Conflict 1 Notes

LUDWIG QUAYE #YOUMATTER
Private international law is the law that comes in operation whenever the court is faced with a claim that contains a foreign
element. Foreign here is a term of art i.e. it is used in a special sense. Foreign element or fact is any fact that one of the parties
is not familiar with. This means that there can be external and internal foreign of law issue. Its main objects is to determine the
jurisdiction of the court, the choice of law and recognition and enforcement of foreign judgment. For the purposes of PIL, foreign
system of law means a distinctive legal system prevailing in a territory other than that in which the court functions.
Domicile
Domicile is the personal law. The law of your person accompanies you wherever you go. It is especially important in determining
the choice of law rules that the court would apply in resolving an issue. It is also a basis of jurisdiction in matrimonial causes-s31
and also in service of a writ abroad.
How is domicile determined?
In Ghana it is determined by the lex fori (law of the forum) which is the place the individual finds himself- OMANE V POKU
Domicile of birth/origin-
It is settled principle that nobody shall be without a domicile and in order to make this effective the law assigns a domicile of
origin to every person at his birth. A child acquires the domicile of the father at birth if legitimate and the domicile of the mother
at birth if illegitimate and for a foundling the place where he was found. In IN RE ASANTE, for purposes of succession there is Commented [sq1]: UDNY V UDNY
no division between legitimacy and illegitimacy. Also seen in PNDCL111. A person cannot have two domiciles-STEVENSON V
MASON
An Englishman having taken up his residence in Hamburg with the intention of settling there for good remained there till his
death. He came to England and made a will in which he declared that though he intended to remain in Hamburg, it was not his
intention to renounce his domicile. Held- this suggested a desire to have two simultaneous domiciles and that it could not nullify
the consequences of having in fact acquired a German domicile.
Domicile or origin can only be extinguished by an act of law, sentence of death or exile for life but not by will- Commented [sq2]: UDNY V UDNY
Domicile of choice- it means that there is a change of origin at a point in life. This can be done at the age of 21. Two requirement
must be met: residence (act of physical occupation), animus manendi (an intention to remain in that country permanently-
must be backed by overt acts such as selling of property). This must be proved with strict evidence. Residence in a country for
purposes of the law of domicile is physical presence in that country as an inhabitant of it. In UDNY V UDNY, Lord Westbury
described the intention as being one to reside for an unlimited time.
One colonel Udny was born in Aberdeen and a Scottish domicile of origin. He later relocated to London where he stayed for over
32 years though occasionally paying visits to Aberdeen. He again relocated to Boulogne, France where he stayed for 9 years till
Commented [sq3]: The deceased was born in Germany to
his wife died. There too he occasionally visited Scotland. He remained in Boulogne but had a son with the wife prior to the
German parents. He went to England to study and later to
marriage. Issue was whether the son was legitimate. Held- colonel Udny held a Scottish domicile of origin. When he settled and Canada where he obtained Canadian nationality. He again
married in London and acquired property there by implication he acquired an England domicile. However his domicile of origin relocated in London where he resided as well as Germany till
kicked in when he moved to Boulogne and disposed of all his properties in England. his death. He had properties in Germany and London. Issues
arose as to who was entitled to his estate. Held- the domicile
of origin adheres and a domicile of choice is acquired if the
In RE FLUD’S STATE it was described as an intention to reside indefinitely. ABU-JAUDEH V ABU-JAUDEH,
individual has been resident in a territory with an intention
formed independently of external forces of residing
The parties were married at the deputy registrar’s office in Kumasi. 14 years later the husband instituted proceedings against
indefinitely. The deceased had a German domicile at the
his wife asking for a dissolution of their marriage on grounds of cruelty and adultery. The wife raised an issue of jurisdiction time of his death as he exhibited traits to his German roots.
alleging that he husband is not truly and sufficiently domiciles in Ghana to avail himself to the country’s matrimonial jurisdiction
in a suit for divorce. The plf husband arrived in Ghana over 20 years and has resided and worked here. He argues that is
sufficiently long enough to vest jurisdiction in the court. Held- the plf must show that he either has had his permanent home in
this country or must have had a clear intention to make permanent home within the territorial limits of the common law of this
county. On the evidence the plaintiff's residence was a residence of convenience for the signal object of his business and it was
not sufficient to confer jurisdiction upon the court.
DAVIS V RANDALL
Letters of administration was granted to the widow of the deceased and the registrar of the divisional court. The plf was the
eldest legitimate son of the deceased. The property was sold by the widow to the first def who then leased it to the second def.
the deceased had married a fanti woman under fanti customary law. He had frequently during his lifetime visited Sierra Leone.
He divorced first wife and married another in Sierra Leone. Held-the law applicable to succession to real property is the law of
the country where the property is situated-lex situs. The deceased never changed or lost his domicile as he still held ties with
Sierra Leone; succession would therefore be determined by his family as defined by his personal law
OMANE V POKU
The deceased was born in Ivory Coast. To avoid being conscripted into the world war he was brought to Ghana. He lived in Ghana
till he died interstate. He owned two cocoa farms and married two women under customary law. The plf was appointed
successor oh his estate by the landlord while the def claimed the farms were gifted to him in the presence of witnesses to repay
a kindness. The issue was whether Boakye was subject to the customary law of Ghana and if so which? Held-Boakye can
accurately be said to have become an Ashanti. He came into the country as a child, lived in Ashanti for 70 years, married in
Ashanti, adopted an Ashanti name and acquired property and died in Ashanti never once visiting his home in Ivory Coast.
Therefore his properties ought to devolve on his matrilineal family
Domicile of dependency-GRAY V FORMOSA. The common law position was that a woman adopts the domicile of the husband Commented [sq4]: The respondent a Maltese national
at marriage. In Ghana there have been judicial criticism of the rule-AMPONSAH V AMPONSAH, married the petitioner an Englishwoman in a registry office
in a registry office in England. At that time they were both
The petitioner was the wife of the respondent. The parties were Ghanaians by birth and had lived in America and acquired domiciled in England as the respondent expressed an
intention to stay in England permanently. At that time the
American citizenship. A preliminary objection to the jurisdiction of the court was raised by the respondent on the grounds that petitioner was pregnant with their third child, the
they had acquired American citizenship and that they were not subject to the matrimonial laws of Ghana. Currently they were respondent returned to Malta for holidays but he never
in Ghana merely to set up business and visit their elderly parents. The respondent alleges that properties solely owned by him returned. The petitioner applied and obtained an order from
the English Court for the respondent to maintain her. The
had their records in America and he would be put in a great expense and difficulty to procure them making it inequitable to hear
Maltese court did not enforce the order as they ruled that
the matter in Ghana. Held-whereas naturalization is a question of law. Domicile is a question of fact. Acquisition of new the respondent was now domiciled in Malta and that
citizenship does not change domicile. General matrimonial jurisdiction on a court where either party to the marriage is a citizen according to Maltese law the purported marriage was void
and so the children were illegitimate. Held-according to
of Ghana or domiciled in Ghana or has been ordinarily resident in Ghana for at least three years immediately preceding the
English law the marriage was valid and although English
proceedings. courts would recognize the decision of a foreign court
affecting person within its jurisdiction the English courts
S32 of the matrimonial causes act-For the sole purpose of determining jurisdiction under this Act, the domicile of a married retained discretion to refuse to recognize a decision which
woman shall be determined as if the woman was above the age of twenty-one and not married. However this rule does not offended English views of substantial justice
applies to children. For a child, that is someone less than 21 he acquires the domicile of his parents. Foundlings and mentally
deranged individuals are all dependents.
D'ETCHEGOYEN v. D'ETCHEGOYEN
The petitioner had been born in France of French parents. When he was ten years old his parents settled in England, and the
father subsequently obtained letters of naturalization as a British subject. The petitioner when eighteen years of age went to
Canada, where he took up the business of farming, bought a farm, served in the Canadian volunteers, and discharged the duties
of a citizen of Canada. In 1878 he married the respondent, who was a Canadian, and in 1883 he brought her with their children
to this country, where he resided for some years with his father. He had occasion to return several times to Canada, as he
alleged, to look after his farm, and from 1884 was only seven months in this country. The respondent remained in England until
the date of the alleged adultery, when she visited France. Held-The fact of the father acquiring an English domicil draws with it
the acquisition of an English domicil by the son, and those who assert that he changed it must shews facts leading to that
conclusion. The petitioner had not lost his English domicil as he did not intend to reside in Canada permanently.
Nationality
It is a connecting factor that could connect a case to a particular legal system. It can also determine the choice of law that the
courts would apply. This is especially so in matters of testamentary disposition.
Residence
The third connecting factor is residence. A person’s residence is where he lives. It is a question of fact. For the purpose of
statutory provisions in which it is found ‘ordinary residence’ appears to differ from ‘residence simpliciter’. Residence in a place Commented [sq5]: Re barnet;ex parte shah
with some degree of continuity and apart from accidental or temporary absence. A person can continue to be ordinarily resident The five applicants had lived in the UK for at least three years
while attending school or college. All five were subject to
in one country though he is actually resident on business elsewhere, especially if he continues to maintain a home in that
immigration control as the first four had entered UK as
country. students with limited leave after their studies and the fifth
had entered with his parents for settlement and had
Habitual residence must be understood in the natural and ordinary meaning of those words and is a question of fact to be indefinite leave to remain. After the studies the education
decided in the light of the circumstances of the case. Unlike domicile, it cannot be acquired in a single day, since ‘an appreciable council refused to award them grants and they sued for this
refusal. Held- the ordinary resident as a man’s abode in a
period of time and a settled intention to reside on a long-term basis ‘are necessary. The ‘settled intention’ need not be an particular place or country which he has adopted voluntarily
intention to stay in the country permanently or indefinitely. and for settled purpose as part of the regular order of his life
for the time being, whether of short or long period duration.
Like domicile, it is immediately lost by leaving a country with a settled intention not to return. Although in several cases, habitual In determining ordinary residence, the residence must be
residence has been said to differ not at all from ordinary residence, there are at least two differences between them. A person voluntarily adopted. It must be for a settled purpose
can have only one habitual residence but may have more than one ordinary residence at any one time. Whereas ordinary
residence can be acquired in a single day, habitual residence needs an appreciable period of time. Habitual residence differs
from domicile in several respects. It is not ascribed to a person at birth; the intention required for its acquisition is different
and a previous habitual residence does not revive on the abandonment of one which has been subsequently acquired. It is,
however, abandoned in the same way as domicile is abandoned. Therefore, a person can be without a habitual residence
Section 15(1) (d) of the wills act 1971 act 360-the residence here is not qualified. Section 31 of the matrimonial causes act 1971, Commented [sq6]: A will shall be deemed to be properly
act 367-this one is qualified. executed if its execution conformed to the internal law in
force in the territory where it was executed, or in the
territory where at the time of its execution or of the
testator's death, he was domiciled or had his habitual
• Celebration of marriage (lex loci celebrationis)-the law of the place where the marriage was celebrated would be residence or in a state of which he was a national at either of
those times.
applied. SUCHEBEL V UNGAR
Commented [sq7]: The Court shall have jurisdiction in
A Jewish husband and wife, domiciled in Hungary, married in Hungary. While they were immigrating to Israel, they found themselves proceedings under this Act where either party to the
in Italy and the husband divorced his wife by get. Under the laws of Hungary (their lex domicilii) and Italy, the religious form of divorce marriage
was invalid, but it was recognized as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife (a) Is a citizen, or
moved to Canada and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband (b) Is domiciled in Ghana, or
(c) Has been ordinarily resident in Ghana for at least three
petitioned for nullity alleging that the marriage was bigamous. Held- The manner of their coming to Israel was such as to justify a
years immediately preceding the Commencement of the
finding that immediately upon their arrival W and defendant acquired a domicil of choice in that country, where the dissolution of proceedings.
their marriage was recognised from the moment when the ‘‘gett’’ was delivered to defendant and where each of them therefore had
the status of a single person with full capacity to enter into a valid and binding contract of marriage. Defendant was theref ore free
to continue and did continue to be domiciled in Israel as an unmarried woman until the time of her marriage to plaintiff. Accordingly,
at the time of her marriage in Toronto defendant had the capacity to marry according to the law of the country where she was then
domiciled.
• The place where the contract is made

