Ex-parte Meron Amare (XP 10 of 2023) [2024] SCSC 132 (19 June 2024)

A. MADELEINE, J

 

Background

 

1. By application and supporting affidavit made on 17^th February 2023 (and amended   application filed on 1^st December 2023), the Applicant herein applies to this Court for an order to recognize and declare executory in Seychelles, a Judgment of the Federal First Instance Court, Lideta of the Federal Democratic Republic of Ethiopia (the “Ethiopian Court”).
2. The Judgment of the Ethiopian Court was delivered on 22^nd November 2022, per Judge Endale Werku, on the joint petition of the Applicant and her ex-husband, Ato Tewodros Ashenafi Tesemma, in case file no. 306362 by approving their agreement for divorce by mutual consent and on the effects of the dissolution of their marriage, including the settlement of matrimonial properties between them (hereinafter the “Ethiopian Judgment”).
3. On 27^th April 2023, this Court ordered service of the application on the Applicant’s ex-husband – Ato Tewodros Ashenafi Tesemma – in Ethiopia in view that it concerned his interest in an immovable property situated in Seychelles[1], namely condominium Unit A3 comprised in title number V19628, Pangia Beach, Mahe (the “property”).
4. Service of the application on the Applicant’s ex-husband was initiated through DHL courier service. The courier was returned to sender since the consignee – Ato Tewodros Ashenafi Tesemma – failed to collect the said courier at the DHL facility in Ethiopia.
5. Thereupon, the Court proceeded with the hearing of the application ex-parte as filed.

Evidence

 

6. The evidence shows that the Applicant got married to Ato Tewodros Ashefani Tesemma (the “ex-husband”) in Addis Ababa, Ethiopia on 3^rd September 2002. Children were born of their marriage. Due to a breakdown in their marriage, the Applicant and her ex-husband mutually agreed to a divorce and on the effects of the dissolution of their marriage including the distribution of the matrimonial properties. Their agreement made on 10^th October 2022 (or 30^th January 2015 according to the Gregorian calendar) was endorsed by the Ethiopian Court on 22^nd November 2022. The Applicant produced copies of the Ethiopian Judgment annexing a copy of the endorsed agreement (in Amharic and English), a certified English Translation of the said Judgment and a copy of the Divorce Certificate duly authenticated at the Ministry of Foreign Affairs in Ethiopia.
7. The relevant parts of the translated version of the Ethiopian Judgment are reproduced below –

“Emblem

                                 The Federal Democratic Republic of Ethiopia                                

Federal First Instance Court

 

Date: November 22/2022

Ref. No. 306362

The Federal Democratic Republic of Ethiopia

 

Lideta Assigned 1^st Family Bench

Judge: Endale Werku

 

Applicant: 1^st Mr Tewodros Ashenafi Tesemma

                  2^nd Mrs Meron Amare T/ Himanot

Respondent: None

The file is examined & passed the following judgment as such was adjourned for examination.

                                                Judgment

This is therefore, with their allegation, they requested the court to passing resolution for dissolving such marriage with divorce and for approving the divorce agreement….

………

“The Right and Left parties have appeared before the court and declared that the agreement for divorce and output of divorce have been made with their free will and consent. (emphasis added)

Accordingly, the Court has examined 11 pages of the agreement for divorce and output of divorce & approved them based on Article 80(2), Proclamation No.213/92 of the Federal Family Code as revised, since submittal of which is found neither nor contradictory to the law & morale.

                       

Order

1.         It is hereby instructed to affix seal of the court with the agreement for divorce and output of divorce & issue along with the judgment to the Applicants.

2. The file is closed and returned to the archive.

………..”

   (Emphasis added)

 

8. The relevant extracts of the endorsed agreement are reproduced below –

“ARTICLE 6: APPORTIONMENT OF PROPERTY

6.1. The contracting parties have agreed to apportion the properties they have acquired in their marriage as follows.

6.2 We the contracting parties have agreed that the following listed properties we have acquired during our marriage shall be that of W/ro Meron Amare and all the other properties that are not listed in this Agreement shall fully remain the properties of Ato Teodros Ashenafi.

 

6.3 The properties that are agreed to be the properties of W/ro Meron Amare are the following: -

…….

