INTERNATIONAL CONFERENCE ON ENFORCEMENT OF CIVIL CASE JUDGMENT IN THE CONTEXT OF DYNAMIC REGIONAL ECONOMIC INTEGRATION 26-29 JULY 2015, BANGKOK THAILAND Introduction COUNTRY REPORT BRUNEI DARUSSALAM Brunei Darussalam, a former British Protectorate, originally adopted the British Legal System handed over from the former British administration but now runs a parallel legal system encompassing the Civil Courts and the Syariah Courts. The Courts structure of Brunei Darussalam comprise of the Court of Appeal, High Court, the Intermediate Court, the Magistrates Court, the Juvenile Court and the Small Claims Tribunal. All courts hear both criminal and civil cases. There is no jury system in Brunei and a Judge or Magistrate sits alone to hear a case except for capital punishment cases where two High Court Judges will sit. Any appeals from the Magistrates' Courts will be heard before the High Court. Any appeals of the decisions of the Intermediate Court and the High Court will be heard before the Court of Appeal. However appeals on civil cases can also heard before the Judicial Committee of Her Majesty's Privy Council in London if all parties agree to do so before the hearing of the appeal in the Brunei Court of Appeal. The Laws and Regulations Governing Civil Judgment The main legislations governing Civil Judgment: (a) Subordinate Courts Act, Cap. 6 (b) Intermediate Courts Act, Cap 162 (c) Supreme Court Act. Cap.5 (d) Supreme Court Appeals to Privy Council Act Cap. 158 (e) Debtors Act Cap. 195 (f) Distress Act Cap 199 (g) Evidence Act Cap 108 (h) Reciprocal Enforcement of Foreign Judgments Act Cap 177 (i) Specific Relief Act Cap 109 (j) Arbitration Act (k) Companies Act Cap 39 (in relation to winding-up) 1
The main legislations governing Syariah Court procedures are: (a) Syariah Courts Civil Procedure Order 2005 (b) Syariah Courts Evidence Order 2001 (c) Syariah Penal Code Order 2013 The mainstay of the Syariah Courts are family matters and syariah penal offences. Whereas the Civil Courts are more active in enforcement of judgments in relation to torts and contracts. National Enforcement System and Procedures Pre-judgment Attachment Procedures Under the Debtors Act, the Plaintiff may apply various modes before judgment in order to protect his interest and ensure that the defendant pays the judgment that may be entered in the proceedings. The various modes of pre-judgment attachment provided in the Debtors Act are as follows:- (i) Arrest of Defendant before Judgment The Plaintiff may apply to Court at any stage of any action, to arrest the defendant and bring him before the court or a judge to show cause why he should not furnish security for his appearance 1. The Plaintiff must satisfies the court or a judge by evidence upon oath that; plaintiff has good cause of action against the defendant; The defendant intents to; Prejudice the plaintiff; or Avoid any process of court; or Delay the execution of any judgment that may be made against him; The defendant has absconded or left Brunei Darussalam Is about to abscond or leave Brunei Darussalam; or Has disposed of or removed from Brunei Darussalam his property or any part thereof, If the defendant furnishes security sufficient to cover the claim then he will be released. If the defendant fail to show cause, the court or judge shall, a) order the defendant either to deposit, in court, money or other property sufficient to answer the claim against him or b) to furnish security for his appearance at any time when called upon while the action is pending and until satisfaction of any order that may be made against him in the action; or 1 Section 13 Debtors Act 2
c) Make such order as it or he thinks fit with regard to any sum which may have been paid by the defendant under the proviso to subsection (1). (ii) Seizure of Property before Judgment The plaintiff may apply to seize the debtor s property before judgment 2. The Plaintiff must satisfies the court or a judge by evidence upon oath that; The plaintiff has good cause of action against the defendant; the defendant is absent from Brunei Darussalam and his whereabouts cannot be discovered; service of the writ of summons or summons cannot without great delay or difficulty be effected; or the defendant, with intent to obstruct or delay the execution of any judgment which has been or may be made against him, has removed, is about to remove, has concealed, is concealing, making away with, or handing over to any other person, any of his movable or immovable property, Post - Judgment Enforcement Modes The principal methods of enforcement of judgment debts or the carrying out of orders of the Court in Brunei Darussalam are by: (i) Writ of Seizure and Sale/ Attachment and Sale of Movable Property 3 Movable property A writ of seizure and sale authorizes the bailiff to seize and sell movable property belonging to the Judgment Debtor, with a view to auctioning them off. The proceeds of the auction will go towards paying the judgment debt. The Judgement Creditor may apply to seize and sell the Judgment Debtor's movable property by filing a Writ of Seizure and Sale in the Intermediate Court or Warrant of Attachment in Magistrates Court. Once the Writ of Seizure and Sale is issued, the Court Sheriff/ Bailiff will fix a date to seize the movable property at the location described in the Writ of Seizure and Sale. On the fixed date, the Sheriff will go to the location with the plaintiff and seized the goods. The Sheriff create an inventory list for all the property inside the property 4, and those properties under the list will be auctioned. Prior to the auction, a notice of the auction will be posted at the location and advertised in the newspaper. Any person (third party) claims 2 S. 17 Debtors Act 3 Or 47 Rules of the Supreme Court; R.10 Magistrates Courts (Execution Proceedings) Rules 4 Or 45 r7 Rules of the Supreme Court 3