• Where the contract is performed, in the case of torts where the torts was committed.
• The place where the property is located
Companies
The personal law of a company is that of its domicile, which means the law of the place of its incorporation. To this it owes its
existence, and that law governs also its dissolution and its capacity to contract. The law of the place of incorporation dictates
who can sue (or cause it to sue) and be sued on its behalf, and governs the extent to which a member can be personally liable
for its debts. It also governs its status after an amalgamation.
The residence of a company, which is chiefly important for tax purposes, is determined not by the place of its incorporation, but
by where it’s central management and control’ is exercised- DE BEERS CONSOLIDATED MINES V. HOWE
A diamond company was incorporated in South Africa and had a head office there. A board of directors there handled day-to-
day administrative matters. Another board in London, which joined with that in South Africa in making major policy decisions,
in fact controlled them because most of the directors lived in London. Meetings of members and mining operations and sales of
diamonds took place in South Africa. Held- a company incorporated outside of UK can still ne resident in UK if its center of
control is located in the UK. That is where the seat and directing powers of the affairs of the company are located
Nationality of a company is determined by the law of the place of incorporation
Jurisdiction
Jurisdiction of the Ghanaian court in matters involving a foreign element. This involves situations in which the court would
exercise or decline jurisdiction. ‘Jurisdiction’ means the competence of the courts to hear and decide a case
• The first basis on which the Ghanaian courts would exercise jurisdiction is when the person is present in the area of
jurisdiction and has been served with court process. A defendant who is served with a court process in amenable within
the jurisdiction of Ghana- EDUSEI V DINERS CLUB SUISSE. Once present in Ghana no matter how fleeting the presence Commented [sq8]: The plf, a Swiss ltd liability company
is, Ghana can exercise jurisdiction over you. BARODA V WILDERSTEIN obtained a summary judgment against the def in the HC for
an amount being the outstanding cost of credit granted
The plf an Indian princess and resident in France with long links with England and other countries bought a painting from the facility granted to the def in Europe. The def appealed on
grounds that the contract took place in Zurich and that the
def. it was later found out that it was not as it was represented and so he plf issued a writ in England claiming against the def Ghanaian courts had no jurisdiction and the plf had no
rescission of contract, return of price and damages but it was not served on hi until 9 months later when he was fleetingly in capacity to bring the suit. Held- there was nothing in the
England. He contended that the proper forum for trial was France and his proposed witnesses to have the action tried in England. settlement that Zurich was intended and the exclusive forum
for the settlement of the dispute btn the parties. Besides by
Held- if the def is properly served with a writ while he is within this country on a short visit, the plf is prima facie entitled to
appearing unconditionally to the court the deft was deemed
continue the proceeding to the end. The court would not strike it out unless it comes within one of the acknowledged grounds to have waived any issue relating to the appropriateness of
such as it is vexatious or oppressive or otherwise an abuse of the process of the court. the forum.
TAFA AND CO GHANA LIMITED V TAFA AND CO
The plf company sued the defs, a foreign company for commission due to them for promoting the business of the def. the writ
of summons was served on the president-director. The def company entered appearance under protest and files an instant
application to dismiss the plf’ claim on the grounds that the action was not against the president-director personally but against
the def company. Held-the presence of a foreigner within the jurisdiction was sufficient for service of a writ of summon on him.
In the case of an artificial person such as the def company, the fact that it has been carrying business in this country gave the
court jurisdiction over it. The president had been carrying on business in the country on behalf of the company, it being under
his complete control, therefore service of the writ of summon on him was proper.
COLT INDUSTRIES V SARLIE
The plfs were incorporated in America and had their principle place of business in New York City. The def was a Dutchman by
origin and lived in Holland and elsewhere until he migrated to America and acquired an American domicile. He made a transitory
visit to London and was served with a writ by the plf. The def sought that the service of the writ be set aside on grounds that
the court had no jurisdiction to try the action. Held- there has been no fraud inducing the def to enter the country for the real
purpose of serving him with a writ. Jurisdiction as well founded although the def was a foreigner who was here merely casually.
• The second basis is residence. In an action in personam, residence of the defendant in the jurisdiction is a basis on which
a Ghanaian court can assume jurisdiction over him.
• Another basis is submission. An absent defendant may confer jurisdiction on the court by submission. This may arise
from express agreement or from conduct. A defendant who submits to the jurisdiction of a Ghanaian court confers
jurisdiction on it to hear the matter. A defendant who has been served with a court process and enters unconditional
appearance and does not move the court to stay proceedings submits to the jurisdiction of the court-MOUBARAK V
HOLLAND WEST AFRIKA LIJN Commented [sq9]: In a contract between the parties
there was a clause which stipulated that actions under the
contract will be brought before the court at Amsterdam and
no other court shall have jurisdiction unless the carrier
Service of writ abroad appeals to another jurisdiction or voluntarily submits
himself. The plf issued a writ against the def. the def did not
The writ itself is not served. The notice of the writ is what is served outside the jurisdiction. This is because at the back of the move for a stay of proceeding but filed a defense In which
writ there are arms and words to the effect that the person being served is commanded by a sovereign. Serving a writ itself they pleaded that the court had no jurisdiction. Held- the
parties agreement on another forum was to be treated as a
means you are interfering with the sovereignty of another country-GOHOHO V GUINEA PRESS LTD. PG 785. submission to arbitration. The defs ought to have moved for
a stay of proceeding before the date fixed for hearing.
Lord denning- the difference between service of writ itself and service of notice arose in the middle of the last century when it Instead they submitted to the order of pleadings and took a
was thought to be against the dignity of a country that another country should be allowed to serve a writ within it and so it was step in the proceedings by filing a defense, thereby waiving
provided as a matter of courtesy that the notice of the writ would be served. any objection to the jurisdiction of the court
O2r7(5):
No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave of the Court as provided in Order
8.
There first thing is filing an application for leave ex parte-LOKKO V LOKKO,
The plf-respondent issues a writ against the def-applicant. The def was not a resident in the jurisdiction and was out at the time
of the issue of the writ, the def applied to have the court set aside the writ as it was not properly issued under O2r4 as it was
issued without a leave of court. The plf contended that failure to obtain a leave was a mere irregularity which the def had waived
by entering an unconditional appearance and filing a defense. Held-The plf breach O2r4 by failing to obtain a leave of court is a
mandatory condition that touches at the very root of the writ. Where the plf intended to proceed against the def who is outside
the jurisdiction the plf must first obtain leave of the court before issuing a writ and serving notice of the writ outside the
jurisdiction
O8r2.
(2) Notwithstanding sub rule (1), notice of a writ as in Form 3 in the Schedule may be served out of the jurisdiction with leave
of the Court.
Leave is a permission from the court to stretch its power outside the jurisdiction. What if there are multiple defendants?-
SHIRLSTAR CONTAINER TRANSPORT LTD V KADAS SHIPPING COMPANY LTD-where some defendants reside within the Commented [sq10]: The plf filed an ex parte application
jurisdiction and some outside the jurisdiction it would be undesirable and strictly adhere to O2r7(5), so here the plf can issue a for leave to serve out of the jurisdiction a writ of summons
on the third, fourth and fifth defs who were residents of the
writ for the defendants within the jurisdiction and later obtain leave for the writ outside the jurisdiction. UK while the first and the second are residents of Ghana.
Counsel for the third, fourth and fifth entered conditional
What conditions do the court look out before granting the leave-O8r3-EBOE V EBOE appearance on their behalf and brought instant proceedings
to have the service of the writ of summons set aside. He
• if the whole subject-matter of the action begun by the writ is immovable property situate within the jurisdiction (with argued that the plf ought to have obtained prior leave of the
or without rents or profits) or the perpetuation of testimony relating to any such property; court before issuing out the writ of summons as provided by
• if an act, deed, will, contract, obligation or liability affecting immovable property situate within the jurisdiction is O2r4. Held- where some of the defs reside within the
jurisdiction it would be undesirable, unfair and unjust for
sought to be construed, rectified, set aside or enforced in the action begun by the writ; O2r4 to be religiously complied with and if failure to do so
• if in the action begun by the writ relief is sought against a person domiciled or ordinarily resident within the would lead to the whole writ of summon being invalidated.
jurisdiction; Commented [sq11]: The plf a Lebanese sued his brother a
• if the action begun by the writ is for the administration of the estate of a person who died domiciled within the Lebanese trader and a naturalized British subject domiciled
in Nigeria for a declaration that the defs holds his business
jurisdiction or for any relief or remedy which might be obtained in any such action;
interests and assets in Ghana in trust for the plf. The plf
• if the action begun by the writ is for the execution, as to property situated within the jurisdiction, of the trusts of a obtained leave of the court to serve a writ outside the
written instrument, being trusts that ought to be executed according to the laws of this country and of which the jurisdiction on the deft as he was in Lagos at the time of the
suit. The def objected to the service of the writ on him but
person to be served with the writ is a trustee, or for any relief or remedy which might be obtained in any such action;
his solicitors nevertheless entered an appearance and sought
• if the action begun by the writ is brought against a defendant not domiciled or ordinarily resident within the jurisdiction to set aside the writ on want of jurisdiction. The trial court
to enforce, rescind, dissolve, annual or otherwise affect a contract, or to recover damages or obtain other relief in dismissed the objection and gave judgment to the plf. The
def appealed. Held- before leave for service of a writ outside
respect of the breach of a contract which was made within the jurisdiction; or was made by or through an agent
the jurisdiction can be granted by the high court, it must fall
trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or is by its within order 8 r 3 of CI47. In the present case since the plf
terms, or by implication governed by the laws of this country; sued as a trustee and since there was no written instrument
as required by order 11r1 then the high court erred in
• if the action begun by the writ is brought against a defendant not domiciled or ordinarily resident within the
granting the leave.
jurisdiction, in respect of a breach committed within the jurisdiction of a contract made within or out of the
jurisdiction; and notwithstanding the fact that the breach is preceded or accompanied by a breach committed out of
the jurisdiction that renders impossible the performance of so much of the contract as ought to have been performed
within the jurisdiction;
• if the action begun by the writ is founded on a tort committed within the jurisdiction;
• if in the action begun by the writ, an injunction is sought that orders the defendant to do or refrain from doing anything
within the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);
• if the action begun by the writ is properly brought against a person duly served within the jurisdiction, but a person
out of the jurisdiction is a necessary or proper party to it;
• if the action begun by the writ is by a mortgagee of immovable property situated within the jurisdiction and seeks the
sale of the property, foreclosure of the mortgage or delivery by the mortgagor of possession of the property but not an
order for payment of any moneys due under the mortgage;
• if the action begun by the writ is by a mortgagor of immovable property situate within the jurisdiction and seeks
redemption of the mortgage, discharge of the mortgage or delivery by the mortgagee of possession of the property but
not a personal judgment; or
• If the action begun by the writ is in respect of a contract which contains a term to the effect that the Court shall have
jurisdiction to hear and determine any action in respect of the contract.
In this rule, "mortgage" includes a charge or lien; "mortgagee" means a person entitled to or interested in a mortgage; and
"mortgagor" means a person entitled to or interested in property subject to a mortgage.
The procedure that is adopted is that the notice can be served through the government of the country on your behalf or through
the Ghanaian consul of that country. As soon as it is served, information would be relayed to the foreign affairs who would in
turn notify the government of Ghana. In situations where the address is so certain in addition you are to ask permission from
the court so the notice would be served directly. It is couriered*.
Companies
At common law a company would be deemed to be within the jurisdiction if it carries on business there. The test for determining
the residence of a company is whether the company is carrying out business at some definite and more or less permanent place
in Ghana. The court would assume jurisdiction over a company resident in Ghana-ACKERMAN V SOCIETELE GENERALE DE
COMPENSATION, TAFA V TAFA. It has been held that a foreign unincorporated partnership that is not carrying on business in Commented [sq12]: The respondent is suing the applicant
Ghana cannot sue-AG V LEVANDOSKY . This is from the combined effect of section 4(1) and section 12(1) of the Incorporated a French firm for damages for breach of contract. The
applicant company had raised the preliminary point that the
Private Partnerships Act, 1962 (Act 152
court has no jurisdiction to entertain the suit because the
contract btn the company and the respondent was couched
in the French language and the salary of the respondent was
payable in Paris in French francs. The contract was executed
Service on companies in Ghana. Held- the proper law of contract is the law of the
country with which factually the contract is most closely
This is seen in the companies act. Section 263 and 306. Section 263 talks about serving it on the directors or at the registered connected with. Suppose a Chilean and an Australian
address. Sometimes the company may be an external company. An external company is a body corporate formed outside Ghana resident in Ghana enter into a contract which is to be
but has an established place of operation in Ghana. The writ is served on the branch. performed here decide to have the contract couched in Latin
or Greek perhaps out of sheer love for the classics. Can it be
263. Service of documents on company-DAKAR LTD V ICAP said that an action for breach of contract should be institutes
in Rome or Athens? I shall answer this with an emphatic
The def company had a registered office in the country. The plfs brought an action to receive a sum of money being the balance negative
of the price of goods sold by the plf to the def. the plf failed to get any employee of the def to serve the writ and as such brought Commented [sq13]: The def filled a specially endorsed
this instant ex parte application for an order or substituted service against the def. Held- service of a writ on a company in or writ for service on the plf claiming against the gov’t a certain
amount. The plf entered an unconditional appearance and
with a registered office should be effect by leaving the document at or sending it by post to the registered office of the company the def took out a summons under O14r1. In opposition to
or the latest registered office. The courts would order substituted service where it appeared to the court that for any reason the application, the plf filed an affidavit with the objection
personal service could not be effected. Personal service meant service on the person of the def. the substituted service is only that the parties agreed that any dispute arising btn them
should be referred to arbitration. It ended in the trial judge
applicable to service on human beings and not on artificial entities. holding that the affidavits filed by the Gov’t did not disclose
any triable issues and that the def was entitled to enter
(1) A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company, or judgment for the amount claimed in their writ. It is against
the latest office registered by the Registrar as the registered address of the company. the summary judgment that the plf has appealed to the
court. The appellant submitted that since the defs were a
(3) Where a company does not have a registered office, service on a director of the company or, if the company does not have firm carrying on business outside Ghana then they could not
issue a writ of summons in the firm’s name as plfs. Held- on
a director or if a director cannot be traced in the Republic, on a member of the company, shall be deemed good and effectual
the application of O74, if an incorporated foreign firm who
service on the company. were not carrying business within the jurisdiction had issued
a writ in England it would have been rejected by the registry
(4) If it is proved that a document was in fact received by the board of directors, managing director or secretary of a company and therefore the writ issued by the def was null and void
the document shall be deemed to have been served on the company although service may not have been effected in accordance and the judgment of the high court was of no legal
consequence. In England, a foreign firm not carrying
with subsection (1), (2) or (3).
business within the jurisdiction cannot sue under the firm’s
name and if done it would be rejected outright from the
306. Service on external company-NEWBY V VON OPPEN
registry.
The Colt's Patent Firearms Manufacturing Company is not an English corporation; it is an American company, incorporated by
American law; but this foreign corporation has a place of business in England, and there de facto carries on business just as an
English corporation might do, though their principal place of business and head office is in America. The contract which the
plaintiff alleges to have been broken was, as he alleges, made in England by the foreign corporation thus carrying on business
here. The writ was served on the manager of their business in England, who appears to be the head officer, and indeed the only
officer, of their English branch, but who certainly was not the head officer of the American corporation in the United States. The
issue was whether a foreign corporation can be sued by the English courts. Held- where the foreign corporation as an established
place of business in the country it is deemed to reside here and therefore can be sued.
(1) A process of any other document shall be sufficiently served on an external company if delivered or sent by post to the
person last registered as the company’s process agent at the last registered address of that agent even if the process agent
refuses to accept service or the company has ceased to maintain a place of business in Ghana.
(2) Subsection (1) shall not apply to service of a document,
(a) If the company was struck off the register of external companies under section 312 more than six years previously; or
(b) if one person was last registered as process agent and that person is dead or, in the case of a body corporate, dissolved; or
(c) If two or more persons were last registered as process agents and each of those persons is dead, or in the case of a body
corporate, dissolved.
(3) Where,
(a) A registration of the name and address of a person as the process agent of an external company has not been effected, or
(b) subsection (1) does not apply by reason of paragraph (b) or (c) of sub-section (2), a process or any other document shall be
sufficiently served on the company if delivered or sent by post to a place of business of the company in Ghana or, if the company
has ceased to have a place of business in Ghana, to the registered office or principal place of business of the company in the
country of its incorporation.
(4) A document to be served by post on an external company shall be posted in a time that will admit of its being delivered in
due course of delivery within the time prescribed for the service of the document; and in proving service it shall be sufficient to
prove that a letter containing the document was properly addressed, prepaid, and posted, whether or not by registered post.
(5) Where it is proved that a document was in fact received by a local manager or a process agent or by the board of directors,
managing director or secretary of the external company the document shall be deemed to have been served on that company
although service may not have been effected in accordance with subsection (4).
(6) This section shall not derogate from the power of a court to direct how service shall be effected of a document relating to
legal proceedings before that court.
Commented [AK14]: A ship, called the Cristina , belonging

