Conflict of Laws

Principle Authority

INTRODUCTION
Conflict of laws helps to understand the legal principles used to
resolve conflicts in private law issues that involve more than one legal
system

It is that part of Ghanaian law which comes into operation whenever a

court is faced with a claim that contains a foreign element

Rules voluntarily chosen by a given state for the decision of cases

which have a foreign complexion

A foreign element is a fact, event or transaction that is so closely

connected with a foreign system of law as to necessitate recourse to
that system by the court/lex fori

The personal law of a person refers to the system of customary law to S54(1), Courts Act 1993 (Act 459)
which he is subject or to the common law where he is not subject to
any system of customary law. Its scope includes family law, property King v Elliot [West Indian testator not subject to Fante customary
law, tax, capacity of persons, tort, etc law but to the common law]

When there is a foreign element in a case, the questions to be

answered are;

- Does the lex fori have jurisdiction to determine the case?

[jurisdiction]

- If so, which law will apply in determining the case?

[choice of law]

- In some cases, whether the lex fori will recognise a foreign

judgment or arbitral award purporting to determine the issue
between the parties?
[recognition and enforcement of foreign judgments and
arbitral awards]

All three issues supra may be mutually exclusive but more so between
and first two on one hand, and the third on the other because not every
issue would have proceeded to judgment for the 3rd issue to come up.

Constitutional basis for conflict of laws;

The laws of Ghana

- The Constitution Art. 11 of 1992 Constitution
- Enactments of parliament
- Orders, rules and regulations made under power conferred
by the constitution
- Existing law
o The written and unwritten laws of Ghana as they
existed immediately prior to the coming into force
of the constitution, and any Act, Decree, Law,
L.I., etc
o To be construed with any modifications,
adaptations qualifications and exceptions
necessary to bring it into conformity with the
provisions of the Constitution or otherwise to give
effect to, or enable effect to be given to any
changed effected by the constitution.
- Common law
o Common law
o Equity
o Customary law

Rules of law which by custom are
applicable to particular communities in
Ghana
Statutory Basis for conflict of laws
S54(2), Courts Act, 1993 (Act 459)

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Subject to this Act and to any other enactment, the rules of law and
evidence, including the rules of private international law, that have
before the coming into force of this Act been applicable in
proceedings in Ghana shall continue to apply, without prejudice to the
development of the rules which may occure

Possible solutions to the problems of private international law

- Uniting all internal laws

- Uniting all the rules of private international law to have one
international law
- Universal choice of law rules

Relevance of conflict of laws

- Globalisation and it’s concomitant issues

- Conflict between ‘imported’ law and pre-existing customary
legal systems (internal conflicts)

In determining a person’s personal law, the following connecting

factors are considered;
- Presence
- Residence
- Nationality
- Domicile

DOMICILE, NATIONALITY, RESIDENCE

Presence may be used as a connecting factor in determining a
person’s personal law, particularly with respect to jurisdiction

Residence is another connecting factor. It has a stronger link to the Fox v Stirk [university students held to be ‘resident’ in the
person than presence. In determining how strong it is, the context has university town for electoral registration purposes]
to be looked at.

When it comes to jurisdiction, the courts tend to lower the scale iro
residence. The converse is however true for tax purposes.
Ordinary residence requires some degree of continuity apart from
accidental or temporary absences.
IRC v Lysaght [L born in England of Irish parents, relocated to
Ireland on retirement but came to England once a month for
business. Held to be resident for tax purposes]

Habitual residence is a person’s abode in a particular country which he Abu-Jaudeh??

has adopted voluntarily and for settled purposes as part of the regular
order of his life for the time being.

Long residence does not equate acquisition of domicile. Abu-Jaudeh v Abu-Jaudeh [Lebaneses resident in Ghana for 23 yrs
was not domiciled by virtue of long residence]

Nationality, apart from naturalisation, depends on the place of birth or Citizenship Act, 2000 (Act 591)
parentage.