6.3.2 The condominium unit that is registered in the name of Home Island Properties Ltd, which is owned by Ato Teodros Ashenafi, as a shareholder and as the beneficiary of the trustee, and is located in Seychelles, Pangia Beach, Mahi, and the condominium unit No. V19628 (unit A3) shall be transferred in the name of W/ro Meron Amare by fulfilling all the legal requirements. Ato Teodros Ashenafi affirms that there are no debt or liability that is required from this house and he has agreed to process the transfer of the house to the name of W/ro Meron Amare or her company or her trust as of the date the court approves this Agreement. Ato Teodros Ashenafi has agreed to finalise the transfer of this condominium to the name of W/ro Meron Amare or her Company or her trust with immediate effect from the date of the approval of the Agreement by the court. All costs and expenses required to transfer this condominium house’s ownership to W/ro Meron Amare or her Company or her trust shall be fully borne by Ato Teodros Ashenafi.”

(Emphasis added)

9. The evidence also shows that the Applicant obtained legal advice that the Ethiopian Judgment had to be registered and endorsed as an order of the Supreme Court of Seychelles before the property can be transferred to her without the need to apply for sanction under the Immovable Property (Transfer Restriction) Act.

Service of Application on Applicant’s ex-husband

10.  At the hearing, the Applicant testified that through her lawyer, she attempted to serve a copy of the application on her ex-husband in Ethiopia via DHL. She produced DHL shipment details for a consignment bearing Airway Bill No. JD014600010975239592 shipped to Ethiopia on 15 May 2023 and receipt for return of the courier from Ethiopia to Seychelles. According to the shipment details, the consignment arrived in Ethiopia on 16 May 2023 and remained on hold, awaiting collection, until 25^th May 2023 when it was returned to the Applicant’s lawyer in Seychelles. The Applicant further testified that to her knowledge, her ex-husband was in Ethiopia when the courier arrived at the DHL facility in Ethiopia as their children were with him in Ethiopia. He avoided service.
11. The Applicant also testified that a copy of the application was handed over to her ex-husband whilst he was in Seychelles by her lawyer. According to the Applicant, her ex-husband signed a previous court notice issued in this matter in confirmation of receipt of the said application which she produced in evidence. The Applicant confirmed that the signature on the said notice was that of her ex-husband.
12. This Court accepts the Applicant’s evidence supported by DHL shipment details that she took all the necessary steps to serve the application on her ex-husband in Ethiopia via DHL. The ex-husband’s avoidance or failure to collect to the courier from the DHL facility in Ethiopia until it was shipped back to Seychelles is tantamount to a refusal to accept service.
13. The Court attaches no weight to the Applicant’s evidence that a copy of the application was handed over to her ex-husband in Seychelles as confirmed by his signature on a previous court’s notice, as it does not amount to service of process under the Seychelles Code of Civil Procedure. 

Applicant’s Submission

 

14. The Applicant’s Counsel submitted on the merits of the application in writing. He first submitted that the essence of the application is to give effect to the agreement for divorce and effects of dissolution of marriage as endorsed by the Ethiopian Court, by which an immovable property situated in Seychelles, namely Condominium Unit A3, Pangia Beach, is to be transferred to the Applicant.  He submitted that under section 3(1)(a) of the Immovable Property (Transfer Restriction) Act (the “IPTRA”) a non-Seychellois may acquire an immovable property situated in Seychelles or any right therein without Government’ sanction pursuant to an order of the court in connection with the settlement of matrimonial property in relation to a divorce proceeding. He further submitted that the word ‘court’ used in section 3(1) of IPTRA necessarily means ‘a court established in Seychelles’ as defined under the Interpretation and General Provisions Act. Thus, this application to recognize the Ethiopian Judgment and render it executory in Seychelles.
15. On the recognition of the Ethiopian Judgment, Counsel referred the Court to the case to Ablyasov v Outen & Ors [2015] SCCA 23 to submit that the Supreme Court being a court of unlimited jurisdiction has the inherent power to recognize foreign judgments irrespective of whether there exists a formal law between the nations, as a matter of judicial collaboration. Counsel referred to the case of Privatbanken Aktieselkab v Bantele [1978] SLR 226 to submit that all the 6 conditions laid down for a foreign judgment to be declared executory in Seychelles were fulfilled in the application. First, the Ethiopian Judgment is capable of execution in Ethiopia, second: the Ethiopian Court had jurisdiction to deal with the matter submitted to it, third: the Ethiopian Court applied the correct law as it was mutual divorce and matrimonial settlement proceedings, fourth: the rights of the ex-husband was respect as it was mutual, fifth: the Ethiopian Judgment and endorsed agreement of divorce and output of divorce is not contrary to public policy and sixth: based on the evidence there is no fraud involved.