THE THEODOHOS to the appellants, a Spanish company, and registered at the
port of Bilbao, was lying in the port of Cardiff. Shortly before
Between September and December, 1972, the vessel Theodohos carried a cargo of resin in bags from Finland to Hong Kong and her arrival there, but after she had left Spain, a decree was
made by the Spanish Government requisitioning all vessels
Thailand. The cargo was damaged and the cargo-owners issued a writ in personam against the ship-owners Lefka (Panamanian
registered at the port of Bilbao, and in view of this, and
company) and the charterers (amber maritime corporation, an American company). The writ was served personally on Anthony acting on the instructions of the Spanish Government, the
Gounaris at an address in London, since he was the person named as the president and director of Lefka in the register of Spanish consul at Cardiff went on board the Cristina , stated
that she had been requisitioned, dismissed the master and
companies in Panama. Lefka entered a conditional appearance, and applied by summons to set aside the service of the writ on
put a new master in charge. Thereupon the appellants issued
the ground that service on Anthony Gounaris was not good service on them. Held-on the authorities, unless a foreign company a writ in rem claiming possession of the Cristina as their
was carrying on business at a place within the jurisdiction, it could not be served with process within the jurisdiction either by property. The Spanish Government entered a conditional
the method which had been employed or at all appearance, and gave notice of motion for an order that the
writ should be set aside inasmuch as it impleaded a foreign
sovereign State:-
Held, that the Courts of this country will not allow the arrest
of a ship, including a trading ship,
Limitations on the exercise of jurisdiction over persons
which is in the possession of, and which has been
requisitioned for public purposes by, a foreign
• Jurisdictional immunities sovereign State, inasmuch as to do so would be an infraction
of the rule well established in
o Absolute sovereign immunity- it is a rule of customary international law that a court has no jurisdiction over a international law that a sovereign State cannot, directly or
sovereign state or its sovereign leader. This is when the acts in question are acts jure imperii-governmental indirectly, be impleaded without its
public acts. Personal acts would be treated as jure gestionis. THE CRISTNA consent, and, therefore, that the writ and all subsequent
proceedings must be set aside
o The second is diplomatic staff. Ghana being a party to Vienna convention on diplomatic relations and enacted
the diplomatic immunities act. A diplomat may enjoy immunity from criminal jurisdiction. It may also enjoy
jurisdiction from civil cases except in some situations- action relating to immovable property in Ghana,
succession where the diplomat is named as an executor, action relating to any professional or commercial
activity outside his official function. ARMON V KATZ, Commented [sq15]: Art 31 of the Vienna convention on
diplomatic relations
The plf rode in a car driven by the def. the car belonged to the second def. the second def is the father of the
1st def. the car went into a ditch and the plf suffered injuries. Both the plf and the def are minors. The plf sued
through her next friend for damages for injuries suffered as a result of the negligence of the def. the def entered
a conditional appearance for an order to set the writ aside for want of jurisdiction in grounds of diplomatic
immunity. Held- the relevant date at which the 2nd def’s right to immunity from the court’s jurisdiction must
exist not on the date the cause of action arose but the times jurisdiction was sought to be exercised over him.
Also, a letter from the ministry of foreign affairs was admissible and conclusive as the 2nd def had been
recognized by the court as a diplomatic agent immune from the court’s jurisdiction.
GARCIA V TORREJOH. Commented [sq16]: The respondent issued a writ against

