March 2018 | By D'Andra Johnson
Recognition & Enforcement of Foreign Judgments in The Bahamas
When a person obtains a judgment in their favour from a superior court outside the jurisdiction of the Commonwealth of The Bahamas, that judgment has no direct operation in The Bahamas and therefore cannot be immediately enforced by execution in The Bahamas. The judgment must first be registered or given recognition by the Bahamian Supreme Court pursuant to either statutory or common law requirements.
Whether statutory or common law requirements govern the registration or recognition proceedings is generally determined by the jurisdiction where the judgment was obtained. Statutory registration is generally governed by the Reciprocal Enforcement of Judgments Act, 1924 CH. 24 of the Statute Laws of The Bahamas (the “REJA”) and the associated subsidiary legislation. The REJA applies only to judgments obtained in the United Kingdom and certain Commonwealth Countries, namely: Barbados, Bermuda, Jamaica, Leeward Islands (Antigua & Barbuda, Montserrat, St. Kitts & Nevis, Anguilla, and the British Virgin Islands), St. Lucia, Trinidad & Tobago, Guyana, Belize, and Australia. Consequently, where the judgment is obtained in a jurisdiction outside of The Bahamas other than those enumerated in the REJA, common law requirements would regulate the proceedings for recognition of that judgment.
Section 3(1) of the REJA grants the Supreme Court of The Bahamas the jurisdiction and discretion to register a foreign judgment. The section provides:
“ 3. (1) Where a judgment has been obtained in a superior court outside The Bahamas the judgment creditor may apply to the Supreme Court, at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it is just and convenient that the judgment should be enforced in The Bahamas and subject to the provisions of this section, order the judgment to be registered accordingly.”
It is important to note that, to invoke the Court’s jurisdiction for statutory recognition, the foreign judgment must satisfy the definition given to the term “judgment” in section 2 of the REJA. In section 2, “Judgment” is defined as:
“any judgment or order given or made by a court in any civil proceedings whether before or after the passing of this Act and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place.”
Registration will be refused by the Court or may be challenged by the judgment debtor on any of the grounds provided in section 3(2) of the REJA as follows:
3. “(2) No judgment shall be ordered to be registered under this section if —
(a) the original court acted without jurisdiction;
(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court;
(d) the judgment was obtained by fraud;
(e) the judgment debtor satisfies the registering court either that an appeal is pending or that he is entitled or intends to appeal against the judgment;
(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.”
The application to the Court to have the judgment registered is usually made ex parte. Given this, the judgment debtor is not aware of the proceedings until the Order granting registration is served on the judgment debtor. Once notified, the judgment debtor may challenge the Order and the enforcement of the judgment on any of the grounds provided in s. 3(1) and (2) of the REJA, noted above.
On the grant of the Order registering the foreign judgment, the judgment becomes a judgment recognized in The Bahamas.
Common Law Requirements
Where a foreign judgment does not satisfy the requirements for registration under the REJA, the judgment creditor may commence an action or file a counterclaim in the Supreme Court of The Bahamas relying on the judgment debt as the cause of action.
As the judgment debtors are often resident outside The Bahamas, service outside the jurisdiction would be necessary. In this regard, if the judgment debtor does not reside or carry on business in The Bahamas, despite having assets in The Bahamas, the judgment creditor may encounter problems commencing the proceedings and obtaining leave for service outside the jurisdiction. In the event that these are the circumstances of the case, the Bahamian Courts may not have jurisdiction over the judgment debtor so the judgment creditor may not be permitted to commence the necessary proceedings to enforce the foreign judgment.
On the other hand, where service outside the jurisdiction is either unnecessary or is approved by the Court, the proceedings to have the foreign judgment recognized may proceed. The common law requirements in such proceedings are that:
- the foreign court must have been of competent jurisdiction;
- the rules of natural justice must have been complied with in the foreign proceedings;
- the foreign judgment must have been final and conclusive;
- the judgment debt must be definite or ascertainable;
- the foreign judgment must not have been obtained by fraud;
- enforcement of the foreign judgment must not be contrary to public policy in The Bahamas.
Failure to satisfy any of these requirements would suffice as a defence for the judgment debtor to oppose the recognition and enforcement of the foreign judgment against them.
Once a judgment is granted in The Bahamas in favour of the judgment creditor on the basis of the debt of the foreign judgment, the Bahamian judgment is enforceable as any other Bahamian judgment.
Whether the foreign judgment is recognized pursuant to the statutory requirements or as the debt of a Bahamian judgment, it becomes enforceable by the same means available for the enforcement of any Bahamian judgment.
The means of enforcement include those provided in Order 45 Rule 1(1) Rules of the Supreme Court, that is, by: writ of Fieri Facias, garnishee proceedings, charging order, appointment of a receiver, committal, and writ of sequestration.
Additionally, the judgment may be enforced by the sale of land pursuant to the Court’s jurisdiction under Order 31 Rule 1 Rules of the Supreme Court if the assets in The Bahamas include land and the court deems it necessary and expedient to order the sale of land. Enforcement by an application for the sale of land is possible because the judgment creates an equitable charge on “every estate or interest in land” pursuant to Section 63(1) Supreme Court Act. However, this equitable charge can only be created where the judgment debt is definite or ascertainable.