 

Law and Analysis

 

16. The laws relating to the enforcement of foreign judgments in Seychelles are contained in the Foreign Judgments (Reciprocal Enforcement) Act (the “FREJA”) where there is reciprocity between Seychelles and the foreign country where the final judgment was delivered, the Reciprocal Enforcement of British Judgments Act (the “REBJA”) where the judgment was delivered in the United Kingdom and under section 227 of the Seychelles Code of Civil Procedure where neither the FREJA nor the REBJA applies.
17. In the case of Ablyazov v. Outen & Ors the Seychelles Court of Appeal held that the Supreme Court, as a court of unlimited jurisdiction, also has the inherent jurisdiction to recognize and enforce foreign court orders under the wider notion of comity of nations:

“With respect to assuming competence, courts of unlimited jurisdictions have invoked their inherent jurisdiction functions to assume competence to recognise orders made by foreign courts to the extent that the assets may be traced in their own jurisdictions, irrespective of whether there exists a formal law between democratic nations to co-operate and collaborate in judicial matters within the limits of their territorial jurisdictions presumably as a modern application of lex mercatoria.”

 

18. In her separate judgment in DF Project Properties (Proprietary) Ltd v Fregate Island Private Limited [2]  Twomey JA explained the meaning of the above extract of Ablyazov as follows –

“[2] The above statement recognises the fact that in general, the recognition, enforcement and execution of foreign judgments although governed by domestic law are subject to the principles of comity, conflicts of laws and reciprocity. In Seychelles, the provisions of section 11 of the Courts Act recognises the extraterritorial jurisdiction of the Supreme Court, namely:

“The jurisdiction of the Supreme Court in all its functions shall extend throughout Seychelles                                                                       
 Provided that this section shall not be construed as diminishing any jurisdiction of the Supreme Court relating to persons being, or to matters arising, outside Seychelles.”

19. Since the application of the FREJA has not been extended to the Federal Democratic Republic of Ethiopia and the REBJA is not applicable, the present application is to be determined in accordance with section 227 of the Seychelles Code of Civil Procedure as interpreted by Sauzier, J in Privatbanken Aktieselskab v Bantele[3].
20. In Privatbanken (supra) the court held that a foreign judgment can only be enforced in Seychelles if it is declared executory in Seychelles. The court also specified 6 conditions that must be fulfilled for a foreign judgment to be declared executory by the Supreme Court. Namely, –

1. “The foreign Judgment must be capable of execution in the country where it was delivered.
2. The foreign court must have had jurisdiction to deal the matter submitted to it.
3. The foreign court must have applied the correct law (la loi competente) to the case in accordance with the rules of Seychelles private international law.
4. The rights of the defence must have been respected.
5. The foreign judgment must not be contrary to any fundamental rules of public policy.
6. There must be absence of fraud.”

21. In the present application, the Applicant produced a copy of the Ethiopian Judgment [Exhibit P3] as well as the English translation thereof authenticated by the Ministry of Foreign Affairs in the Federal Democratic Republic of Ethiopia [Exhibit P2]. The Ethiopian Judgment consists of two pages. It bears the emblem of the Federal First Instance Court of the Federal Democratic Republic of Ethiopia at the top of the first page and is sealed with the seal of the same court on each page. The seal of the Federal First Instance Court of the Federal Democratic Republic of Ethiopia has also been affixed on each page (total of 11 pages) of the endorsed ‘Agreement for divorce by mutual consent as per article 77 of the Family Code’. The agreement is in both Amharic and English.
22. In the cases of Green v Green[4] and Privatbanken[5] (supra), Sauzier J, determined that an authenticated copy of a judgment of a foreign court is admissible in evidence, if it is sealed with a seal of the foreign court, without proof of the seal. In application of the two cases to the Ethiopian Judgment, I find that the Ethiopian Judgment including the endorsed ‘Agreement for divorce by mutual consent as per article 77 of the Family Code’ and the authenticated translated version of the same Judgment are admissible in evidence as the Judgment and endorsed agreement bear the seal of the Federal First Instance Court of the Federal Democratic Republic of Ethiopia.
23. I now turn to the conditions that the Ethiopian Judgment must fulfil before it can be declared executory in Seychelles. The first condition that must be fulfilled, is that the Ethiopian Judgment should be capable of execution in the Federal Democratic Republic of Ethiopia where it was rendered. Ex-facie, the Ethiopian Judgment was made on 22^nd November 2022 per Judge Endale Werku. It approved the agreement of the Applicant and her ex-husband - Ato Tewodros Ashefani Tesemma - for divorce by mutual consent and on the effects of dissolution of the marriage including the distribution of the matrimonial properties. The Ethiopian Court held as follows –