the def applicant for a certain amount. The applicant
It is held that letter of appointment from the embassy is enough proof that you are a diplomat-ARMON V KATZ. entered a conditional appearance and prays that the service
KWARTENG V SACKEY-diplomatic status is not recognized in sending country. of the writ be set aside because at the time of the issue of
the writ he was a member of the diplomatic corps and so
The plf brought an action against the def claiming damages for certain wrongs he alleges he suffered at the immune from the jurisdiction and also the contract was not
made in Ghana but Spain. Held- the written letter under the
hands of the def while he was in Liberia. The def was at the time charge d’affairs at the Ghana embassy. The def officer of the ministry of foreign affairs was sufficient and
raised an objection to the jurisdiction of the court that he enjoyed diplomatic immunity. Held- the def enjoyed conclusive of full diplomatic status of the applicant. Any
immunity while in Liberia or traveling through foreign countries to or from Liberia. However it was clear from private commercial transaction entered into by the
diplomatic agent outside his official functions whether for
act 148, art 31(4) that the diplomatic agent had no such immunity from his own country profit or not was a commercial activity within the meaning
and intendment of art 31 of act 148
o International organizations also have protection-agents of the UN are not amenable to the jurisdiction of the
court. Commented [sq17]: Art 105 of the UN charter
• Forum non conveniens-not a convenient forum. The court would weigh the factors connecting to the case and decide
whether it is a convenient forum to exercise jurisdiction. When most of the connecting factors point to a foreign
jurisdiction it may decline to assume jurisdiction-SHIRLSTAR V KADAS PG 413 Commented [sq18]: Facts above
Held- . It was argued by the def against the choice of the
• When the parties have indicated the choice of law to be decided when a dispute arises-CILEV V CHIAVELLI, court as the forum to hear and determine the instant
motion. This was because the defs as well as the subject
Action by the plaintiffs against the defendants for the recovery of certain sums of money alleged as being the value of matter are to be found in that jurisdiction. Two of the defs
the plaintiffs' goods sold by the defendants and which the defendants had made use of, a preliminary objection was reside within the jurisdiction. The contract was entered
within the jurisdiction. The plf company is ordinarily resident
raised against the action proceeding in the courts of Ghana on the ground that the parties themselves had contracted within the jurisdiction. Therefore the court is a more
that disputes between them should be settled by a court in Italy. The contract giving rise to the action was entered into convenient forum than a court in UK
between the parties in Italy and the document were also in Italian language. Held- where parties contract that disputes
arising between them should be referred to a foreign tribunal, if the court was of opinion that the parties should take
their chance before the foreign tribunal, the proper order would be one staying the proceedings.
Here is an arrangement closely connected with Italy. The plaintiffs are an Italian company. The defendant
Chiavelli is both a shareholder and administrator of the plaintiff-company and a shareholder and managing director of
a second company originally incorporated in Italy and only registered in Ghana. The arrangement was made in Italy. All
documents connected with it are in Italian. The capacity in which the defendant Chiavelli entered into the arrangement
is a matter of dispute. Ghana only comes into the picture because the goods, the subject-matter of the arrangement,
have been invoiced and shipped to the company of which the defendant Chiavelli is managing director at its address in
Ghana.
CILE V BLACKSTAR LINE

The parties had expressly agreed that the contract should be governed by English law and that all disputes should be
adjudicated upon by the courts in England. It was alleged that the defs improperly detained the goods in Ghana and so
the matter was brought to court by the plf. The def objected to the Ghanaian court settling the dispute. Held- where
parties to a contract stipulate the law to apply to them in dispute and chose a foreign tribunal as their forum. The court
is to stay proceedings, but that does not oust the jurisdiction of our courts. The court would only decline jurisdiction if
in the circumstances justice would not be done in the new forum. In the instant case, the circumstances showed that
the parties wanted to adjudicate I England but regarding it will bring injustice as the rent due after the case there will
exceed the value of the goods. Thus the court accepted jurisdiction.
• Arbitration clause-POLIMEX V BBC

By an agreement between the plfs and the def all disputes btn the plfs and the defs to be settled by the arbitration court of the
polish chamber of foreign trade in Warsaw. The defs requested some goods to be shipped from Poland to Ghana but failed to pay
up and all that was due. The plf (Polish Company) brought an action against the def (ltd liability company in Ghana) for the balance.
The def objected to the jurisdiction of the court to hear the case. Held- by their conduct the def had waived their right to oust the
jurisdiction of the court as they did not enter a conditional appearance or protest. They took steps in the proceeding by filing a
defense and counterclaimed and even filed additional issues when the application for summons for directions came on for hearing.
They have therefore waived any objection to the jurisdiction of the court
• lis alibi pendens-similar matter pending somewhere-FATTAL V FATTAL PG 349. It must be proved that the actions, Commented [sq19]: Plf sued defs in Ghanaian court as a
parties and reliefs are the same. The rationale is that there should not be multiplicity of suits. member of a partnership, the defs filed appearance and
brought a motion to have the proceedings stayed because of
the presence of an arbitration clause. It was granted. After
def went to different court and had the substantive suit
dismissed on grounds that all disputes were to be settled per
law of Lebanon as agreed by the parties, and the forum
conveniens is Lebanon. The plf appealed. Held- a judge of co-
Proof of foreign law ordinate jurisdiction should not entertain an application
which had been personally dealt with by another judge. The
order of Aryeetey J staying proceedings and ordering the
parties to appoint an arbitrator was subsisting. Accordingly,
Essilfie-Bondzie JAhad no jurisdiction to entertain the second
For this the word foreign means foreign that is the laws that are external to the country of Ghana. Art 11 of the 1992 defendant’s motion.
constitution-any of those not listed here are foreign laws. The evidence act NRCD 323, s1 (2). It means the law of a foreign state
or the laws of a subdivision of the state or the laws of an international organization. In Ghana the private international law rule
is that foreign law is a questions of fact determined by the judge. That law has to be proved. The foreign law has to be pleaded
and proved. In civil law jurisdictions the approach is different. DAVIS V RANDALL-the law of sierra Leone was foreign law and
has to be proved, IN RE CANFOR (DECEASED); CANFOR V KPODO.
The plf filed an application for the grant of letter to administer the estate of her deceased husband. The defs(the mother and
uterine brother) entered a caveat. The defs contended that the civil marriage btn the plf and he deceased was potentially
polygamous and that right was exercised to marry more than one wife. The father of the deceased was an Englishman who left
the country when the deceased was a toddler by customary law has appointed the def successor to the deceased. Held-foreign
law is a question of fact to be pleaded and proved. The plf did not plead and prove what the Togo law is under which she married.
Failure to prove foreign law would result in treatment of that foreign law as the same contents of that of Ghana. In other words
the courts would apply Ghanaian law- MOUBARAK V HOLLAND WEST AFRIKA LIJN. Section 40 of the evidence act- the law of a Commented [sq20]: Facts above
foreign state is presumed to be the same as that of Ghana. There is a presumption that foreign law is similar to the law
of gold coast and a party relying on foreign law as showing a
There are a number of instances when a judge may apply foreign law difference must plead and prove the same
For this to happen 4 conditions have to be met:

