You are on page 1of 14

Contents

Law of procedure or procedural law.......................................................................2


Substantive law..................................................................................................... 2
RELATIONSHIP BETWEEN PROCEDURAL LAW AND SUBSTANTIE LAW.................3
HOW PROCEDURAL LAW AND SUBSTANTIE LAW ARE CONNECTED TO
RECOGNITION OF FOREIGN JUDGEMENT.............................................................3
FOREIGN JUDGEMEMNT......................................................................................... 4
EVIDENCE.............................................................................................................. 6
MEANING............................................................................................................ 6
FACTS AS EVIDENCE........................................................................................... 7
MEANS OF PROOF EVIDENCE...........................................................................7
KINDS OF EVIDENCE........................................................................................... 7
EVALUATION...................................................................................................... 10
BIBLIOGRAPHY..................................................................................................... 12
BOOKS.............................................................................................................. 12
INTERNET.......................................................................................................... 12

INTRODUCTION
Broadly speaking substantive law is that branch of law which is
constitutive of rights and obligation and the procedural law is that branch
of law which provides methods and ways or enforcing rights and
obligation. No other principles are more well established in private
international law than the principle that all matters of procedure are
governed by the lex fori, and that all rules of procedure of foreign law
can be given effect.
Lex fori is a legal term used in conflict of laws to refer to laws of the
jurisdiction in which a legal action is brought.
The principle that all matters of procedure are governed by the lex fori
Is justice on the basis that since the law of procedure is the most technical
branch of any legal system, the machinery that will work most smoothly in
enforcing rights acquired elsewhere can be the one provided by lex fori,
therefore any person who chooses the forum for enforcing his rights must
accept the procedure as laid down by the lex fori. The greatest merits of
this principle is that it establishes certainty and equality.

Law of procedure or procedural law


a) Procedural law. (1896) the rules that prescribe the steps
for having a right or duty judicially enforced, as opposed
to the law that defines the specific rights or duties
themselves.1
b) Procedural law, also called adjective law, the law
governing the machinery of the courts and the methods
by which both the state and the individual (the latter
including groups, whether incorporated or not) enforce
their rights in the several courts. Procedural law prescribes
the means of enforcing rights or providing redress of
wrongs and comprises rules about jurisdiction, pleading
and practice, evidence, appeal, execution of judgments,
representation of counsel, costs, and other matters. 2
Substantive law

1 Garner B.A, Black's Law Dictionary, Ninth Edition, WEST PUBUSHING CO. West, United States of
America, 2004.. page 1323

2 http://www.britannica.com/topic/procedural-law

The part of the law that creates, defines, and regulates the
rights, duties, and powers of parties.
PROCEDURAL LAW. "SO far as the administration of justice is
concerned with the application of remedies to violated rights,
we may say that the substantive law defines the remedy and
the right, while the law of procedure defines the modes and
conditions of the application of the one to the other. 3
RELATIONSHIP BETWEEN PROCEDURAL LAW AND SUBSTANTIE
LAW
Procedural law deal with method and means by which
substantive law is made and administered. The time allowed for
one party to sue another and the rules of law governing the
process of the law suit is example of procedural laws.
Substantive law define crimes and punishment in criminal law
and in civil rights and responsibilities in civil law. It is codified in
legislated statute or can be enacted through the initiative
process.
It is not always easy to distinguish substantive law and
procedural law, sometimes court deem the rules that seem
procedural to be substantive for example in Bolton v- Travelers
Insurance Co.
The Court held that a statute of limitation was substantive, but
the rules governing the time for answer and appearance were
procedural.
HOW PROCEDURAL LAW AND SUBSTANTIE LAW ARE
CONNECTED TO RECOGNITION OF FOREIGN JUDGEMENT.
Substantive law and procedural law on the recognition and
enforcement of foreign judgement can be confusing for two
reasons, first, while most states and federal court decision on
recognition of foreign judgment follow some version of U.S
Supreme Courts community analysis is in Hilton v- Guyot, this
area is considered largely to be governed by the state law.
While Substantive rules on recognition are generally uniform, in
some states they are found in statute and in other they remain
matter of common law.
3

." John Salmond, jurisprudence 476 (Glanville L. Williams ed., 10th ed.1947).