“Accordingly, the court has examined 11 pages of the agreement for divorce and output of divorce & approved them based on Article 80(2), Proclamation No. 213/92 of the Federal Family Code as revised, since submittal of which is found neither nor contradictory to the law & morale”.

 

24. The Ethiopian Court then ordered that –       

“Order

1. It is hereby instructed to affix seal of the court with the agreement for divorce and output of divorce & issue along with the judgment to the Applicants.
2. The file is closed & returned to the archive.”

 

25. Considering all the above and the authenticated copy of the divorce certificate issued on 12 December 2022 [Exhibit P1] after the Court’s endorsement of the divorce agreement, I am satisfied that the Ethiopian Judgment is a final judgment capable of execution in the Federal Democratic Republic of Ethiopia where it was delivered. Thus, the first condition is fulfilled.
26. The second condition that must be fulfilled is that the Ethiopian Court must have had jurisdiction to deal with the matter submitted to it. In Privatbanken (supra) Sauzier J explained that –

 

“The jurisdiction of the foreign court must be in relation to international or general competence in the light of Seychelle’ private international law, as well as to internal law of the country of the trial court”

 

27. Under the rules of private international law applicable to Seychelles, foreign courts have jurisdiction to deal with a matter if “either residence or presence in, or submission or agreement to submit to the foreign jurisdiction[.]”[6] is established in relation to the parties involved in the matter.
28. Ex facie, the Ethiopian Judgment was made on the joint petition of the Applicant and her ex-husband dated 21 September 2022. According to the said Judgment, the Applicant and her ex-husband were married in Ethiopia on 3^rd August 2002.  At the time of the divorce petition, the Applicant was domiciled in Seychelles while her ex-husband was domiciled in Addis Ababa but, they both appeared in person before the Ethiopian Court. In the Ethiopian Judgment, the Ethiopian Court considered that –

 

“The Right & Left parties have appeared before the court and declared that the agreement for divorce and output of divorce have been made with their free will and consent.”

 

29. Therefore, the Applicant and her ex-husband mutually and voluntarily submitted to the jurisdiction of the Federal First Instance Court of Ethiopia. I am satisfied that the said Court had jurisdiction in the international sense under the Seychelles’ rules of private international law to deal with the matter submitted to it. I am also satisfied, based on the extract of the Ethiopian Judgment reproduced under paragraph 23 above, that the Federal First Instance Court of Ethiopia had local jurisdiction to endorse the agreement of the Applicant and her ex-husband for divorce by mutual consent and on the effects of the dissolution, including settlement of matrimonial properties. Thus, the second condition is also fulfilled.
30. The third condition that must be fulfilled is that this Court must be satisfied that the Ethiopian Court had applied the correct law to dissolve the marriage by mutual consent and approve the agreement on the effects of the dissolution in accordance with the rules of Seychelles private international law. Ex-facie, the endorsed Agreement for divorce and effects of dissolution of the marriage annexed to the Ethiopian Judgment [Exhibit P3] was made “as per article 77 Family Code”. According to the English translation of the Ethiopian Judgment [Exhibit P2], attempts at reconciliation were made but these proved to be futile:

 “The Court exerted its efforts to allowing both of the parties to resume with their marriage upon resolving the problems being created in between them. However, such efforts remained unable to amicably resolve the problems being created in between them.”