• The choice of law rules must provide that the foreign law is applicable to the case (E.G FOREIGN
IMMOVABLES)
• Ghanaian law must not prohibit the application of foreign law (PENAL LAWS)
• The party relying on foreign law must plead and establish its applicability to the issue in question
• The party must prove the content of the foreign law
Mode of proof
It must be proved by expert evidence. That is an expert in that foreign law. This is oral evidence by the expert who is cross
examined and testifies. He should qualify as an expert witness. He does not need to be a lawyer depending on the nature of that
foreign law-DE BEEECHE V SOUTH AMERICAN STORE
The appellants sued the respondents for arrears of rent four leases which accrued interest. The respondents in their defense
relied on Chilean statutes which they alleged rendered it illegal or impossible to acquire foreign exchange in Chile or to pay the
rents in Santiago de Chile by drafts in London without the authorization of the contract committee or commission which they
had been unable to obtain. An issue arose as to the true interpretation of the obligation payment of the rent due under the four
leases. The difficulty was the meaning of first class bills in London. Held- two witnesses gave opposite views of the meaning of
the words so it became necessary for the court to decide which witness it preferred.
• The term was a commercial one not legal
• Witness 1 was a man called to the Chilean bar four years ago
• Witness 2 was a director and had 47 years of experience of banking in Chile
The banker’s evidence was chosen by the court. Although witnesses could be called to prove foreign law, the court was at liberty Commented [sq21]: the appellant was charged with
to look at a translation of the passages in question and to consider what was their proper meaning but the court would have transporting French colonial franc notes out of Nigeria
regard not only to its own view of the foreign law but to the interpretation put upon it by a competent foreign authority. contrary to s22 (1) of the exchange control ordinance. During
the trial the respondent called a manager of the Barclays
SAID AJAMI V. COMPTROLLER OF CUSTOMS- bank to prove that the franc were legal tender in West
Africa. His expert witness testified that it was and the
appellant was convicted. He has appealed that the expert
SUSSEX PEERAGE CASE-A marriage was solemnized at Rome by an English priest between the son of king George III and a British
witness was not credible and competent on the ground that
subject without consent of his majesty. The son of the king died and the eldest son of sought to succeed to the titles, dignities he is not a lawyer. Held- a person who though not a lawyer
and honors. He sought to prove it by putting in evidence a prayer book containing an undated entry in his mother’s handwriting but have become conversant with a point of foreign law by
stating that the prayer book was one by which I was married at Rome to the claimant’s father. Held- what is foreign law is a carrying on a business which made it his interest to take
cognizance of the point was a competent witness on that
question of fact provable by a witness having knowledge of the law in question. The witness can refer to books and documents point. So the practical knowledge of a person who is not a
which he states correctly sets out the foreign law to refresh his memory and assist him in stating what the law is but the law lawyer may be sufficient on a question of foreign law. It was
itself must be taken from his evidence. A Roman Catholic bishop holding the office of coadjutor to a vicar-apostolic in this country held that the expert witness was skilled in that field even
though he was not a lawyer.
is in virtue of that office to be considered a person skilled in the matrimonial law of Rome and therefore admissible as a witness
to prove that law.
Commented [sq22]: The petitioner obtained a decree of
judicial separation in the courts of Lebanon, the country of
domicile and the decision was on appeal in Rome. She
sought a decree of judicial separation in the courts of Ghana
KHOURY V KHOURY-a priest of the Roman Catholic Church could give evidence on the matrimonial laws of Lebanon. The
because the parties were resident in Ghana. An expert in
question who qualifies is a question of law determined by the judge. Tendering of copies of the law is not sufficient proof of the Lebanese matrimonial law was called and testified that the
law. Neither is getting an expert in the law to write an opinion. Lebanese court had deposed of the matter though the
petitioner argued that the decision was not binding. Held-
The position is that whether the judge is familiar with the foreign law or not he is not to take judicial notice and an expert witness the court accepted the evidence of the Lebanese expert in
the matrimonial law of Lebanon and adopted same and held
is to be called.
that the decision was final and the courts declined
jurisdiction
Knowledge of foreign law is not to be imputed to a judge. Even if the foreign law is a notorious fact, the court cannot take judicial
notice of it. Unless the foreign law is pleaded by the relying third party, it is assumed that it is the same as English law. The onus
of proof that it is different from that of English law lies on the party who pleads the difference. If there is no such plea, the court
must give a decision according to English law, even though the case may be connected solely with some foreign country.
Foreign law is treated as a question of fact but it is a question of fact of a peculiar kind. This is because the applicable law must
be ascertained by the evidence of witnesses therefore there is an iota of question of law there. Nevertheless a mistake of foreign
law is regarded as a mistake of a fact.
Foreign law must be proved by appropriate evidence, i.e. by properly qualified witnesses unless both parties leave the
investigation to the judge and to dispense with the aid of witnesses. This method of proof is by expert witness has been criticized
on the basis that it can involve a vast amount of oral and written evidence, leading to delay and expense.
No witness can speak in a question to a question of law as a fact and that all he can do is to express his opinion. The rule is
therefore that he must be an expert. The general principle is that no one is a competent witness unless he is a practicing lawyer
in the particular legal system in question or unless he acquires a practical working knowledge of the foreign law. Practical
experience is a sufficient qualification.
In THE SUSSEX PEERAGE CASE, a Roman Catholic bishop was allowed to testify to the matrimonial law of Rome since a
knowledge of its provisions was essential to the performance of his official duty.
In VANDER DONCKET V THELLUSSON, a hotel keeper in London, a native of Belgium, who had formally been a commissioner of
stocks in Brussels was admitted to prove the Belgian law of promissory notes, on the ground that his business had made him
conversant with commercial law.
In COOPER-KING V COOPER-KING, an ex-Governor of Hong-Kong was held competent to prove a marriage law of that colony as
the only lawyer who could be found to give such expert opinion had demanded a prohibitive fee.
In RE DHOST ALY KHANS GOODS, a secretary to the Persian Embassy was allowed to depose to the law of Persia, on it being
showed that there were no professional lawyers in that country, but that all diplomatic officials had to be thoroughly versed in
the law.
In DE BEÉCHE V SOUTH AMERICAN STORES, where it was necessary to ascertain the meaning of a bill of exchange given in Chile,
the evidence of a London bank director with long experience of banking in South America was preferred to that of a young man
who had been at the Chilean Bar for four years.
In GUERIN V PROULX, an experienced police officer from Quebec was able to prove the road traffic law of that Province before
an Ontario court.
Also, a mere academic knowledge of foreign law scarcely qualified a person as an expert witness. In BRISTOW V SEQUEVILLE,
where it was necessary to prove the law of Cologne, a witness was called who stated that he was a jurist and legal advisor to the
Prussian consul in England, and that having studied law at Leipzig University, but never practiced but he knew from his practice
that the code Napoléon applied in Cologne. It was held that he was not a competent expert witness. Although, Study alone is
not a sufficient qualification, the courts did not consistently observe the requirement of practical experience. Thus in BRAILEY
V RHODESIA CONSOLIDATED LTD, a reader in Roman-Dutch law to the Council of Legal Education who made a special study of
the law for that purpose of his lectures was admitted to testify to Rhodesian law; an English barrister who in the course of his
profession made researches into the validity of marriages in the law of Malta was held to be a competent witness to prove the
validity of a marriage that has been solemnized at Valetta in WILSON V WILSON. In RE WHITELEGG’S GOODS, evidence as to
the law of Chile was admitted from an English barrister who though not practiced there but has had considerable knowledge of
its laws.
Exclusion of foreign law
In private international law there is always the possibility that an otherwise applicable foreign law may be excluded. It allows
for the exclusion of a foreign applicable law in defined circumstances.
• The court would not apply foreign law unless it is pleaded. In such a case it would apply the lex fori
• If the law violates Ghana’s public policy. Public policy varies from country to country-
IN RE KARIYAVOULAS (DECEASED) DONKOR V GREEK CONSUL GENERAL -The deceased a Greek national then resident
in Ghana married the plf according to Ghana customary law. Both were minor, on the death of the deceased interstate
the plf applied ex parte for letters of administration in respect of his real property in Ghana. This was dismissed by edusei
j. the plf filed a third application as best friend of her children. The def entered a caveat. She then moved the court for
removal of the caveat. The def raised a preliminary objection to the jurisdiction of the court on grounds of res judicata.
Held- it was preposterous to accept the contention that because marriage between the deceased and the applicant was
not solemnized in church it was illegal according to Greek law and so to deprive the widow of the rights and benefits of
that marriage in Ghana. Even if Il allowed such a monstrous injustice as the caveator would seem to content the court
could base it decision on public policy and natural justice to give the widow a remedy.
VERVAEKE V SMITH-The appellant who was born in Belgium went through a marriage ceremony with the respondent
who was a domiciles Englishman. Later the appellant went through another ceremony of marriage with another who
died that day. He left estate in England to which the appellant was entitled to if her marriage to him was valid. The
appellant prayed for a declaration the her marriage to the respondent was null and void on grounds that she did not
consent to it and also that it was a mock marriage contracted solely to enable the appellant acquire British nationality.
The Belgian court decreed so and the appellant sought a declaration that the Belgian decree was entitled recognition
and that her second marriage was valid. Held- the first marriage was invalid according to Belgian public policy. However
the English public policy decreed that a marriage ceremony performed in England in the same circumstances would
result in a valid marriage. English laws was not bound to surrender its own concept of public policy involved and defer
to that of Belgian law.
• When the foreign law is a revenue law, tax laws. Revenue law includes tax laws, rules on capital gain, succession duty,
or local tolls.
GOVERNMENT OF INDIA V TAYLOR
The respondent were liquidators in the voluntary winding of an English company. The appellant was the government of
India. The company sold its undertakings to the appellant. A greater part of that sum was paid to the company in India and
was remitted to England a few days later. A legislation was passed which was to the effect that profits arising from a sale,
exchange or transfer of capital assets will be taxed. A demand notice was serves calling the company to pay tax on the
surplus of the sale of the company’s undertakings. Held-claims on behalf of a foreign state to recover taxes were
unenforceable in English courts
• Foreign penal laws. HUNTINGTON V ATTRILL Commented [AK23]: PENAL is defined to include not only
crimes in the strict sense but all breaches of public law
The appellant became a creditor for money lent to the rockaway beach improvement company, ltd which was punished by punitive sentences.
incorporated under an act providing that all the officers who have signed a certificate, report or public notice would be
jointly and severally liable for all debts of the corporation while they were officers should they give a false material
representation. The respondent was a director of the company and he along with others signed and verified an oath
setting forth that the whole capital stock had been paid up to cash. The appellant instituted a suit in a court where the
respondent resided alleging that the certificate contained a representation which were material and false and also for
the unpaid balance of his loan to the company. Held- the action brought to enforce in his own private rights were
remedial and not in penal in the sense pleaded. It was not within the rule of international law which prohibits the courts
of one country from executing the penal laws of another country or enforcing penalties recoverable in favour of the
state.
ATTORNEY GENERAL OF NEW ZEALAND V ORTIZ
The def a British subject was arrested in US and charged with offences of fraud. He was released on bail having entered
an appearance bond to secure his presence I court. The def later obtained permission to return to England for a short
period in order to attend his father’s funeral. He failed to return and the gov’t as plf obtained a domestic judgment
against him for the amount of the bond plus interest and then issues a high court writ to enforce the judgment in
England. Held- the English court had no jurisdiction to enforce the execution of the penal laws of a foreign state and
since the purpose of the plf’s action notwithstanding its civil form was to enforce the execution of a public law procedure Commented [sq24]: The def a British subject was arrested
of a foreign state designed to ensure the attendance of a person charged with a criminal offence before its courts the in US and charged with offences of fraud. He was released
on bail having entered an appearance bond to secure his
high court did not have jurisdiction to entertain the action. presence I court. The def later obtained permission to return
to England for a short period in order to attend his father’s
• Other public laws of a foreign state-US V INKLEY funeral. He failed to return and the gov’t as plf obtained a
domestic judgment against him for the amount of the bond
• Foreign expropriator law-KUWAIT AIRWAYS CORPORATION V IRAQ AIRWAYS CORPORATION plus interest and then issues a high court writ to enforce the
judgment in England. Held- the English court had no
jurisdiction to enforce the execution of the penal laws of a
foreign state and since the purpose of the plf’s action
notwithstanding its civil form was to enforce the execution
of a public law procedure of a foreign state designed to
Recognition and enforcement of foreign law judgments ensure the attendance of a person charged with a criminal
offence before its courts the high court did not have
jurisdiction to entertain the action.
Once again the word foreign here means extraterritorial to Ghana. The rationale is to facilitate trade and commerce among
Commented [sq25]: On the orders of the Iraqi gov’t ten
countries. Writers believe that it is based on reciprocity and respect for commerce. In private international law the recognition commercial aircrafts belonging to the national airline of
and enforcement of foreign judgements in Ghana is regulated by two regimes; common law regime, statutory regimes. Both Kuwait was removed from Kuwait airport to airfields in Iraq.
regimes co-exist in parallel fashions and cannot be applied at the same time. A resolution was adopted in Iraq transferring all of the plf’s
property including the ten aircraft to the def. the plf
Common law regime commenced proceeding against the def claiming the return
of the aircraft or payment of their value and damages. Held-
At common law a judgment creditor cannot directly enforce the judgment in the judgment debtor's country. The common law as a matter of public policy an English court ought to decline
to recognize resolution 369 as effectual to divest the plf of its
deems the foreign as creating an obligation but the judgment debtor has to bring a fresh action on the judgment. The judgment title to its aircraft. Such a fundamental breach of IL could
creditor cannot go into direct execution. The common law treats such judgments as evidence of a debt. properly cause the English courts to say that a law depriving
those who property have been plundered of their ownership
Procedure of their property in favor of the aggressor’s own citizen
would not be enforced in an English court. In the eyes of the
Judgment creditor must issue a writ and plead that the judgment debt is due and owing. The party must also apply for summary English court the plf remained the owner. If an English court
judgment under order 14 of the high court procedure rules on grounds that the defendant has no real prospect of successfully were to proceed otherwise the court would be giving effect
to the unacceptable resolution 369
defending the claim.
Commented [sq26]: The plf, a Dane resident in France
went into an agreement with the def who were also Dane
Conditions for enforcement resident in London for a carriage of Swedish oats from
Sweden to France. Payment was to be made on receipt of
• Must have been granted by a court that is competent under private international law. They should have the shipping documents. At delivery, the plf asserted that the
oats were short of the quantity agreed. The plf thus brought
jurisdiction to hear the matter in the first place. The crucial connecting factors are residence and submission. There is an action in France against the def. he got a judgment in
international jurisdiction if default and he sought to enforce it in England. Held- A
judgment obtained in default of appearance against a def
o Where the defendant is a subject of the foreign country in which judgment had been obtained cannot be enforced in an English court where the def at the
time of the suit was neither a subject nor resident in the
SCHIBSBY V WESTENHOLZ, country in which the judgment was obtained.
o The party submitted to the jurisdiction of the foreign court
EMMANUEL V SYMON
The plf who was residing and carrying on business in Western Australia entered into a partnership for the working
of a gold mine. Later the def left permanently and came to reside in England. The plf being partners commenced an
action in the Supreme Court of Western Australia against the def claiming a dissolution of the partnership, sale of
the mine and taking partnership accounts. The writ was served in England but he did not enter an appearance or
take a step to defend the action. The court judged in favour of the plf. The plf sought to recover the share due from
the def. Held- the court of Western Australia had jurisdiction to bind the def by its judgment as to matter arising
during the continuance of the partnership and also its termination. By entering into a partnership in Western
Australia relating to real estate he had by implication agreed to submit to the jurisdiction of the court of Western
Australia. The decree was therefore binding on him.
BLOHN V DESSER
The plf, an Austrian resident in Vienna suing on a bill of exchange obtained in the commercial court of Vienna a
judgment against a partnership firm there. The def was a sleeping partner in the firm receiving no income from the
firm and at all material times resident in England. He sought to enforce the judgment on the def personally as in
Australian law the partnership does not possess a separate legal entity. The def alleged that the judgment did not
create a cause of action against he in the English courts because the courts of Vienna had no jurisdiction to give
judgment and that it was not a final and conclusive judgment. Held- the def a s a partner in the firm with a place of
business and within the jurisdiction of a foreign country having carried on business in Vienna through an agent
resident there and having permitted matters to be notified to persons dealing with that firm by registration in the
register she had impliedly agreed to submit to the jurisdiction of Vienna courts and therefore the English courts
would recognize the judgment of the court.
HENRY V. GEOPROSCO INTERNATIONAL Commented [sq27]: A def who makes voluntary

