.12.2001 is dismissed with costs. Pleading in the substantive case is to proceed according to the Rules.

Observation

I have, in the course of preparing this judgment, read several cases from England about the jurisdictions of the High Court of Justice in England. The cases are applicable to the jurisdictions of the Supreme Court of Belize. From the cases it appears to me that the time has come for the Legislature in Belize to spell out clearly the extent of the jurisdictions of the Supreme Court of Belize, especially extraterritorial jurisdictions, independently and without bringing in the all inclusive clause tying the extent of the jurisdictions to those of the High Court of Justice in England. Firstly, once the law on jurisdictions has been clearly defined in Legislation it will be more easily ascertainable. Secondly, the decisions of the courts in England about the exercise of discretion when considering whether or not to grant leave to issue writ of summons for service outside the jurisdiction or for leave to serve the writ outside the jurisdiction are not predictable with much certainty. Thirdly, extraterritorial jurisdiction is a matter which involves sovereignty of another state, it is a matter therefore, which the Legislature of a country (Belize) should have opportunity to make a deliberate choice in. Fourthly, it is inevitable that the law of Belize and of England will in future develop in different directions on some points however few those may be. For example, the law about capital punishment is already different. Right now controversy is raging in South Africa about extradition of a non-South African, who is not a citizen of the USA, to a state in the USA where the man faces capital punishment, a penalty which is not available in South Africa. The offence was alleged to have taken place in a third country, Tanzania in Africa, against the building of the Embassy of USA in Tanzania and against nationals of the USA. These observations are not intended to suggest any particular rules of jurisdiction, but that whatever the rules, they should be specified in legislation directly and clearly.

Delivered this Monday the 25th day of June, 2001.

At the Supreme Court,
Belize City.

Sam Lungole Awich
Judge