that the goods seized belong to him and not to the judgment debtor, may apply to the court for relief by way of interpleader 5 ; Until ownership is determined, the goods cannot be sold Immovable property. The Judgment Debtor may apply an order (also called prohibitory order) to seize the Judgment Debtor immovable property. The order will prohibit the judgment debtor from transferring, charging or leasing the property. A copy of such order shall be served to both judgment creditor and debtor for registration at the Land Office. The order shall only have affect after the order has been registered. The order is effective for a period of 2 years and may be extended on special circumstances. Order 47 r7 Rules of Supreme Court provides that there shall be no sale until the expiration of 14 days from the registration of prohibitory order. The particulars and condition of sale shall be drawn up by sheriff or by the judgment debtor s; and must be submitted for the approval of the Judge. At least two clear days, a notice in writing of an appointment to obtain the approval of the Judge must be served on the judgment creditor and debtor unless the Judge shall in any case otherwise order. The judgment debtor may apply to postpone the sale in order that he may raise amount leviable under the writ by charge or lease. The judge may postpone the sale if he is satisfied that there is reasonable ground to do so. (ii) Examination of Judgment Debtor 6 Examination of Defendant and Order to Make Payment is a court order requiring the Judgment Debtor to attend before the court and be orally examined his/her financial means and ability to pay the judgment debt. The court may also order the Judgment Debtor to produce any books or documents in his possession that is relevant for the purposes of examination. The Judgment Creditor may apply in the Intermediate Court/ High Court for an order for examination of Judgment Debtor by way of ex-parte Summons in Chambers ( SIC ) supported by an affidavit verifying that the judgment debt has not been satisfied. In the Magistrates Court, the Judgment Creditor may apply by filing the Judgment Debtor Summons. The order or summons (fixed with a hearing date) will be served on the Judgment Debtor personally. At the hearing for examination, if the Judgment Debtor is present, the Court may make an order directing the Judgment Debtor to pay a stated monthly sum. A Warrant of Arrest may be issued against the Judgment Debtor if he fails to appear despite being served a summons to appear 5 Or.17 Rules of the Supreme Court 6 Or.48 Rules of the Supreme Court; r. 6 Magistrates Courts (Execution Proceedings) Rules 4
(iii) Garnishee Proceedings (Order 49 RSC/ Rule 17 MCEPR) Where a third party owes money to the Judgment Debtor, a garnishee proceeding can be taken out so that the third party (garnishee) must pay the money to the Judgment Creditor instead of the Judgment Debtor. This is known as a garnishee order nisi 7. The Judgment Creditor may apply in the Intermediate Court/ High Court for a garnishee order by way of ex-parte SIC supported by an affidavit; identifying the judgment or order to be enforced and stating the amount remaining unpaid under the time of the application; and that the 3rd party is within the jurisdiction and the 3rd party owes money to the judgment debtor. The Court will then grant order to show cause against the 3rd party and require their attendance. In the Magistrates Court, the Judgment Creditor may apply a garnishee order by way of exparte and on a payment of a fee of B$10.00 A garnishee order must at first be an order nisi; an order directed to the garnishee instructing him to show cause (to give any reasons to object the application) why the debt claimed to be due or accruing from him to the judgment debtor should not be utilized to satisfy the judgment debt and the costs of the garnishee proceedings. The order to show cause specifies the time and place for further consideration of the matter and must be served; on the garnishee and the judgment debtor at least 7 days before the day appointed for the further consideration of the matter (day of hearing); and unless the Court otherwise directs, on the judgment debtor. Service of the order will have the effect of freezing monies held by the 3rd party which are payable to the defendant. At the show cause hearing date if the garnishee does not attend the court hearing or does not dispute the debt due or claimed to be due from him to the judgment debtor, then the Court may grant order absolute (finalized order) against the garnishee. The order absolute will direct the garnishee to pay the amount specified in the garnishee order to the judgment creditor If the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the court may have to examine the questions at issue in order to determine the liability of the garnishee. 7 ORDER NISI. A conditional order which is to be confirmed unless something be done, which has been required, by a time specified. Eden. Inj. 122, A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. 5