appearance to plead the merits of the case or contest the
Plaintiff was a resident of Calgary, Alberta. Defendants were a limited company registered in Jersey but having their jurisdiction of the foreign court
head office in London. By an agreement made in Calgary between plaintiff and defendants, defendants agreed to
employ plaintiff to work for them. The agreement contained an arbitration clause which provided for reference to
a single arbitrator. The plf took his appointment but was later dismissed. The plf brought proceedings against the
def in Alberta and the def served a notice of the motion seeking to set aside the claim on grounds that the court
was not the forum conveniens and alternatively a stay of proceedings on the arbitration clause. The def motion was
refused and thereafter they took no part in the proceedings. The plf obtained a judgment against the def in default
and sought to enforce the judgment in England the def argued that he did not submit to the jurisdiction and
therefore not bound by the judgment. Held- The application to stay the proceedings on grounds of the presence of
the arbitration clause as well as the notice of the motion to set aside the claim amounted to voluntary submission
to the jurisdiction of the court.
COPIN V ADAMSON Commented [sq28]: A def who had previously agreed by a

contract directly or indirectly for example by taking shares in
The def was a holder of shares in a French company. It was agreed that all disputes arising during liquidation a foreign company whose constitution provides for
between shareholders should be submitted to the French court. Every shareholder providing a contest was to elect submission of disputes arising out of membership therein o
the jurisdiction of a foreign court
a domicile and in default election might be made for him, the company became bankrupt and the def owed the plf
unpaid calls. The plf provoked a contest but failed to elect a domicile. By the law of France the office at which the
summons was served was the domicile. The def failed to appear and a judgment by default was obtained against
him. Held- the def as a shareholder in this foreign company is entitled to all benefits resulting from the possession
of shares. Surely it is very reasonable that the law of France should provide that he should elect a domicile and in
default one would be elected for him. Otherwise a shareholder would be receiving all the benefits belonging to his
position and yet escaping all the burdens just because his real domicile was out of France or there no means of
discovering where he might be and enforcing a demand upon him.
o Was present within the jurisdiction of the foreign court when the proceedings were instituted-
JOHN HOLT & CO. LTD. V CHRISTOPH NUTSUGAH-The deft was sued in a French court sitting at Cotonou in Benin
on the sale of a car. He did not appear and judgment was given against him by default. He appealed and appeared
before the foreign court. The appellate court upheld the original judgment. The plf sought to enforce the judgment
in the gold coast. The def resisted the enforcement on the grounds that he was not called upon to defend his case
and as such there was a breach of his natural justice. Held-court held that before recognition and enforcement of a
foreign judgment be made, the deft must be a subject of the foreign country and must be resident there when the
action begun. Also, he must have selected the forum and must have voluntarily appeared. Finally, he must have
submitted to the jurisdiction of the court. In relation to de facts, the court held that the defendant submitted to the
jurisdiction of the court because of his appeal where he appeared and argued. Thus there was no breach of natural
justice because he was heard on de appeal
ADAMS V CAPE
The parent company was engaged in the mining of asbestos in South Africa and had created a number of subsidiaries
for marketing the product worldwide. One of the subsidiaries served as a marketing agent of the parent company
in the USA (NAAC). The plfs who were mainly the employees of the factory in Texas brought an action in the US
court for damages for personal injuries suffered as a result of exposure to asbestos dust. Judgment was awarded in
their favour. The plfs sought to enforce such judgment on the parent company which was in UK. It turned on the
situation whether the parent company was present in the US. Held-an overseas trading corporation was likely to be
treated by the English court as present within the jurisdiction of the courts of another country only where either
such a corporation had established and maintained at its own expense in that other country a fixed place of business
and had carried on from there its business for more than a minimal period of time through its servants or agents or
through a representative
BUCHANAN V RUCKER Commented [sq29]:
o Was resident within the jurisdiction of the foreign court when the proceedings were instituted
SCHIBSBY V WESTENHOLZ, Commented [sq30]: The plf, a Dane resident in France

