Mozambique rule
Encyclopedia
The Moçambique rule, or (to adopt an anglicised
form of spelling) Mozambique rule, is a common law
rule in private international law. The rule renders actions relating to title in foreign land, the right to possession of foreign land, and trespass
to foreign land non-justiciable in common law jurisdictions. It was established in 1893 by the House of Lords
decision in British South Africa Co v. Companhia de Moçambique [1893] AC 602.
Essentially, it is a self imposed rule to limit jurisdiction in respect of actions relating to:
In Hesperides Hotels v Muftizade [1979] AC 508, Lord Wilberforce
referred to the ruling in Mozambique in the following terms:
"Subject to exceptions hereafter mentioned, the court has no jurisdiction to entertain an action for (1) the determination of title to, or the right to the possession of, any immovable situate out of England (foreign land); or (2) the recovery of damages for trespass to such immovable."
Although, under section 30 of the Civil Jurisdiction and Judgments Act 1982 "the jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property."
would take jurisdiction
to hear any matter.
In the 12th and early 13th centuries, the jury in both civil
and criminal matters performed a role that resembles the modern day witness
rather than as judges of fact. In particular, there was a requirement that the jury
had to be drawn from the particular locality (e.g. village) from which the cause of action had arisen. This was based on the assumption that people from that locality are acquainted with the facts in the case from their personal knowledge. Therefore, it was important for the parties to the action to specify the venue or place at which the event occurred so that the Sheriff can summon the jury from that place. Law of Henry I (1100–1135) for instance, declared that juries from other than the venue stated were not to be permitted in any circumstances.
At the end of 13th century or the beginning of the 14th century, due to the increasing sophistication of transactions and dispositions, this rule caused considerable inconvenience. This was especially so when the facts alleged occurred partly in one locality and partly in another. To resolve this problem, courts at that time began to differentiate between “local” and “transitory” actions.
Local actions were one in which the facts relied on by the plaintiff had a necessary connection with a particular place (e.g. action for ejectment from land).
Transitory actions (such as breach of contract or trespass to the person) had no such necessary connection.
In the early development of the law relating to transitory actions, the rule was loosened so that the plaintiff may specify the venue in any county he/she desired. However, this led to abuses and in the 15th century, the statutes of Richard II and Henry IV reimposed strict requirements of laying the correct venue. However, the effects of these statutes was diminished by the use of a legal fiction (e.g. allegation that the “foreign place” was situated in the London parish of St. Marylebone). This legal fiction was developed as the courts realised the advantages of taking jurisdiction over mercantile matters which might have arisen outside of England.
This development led to a distinction between local and transitory actions. With transitory actions, venue remained only a limitation on the verbal formula by which the plaintiff might frame a cause of action. However, with local actions, the requirement of the plaintiff laying the correct venue remained.
This strict distinction remained despite the fact that by the 16th century, the role of juries was changed. Juries had become triers of fact and the practice of laying sworn testimony of witnesses had become general. The juries, however, still had to be drawn from the county in which the venue was laid. If the matter had arisen outside of England (i.e. a foreign locality), the legal fictions employed in transitory actions were not applicable, and so jury could be summoned to try the facts in issue. The matter could not be heard. For example in Skinner v East India Co 6 St Tr 710, the House of Lords in 1666, held that actions relating to ships and trespass to the person could be determined in courts in England because they were transitory in nature. But actions for dispossession of house and island, was not relievable in courts of England because they are local in nature.
In 1873, the Judicature Act
abolished r 28 of the Rules of the Court. This meant that there was no need for a local venue to be laid. However, this change raised some issues. In particular, R H Collins argued that the legislative change might remove the disability of the English courts in relation to local actions, especially where the parties were domiciled in England. In the Court of Appeal in the Mozambique case, a majority (Fry and Lopes LJJ, Lord Esher dissenting) took a similar view of the effect of that Act. Fry LJ considered that the issue of jurisdiction in actions relating to land outside England could be resolved in two parts: Firstly, if the matter were requiring adjudication as to title, the court could not take jurisdiction, since it would have no power to ensure the execution of its order. Secondly, if the issue related to no more than trespass to foreign land, and judgment might be given by way of an award of damages against the defendant, the only bar to the exercise by the English court of jurisdiction was the technical one that the action was a local one for which a local venue was required to be laid. Therefore, Fry LJ concluded that due to the abolition of local venues by the Act, there was nothing to prevent the court from taking jurisdiction.
But this argument was rejected by Lord Hershell LC in the House of Lords
. Lord Hershell LC said: “The grounds upon which the courts have refused to exercise jurisdiction in actions of trespass to land situate abroad were substantial and not technical, and that the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before”.
Even though the courts have many opportunities to overturn the rule, they have refused to do so. Vinelott J in Tyburn Productions v Conan Doyle reasoned that it was too late for the courts to overturn the distinctions between local and transitory actions because it is settled. Vinelott J also reasoned that the grounds to which the courts have hitherto refused to exercise jurisdiction in actions of trespass to land situated abroad was substantial and not technical, and that the distinction was not accordingly affected by the Judicature Acts
.
Anglicisation
Anglicisation, or anglicization , is the process of converting verbal or written elements of any other language into a form that is more comprehensible to an English speaker, or, more generally, of altering something such that it becomes English in form or character.The term most often refers to...
form of spelling) Mozambique rule, is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule in private international law. The rule renders actions relating to title in foreign land, the right to possession of foreign land, and trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
to foreign land non-justiciable in common law jurisdictions. It was established in 1893 by the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
decision in British South Africa Co v. Companhia de Moçambique [1893] AC 602.