(iv) Bankruptcy 8 A Judgment Creditor may commence bankruptcy proceedings against the Judgment Debtor if the judgment debt owed is B$10,000.00 or more 9. An individual judgment debtor can also take out a petition to make himself/herself a bankrupt. To commence a bankruptcy proceeding against the Judgment Debtor, the Judgment Creditor must first file and serve a Bankruptcy Notice 10. Upon the expiry of 7 days after the service of the Bankruptcy Notice on the defendant, if the Judgment Debtor fails to make any payment to the Judgment debt then the Judgment Creditor may then proceed to file a creditor's petition and serve it in the same manner as a writ of summons. The Court will therefore fix a hearing date for the Creditor s Petition. On the hearing date if the defendant is unable pay the debt or there is no settlement reached, then a Receiving Order will be granted by the court. Upon obtaining the Receiving Order, The Official Receiver (OR) will convene a creditors meeting. The OR will ascertain whether a settlement agreement can be reached by examining the financial means of the defendant; and may directing him to make a monthly payment If the creditors are not satisfied with the proposal for settlement, they may decide by way of ordinary resolution to proceed for Adjudication Order against the defendant. Upon granting of the adjudication order, the judgment debtor becomes bankrupt and the assets of the bankrupt will vest in the Official Receiver. Subsequently, the Official Receiver will decide how to proceed for the recovery of the debt based on the financial means of the defendant. (v) Winding-Up of Incorporated Companies A Judgment Creditor may commence winding-up action against an incorporated company if the judgment debt owed is B$10,000.00 or more 11. Before commencing a winding-up action against an incorporated company, the judgement creditor should serve on the company a statutory demand requiring the company to pay the judgment sum by leaving it at the registered office of the company (unless the said requirement is waived by the company). The company is given three (3) weeks to comply with the statutory demand. If the company fail to pay or reach a settlement after the 8 S.6(1)(a) Bankruptcy Act (Cap. 67) 9 Bankruptcy Act (Amendment) Order, 2012 10 S.3(1)(g) Bankruptcy Act (Cap. 67) 11 S.163 Companies Act (Cap. 39); (Companies (Amendment) Order 2001 6
expiration of the three (3) weeks' notice, the creditor is entitled to petition the court to wind up the debtor company 12. A petition with an affidavit in support may be presented to Court to wind-up the company. The notice of petition has to be advertised in the local newspapers and Government gazette before the hearing date. The petitioner may apply to the court to appoint an Official Receiver to act as provisional liquidator of the debtor company 13.The debtor company will not be able to deal with its assets freely since the winding-up of the company is deemed to have commenced from the time petition is presented in Court. On the hearing of the winding-up petition, the court may dismiss it, or adjourn the grant or dismiss the order, adjourned the proceedings, make interim orders or any other order that it think fit. Upon winding-up, the authority of managing all matters relating to the company will be transferred from the directors or shareholders of the company to the Official Receiver or a privately appointed liquidator. The company will have no power to transfer the ownership of its assets and the company s account will be freeze by the banks. (vi) Charging Orders 14 A charging order is available only when the defendant has a legal/beneficial interest in shares, debentures or debenture stocks in any company registered under any written law, or government stock. The creditor may apply to charge shares in an incorporated company held by Judgement Debtor, for the purpose of selling the shares and paying the judgment debt. The charging order, when issued by the court would effectively bars the Judgement Debtor from making a sale or any major transaction that will affect the state of their assets. This procedure is only available in the Intermediate Court/ High Court. The judgment creditor may apply for a charging order by filing an ex parte by summons supported by an affidavit showing, the judgment or order to be enforced, the unpaid amount, that the applicant is entitled to enforce the judgment; and the debtor's interest in the shares that are sought to be charged 15. The charging order at the first instance be an order to show cause, specifying time and place for further consideration of the matter and will be served on all relevant parties 16. At the show cause hearing if no sufficient grounds are raised to resist the charge, then order absolute with or without modification will be granted by the Court 17. The effect of granting of the order absolute, the shares will be charged and no dealings in the shares are allowed 18. 12 S.163 Companies Act (Cap. 39 13 (Section 174 Companies Act (Cap. 39) 14 Or.50 Rules of the Supreme Court 15 Or.50 r.3 Rules of the Supreme Court 16 Or.50 r.2 Rules of the Supreme Court 17 Ibid 18 Or.50 r.5 Rules of the Supreme Court 7