A person may be a national of one country but domiciled in another.
Hence such a person does not automatically lose his domicile by
naturalisation.
Nationality is determined by the law of the proposed country.
Rep v Mallet, Ex P Braun [Dr. M was Ghanaian in Germany for
school and got Ms B preggers, the legitimacy of the child depended
on the personal law of the parents at the time of its birth not
German law alone]

One may retain nationality long after he has ceased to have any
practical connection to the country in question

It is necessary in the administration of the law that the idea of Bell v Kennedy per Lord Westbury
domicile should exist, and that the fact of domicile should be
ascertained; in order to determine which of two municipal laws may
be invoked for the purpose of regulating the rights of parties

Definition of Domicile
Mark v Mark quoting Lord Westbury with approval [9ja woman

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Domicile refers to a person's civil status for the purpose of living unlawfully in UK, whether residence has to be lawful to est.
determining various rights in private law domcile]

Domicile is the relation which the law creates between an individual Bell v Kennedy per Lord Westbury [Scotsman born in Jamaica,
and a particular locality or country. moved to Scotland]

Domicile is habitation in a place with the intention of remaining there Whicker v Hume per Lord Wensleydale
for ever unless some circumstance should occur to alter the intention

By "domicile" we mean home - the permanent home; and if you do Whicker v Hume per Lord Cranworth [Englishman, moved to India
not understand your permanent home, I am afraid that no illustration @ 23 for over 20 yrs, back to England, moved to France 3 yrs
will very much help you to it. before death; held – no intention of abandoning England]

It is a settled principle that no man shall be without a domicile; to Udny v Udny per Lord Westbury
secure this end, the law attributes to every individual as soon as he’s
born the domicile of his father if the child is legitimate and the
domicile of his mother if the child is illegitimate.

An individual’s domicile of origin is his/her mother’s if s/he is born

after the death of the father.

The onus of proving a change of domicile is on the party who alleges Bell v Kennedy [Scotsman born in Jamaica, moved to Scotland,
it whether Scottish law applied to share his wife’s property with
child; P unable to prove that D had changed his domicile of birth at
the time of his wife’s death]

A person may be habitually resident in more than one place at a time, Mark v Mark [senator]
or may have no habitual residence at all; however a person must
always have a domicile but can only have one domicile at a time

Whether a person is domiciled in Ghana is determined by the lex fori Omane v Poku [Ivorian relocated to Ghana turn jujuman, held to be
subject to Akan customary law]

Mahama Hausa v Baako Hausa [Nigerian man from Kano settled

in Yendi, held to be subject to Kassena-Nankana laws]

An assertion that one has applied for Ghanaian citizenship is not Abu-Jaudeh v Abu Jaudeh [
enough evidence of an intention to live permanently in Ghana

Domicile of Origin
Domicile of origin is the domicile ascribed to a person by law at the Bell v Kennedy [although D talked about ‘going home’ from
time of birth. Jamaica and although he went to Scotland, there was no actual
change of domicile at the time of his wife’s death esp cuz he said
To every adult person the law ascribes a domicile, and that domicile they were moving into a furnished abode for 12 months while he
remains his fixed attribute until a new and different attribute usurps its looked around for an estate to buy.]
place

A person’s domicile of birth clings and adheres to the subject until an Winans v A-G [American inventor living in England, always
actual change is made by which the personal status of another intended to go back to US when his inventions became a hit. Held
domicile is acquired not to have abandoned DOO]

A person’ domicile of origin may be extinguished by an act of law e.g Udny v Udny obiter of Lord Westbury
sentence of death or exile but it cannot be destroyed by the will or act
of the parties

Domicile of Choice
It is the creation of the party. It’s the domicile which each person of Udny v Udny [abandoned England for France but no animo
full age is free to acquire in substitution for that which he possesses at manendi iro France]
present by a combination of
Abu-Jaudeh v Abu-Jaudeh [Lebanese couple married in Kumasi, no
- Residence in a territory subject to a distinctive legal system proof of animo of losing DOO of Lebanon so court has no
- an intention to remain there permanently jurisdiction to hear divorce petition]

When it is acquired, the domicile of origin is in abeyance but it is not Korem v Spizaka [Slovakian living in Ghana since 1971 but died in
completely extinguished or obliterated. When a domicile of choice is Slovakia in 2006, adopted child under customary law claimed to be
abandoned, the domicile of origin revives, and no special intention to entitled to LOA. Held; although acquired DOC of Ghana, did not

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revert to it is necessary. become subject to customary law until it could be proved that he
had embraced a particular system of customary law]

Davis v Randall [Sierra Leonean man married to Fanti woman

under customary law held to still have his DOO and that marriage
not legitimate under SL law]

Munro v Munro
If after acquiring a domicile of choice a man abandons it and travels in Udny v Udny [Scottish DOO, English DOC, abandoned for France,
search of another domicile of choice, the domicile of origin comes Scot kicks in]
instantly into action and continues until a second domicile of choice is
acquired.

