Enforcement of Foreign Judgments in Tanzania: Overcoming the Limitations of REFJA for Cross-border Transactions

In developing economies like Tanzania, cross-border financing is a critical part of doing business. When Tanzanian companies and international investors enter into these transactions, one question often arises: how enforceable are foreign court judgments in Tanzania? This is especially important when the parties agree to use the laws and courts of a foreign jurisdiction.

In Tanzania Mainland, the enforcement of foreign judgments is governed primarily by the Reciprocal Enforcement of Foreign Judgments Act, CAP 8 R.E. 2019 (REFJA) and alongside its associated Rules. REFJA is not applicable in Zanzibar which is part of Tanzania. REFJA sets out the conditions under which judgments from foreign courts can be recognised and enforced by Tanzanian courts. A foreign judgment will only be recognised and enforced in Tanzania if the procedures and statutory requirements are met. 

Currently, REFJA only applies to a limited group of countries, such as the UK and a handful of Commonwealth jurisdictions. Many of Tanzania’s key trade partners, including the United States, China, India, South Africa, and the European Union, are notably absent from this list. As a result, judgments from these jurisdictions cannot be enforced directly under REFJA. This limitation means that foreign investors are often left seeking alternative and sometimes complex legal procedure to achieve enforcement.

This legal update explores the scope and limitations of REFJA and how parties can enforce foreign judgments from jurisdictions not covered by the REFJA, with reference to recent jurisprudence.

Scope and Application of REFJA

REFJA allows Tanzanian courts to recognise and enforce foreign judgments only from a limited set of countries. Section 3 (1) of REFJA along with the Schedule under the REFJA (Extension of Part II) Order, 1936 empowers the High Court of the United Republic of Tanzania (the High Court) to recognise judgments only from “superior courts” of the following jurisdictions: Lesotho, Botswana, Mauritius, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Eswatini, and the United Kingdom. REFJA defines “superior courts” as those of equivalent rank to the High Court. 

This scope excludes many of Tanzania’s key trade partners including the United States, China, India, South Africa, and the European Union jurisdictions. As a result, judgments from courts of these countries cannot be directly enforced through REFJA, necessitating businesses to consider other legal avenues for enforcement.

Procedure for recognition and enforcement of foreign judgments

In Tanzania, REFJA governs the recognition of a foreign judgments, while the Civil Procedure Code Cap 33 R.E. 2019 (CPC) governs its enforcement. Recognition is essential because if a foreign judgment is not recognised, it cannot be enforced.

To initiate the recognition process under REFJA, the judgment holder must file an application to the High Court for registration of the judgment. The application must be submitted within six (6) years of the judgment date. If the judgment was subject of an appeal, the application must be filed within six (6) years of the final appeal’s judgment.

Once a foreign judgment is recognised under REFJA, it is treated as though it were a judgment issued by the High Court and can be enforced in Tanzania under the provisions of the CPC in the same manner as locally issued judgments.

Challenges in Enforcing Judgments from Non-REFJA Jurisdictions 

There are several potential challenges to enforcing such foreign judgments in Tanzania. We highlight some of them below.

Lack of automatic recognition of foreign judgments: The first challenge lies in the lack of automatic recognition. Judgments from REFJA-covered countries can generally be registered and enforced relatively quickly in Tanzanian courts, provided they meet the requirements set out in the law. The registration process makes the court process unavoidable thus makes it time consuming and costly. In contrast, judgments from non-REFJA jurisdictions are excluded from the reciprocal recognition framework. As a result, decree holders from non-REFJA jurisdictions face more complex legal process to pursue enforcement.

Discretionary Powers of the High Court: The second challenge relates to the High Courts' discretion when dealing with foreign judgments from non-REFJA jurisdictions. The enforcement process for non-REFJA judgments often requires filing a fresh lawsuit in Tanzanian courts rather than a direct application for reciprocal enforcement. This process introduces substantial judicial discretion, as the High Court may scrutinise the judgment more rigorously and may re-examine the merits of the case although it was already determined by a foreign court.

Public Policy Considerations: Another challenge arises from Tanzanian public policy considerations. Tanzanian courts may refuse to enforce a foreign judgment on public policy grounds, if it is determined that the foreign judgment is contrary to Tanzanian public policy or societal values. This safeguard ensures that foreign judgments do not contravene local laws or customs. This principle of consistency with public policy applies to judgments from REFJA jurisdictions as well.

Jurisdictional Concerns: Lastly, Tanzanian courts are cautious about ensuring that the foreign court had proper jurisdiction over the matter. For example, if the defendant in the foreign case was not a resident of the foreign jurisdiction or did not submit to the foreign court’s jurisdiction voluntarily, Tanzanian courts may refuse to enforce the judgment on the grounds that the foreign court had no authority to hear the case in the first place. This consideration highlights the importance of proper service and jurisdiction in the original proceedings, as any misstep can complicate enforcement efforts in Tanzania. This principle also applies to judgments from REFJA jurisdictions as section 6(1)(a)(ii) of REFJA provides that Tanzanian courts will not register a foreign judgment if the original court issuing the judgment is found to lack jurisdiction. 

Alternative Enforcement Route for Non-REFJA Jurisdictions

Despite the limitations of REFJA, foreign judgments from non-REFJA Jurisdictions can still be enforced in Tanzania. The typical approach is for the decree holders in such cases to file a fresh suit in Tanzanian courts, treating the foreign judgment as evidence of a debt under the legal doctrine of obligation. 

A recent case highlighting this approach to enforcement of non-REFJA judgments is Afriglobal Commodities DMCC vs. Nesch Mintech (T) Limited (Commercial Case No. 112 of 2023). In this case, the plaintiff sought to enforce a judgment obtained in the United Arab Emirates (UAE), a country outside the scope of REFJA. The High Court ruled that foreign judgments from non-REFJA jurisdictions could not be enforced through direct registration under REFJA. Instead, the decree holder had to initiate a fresh suit in which the foreign judgment served as evidence of the debt owed.

The Afriglobal decision aligns with previous jurisprudence, including the case of Willow Investment v Mbomba Ntumba and Another (1996) TLR 377 (HC), reaffirming that non-REFJA judgments can be enforced this way. 

It should also be noted that the approach of enforcing non-REFJA judgments through the doctrine of obligation requires the judgment creditor to have obtained a final judgment before pursuing enforcement in Tanzania. This was demonstrated in the case of Altas Yag Su Ve Tarim Urunleri Gida Insaat Otomotive Nakliyat Sanayi Ve Ticaret A.S vs Osmanli Building Centre Co. Ltd (Commercial Case No. 90 of 2022) [2024] TZHCComD 215, where the plaintiff sought to enforce a judgment purportedly from the Turkish High Court.  The High Court of Tanzania dismissed the claim upon finding that no valid final judgment had been issued from Turkey rather the plaintiff had submitted “Preliminary Proceedings Finalisation Report” or “Payment Order without Judgment”.

Conclusion

The limitations of REFJA may pose significant challenges for parties seeking to enforce foreign judgments from jurisdictions outside Tanzania's reciprocal recognition framework. However, Tanzanian courts allow for alternative enforcement through the doctrine of obligation, which, as seen in recent case law, enables foreign judgment creditors to pursue recognition and enforcement by filing a fresh suit. The Afriglobal and Altas cases illustrate the procedural considerations and confirm that while this route can be complex, it is a viable pathway for non-REFJA jurisdictions.