In Malaysia, a foreign judgment cannot be directly enforced and must be first recognized by a Malaysian court. In instances where a foreign judgment is obtained in countries stipulated under the First Schedule of Reciprocal Enforcement of Judgment Act 1958 (REJA) (“reciprocating country”), the judgment creditor may commence enforcement proceeding by first registering the same under section 4(1) of REJA. The judgment must be for a fixed sum, final and conclusive, and issued by a foreign court with competent jurisdiction. The Court may set aside registration of the foreign judgment for various grounds such as lack of jurisdiction, fraud or contrary to public policy in Malaysia. Upon successful registration, the foreign judgment will have the same force and effect as a Malaysian judgment. On the other hand, foreign judgments obtained in countries outside of REJA may still be enforced in Malaysia but by way of common law action. This is because an unsatisfied foreign judgment is actionable per se.
The Federal Court in the case of Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd  2 MLJ 324 has discussed on the need to discharge burden of proof under the Evidence Act 1950.
In March 2015, the Respondent had obtained a judgment in default in the sum of AED20,718,958.25 against the Appellants in Abu Dhabi’s Court of First Instance (Commercial). Since United Arab Emirates (UAE) was not a reciprocating country under REJA, the Respondent commenced common law action in the High Court here for enforcement of the Abu Dhabi judgment.
In High Court, the Respondent has tendered English translations of the Abu Dhabi judgment which was entirely in the Arabic script but did not annex its original or certified true copy. The Respondent’s claims were allowed and subsequently affirmed by the Court of Appeal. Nonetheless, the Appellant was granted leave to appeal and the Federal Court in allowing the appeal proper, answered in negative for the following questions of law:-
- a) Whether a foreign judgment is enforceable by a common law action in Malaysia (where the foreign country is not a reciprocating country) if the judgment is not proved as a foreign judgment or order in accordance with the Evidence Act 1950 (EA1950)?
- b) In a common law action to enforce a foreign judgment, without the foreign judgment being proved in accordance with Chapter V of the EA 1950, whether there is a sustainable cause of action for other evidence to be admitted and weighed?
The Federal Court highlighted the importance of fulfilling the requirements under the EA 1950 to support the enforcement of foreign judgments. Additionally, any inconsistencies or discrepancies can undermine the credibility of the evidence and lead to an unsuccessful enforcement. This is especially important for foreign judgments obtained in non-reciprocating countries.
The Need to Discharge Burden of Proof under EA 1950: No Exception
In this case, the Respondent tendered a copy of the Abu Dhabi judgment, which comes in various translations, discrepancies, and also did not comply with the certification requirements. The Federal Court had highlighted that the need of tendering the original Abu Dhabi judgment (primary evidence) in accordance with Section 62 or a copy of the same (secondary evidence) in accordance with Section 78 and 86 of EA 1950. The Respondent’s failure to sufficiently prove the Abu Dhabi judgment has rendered its claim unproven and warrants a dismissal on this reason alone.
The Federal Court also emphasised that inadmissible evidence is inadmissible, even though the parties did not raise any objections. Even if such evidence was erroneously allowed to be admitted, as they were in the earlier Courts, it remains inadmissible because it does not meet the requirements set out in the Evidence Act 1950. The admission of a translation of the foreign judgment does not automatically mean that the original judgment is admissible, especially if it has not been certified, verified or authenticated. In addition, the testimony of a witness cannot replace primary evidence, especially when it comes to critical documents such as a court judgment.
This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
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Lum Man Chan
Dispute Resolution, Employment, Liquidation & Restructuring, Regulatory & Corporate Compliance
Halim Hong & Quek