In determining a person’s domicile of choice, there must be animus Bell v Kennedy [determined through letters he wrote to his brother-
manendi which is quite subjective (and a question of fact) in-law in Jamaica as well as conversations with family and servants
in Scotland. He had not formed a fixed intention to settle in
Scotland at the time of his wife’s death]

Domicile of choice cannot be lost by mere declaration that it is not In Re Annesley [testatrix lived and died in France but claimed she
one’s domicile of choice. It’s a question of fact. had not abandoned English domicile]

Simpson v Simpson [a mere statement of intention without any

supporting evidence of extraneous facts cannot suffice to prove a
change of domicile of choice]

A domicile of choice may be acquired even if presence is unlawful Mark v Mark [Nigerian senator]

A new domicile is not acquired until there is not only a fixed intention Bell v Kennedy per Lord Chelmsford
of establishing a permanent residence in some other country, but until
also this intention has been carried out by actual residence there.

Domicile of Dependence/Dependency
Domicile of dependency is assigned by law to specific groups of
people such as children, persons with disability and wives when the
dependent person changes his/her domicile of origin.

The domicile of a dependent person is the same as and changes with

the domicile of the person on whom they are legally dependent.

Dependent persons cannot acquire a domicile of choice by their own

act

At common law the domicile of a child below the age of majority was Re Beaumont [widow domiciled in Scotland remarried and moved
the same as and changed with the domicile of the appropriate parent, in with her new hubby in England but left one of her children
the father in the case of a legitimate child and the mother in the case of behind with an aunt. Held; domicile of the child continued to be
an illegitimate child or a legitimate child whose father is dead. Scottish]

According to English law, a bastard child whose father was English at Udny v Udny per the Lord Chancellor [whether D’s father was
its birth cannot be legitimated by the father afterwards acquiring a English or Scottish? Scottish DOO]
foreign domicile and marrying the mother in another country by the
law of which a subsequent marriage would have legitimated the child.

A mentally disordered person cannot acquire a domicile of choice and

as a general rule retains the domicile which s/he had when becoming
mentally incapable because such a person cannot exercise any will,
s/he lacks the capacity to acquire or lose a domicile.

The domicile cannot be changed by the person taking charge of or

caring for the person or by the court.

Until 1974 in England, a wife’s domicile was determined by her Re Martin [French refugee marriage]
husband’s
Gray v Formosa [Maltese man marrid English woman. Marriage
held to be void cuz not done in RCC. English court refused to
enforce judgment on grounds of public policy]

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Adams v Adams [marriage in Rhodesia under ’65 constitution and

divorce decreed in Rhodesia. English courts refused to enforce the
judgment because judge held to not have locus since sworn in
under Ian Smith’s constitution]

Acheampong v Acheampong [the legal fiction that a husband and

wife are one when they marry does not apply in customary law]

For the sole purpose of determining jurisdiction under this Act, the
domicile of a married woman shall be determined as if the woman was
above the age of twenty-one and not married.
S32, Matrimonial Causes Act, 1971 (Act 367)
Amponsah v Amponsah [borgas from L.A., wife sought divorce.
Held; although both naturalised and in Ghana on visa, the status of
the petitioner determines jurisdiction and on the facts, wife’s DOO
was Ghana hence court has jurisdiction]

In respect of determining jurisdiction in matrimonial cases, the court S31, Act 367
shall have jurisdiction where either party is
Davis v Randall [intestate still had his SL DOO and that Ps were
- a citizen of Ghana; or not his legitimate heirs by the intestate’s personal law]
- domiciled in Ghana; or
- has been ordinarily resident in Ghana for at least three years
immediately preceding the commencement of the
proceedings.

