Siddik Mohammad v Mohammad Hilal Salim Bin Tarraf

Hearing date: 27 March 2025

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Wednesday 2 ND of April 2025.

Introduction

The Claimant, Siddik Mohammad, and the First Defendant, Mohammed Hilal Salim bin Tarraf were partners in Al Jazira Poultry Farm in the early 1990s, which was organised and operated through the Second Defendant, Bani Yas General Trade International, a business incorporated under the laws of Dubai, United Arab Emirates (‘the UAE’). Mr Mohammad alleges that in November 1995, Mr bin Tarraf wrongly converted his, Mr Mohammad's, lawful interests in Bani Yas General Trade International. This was, it is claimed, followed by intimidation, threats, harassment and duress, which were approved of and acquiesced in by the government authorities and the Royal Family of Dubai. This is denied by Mr bin Tarraf. From around 2000, Mr Mohammad was granted refugee status in Canada on the premise that he and his family were persecuted in the UAE.

In 2002, Mr Mohammad brought proceedings against Mr bin Tarraf, amongst others, in the United States District Court in the Western District of New York, seeking $2m in damages for various allegations, which were dismissed for lack of jurisdiction.

In February 2017, Mr Mohammad issued proceedings against the three defendants in the Ontario Superior Court of Justice (‘the Ontario Proceedings’). Although rejecting the contention that the claim had any ‘ real and substantial connection to Ontario’, Gray J found that the Canadian court had jurisdiction under the doctrine of the forum of necessity, which he described as “ a narrow doctrine under which the court, in a case in which it otherwise does not have jurisdiction, can nevertheless hear a case where there is no other forum in which the plaintiff can reasonably seek relief and receive a fair trial”. Mr Mohammad had contended that he was unable to bring proceedings in Dubai, for want of a fair trial in circumstances where Mr bin Tarraf had connections to the Dubai Royal family. The circumstances in which these proceedings were, or were not, served on the defendants is considered more fully below. Mr bin Tarraf says they were not served and he did not become aware of the proceedings until after Mr Mohammad had successfully obtained a default judgment dated 15 ^th March 2019 (‘the Default Judgment’), in the sum of CAN$16,500,000 plus interest.

The Default Judgment was registered in the High Court of England and Wales by Order of Master Eastman on 20 September 2019 pursuant to section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (‘the 1933 Act’), following an ex parte application by Mr Mohammad. By application notice dated 14 November 2019, Mr bin Tarraf applies to have that Registration Order set aside pursuant to section 4 of the 1933 Act. There have been considerable procedural delays between 2020 and 2024, for which neither party is to blame.

There is no equivalent application made by the Second or Third Defendants, who were not represented and did not appear.

Mr O'Brien KC, representing Mr bin Tarraf, advances three separate bases for the application, namely (1) the Ontario Court did not have jurisdiction in the circumstances of the case, applying s.4(1)(a)(ii) and s.4(2) of the 1933 Act; (2) Mr bin Tarraf did not receive notice of the Ontario Proceedings in sufficient time to enable him to defend the proceedings and did not appear (s.4(1)(a)(iii) of the 1933 Act); and (3) Mr Mohammad (or his representatives) failed to comply with his duty of full and frank disclosure when applying to the High Court to register the Default Judgment.

Mr Mohammad, represented by Ms Wills, contends principally that setting aside the Registration Order would be contrary to his rights under Article 6 of, and Article 1 of the First Protocol (“A1P1”) to, the European Convention on Human Rights (“ECHR”), and that the 1933 Act should either be re-interpreted compatibly with those rights, or declared incompatible. The other points made by Ms Wills in opposition to the application I deal with as they arise below.

I am grateful for the assistance of both Counsel.

Section 4 of the 1933 Act

This states:

“ 4.—Cases in which registered judgments must, or may, be set aside.

(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment—

(a) shall be set aside if the registering court is satisfied—

…

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

…

(2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction –

(a) in the case of a judgment given in an action in personam—

(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or

(ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or

(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or

(iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or

(v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;…

…

(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b) of this subsection, if the jurisdiction of the original court is recognised by the law of the registering court.”

The Ontario Court's Jurisdiction

Section 4(1)(a)(ii) makes clear that on an application such as the present one, the registration of the judgment ‘ shall be set aside’ if the registering court is satisfied that the courts of the country of the original court had no jurisdiction in the circumstances of the case.

Mr O'Brien contends that the Ontario Court had no jurisdiction in the circumstances where the term “ jurisdiction” is specifically defined in s.4(2)(a) of the 1933 Act, and where none of the five conditions for jurisdiction are met. It is therefore contended that the mandatory condition for setting aside the registration Order is satisfied.

The Default Judgment was a judgment for damages against the three Defendants. It was plainly a judgment in personam. As such, section 4(2)(a) of the 1933 Act provides five bases upon which the Ontario Court will be deemed to have jurisdiction to have rendered such a judgment. These provisions were considered in Societe Cooperative Sidmetal v Titan International Ltd [1966] 1 QB 828. Widgery J made clear (at 850F) that subsection 4(2) specifies three classes of action (one of which is an in personam action), and gives in the case of each the conditions which have to be satisfied by actions of that class if the foreign judgment is to be registered. The relevant subsection for actions in personam is subsection 4(2)(a). This subsection, the judge said at [849F-G]:

“ … gives an exclusive definition of the prerequisites of jurisdiction of the original court for the purpose of ascertaining whether or not subsection (1)(a)(ii) is applicable.”

Thus, an in personam judgment which cannot be brought within the terms of subsection 4(2)(a) is a judgment which ought not be registered because it is a judgment of a court which had no jurisdiction in the circumstances of the case for the purposes of the 1933 Act.

Ms Wills submits that (quite aside from her argument relating to the ECHR) this Court is not bound by the decision in Sidmetal and that the statute should be construed less restrictively. She argues that the statute itself does not state that section 4(2) provides an exhaustive regime for in personam claims, and the Court should construe the section so as to permit foreign judgments founded on jurisdictional foundations other than those listed to be registered in accordance with the 1933 Act. I cannot accept this submission. The decision of Widgery J is based upon a detailed analysis of statutory intention founded upon the close affinity of the extent to which judgments are enforceable at common law (albeit not completely identical). The careful analysis is, with respect, faultless, and is supported, at least indirectly, by the Supreme Court's decision in Vizcaya Partners Limited v Picard ...