 

31. Furthermore, prior to endorsement, the Ethiopian Court “examined 11 pages of the agreement for divorce and output of divorce & approved them based on Article 80(2), Proclamation No. 213/92 of the Federal Family Code as revised, since submittal of which is found neither nor contradictory to the law & morale”.
32. Based on the above, I have no reasons to doubt that the Ethiopian Court did not apply the correct law to dissolve the marriage of the co-applicants by mutual consent by approving their agreement for divorce and on the effects of the dissolution of their marriage
33. The fourth condition to be fulfilled is that the rights of the defence must have been respected in the proceedings in Ethiopia. It is clear ex facie the judgment, that the petition for divorce was made by both the Applicant herein and her ex-husband. They were co-applicants. Furthermore, they both appeared before the Ethiopian Court in person to confirm that the agreement for divorce and effects of the dissolution had been entered by their own free will and consent. In the circumstances, I can only conclude that the rights of Applicant’s ex-husband, a co-applicant in the proceedings in the Ethiopian Court, were also respected.
34. The fifth condition that must be fulfilled is that the Ethiopian Judgment must not be contrary to any fundamental rules of public policy. In Privatbanken Sauzier J explained that –

“The rule of public policy which are aimed at under this condition are much wider than the rules of public policy which are applied if the trial had taken place in Seychelles, the foreign judgment must not go against some fundamental concept of Seychelles law. (Vide Encyclopédie Dalloz (1929) Droit International, Judgment Étranger (Matière Civils & Commerciale), paragraphs 241 to 245)”

 

35. Having carefully examined the Ethiopian Judgment, I am satisfied that it is not contrary to any fundamental concept of Seychelles law. It approves the agreement of the parties to divorce by mutual consent. Divorce by mutual consent is permissible under our laws where the parties have lived apart for a continuous period of one year[7]. The dissolution of the marriage was granted after attempts at reconciliation proved to be futile, as the parties are unable to amicably resolve their problems, which is again consistent with our laws.[8] It also approves the agreement on the effects of the dissolution of the marriage as regards custody and maintenance of minor children of the marriage, apportionment of property of the marriage, debts and liabilities, binding effect of the agreement and applicable law. The agreement as endorsed by the Court subjects all matters or properties found in Seychelles, notably the property – Condominium Unit A3, comprised in title no. V19628, Pangia Beach, Mahe – to the laws of Seychelles. Thus, to the IPTRA. In subjecting the property, and the eventual transfer thereof to the Applicant being a non-Seychellois, to the laws of Seychelles, the agreement as endorsed by the Ethiopian Court in the Ethiopian Judgment is not contrary to any fundamental concept of Seychelles law.
36. Furthermore, the court’s endorsement of the agreement is not contrary to section 131 of the Seychelles Code of Civil Procedure on Judgment by Consent. The agreement is duly signed by the parties and attested by witnesses and it states the terms and conditions agreed upon between the parties. The endorsement was made in presence of the parties who stated that they made the agreement by their own free will and consent. The court’s endorsement was therefore in terms of the agreement of the parties.
37. The last condition is that there must be absence of fraud. Since the parties mutually petitioned the Ethiopian Court for the dissolution of their marriage and approval of their agreement on the effects of the dissolution of their marriage, including on distribution of matrimonial property, there was no fraud employed by either party in obtaining the said judgment. I am reinforced in my view by the fact that both parties personally appeared before the Ethiopian Court and declared that they had concluded the agreement by their own free will and consent. This condition of Privatbanken (supra) is also fulfilled.
38. I am therefore satisfied that all the conditions specified in Privatbanken (supra) have been fulfilled for the Ethiopian Judgment to be declared executory in Seychelles.

Order

39. I allow the application and make the following orders.

 

1. I declare the Judgment of the Federal First Instance Court of the Federal Democratic Republic of Ethiopia, in case file no. 306362, delivered on 22^nd November 2022 per Judge Endale Werku, dissolving the marriage of the Applicant – Meron Amare – and her ex-husband – Ato Tewodros Ashenafi Tesemma – by approving an agreement for their divorce and inter alia, settlement of matrimonial properties between them, executory in Seychelles.

 

2. A copy of this Judgment is to be served on Ato Tewodros Ashenafi Tesemma in the Federal Democratic Republic of Ethiopia.

 

Signed, dated and delivered at Ile Du Port, Mahe on the 19^th day of June 2024.

 

A. Madeleine, J

Judge