went into an agreement with the def who were also Dane
o The judgment is that of a court with real and substantial connection to the dispute- resident in London for a carriage of Swedish oats from
Sweden to France. Payment was to be made on receipt of
MORGUARD V DE SAVOYE-the court adopted the real and substantial connection test. The Supreme Court of Canada shipping documents. At delivery, the plf asserted that the
undertook re-examination of the common law rules on competence and held that a judgment from another province oats were short of the quantity agreed. The plf thus brought
an action in France against the def. he got a judgment in
of Canada should be entitled to recognition and enforcement if the foreign court properly or appropriately exercised default and he sought to enforce it in England. Held- A
jurisdiction. It will be deemed to have so acted if the action had a real and substantial connection with the foreign judgment obtained in default of appearance against a def
forum. cannot be enforced in an English court where the def at the
time of the suit was neither a subject nor resident in the
De Savoye, the appellant, was the mortgagor of a property in Alberta and resided in British Columbia. The mortgage country in which the judgment was obtained.
defaulted and the respondents brought action in Alberta, for the land they had mortgaged in that same province.
The appellant chose not to appear or defend his actions. The respondents obtained judgment ex juris in the
foreclosure action, and then obtained orders for the judicial sale of the properties. They then initiated separate action
in the British Columbia Supreme Court to enforce the Alberta judgments for the shortfall. Held- a modern approach
based on the principle of comity ("the deference and respect due by other states to the actions of a state legitimately
taken within its territory") and reciprocity were needed a basis of recognizing foreign judgments. The infringement
on the nation's sovereignty is justified where there is mutual convenience between states. Jurisdiction was to be
limited to where there is a "real and substantial connection" between the action and the province.
• It must be for a fixed sum of money. If it is not fixed it requires supervision of the court and so it will not be enforced.
If the judgment is couched in a form so that the amount may be ascertained then it can be enforced. SADLER V ROBINS- Commented [sq31]: Plf obtained judgment against def for
the law implies to pay a definite sum of money. For foreign judgment there may be additional policy reason for insisting an amount of money, in Jamaica, but this was subject to
certain deductions and taxes which had not been calculated
on this rule. That is it will be difficult and possibly costly for the domestic court to make an assessment that should have
and deducted at the time of the present action. The plf tried
been made by the foreign court which was fully seized of the facts upon which assessment could have been made. to enforce the judgment. Held- the law implies a promise to
ROYAL DUTCH LINE V SUSSEX pay a definite, not an indefinite sum
Commented [sq32]: Per Lord Ellenborough
• Finality-the judgment must be final and conclusive. Final means it cannot be reopened in the court which made the
ruling although it is appealable. Conclusive means the court’s settled conclusion on the merits of the point adjudicated. Commented [sq33]:
If it may be altered in later proceedings between the same parties in the same court it is not enforceable. Interim
injunctions are not conclusive but interlocutory applications may be conclusive. Decision on interlocutory application
on jurisdiction/locus standi /determination of an issue referred to the SC, may be final.It must amount to a conclusive
determination of the rights of the parties. However the pendency of an appeal is relevant factor is a factor that the court
would take consideration of. An interim order is not said to be final. Leave of appeal and possibility of an appeal still
make the judgment final. However if an appeal is pending it is not final. The fact of a pending appeal does not render a
judgment inconclusive although the court in exercise of its discretion maybe slow to enforce such judgment. COLT
INDUSTRIES INC V SARLIE 2 Commented [sq34]: The plf recovered judgment for a sum
of money against the def in new York and the app by the def
NOUVION V FREEMAN was dismissed. An application by the def to the court of
appeals in NY for leave to the appeal was pending. The plf
X who had sold a certain land in Seville to Y brought an executive action in Spain against Y and obtained a remate brought an action in England on the judgment and obtained
judgment for a large sum of money. There were two kinds of proceedings under Spanish law; executive or summary a summary judgment against the def. Held- the appeal itself
does not render it not final and conclusive. Nor should the
proceedings and plenary or ordinary proceedings. In an executive action, on proof of prima facie case, the judge without possibility of a leave of appeal. The proper test is-is the
notice to the def made an order for the attachment of his property. Notice of the attachment was given to the def and judgment a final and conclusive judgment of a court of
he was at liberty to appear and defend the action. But the defences open to him were limited in number. Either party competent jurisdiction in the territory in which it was
pronounced
who failed in executive proceedings could institute plenary proceedings before the same judge and in these could set
up every defence that was known in law. Held- no action law on the remate judgment. Since it was liable to be abrogated
by the adjudicating court, it was no res judicata with regard to either party neither did it extinguish the original cause of
action.
In seeking for recognition of a foreign judgment the merits of the case are not questioned-GODARD V GRAY
The plfs who were Frenchmen sued the defs, Englishmen on a charter party in France. The French court gave judgment for the
plf for the amount of freight on the voyages. The case went to the court of appeal in the French court but was nevertheless
dismissed. The plf sought to enforce the judgment in UK. Held- a judgment in personam of a foreign court ot competent
jurisdiction cannot be questioned but the parties on the merits when recognition or enforcement of the judgment is sough in
England though it may be wrong in fact or law.
Defences to enforcement
• Fraud- a foreign judgment may be refused recognition or enforcement upon proof that it was obtained by fraud. The
foreign court may have acted as in PRINCE V DEHURST, or that the successful party had produced forged evidence or Commented [sq35]: Where acting under Danish law
had kept from the court vital evidence or he may have bribed the foreign court. In a case where fraud is alleged no fresh certain persons formed themselves into a court for the
purpose of administering the property of a deceased
evidence will be required although the courts may go into the merits of the case-ABOULOFF V OPPENHEIM. In VADALE
testator. On proof that they r some of them were interested
V LOWE, the court of appeal held that the English courts will still investigate an allegation of fraud even if it was fully parties, their decision was treated as fraudulent and void in
so far as it favored the judges themselves
considered. Also in OWEN BANKS LTD V BRACCO, the court accepted these views and held that a foreign judgment on
the allegation of fraud did not require fresh evidence on the matter.
• Contrary to natural justice- at common law, a foreign judgment may be refused recognition or enforcement if the
proceedings were opposed to natural justice. The defence is mostly procedural and does not look at the merits of the
case. The defence may be invoked if the defendant was not given notice of the proceedings or was denied a proper
opportunity to be heard-JACOBON V FRACHON. In ADAMS V CAPE INDUSTRIES the court held that the concept of
natural justice extended to any situation which would amount to a breach of the English court’s views of substantial
justice.
• Contrary to public policy- a foreign judgment will neither be recognised nor enforced in England if it is contrary to public
policy. In RE MACARTNEY, a maintenance order was made in the Maltese court against a man domiciles in England. This
order was to provoke maintenance for the illegitimate daughter. The court refused to enforce this order on grounds of
public policy as it was against it that an illegitimate child be maintain by his father.
Statutory regime
It applies to a judgment from a designated country if it is final and conclusive between parties and there is payable under it a
sum of money not being a sum payable in respect of taxes or other charges of similar nature or in respect of a fine or penalty. A
judgment is final notwithstanding that an appeal is pending or that a legal possibility exists for an appeal-section 81 of courts
act. A judgment creditor of a judgment to which the scheme applied may apply within six years of the judgment and with proof
of prescribed matters, to the High Court for registration-section 82 of courts act. A right of execution exists after registration.
The judgment will however not be registered if it has been wholly satisfied or could not be enforced by execution on the country
of the judgment-section 82 of courts act. Where the sum payable under the judgment which is to be registered is expressed in
a currency other than the currency of Ghana the judgment shall be registered as if it were a judgment for a sum in the currency
of Ghana based on the rate of bank exchange prevailing at the date of the judgment of the original court.YANKSON V MENSAH. Commented [sq36]: The plfs obtained judgment at the
English high court against the def in 1967. In 1973 LI 824 was
FOREIGN JUDGMENTS AND MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) INSTRUMENT, 1993 (LI 1575). enacted which made the registration and enforcement of the
Brazil Supreme Federal Court foreign judgments in Ghana. The LI took retrospective effect
and section 76 of it provided that registration can only be
Federal Court of Appeal made six years after the date of judgment. The plf sought to
State High Court. register his judgment in October 1973 but he was adjudged
France Cours De Cessation to be statute barred by the LI. The plf in view of this sought
Cours D' Appel. to institute a fresh action to recover his debt. Held- a
judgment of any of the designated courts and countries
Israel Supreme Court
including the high court of England can only be registered in
Italy Corte D' Appello Ghana and it cannot be enforced by any other proceedings
Corte D' Cessazione. for instance by the institution of fresh action. From the case,
Japan Supreme Court of Japan. the right procedure was for the plf to register his action with
Lebanon Court of Appeal six years and this he did after and as such his action is
statute barred.
High Court
Senegal Cours Supreme
Cours D' Appel.
Spain Tribunal supreme
Audiencia Territorial
Juez de Primera Instencia.
United Arab Republic Court of Cessation
Court of Appeal.
United Kingdom High Court of England
High Court of Northern Ireland.
Court of Session in Scotland.
Any court to which an appeal lies from any of the foregoing Courts.
Conditions-section 81(2)
• Final and conclusive between the parties

• There is payable under it a sum of money, not being a sum payable in respect of :
o taxes,
o other similar charges,
o a fine,
o other penalty
• It was given after the coming into operation of the L.I. that lists the country of the Court
A person against whom a registered judgment may be enforced can apply for the registration to be set aside on either mandatory
or discretionary grounds.
Mandatory grounds- Section 83 of courts act
• It is not the designated court or courts in the LI 1575
• The court had no jurisdiction-section 83(2)(3) of the courts act
• If rules of natural justices were breached
• Judgment obtained by fraud
• Contrary to Ghana's public policy- section 83(1) of courts act
Discretionary grounds-
Section 83(b)-the registration may be set aside if the registering court is satisfied that the matter in dispute in the proceedings
in the original court had prior to the date of the judgment in the original court been the subject of a final and conclusive judgment
by a court that had jurisdiction in the matter. This rule envisages a situation of two conflicting judgment and gives the court
discretion not to register the judgment presented to it. In a way lis alibi pendens.
Procedure
Procedure for applying for registration and setting aside of the registration are dealt with in O71 of CI47. An application for
registration in the high court may be made ex parte and the judge may exercise the power of registration in the chambers. The
application should be supported by an affidavit deposing to specific facts-O71r3. The judgment creditor may be required to post
security for the cost of registration and any proceedings which may be brought to set the registration aside. Notice of the
application must be served personally to the judgment debtor who must be given a specific time within which to apply to set
aside the registration. The court would set aside the judgment if it is satisfied that it falls within at least one the grounds in
section 83 of the courts act or that it’s just that it does so. It is only after the expiration of that time that execution can be
issued on the judgment so registered.
Enforcement of arbitral awards
There are two principal regimes for the enforcement of arbitral awards namely the common law and statutory regime.
At common law the conditions for the enforcement of foreign arbitration awards are:-GRINAKER LTD V STYPE INVESTMENT
LTD, BUDU V CAESAR, NYAMSEMHWE V AFIBEYESAN Commented [sq37]: An action to enforce a South African
arbitration award. The counsel for the defendant challenged
• The parties must have submitted to arbitration. There must be a valid submission to arbitration. The validity of such the jurisdiction of the court on the grounds that South Africa
agreement is determined by the proper law of the arbitration agreement. The actual arbitration proceedings in the was not a reciprocating state under the Arbitration (Foreign
Awards) Instrument 1963. The court swiftly dismissed the
absence of an express choice of law will be governed by the law of the place of arbitration-NORSKE ATLAS INSURANCE objection and held that, in the absence of reciprocity, the
CO LTD V LONDON GENERAL INSURANCE CO LTD award could be enforced by a common law action. Such an
award should also be final and binding between the parties.
Plaintiffs, an insurance company in London, and defendants, an insurance company in Norway, entered into a written Neither the fact that an appeal is pending nor the existence
contract headed ‘Reinsurance contract – Marine Insurance.’ The contract was not stamped as a policy, but it contained of a right to appeal will bar enforcement. However, where a
foreign court has ordered 'a complete stay of execution’
the usual terms of a reinsurance treaty, plaintiffs being the reinsured and defendants the reinsurers, and there was a pending the conclusion of an appeal, it will bar the
clause providing that in the event of disputes an arbitration should take place in Norway. The contract was signed by enforcement of the award.
plaintiffs in Norway and by defendants in London and was stamped with an English sixpenny stamp, but not in
accordance with the English law as to contracts of marine insurance, but it was valid by the law of Norway. An
arbitration under the contract was held in Norway and an award was issued in favour of plaintiffs. In an action on the
award defendants submitted that the law applicable to the whole contract must be the law of England, and that, since
the contract neither was a policy as required by English law nor was properly stamped as such a policy, plaintiffs could
not recover on the award. Held- as the action was brought on the award, and as the proper inference from the
provision as to the arbitration being held in Norway was that the parties intended the law of Norway to govern the
contract, plaintiffs were entitled to recover the sum awarded.
• Arbitration was conducted in accordance with submission
• Arbitration was final and valid by the law in the country in which it was made.
The award creditor can then commence a fresh action to enforce the award. After application for enforcement is done
through summary judgment. There is a limitation of six years. The award can be set aside if
• There was breach or rules of natural justice,

• fraud
• contrary to public policy,
• the body had no jurisdiction to hear the matter
• If the country is listed in LI 261
Arbitration (foreign awards) instrument 1963 LI 261
Austria Federal republic of Germany Morocco
Bulgaria Finland Norway
Byelorussian soviet socialist republic Greece Poland
Cambodia Hungary Romania
Central African Republic India Syria
Ceylon Israel Thailand
Czechoslovakia Japan Ukrainian Soviet Socialist Republic
Ecuador Madagascar Union of Soviet Socialist Republics