In order to enforce the charging order and sell the shares, a fresh action must be file by originating summons 19. (vii) Arrest of the Defendant 20 Section 3 of the Debtor Act Cap 195 provides that where a person (or in the case of a company, any of its officers) fail to satisfy whole or part of a judgment or order, the Judgement Creditor may apply for the arrest and examination before the Court. If it appears to the court that there is reason to believe that the defendant is likely to leave the country with the intention to avoid paying the judgment debt or examination of his affairs, the Court may order for the arrest of the defendant and examine his affairs. (viii) Committal Proceedings 21 Order of Committal is a method of enforcing judgment by obtaining an order that a person be committed to prison. It is usually sought when the person has committed contempt of the Court such as disobedience of an order of the court. A judgment creditor may apply in court for a committal order to enforce an order for the payment of debt. However, enforcement of judgment by order of committal in Brunei Darussalam is rare. The court are usually reluctant to grant an order for committal unless in cases where the Judgment debtor has the means to pay and satisfy the Judgment debt but had flagrantly and repeatedly refused or neglects to do so. The Judgment Creditor must deposits in Court the sum of $600.00 as a subsistence allowance for the maintenance of the judgment debtor in prison. A judgment debtor shall not be committed to prison on more than one occasion in respect of the same judgment debt and the period of detention in prison as a civil prisoner shall not exceed 30 days. However, the detention shall not extinguish the judgment debt. Reciprocal enforcement of foreign judgments and foreign maintenance orders Brunei Darussalam also has in force a Maintenance Orders Reciprocal Enforcement Act (CAP 175 of the Laws of Brunei) and a Reciprocal Enforcement of Foreign Judgments Act.(CAP 176 of the Laws of Brunei) (i) Maintenance Orders Reciprocal Enforcement Act Maintenance orders are those that provide for the periodical payment of money towards the maintenance of any persons the person paying is liable to maintain. The Maintenance Orders Act provides for maintenance order made by the Brunei courts to be enforced in 19 Or.50 r.9a Rules of the Supreme Court 20 Or.50 Rules of the Supreme Court 21 Or.52 Rules of the Supreme Court; R14 Magistrates Courts (Execution Proceedings) Rules 8
reciprocating countries listed in the Schedule. It also provides for any maintenance orders made by reciprocating countries listed in the Schedule to be enforce in Brunei Darussalam The reciprocating countries listed in the Schedule are Malaysia, Singapore, Australia and Hong Kong Special Administrative Region of the People s Republic of China. 22 (ii) Reciprocal Enforcement of Foreign Judgments Act The Reciprocal Enforcement of Foreign Judgments Act 1996 (Revised Edition 2000) (CAP 177) enable foreign judgments or order made by the courts in the reciprocating countries listed in the Schedule to be enforce in Brunei Darussalam. The Act also provides for judgment or order made by the Brunei courts to be enforced in reciprocating countries listed in the Schedule. Judgment means; a judgment or order given or made by a court in any civil proceedings; judgment in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; and an award in proceedings on arbitration 23. A foreign judgment has to be registered before it can be enforceable in Brunei Darussalam. It can only be registered if the foreign judgment is for a monetary sum and was given by a Superior Court from a country listed in the Schedule. The reciprocating countries listed in the Schedule are Malaysia and Singapore. If the foreign judgment is not from a country listed in Schedule, then the only method of enforcement at common law is by securing a judgment from a Brunei Court. This involves suing on the judgment in the local courts as an action in debt. Arbitration Awards On 25th July 2009, Brunei Darussalam acceded to the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958) and subsequently entered into force on 23 October 1996. Brunei has exercised the reciprocity reservation and will only enforce arbitration awards from other New York Convention states 24. In July 2009 the Arbitration Order 2009 ( AO ) and the International Arbitration Order 2009 ( IAO ) was enacted. The Orders regulate respectively, domestic and international arbitration in Brunei. With the commencement of the Arbitration Order and the International Arbitration Order in February 2010, the Arbitration Act 1994 was repealed 25. 22 Malaysia, Singapore, Maintenance Orders Reciprocal Enforcement Order; Australia and Hong Kong Special Administrative Region of the People s Republic of China,, Maintenance Orders Reciprocal Enforcement Notification, 2002 23 Section 2 of the Reciprocal Enforcement of Foreign Judgments Act 24 http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/nyconvention_status.html 25 Repealed by Arbitration Order, 2009, s.67; Notification of date of commencement [sec.1(1) s18/10 9