Second when judgement creditor seek both recognition and


enforcement of the foreign judgement, there is sometimes
confusion over the interrelationship between the law governing
recognition of foreign judgement and those governing
enforcement.
A good example is in Tanzania there is an Act (Reciprocal
enforcement Act CAP8 (RE 2002)
This act make provision for reciprocal enforcement of
judgements as between Mainland Tanzania and foreign
countries and for other related matters.
A judgement obtained from a foreign jurisdiction can only be
enforced in Tanzania if the country from which such judgment
has been obtained is listed in the schedual to the foreign
judgement (reciprocal enforcement) Act4.Unless this condition is
met, Tanzanian court would not enforce any judgement given
by the court of any other jurisdiction without the reexamination or relitigation of the merit of the case.
SPEACIAL FEATURES OF THE PROCEDURE

Pleading and Practice


The first step, then, is to serve the defendant with a writ, notifying him of
the claim that is to be made against him. A modern action may be divided
into two parts. The procedural steps necessary before the trial opens and
the actual trial itself. The details of every system vary greatly. In Rome a
trial was divided into the preliminary procedure before the praetor and the
final stage where the facts were found and judgment given by a private
index. On the continent today, sometimes the evidence is gathered and
committed to writing in preliminary proceedings and the judge who
ultimately tries the action may see none or only a few of the witnesses
face to face . In England , in general all evidence is given in open court.
The Purpose of Pleading is twofold; firstly, to eradicate (as far as possible)
irrelevancy and to isolate the issues which are in dispute ; secondly, to
give reasonable notice to the other party of the claim against him so that
he may prepare his reply. The rules of Pleading should aim at ease of trial,
reasonable cost , and justice to both parties

Proof and its Burden


The Problem of proof is always a difficult one. For a Primitive court it is
well-nigh insoluble owing to the lack of ability to analyse the evidence, the

4 CAP 8 (RE 2002).

prevalence of perjury, and the natural fear of any court which lacks an
assured position lest some powerful member of the community should be
offended by its decision. Hence comes escape from the judgment of man
to that of God , the ordeal which has played such a great part in European
legal history.
In Modern times , proof is made by means of the production of evidence
which term as used in Judicial proceedings , means the facts, testimony
and documents which may be legally received in order to prove or
disprove the fact under inquiry.

FOREIGN JUDGEMEMNT
Foreign judgment. A decree, judgment, or order of a court in a
state, country, or judicial system different from that where the
judgment or its effect is at issue. 5
INTRODUCTION
Broadly speaking substantive law is that branch of law which is
constitutive of rights and obligation and the procedural law is that branch
of law which provides methods and ways or enforcing rights and
obligation. No other principles are more well established in private
international law than the principle that all matters of procedure are
governed by the lex fori, and that all rules of procedure of foreign law
can be given effect.
Lex fori is a legal term used in conflict of laws to refer to laws of the
jurisdiction in which a legal action is brought.
The principle that all matters of procedure are governed by the lex fori
Is justice on the basis that since the law of procedure is the most technical
branch of any legal system, the machinery that will work most smoothly in
enforcing rights acquired elsewhere can be the one provided by lex fori,
therefore any person who chooses the forum for enforcing his rights must
accept the procedure as laid down by the lex fori. The greatest merits of
this principle is that it establishes certainty and equality.
RECOGNITION AND ENFORCEMENTS OF FOREIGN JUDGEMENT
Foreign judgements is a judgement brought in from another state. A
foreign judgement cannot in the absence of an international agreement be
5 Ibid page 919

enforced in a court of another country, this is owing to sovereignty. A


direct consequence to this is that a judgement rendered in one state will
be regarded as a foreign judgement by the courts of another state and will
have no automatic effect in the second state. In other words state
sovereignty prevents the judgement of one country from having direct
force or effect in the territory of another.
The recognition of a foreign judgment occurs when the court of one
state accepts a judicial decision made by the courts of another state.
Thus, it precludes the relitigation of a claim on the same facts on the
ground of res judicata and/or collateral estoppel. Once the judgment is
recognized, the party who was successful in the original case can seek its
enforcement.
It is important at the outset to distinguish recognition from enforcement of
foreign judgements. Recognition occurs when the court, for any purpose
treats a right acquired under foreign judgement as existing. Enforcement
on the other hand suggests that a party will be accorded the relif to which
the foregn judgement entitiles him.

Jurisdiction
As with any claim involving foreign elements a court has to
have jurisdiction to adjudicate an action in order to enforce a
foreign judgement. A person who seeks to enforce a foreign
judgement must satisfy the enforcing court rules on jurisdiction
on international matters. In many instances this requirement
will not be difficult to meet because the defendant may have
assets or may be present or resident within the jurisdiction.
After the court has established jurisdiction it employs conditions
upon which a foreign judgement can be enforced.
The res judicata effect of foreign judgement
In addition to enforcing a foreign judgement a party can plead
the judgement as re judicata such a plea may relate to either
the cause of action as a whole or a specific issue decided by
the foreign curt in both instances the argument will be that the
cause of action or issue has been determined by the foreign
court.
Conditions for enforcement of foreign judgement

For a judgement to be enforceable at common law four conditions must be


satisfied:

Judgement must be enforceable


Original court must be one of competent jurisdiction.
There must be no defences to enforcement.
Finality of foreign judgement, in an action to enforce a foreign
judgement, it is necessary to allege and prove that the judgement is
final.