Essentially, it is a self imposed rule to limit jurisdiction in respect of actions relating to:
- Title to Foreign Land
- Possession to Foreign Land
- Damages of Trespass to Foreign Land
In Hesperides Hotels v Muftizade [1979] AC 508, Lord Wilberforce
Richard Wilberforce, Baron Wilberforce
Richard Orme Wilberforce, Baron Wilberforce, PC was a Lord of Appeal in Ordinary in the House of Lords from 1964 to 1982....
referred to the ruling in Mozambique in the following terms:
"Subject to exceptions hereafter mentioned, the court has no jurisdiction to entertain an action for (1) the determination of title to, or the right to the possession of, any immovable situate out of England (foreign land); or (2) the recovery of damages for trespass to such immovable."
Although, under section 30 of the Civil Jurisdiction and Judgments Act 1982 "the jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property."
History of the Rule
The decision in British South Africa Co v Companhia de Moçambique was based exclusively on the historical development of the circumstances in which, and reasons for which, a court in EnglandEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
would take jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear any matter.
In the 12th and early 13th centuries, the jury in both civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
and criminal matters performed a role that resembles the modern day witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
rather than as judges of fact. In particular, there was a requirement that the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
had to be drawn from the particular locality (e.g. village) from which the cause of action had arisen. This was based on the assumption that people from that locality are acquainted with the facts in the case from their personal knowledge. Therefore, it was important for the parties to the action to specify the venue or place at which the event occurred so that the Sheriff can summon the jury from that place. Law of Henry I (1100–1135) for instance, declared that juries from other than the venue stated were not to be permitted in any circumstances.
At the end of 13th century or the beginning of the 14th century, due to the increasing sophistication of transactions and dispositions, this rule caused considerable inconvenience. This was especially so when the facts alleged occurred partly in one locality and partly in another. To resolve this problem, courts at that time began to differentiate between “local” and “transitory” actions.
Local actions were one in which the facts relied on by the plaintiff had a necessary connection with a particular place (e.g. action for ejectment from land).
Transitory actions (such as breach of contract or trespass to the person) had no such necessary connection.
In the early development of the law relating to transitory actions, the rule was loosened so that the plaintiff may specify the venue in any county he/she desired. However, this led to abuses and in the 15th century, the statutes of Richard II and Henry IV reimposed strict requirements of laying the correct venue. However, the effects of these statutes was diminished by the use of a legal fiction (e.g. allegation that the “foreign place” was situated in the London parish of St. Marylebone). This legal fiction was developed as the courts realised the advantages of taking jurisdiction over mercantile matters which might have arisen outside of England.
This development led to a distinction between local and transitory actions. With transitory actions, venue remained only a limitation on the verbal formula by which the plaintiff might frame a cause of action. However, with local actions, the requirement of the plaintiff laying the correct venue remained.
This strict distinction remained despite the fact that by the 16th century, the role of juries was changed. Juries had become triers of fact and the practice of laying sworn testimony of witnesses had become general. The juries, however, still had to be drawn from the county in which the venue was laid. If the matter had arisen outside of England (i.e. a foreign locality), the legal fictions employed in transitory actions were not applicable, and so jury could be summoned to try the facts in issue. The matter could not be heard. For example in Skinner v East India Co 6 St Tr 710, the House of Lords in 1666, held that actions relating to ships and trespass to the person could be determined in courts in England because they were transitory in nature. But actions for dispossession of house and island, was not relievable in courts of England because they are local in nature.
In 1873, the Judicature Act
Judicature Act
Judicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.-United Kingdom:...
abolished r 28 of the Rules of the Court. This meant that there was no need for a local venue to be laid. However, this change raised some issues. In particular, R H Collins argued that the legislative change might remove the disability of the English courts in relation to local actions, especially where the parties were domiciled in England. In the Court of Appeal in the Mozambique case, a majority (Fry and Lopes LJJ, Lord Esher dissenting) took a similar view of the effect of that Act. Fry LJ considered that the issue of jurisdiction in actions relating to land outside England could be resolved in two parts: Firstly, if the matter were requiring adjudication as to title, the court could not take jurisdiction, since it would have no power to ensure the execution of its order. Secondly, if the issue related to no more than trespass to foreign land, and judgment might be given by way of an award of damages against the defendant, the only bar to the exercise by the English court of jurisdiction was the technical one that the action was a local one for which a local venue was required to be laid. Therefore, Fry LJ concluded that due to the abolition of local venues by the Act, there was nothing to prevent the court from taking jurisdiction.
But this argument was rejected by Lord Hershell LC in the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
. Lord Hershell LC said: “The grounds upon which the courts have refused to exercise jurisdiction in actions of trespass to land situate abroad were substantial and not technical, and that the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before”.
Even though the courts have many opportunities to overturn the rule, they have refused to do so. Vinelott J in Tyburn Productions v Conan Doyle reasoned that it was too late for the courts to overturn the distinctions between local and transitory actions because it is settled. Vinelott J also reasoned that the grounds to which the courts have hitherto refused to exercise jurisdiction in actions of trespass to land situated abroad was substantial and not technical, and that the distinction was not accordingly affected by the Judicature Acts
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
.
See also
- Potter v Broken Hill Proprietary Company Ltd (1906) 3 CLR 479.Potter v Broken Hill Proprietary Company LtdPotter v Broken Hill Proprietary Company Ltd 3 CLR 479, was a significant Australian court case, decided in the High Court of Australia on 20 March 1906...
- Lucasfilm v Ainsworth [2011] UKSC 39.Lucasfilm Limited v AinsworthLucasfilm Limited v Ainsworth was a 2011 court ruling by the Supreme Court of the United Kingdom. The case concerned a copyright dispute over the production of Lucasfilm's Stormtrooper costumes by model maker Andrew Ainsworth...