To enforce a domestic or foreign arbitration award, an application for leave to enforce the award may be made ex parte. However, the court hearing the application may require an inter partes summons to be issued; the summons must be by originating summons supported by affidavit (Supreme Court Rules, Order 69, rules 6 and 7 respectively). Recent Development/Innovations in Enforcement of Civil Judgments Judiciary Case Management System (JCMS) The Judiciary Case Management System (JCMS) was officially launched and implemented on the 23 March 2015, during the opening of the Brunei's Legal Year 2015. It is an electronic management system implemented by the State Judiciary Department for the Civil Courts in all four districts. The objective of the system; To further enhance productivity, efficiency and effectiveness of court management nationwide; To maximize human resources; To improve public and legal services; To enhance accessibility to court for the general public, relevant government institutions and legal community; To provide an efficient, effective and systematic way to manage court resources; To enhance connectivity amongst the civil courts all over the country The features of the system include an online filing of court documents, file searches and retrieval of documents, case scheduling and court planners, case file tracking, a centralised database, self-service kiosks, attendance registration and a yet-to-be implemented SMS notification. The system will reduce, to a large extent, the use of paper in the courts, saving not only trees but also physical space to store paper and physical effort in transporting physical files within the courts. The JCMS consists of an e-filing System, Case Management System, and Queue Management System. (i) E Filing System The E-Filing is an electronic filing system designed to serve public users and legal practitioners in the electronic filing of court documents. It is designed to serve as a one-stop portal for the legal community. The benefits of e-filing are: Concurrent access to case documents, 24 Hours, 7 days a week. Interactive alerts, notifications & e-mails. Cost-effective storage of files in digital format. Options of submitting from anywhere; no more queues. Achieve greater automation & end-to-end computerisation of court processes. Improve efficiency in management & administration of court related matters. 10
Eliminate incidences of missing files. Allows counsel to file court document from anywhere; without queuing. The system is intended to cover civil and criminal litigation, bankruptcy, probate and marriage processes in both the Supreme Court and Subordinate Court. It is expected to be an electronic network connecting all civil courts nationwide. It will provide court users and law firms with an integrated platform for the filing of court documents. It will also enable active management of case files throughout the litigation process. Previously lawyers have to call the registrar for the status of their case filing. Now the e- Filing portal will send notification of any case filing status to the lawyers' email immediately upon successful registration in the e-filing System. Government agencies and registered law firms can log into the e-filing online portal 26 and gain access to all its needs ranging from registration of cases, filing of case documents, retrieval of service document right down to searching of case files and information including case schedules. Members of the public can use the e-filing website to download or extract signed documents only. To file a case, members of the public may go to the Service Bureau Counter. The court will then send an e-mail notification for the document to be extracted to download the document, prompting users to proceed to the e-filing website and enter the extraction code number provided in the e-mail to download the document. (See ANNEX 1) (ii) The Case Management System The Case Management System is a computerised court operations from end-to-end, continues off from the Electronic Filing System (EFS) by tracking case information from the aforementioned pre-registration. The system is for the internal use of the Judiciary only and allows for the assignment of cases and management of hearing schedules for Judges and Judicial Officers. This functions of the system among others, are assignment of cases, hearing schedules, retrieval of documents, searches for information on court cases, record of case notes and judicial decisions. Upon disposal of cases, the system also facilitates archiving, record keeping and search purposes as well as auto-generated statistics. The services provided are as follows: Registration of new cases; End to end Case Management; Auto-generate Case Number; Case Scheduling & Court Planners; Retrieval of Documents; Case File Tracking; Case Notes Recording; 26 http://efiling.judiciary.gov.bn 11
Alerts & Statistics; Centralised Database (iii) The Queue Management System The Queue Management System allows members of the public and legal practitioners to obtain up-to-date hearing lists, status of cases and other court schedules via kiosks which are located in selected Court buildings. The interactive kiosks provides an orderly queue system. The services provided are as follows: Self-service kiosks Attendance Registration SMS Notification (yet to be implemented) Conclusion These are the main avenues of enforcement in relation to the Civil Courts Procedures and further development of Syariah Court procedures are in the pipeline to expand the scope of the Syariah Courts. The Courts also constantly review with a view of updating the existing procedures to streamline enforcement processes and delivery of its services. The judiciary also participates in regional and international judicial training, workshops and conferences in order to keep up to date with latest trends and procedures. Prepared by: Ahmad Nizam Ismail Nicholas Brian Lim Kong Yin 12
See ANNEX 1 (a) Online Submission 13
(b) Service Bureau 14