United Arab Republic
Where it falls under a statutory regime it should be enforced under that regime and not the common law procedure.
Enforcement under statute is governed by section 59 of the alternative dispute resolution act 2010, act 798. The high court
is given jurisdiction to enforce such awards.
• The court must be satisfied that the award was given by a competent authority under the laws of the country where
the award was made.
• The court must also satisfy itself whether there exist a reciprocal enforcement arrangement between Ghana and the
country where the award was made OR
• A foreign arbitration award would also be enforced in Ghana if that award was made under the New York convention
or international arbitration treaty ratified by Ghana and the party that seeks to enforce the award has produced
o the original award or has produced a copy of the award authenticated in the manner prescribed by the law
of the country in which it was made;
o the agreement pursuant to which the award was made or a copy of it duly authenticated in the manner
prescribed by the law of the country in which it was made or in any other manner as may be sufficient
according to the laws of the Republic of Ghana;
o and there is no appeal pending against the award in any court under the law applicable to the
arbitration.
All these are set out under section 59 of act 798. The reciprocating must exist at the time the award is sought to be enforced
and not the time the award was made-STROJEX PORT V NASSAR
The applicant had arbitration awards held for him against the respondents at Prague in Czechoslovakia. At the time of the
award Czech was not one of the reciprocating states under the arbitration act but subsequently became one. The applicants
brought an application for the enforcement of the award. Held- the arbitration awards made against the respondent was
enforceable in Ghana under the act even though Czech was not then declared a reciprocating state at the time
Possible defences
• the award has been annulled in the country in which it was made
• the party against whom the award is invoked was not given sufficient notice to enable the party present the party’s
case
• a party, lacking legal capacity, was not properly represented- JADBRANSKA SLOBODNA PLOVIDBA V OYSA LTD Commented [sq38]:
• the award does not deal with the issues submitted to arbitration
• The award contains a decision beyond the scope of the matters submitted for arbitration.
Limitation of action
In Ghana an action to enforce an arbitration award shall not be brought for enforcement after 6 years from the date the cause
of action arose-section 4(1) e of NRCD 54 Commented [sq39]: A person shall not bring an action
after the expiration of six years from the date on which the
Cause of action accrued, in the case of an action to enforce
an award, where the arbitration is under an enactment other
Contract than the
Arbitration Act, 1961 (Act 38)
Contracts in the Conflict of Laws is about the rules applicable to resolving a dispute or deciding a matter concerning a contract
which contains a foreign element. Commented [sq40]: By a contract drawn in the French
language but executed in Ghana, the plaintiff, an Israeli
national, agreed to serve the defendants, an external French
Ascertainment of the applicable law of the contract
company, as the defendants' works supervisor "under the
control of the defendants' Tema representative, at their
The fundamental principle is that the contract is governed by the law chosen by the parties. In the absence of such choice the
building site at Tema, Ghana" for a fixed period of three
principle is that the contract is governed by the law of the country with which it has its closest and most real connection. The years inclusive of a four-month probation period. The
proper law of the contract is the system of law by which the parties intended the contract to be governed- SOCIETE GENERALE plaintiff's salary was made payable in French currency in
France with the exception of his living expenses which were
DE COMPENSATION V ACKERMAN. Where their intention is neither expressed nor could be inferred from the circumstance
to be paid in Ghana currency. Each party was entitled to
the courts would apply the system of law the transaction has its closest and most real connection terminate the contract during the probation period without
either notice or compensation subject to the express limited
The courts adopt an objective and pragmatic test in deciding on which law has the most real and substantial connection to the right of the defendants to terminate the contract for either
contract-GARCIA V TORREJOH. "a professional or disciplinary reason." However, before the
expiration of the probation period, the defendants
• If the parties have chosen a law summarily terminated the plaintiff's contract on completely
different grounds. Held- the proper law of a contract is the
• If not expressed then it would be inferred from the contract-VODKA GROUP OF COMPANIES V PS INTERNATIONAL LTD, system of law by which the parties intended the contract to
be governed, or where their intention is neither expressed
FATTAL V FATTAL. nor to be inferred from the circumstances, that system of
law with which the transaction has its closest and most real
Plf sued defs in Ghanaian court as a member of a partnership, the defs filed appearance and brought a motion to have connection
the proceedings stayed because of the presence of an arbitration clause. It was granted. After def went to different
Commented [sq41]: The plf issued a writ against the def
court and had the substantive suit dismissed on grounds that all disputes were to be settled per law of Lebanon as for a sum of money arising out of a contract by the applicant
agreed by the parties, and the forum conveniens is Lebanon. The plf appealed. Held-The proper law of the contract to purchase some goods. After entering into appearance, the
was the system of laws by reference to which the contract had been made or the one with which the transaction had applicant applied to the court to have the writ set aside for
want of jurisdiction on the grounds that he was a diplomat
its closest and real connection. However, where no express reference was made to any, the question would become a and was entitled to immunity and also the contract between
matter of implication to be derived from all the circumstances. Accordingly, in the instant case even though no express them was concluded in Spain and as such Spanish laws apply.
choice was made by the parties of the system of law, having regard to the contract itself, its terms, the situation of the Held- a commercial activity as provided under article 31 of
act 148 meant a commercial or business transaction entered
parties, where they operated and more importantly, that the contract was essentially and wholly to be performed in into by the diplomat in his private capacity. It did not infer
Ghana, the proper law of the contract was that of Ghana and not Lebanon law. that the commercial activity was limited to those that
brought in personal profit. In determining the proper law of
Sometimes the applicable law is customary law-SOLOMON V ACKON contract the court would first enquire whether the parties
have made an express section. If not the court would see
whether it was implied. If no then the court would
determine from the surrounding circumstances which
There are specific contract rules. Carriage of goods, luggage and persons by air-they are governed by law different from the system of law the transaction had its closest and most vital ...
general laws-MORGUARD INVESTMENT V DE SAVOYE Commented [sq42]:
The Warsaw convention 1929-implemented by LN 155 CARRIAGE BY AIR (COLONIES, PROTECTORATES AND TRUST Commented [sq43]: The parties both Ghanaians had
entered into a business transaction in Germany which
TERRITORIES) ORDER 1954. The convention is invoked to govern in carriage of luggage by air contracts in some cases.-ROYAL
resulted in the appellant being indebted to the respondent.
DUTCH AIRLINES V FARMEX, The respondent brought an action to recover all debts owed
by the appellant. The issue was which law was applicable in
The first defs entered into an air carriage contract with the plf for the carriage of mangoes. They were to ship the goods from the circumstance, customary law or English common law.
Accra to Nigeria for transshipment to the second defs. Bu the mistake of the first def, the good could not be delivered on time Held-whether a transaction evidenced in wring is to be
for the second def to transship, the second def refused to accept and ship the goods. After several deliberations, they shipped governed by customary law is to be determined by whether
the transaction constituted a record of all the terms agreed ...
it at very later date. The goods became unwholesome and unfit for human consumption when it arrived at its destination. The
plfs sued the defs for the value of the goods. Held- the case is governed by the Warsaw convention which by the CARRIAGE BY Commented [sq44]: The respondent were mortgagees of
AIR (COLONIES, PROTECTORATES AND TRUST TERRITORIES) ORDER 1954 is part of the laws of Ghana. The def could not rely on land in Alberta. The appellant was the mortgagor and then
resided in Alberta. He moved to British Columbia and has not
art 20 of the convention to escape liability because the burden was on them to prove ha they took all necessary measures to resided or carried business in Alberta since then. The
avoid the damage. However since they did not deliver on time they were in breach mortgages fell into default and the def brought an action in
Alberta. The appellant failed to appear or to defend the
action and as such judgment by default was give. The
appellant then obtained orders for a judicial sale of the
SIGNAL OIL AND GAS V BRISTOW HELICOPTERS mortgaged properties to themselves and got judgment. The...
Commented [sq45]:
Also, THE INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES OF LAW RELATING TO BILLS OF LADING-
BILLS OF LADING ACT 1961 ACT 42 implements the Hague rules. Carriage of goods from outside the country are governed by
this instrument-SCANSHIP GHANA LTD V EFFASCO,
The respondent, a Ghanaian and civil works contracting company purchased from an English company two road rollers. The
English company shipped the rollers in a container in board a cargo ship in England to the respondent in Ghana. When the ship
arrived at tema, the cargo was not on board even though the container was on the ship. The respondent sued the appellant,
the local shipping agents of the owner of the ship for the value of the rollers and also for damages. Held-The Hague rules apply
subject to the provisions of the bill of lading. By section 1 of act 42, the Hague rules applied in relation to and in connection
with the carriage of goods by sea in ship carrying goods from any part of Ghana to any other part in or outside Ghana. Since in
the instant case, the cargo was being carried from a port in UK and not from Ghana, the act could not apply.
JOHN HOLT SHIPPING SERVICES V EDWARD NASSAR LTD Commented [sq46]: The appellants were the agents for
the carriers of goods that had been ordered by the
respondent. The goods safely and were unloaded and stored
in a public warehouse and the harbor. However when the
Exception respondent called to take delivery of the goods but it could
not be fund. The respondent sued for damages. Held- the
• Forum conveniens-although parties have chosen a certain law the contract is not closely connected with that law Hague rules only apply during the actual carriage of goods on
a ship and since the goods had been discharged, the Hague
rules were not applicable.

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Conflict 1 Notes

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LUDWIG QUAYE #YOUMATTER

How is domicile determined?

• The place where the contract is made

Nationality of a company is determined by the law of the place of incorporation

TAFA AND CO GHANA LIMITED V TAFA AND CO

COLT INDUSTRIES V SARLIE

There first thing is filing an application for leave ex parte-LOKKO V LOKKO,

(2) Subsection (1) shall not apply to service of a document,

Commented [AK14]: A ship, called the Cristina , belonging

GARCIA V TORREJOH. Commented [sq16]: The respondent issued a writ against

CILE V BLACKSTAR LINE

• Arbitration clause-POLIMEX V BBC

For this to happen 4 conditions have to be met:

• The party must prove the content of the foreign law

• The term was a commercial one not legal

• Witness 2 was a director and had 47 years of experience of banking in Chile

Exclusion of foreign law

GOVERNMENT OF INDIA V TAYLOR

ATTORNEY GENERAL OF NEW ZEALAND V ORTIZ

o The party submitted to the jurisdiction of the foreign court

HENRY V. GEOPROSCO INTERNATIONAL Commented [sq27]: A def who makes voluntary

COPIN V ADAMSON Commented [sq28]: A def who had previously agreed by a

BUCHANAN V RUCKER Commented [sq29]:

SCHIBSBY V WESTENHOLZ, Commented [sq30]: The plf, a Dane resident in France

• Final and conclusive between the parties

Mandatory grounds- Section 83 of courts act

• It is not the designated court or courts in the LI 1575

• The court had no jurisdiction-section 83(2)(3) of the courts act

• If rules of natural justices were breached

• Judgment obtained by fraud

• Contrary to Ghana's public policy- section 83(1) of courts act

Enforcement of arbitral awards

• Arbitration was conducted in accordance with submission

• There was breach or rules of natural justice,

Arbitration (foreign awards) instrument 1963 LI 261

Austria Federal republic of Germany Morocco

Bulgaria Finland Norway

Byelorussian soviet socialist republic Greece Poland

Cambodia Hungary Romania

Central African Republic India Syria

Ceylon Israel Thailand

Czechoslovakia Japan Ukrainian Soviet Socialist Republic

Ecuador Madagascar Union of Soviet Socialist Republics

United Arab Republic

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