According to Article 4 of the hague convention on the recognition and


enforcement of foreign judgement 1971
A decision rendered in one of the Contracting States shall be entitled to recognition
and enforcement in another Contracting State under the terms of this Convention
(1) if the decision was given by a court considered to have jurisdiction within the
meaning of this Convention, and
(2) In addition, to be enforceable in the State addressed, a decision must be
enforceable in the State of origin.

Procedural requirements
The duty to recognize foreign judgements is usually excluded where
fundamental procedural requirements were violated in the rendering
court.
The most important procedural requirements for recognition are:

The defendant had adequate notice

The defendant was properly served

The defendant had the opportunity to be heard in court

If the judgement was based on fraud or abuse of process recognition will be denied.

Recognition or Enforcement may be denied in the following cases


According to article 5
Recognition or enforcement of a decision may nevertheless be refused in any of the
following cases
(1) if recognition or enforcement of the decision is manifestly incompatible with the
public policy of the State addressed or if the decision resulted from proceedings
incompatible with the requirements of due process of law or if, in the circumstances,
either party had no adequate opportunity fairly to present his case;
(2) if the decision was obtained by fraud in the procedural sense;

(3) if proceedings between the same parties, based on the same facts and having
the same purpose
a) are pending before a court of the State addressed and those proceedings were the
first to be instituted, or
b)have resulted in a decision by a court of the State addressed, or
c)have resulted in a decision by a court of another State which would be entitled to
recognition and enforcement under the law of the State addressed

EVIDENCE
MEANING
The term evidence is derived from the Latin word evidere
meaning to make clear to the sight. In common parlance,
evidence is what makes evidence something to someone in
law, evidence is that which makes evidence a fact to a judicial
tribunal it may be noted that a fact is not only the object of
perception, but also the subject of consciousness. Fact is thus
distinguished from opinion and law. An opinion as to what a
person is expected to say has no place in an inquiry as to the
fact of what words he actually spoke. And to give an opinion as
to the legal effect is the function not of a witness, but of the
tribunal. That which makes evidence a fact may be regarded
from different points of view and the term evidence is applied
to more than one conception.
FACTS AS EVIDENCE
The evidence of a fact may be other facts from which the main
fact is deduced, or inferred. Thus the evidence of the state of a
mans digestion may be the fact that pain regularly follows the
eating of one sort of food. Hence, best defined evidence as any
matter of fact, the effect, tendency or design of which, is to
produce in the mind a persuasion, affirmative or disaffirmative,
of the existence of some other matter of fact.
MEANS OF PROOF EVIDENCE

What makes evidence a fact is the means by which it is


established as true i.e. the means of proof. Proof in law
connotes the establishment of a fact by evidence it is the effect
of evidence. The means of proof includes
Oral evidence
Documentary evidence and
Real evidence
KINDS OF EVIDENCE
Primary and Secondary evidence
Primary evidence is the best available proof of a specific fact.
Secondary evidence, on the other hand, reflects the existence
of primary evidence, which, for some reason, is not available to
the court. Primary evidence consists of the production of an
original document or the admission of its contents by the other
party, secondary evidence consists of any other evidence
relating to the content of the documents.
Judicial and Extrajudicial evidence
Judicial evidence is that which is produced to the court, it
comprises all evidential facts that are actually brought to the
personal knowledge and observation of the tribunal.
Extrajudicial evidence is that which does not come directly
under judicial cognisance, but nevertheless constitutes an
intermediate link between judicial evidence and the fact
requiring proof
Direct and Circumstantial evidence
Direct evidence usually is the proof of a fact by a witness who
perceived it with one of his senses. But sometimes it is used in
contract to circumstantial evidence. In this sense, direct
evidence means evidence of a fact disputed in litigation, e.g.,
evidence that the defendants car was on the wrong side of the

