Project Title

CONTRACTS RELATING TO IMMOVABLES

Concept British South Africa Co v

Historical developments Companhia de
What is the Conflict ? Mozambique
Lex loci rei situs ? Related case laws ([1893] AC 602)
What is best? Any reccomondations ?
Any 2019 cases that change the scenario of lex loci rei situs
What ought to be best?
Conclusion

Whether the courts have jurisdiction to entertain an action for the

determination of the title, or the right to possession of land (including
buildings etc on the land) outside the State ?

where the Supreme Court of New South Wales held that the courts does not
have jurisdiction to entertain such cases and also has no jurisdiction to hear
an action for damages for trespass to land outside the State. This principle is
generally known as “the Mozambique rule”.
• The traditional rule - Lex Loci Rei Sitae
• Termination or breach of a contract relating to land or property that
effect the validity of a contract for the sale of property or land - law of
the place where the contract is performed or made.
• During 12th and 13th century - the jury both in civil and criminal
matters performed a role more as witnesses than as judges.
• However, at the end of 13th and 14th century this rule caused a little
inconvenience, especially when the facts alleged occurred partly in one
locality and partly in another.
• By the 16th century the role of the jury - the matter had a necessary
connection with a particular place, that locality was the venue of the
action. If the matter had arisen outside England, no jury could be
summoned to try the facts in issue and hence the matter could not be
heard.
• The rule established in the case of Mozambique is one of a set of
principles of private international law that operate to exclude a court
from exercising jurisdiction in an action, even though the court has
otherwise acquired jurisdiction over the defendant.
 In England,
House of Lords was invited in
Hesperides Hotels Ltd v Aegean Turkish
Holidays Ltd [1979] AC 508.
either to overrule its earlier decision in the
Mozambique case or at least not to apply it
where there was no dispute as to title to
foreign land, and no real dispute as to the
right to its possession.
The House, however, declined that
invitation and held in what might be
regarded as an extention to the
Mozambique rule that the rule applied
even when as occurred in the case, the
plaintiff’s claim was for damages for a
conspiracy (entered into in England) to
effect or to procure trespass to land in
Cyprus.
Subsequently the United Kingdom
Parliament abrogated the effect of the
Hesperides Hotels case, and restricted the
rule of non-jurisdiction to those matters in
which the principal issue is the right to
possession of, or title to, foreign land, by
the enactment of s30 of the Civil.
Jurisdiction and Judgements Act 1982.”
US
Position Same Australia, US courts Decline to take
jurisdiction not only in affecting title to land in
another State, but also in respect of damage done to
land situated.
However, under the pressure of consistent
academic and other extra-judicial opinion -rule
similar to that achieved by legislation in England,
in which matters of title to or possession of foreign
land are the only ones regarded as not justifiable.
The first settlers in the then American colonies
brought with them the common law of England,
including the distinction, for jurisdictional
purposes, between local and transitory actions
Thus, in 1811, some 80 years before the House of
Lords handed down its decision in the
Mozambique case, the United States Circuit Court
for the District of Virginia delivered an equally
seminal judgment in Livingston v Jefferson. It was
held that the court had no jurisdiction to hear an
action for trespass alleged to have been committed
outside.
That decision was regarded as formulating the law
for State as well as Federal Courts, and applying to
any action which was local in nature, despite the
fact that the plaintiff’s right to possession of the
land in question was not in dispute.
 Australia
Mozambique case–accepted-High Court, in
Commonwealth v Woodhill (1917) 23 CLR
482.
as part of the common law in this country.
It would appear that the decision in
Woodhill’s case has clarified for Australia a
matter, which was in some doubt in
England prior to the statutory amendments
made there in 1982.
The opinion had been expressed, both by
judges and academic writers in England,
that the Mozambique rule precluded the
court from adjudicating on actions not only
for, trespass to foreign land , but also for
other torts, such as nuisance, negligence
and the rule in Ryland’s v Fletcher (1868)
LR 3 HL 330.
It is a reasonable inference from Woodhill’s
case that a court in Australia does not have
jurisdiction to hear any matter which is
necessarily connected with a particular
locality beyond its State or Territorial
boundaries.
Brussels I Regulation
Although claims involving immovable property are
mostly liable to be civil or commercial, with jurisdiction
simply following the rules of the Brussels I Regulation, it
is justifiable to look separately at jurisdiction at this
point.
1. Issue land in question is in another Member State,
Article 22(1) means that an English court will lack
jurisdiction
2. Issue where the land is in a non-Member State but the
court has personal jurisdiction over the defendant under,
Article 2, of the Regulation.
It can be argued that it is bound to adjudicate, and that it
may not look back to its common law rules of
jurisdiction, for a justification for not adjudicating; the
application of Article 22(1) by analogy or reflexive effect
is yet to be confirmed.
3. issue arises when the court is exercising residual
jurisdiction in accordance with Article 4 of the Brussels I
Regulation. At this point the common law rules of
jurisdiction will be used; and it is instructive for various
reasons to consider them in a little detail.
The common law held that an English court has no
jurisdiction to determine questions of title to immovable
property situated outside England, and had no
jurisdiction to entertain tort claims.
 CASE LAWS:
The British South Africa Company Vs The Companhia De Moçambique and Ors [1893] A.C. 602
LORD HERSCHELL L.C, LORD HALSBURY, LORD MACNAGHTEN, LORD MORRIS.
Facts: Appellant Contentions: Respondent Contentions: Issue: Reasoning: Held:
Sankaran Govindan v Lakshmi Bharathi and Others AIR 1974 SC 1764
Justice Mathew, and Justice Kuttyil Kurien
Facts: Appellant Contentions: Respondent Contentions: Issue: Ratio: Held
William W. Jones v Henry C. Tucker (1916) 53 S.C.R. 431
Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
Facts: Issue: Reasoning: Held:
Labh Singh Vs Chief Settlement Commissioner AIR 1959 P H 575
Dua, Justice
Facts: Issue: Contentions petitioner: Respondent Contentions: Held: Reasoning

LITERATURE/ARTICLE REVIEW
Title: CONFLICTS IN THE CATHEDRAL: TOWARDS A THEORY OF PROPERTY RIGHTS
IN PRIVATE INTERNATIONAL LAW Author Name: Michael J. Whincop

Title: THE GLOBAL RIGHT TO PROPERTY Author Name: John G. Sprankling

Title: MANDATORY RULES IN CIVIL LITIGATION: STATUS OF THE DOCTRINE

POST-GLOBALIZATION Author Name: Hannah Buxbaum