Thu | Oct 18, 2018

Laws of Eve: Is a foreign court's judgement enforcable in Jamaica?

Published:Monday | March 16, 2015 | 12:00 AM

 A visit to the Jamaican Supreme Court website will be an interesting experience for persons who have an interest in seeing the law in action.

The mere fact that we are able to easily access the judgements delivered in the Supreme Court in a timely manner has been a welcome change in the past few years. Still, more important, is that fact that our judges, who are not allotted time to review the evidence and write judgements after hearing civil cases (no matter what the length or complexity of the case), are able to produce written judgements.

While there are several cases that piqued my interest this week - including an application for an injunction to prevent a funeral from proceeding - the one that stood out was Miller v Miller [2015] JMSC Civ. 18. That case involved a claim to enforce a judgement delivered in a Court in Connecticut, USA, during matrimonial proceedings between two Jamaicans in relation to a Jamaican property.

The brief facts are that the wife petitioned for divorce in Connecticut, and the husband entered an appearance in those proceedings. He was present when the petition was heard, and the parties reached an agreement to establish a trust over the property in Jamaica in favour of their children and consented to that agreement being incorporated into a court order.

The parties failed to establish the trust, as agreed, and the wife contended that the husband had failed to execute the relevant documents to establish the trust. In two later motions, the court in Connecticut made an order for the Jamaican property to be transferred to a trust for the children, and the judge executed a trust deed- deed of conveyance and transfer on behalf of the husband, who did not participate in those proceedings.

It is the wife's claim that the husband had breached the trust deed and her assertion that the Jamaican Supreme Court ought to enforce the order made in the Connecticut court that were the subject of the Jamaican Supreme Court action.

While the judge clearly accepted that a foreign divorce decree is enforceable in Jamaica by virtue of section 24 of the Matrimonial Causes Act, the question of the enforceability of a Connecticut court order by a Jamaican court in relation to Jamaican property was far more problematic. The reason is that it involves a determination as to whether the order is only binding between the parties (in personam) or whether it determines the legal status of the property once and for all (in rem) or whether any of the exceptions to the usual rules apply.

Some of the most important aspects of the decision to refuse the wife's claim are found in the following statements from the Judge:-

1. ". . . it is my view, that if a foreign court executes a trust deed and instrument of transfer over land in Jamaica, in circumstances where the defendant resides in Jamaica and did not submit to the foreign court's jurisdiction, the judgement of that court cannot be enforced in Jamaica, for lack of jurisdiction."

2. "In the absence of the defendant, over whom the Connecticut court had no in personam or other jurisdiction, it was incapable of making a judgement that could be enforced against him in Jamaica."

3. "The proper forum for actions involving title to land is the lex situs. In other words, a court in the commonwealth should not entertain any action which involves title to land in a foreign country"[and vice-versa].

4. The order in the Connecticut court did not declare title as between the parties, "it was to give effect to the parties' agreement to establish a trust . . . the order was in personam."Although the husband had participated in the divorce proceedings, "[t]here is . . . no evidence that, in relation to the third motion, the defendant had submitted himself to the jurisdiction of the Connecticut court."

The issues that arose in this case are becoming more common, because many persons have homes in two or more jurisdictions, and persons tend to 'forum shop' to identify a court that is more likely to make a ruling in their favour. This judgement issues a word of caution in relation to that practise, so careful thought must be given to the potential enforceability of a judgement delivered in one jurisdiction with respect to property that is situated in another before incurring the expense and investing time and energy into those proceedings.

Sherry Ann McGregor is a Partner and Mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to or the WLI 2015 International Women's Day Award to Antonette Wemyss-Gorman, Commanding Officer, Jamaica Defence Force.