highway at the time of the road accident. as this evidence is


normally given by the witness who saw the car, his evidence is
direct in both senses of the word. But circumstantial evidence
means evidence of fact from which a disputed fact can be
inferred, e.g., evidence that the skid-marks made by the types
of the defendants car were on the wrong side of the highway.
Personal and Real evidence
Personal evidence is otherwise termed testimony. It includes all
kinds of statements regarded as possessed of probative force in
respect of the fact stated. This is by far the most important
form of evidence. There are few processes of proof that do not
contain it few facts that are capable of being proved in courts of
justice otherwise than by the testimony of those who give
them. Testimony is either oral or written, and either judicial or
extrajudicial.
Real evidence, on the other hand, includes all the residue of
evidential facts. Anything which is believed for any other
reason than that someone has said so, is believed on real
evidence
RELEVANCE AND ADMISSIBILITY
Relevancy is the relationship between one fact and another,
wherein, according to the rules of logic and common
experience of men, the existence of the one renders probable
the existence or no-existence of the other. But a fact is
admissible if the law allows it to be proved by evidence.
Although legal admissibility is based on logical relevance, the
concepts of admissibility and relevance do not wholly coincide.
As observed by Wigmore; admissibility signifies that the
particular fact is relevant and something more. That it has also
satisfied all the auxiliary and extrinsic policies. It is thus
something more that differentiates admissibility from relevancy.
Relevancy is contrasted with admissibility as follows;
i.

Relevancy is found on logic while admissibility on law

ii.
iii.

Relevancy is the genus of which admissibility is the


species
Relevancy determines whether evidence of a fact may be
received by the tribunal

COMPETENCE AND COGENCY


Competence relates to witness capacity to give evidence. This
is the laymans view. In law, he may be incompetent as a
witness. An incompetent witness is not permitted to give
evidence. On the other hand, a legally competent person
cannot always be compelled to give evidence, if he is unwilling
to do so. Competent and compulsion are thus distinct topics.
However, there is a distinction between competence to give
evidence in general and competence to give a particular type
of evidence. And competence is determined by persons
intellect. For example insanity and infancy may render a
witness incompetent. Besides, by virtue of their office or
occupation, various persons may not be competent or
compellable to give evidence, for example sovereigns and
diplomats. Cogency includes the credibility of witnesses, the
reliability of documents, the inferences to be drawn from things
and the effect of the evidence as to the facts in issue generally.
It depends partly on rules of law or practice, but largely upon
general consideration of probability. Generally, rules affecting
the cogency of evidence include the following;
Sufficient evidence,
Presumption and the like
EVALUATION
In contested cases, the question is who evidence is to be
accepted. Each party has endeavoured to support his case by
the most cogent proof available and to minimise the effect of
his opponents evidence by cross-examination. In human
affairs, even when the subject of inquiry is susceptible of legal
proof, certainty is usually unattainable. The substitute is
probability and a tribunal of fact must decide which case is
probably true.

The standard of proof in ordinary civil cases is a preponderance


of probability if a tribunal, considering the probability of the
whole of the evidence relating to a contested issue of fact,
concludes that the plaintiffs evidence is more probably true
than the defendants the plaintiff should succeed on that issue
and vice versa. In criminal trials the standard of proof required
of the prosecution is satisfaction beyond reasonable doubt, but
the standard for the defence is something less. If the evidence
for the defence insinuates in the minds of the jury a reasonable
doubt as to the probability of the proof for the prosecution, the
unchanging burden on the prosecution will not have been
discharged and the case for the state will not have been proved
true beyond reasonable doubt. When the accused dears the
burden of proof of an issue, the standard of proof is a
preponderance of probability.
APPEAL
Once a plaintiff has secured judgment he may proceed to
execution if the judgment is not satisfied, unless execution is
stayed because of an appeal. No court is perfect, and the
possibility of review is a valuable safeguard of justice. Appeal
may take various forms. It may be entirely new trial of question
of fact, or it may be limited to questions of law. The appeal may
be as of right or only by leave of the court which gave the
judgment or of the higher court.

BIBLIOGRAPHY

BOOKS
1.
2.
3.
4.

Dicey and Moris Conflict of Laws 9th Edition


Cheshire & Norths Private International Law, 10th edition 1979
Castel J.G Introduction to conflict of Laws 1978

5.

Salmond John, jurisprudence 476 (Glanville L. Williams ed., 10th ed.1947).

Garner B.A, Black's Law Dictionary, Ninth Edition, WEST PUBUSHING CO. West, United
States of America, 2004

INTERNET
1. http://www.britannica.com/topic/procedural-law
2. http://www.nadr.co.uk/articles/published/PrivateInternationalLaw/
3. https://books.google.co.uk/books?
id=zfZ4AAAAQBAJ&pg=PA20&lpg=PA20&dq=elements+of+evidence+in+
private+international+law&source=bl&ots=m1H5vqgSa0&sig=saYsq4ci2t
EiOXq4hLqcw7Yiv4&hl=en&sa=X&ved=0ahUKEwjAour9qd7JAhVDDQ8KHRnkC
fM4ChDoAQgbMAA#v=onepage&q=elements%20of%20evidence%20in
%20private%20international%20law&f=false
4. http://www.duhaime.org/LegalDictionary/C/ConflictofLaws.aspx