Connecting Factors for Companies

A company is resident for tax purposes if it is incorporated under S161, IRA 2000, Act 592
Ghanaian law or if it’s management and control is exercised in Ghana
De Beers Consolidated Mines v Howe [company was registered in
the Cape Colony, it’s diamond mines and HQ was in SA, general
meetings were held there, some directors resided there and held
weekly meetings but majority of directors resided in England and
the London meetings were where the real control was exercised in
all important business. Held; the company was resident in England
for tax purposes]

Cesena Sulphur Co v Nicholson [company registered in England

but registered in Italy, all of its business carried out in Italy but
controlled by a board in England. Held to be resident in the UK for
tax purposes]

A resident body of persons is resident in Ghana for tax purposes if it’s S162, Act 592
established under Ghanaian law, it is managed by a person resident in
Ghana or it’s controlled directly or indirectly by a person resident in
Ghana

A partnership is resident in Ghana for tax purposes if a partner is S163, Act 592
resident in Ghana during the year of assessment

Other Matters
The courts have held that acquisition and change of domicile should
be proved on the balance of probabilities

It requires stronger evidence to prove abandonment of domicile of

origin

The court’s reluctance to readily accept abandonment of DOO could

be explained in terms of Africa’s colonial history where the courts
were reluctant to countenance holding that members of the expatriate
community had acquired DOCs in the colonies and hence are subject
to the laws of the colonies

In many countries, statutes adopt alternative connecting factors such S160, IRA, 2000 (Act 592) [residence determines jurisdiction to tax
as presence, residence, nationality, and domicile for specific purposes and it’s determined by Ghanaian national, domicile in Ghana but
temporarily absent for not more than a year, presence for an
aggregate period of 183 days]

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S31 of MCA, 1971 (Act 367) [jurisdiction to marriage is

determined by citizenship, domicile, ordinary residence for at least
3 yrs]

JURISDICTION
Jurisdiction is the capacity of a court to hear and determine an issue
upon which its decision is sought.

The court’s jurisdiction may be invoked iro

- territory [acts committed within the territory]
- subject matter [the type of case e.g. land, divorce, etc]
- particular persons [e.g. military, citizens, etc]

It involves 3 major issues

1. whether the courts have power to hear the case
2. whether the court will decline jurisdiction
3. whether there is a limitation upon the exercise of jurisdiction

Power to Hear the Case

This depends on service of the process on the defendant if C.I.L.E.V. v Chiavelli per Amissah J.A. [action to recover money
- present within the jurisdiction being value of goods shipped to D; contract made in Italy, in Italian
- submits to the jurisdiction of the court and disputes to be submitted to court at Modena]
- court authorises service outside the jurisdiction

Once an individual is present within the country and is served with the
process, the court has jurisdiction to try the action and make orders
affecting the person
Maharanee of Baroda v Wildenstein [an Indian princess resident in
France brought action in England against American art dealer also
resident in France for rescission of a contract made in France to sell
her a picture. Writ was served on W at a race during a temporary
visit to England. Held that court had jurisdiction]

Colt Industries v Sarlie [D was not resident in England but was in

London for a few days and was served, he subsequently left the
jurisdiction. Held; the service was proper notwithstanding that D
left the jurisdiction after the service]

Where a defendant is induced by fraud to come into the jurisdiction

for the sole of purpose of service, such service will be held to be
invalid.

If the writ is issued at a time when D was out of the jurisdiction, the Myerson v Martin [writ issued while D outside jurisdiction but
process necessarily had to be served on him personally. Substituted difficulty in serving him personally. Application for substituted
service can only be used where it’s difficult to serve D and s/he is service of the writ set aside because it was issued while he was
outside the jurisdiction at the time the writ is issued. outside the jurisdiction]

A court typically has jurisdiction over an individual if

- s/he’s a subject of the state
- s/he’s present in the state
- s/he submits to the jurisdiction
- s/he selects the forum as a plaintiff and is afterwards sued
there
- is served out of the jurisdiction
- has real estate within the jurisdiction and an issue arose
whilst s/he was in the jurisdiction

Service of a resident or external company should be at a company’s S263, Act 179

registered office, or if there’s no office on any director, or if no
director on any member of the company
Tafa & Co (Ghana) Ltd v Tafa & Co Ltd [write for defendant
company, a foreign company, served on its president-director who
was present in Ghana and had complete control over the company
held to be valid]

A partnership is served if any of the partners are served at the A-G v Levandowski [a foreign partnership not carrying on business
registered office of the partnership in Ghana sued the Republic to recover fees. Held; firm not
incorporated in Ghana or carrying on business here so precluded
from suing in its own name; individual partners could have sued]

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An order for service outside the jurisdiction may be granted iro Order 8 of C.I. 47
- immovable property within the jurisdiction
- construction, setting aside or enforcing an act, deed, Eboe v Eboe [
contract, will, within the jurisdiction
- a domiciliary or ordinary resident of the jurisdiction
- administration of estates of a person who did domiciled in
the jurisdiction
- tort committed within the jurisdiction
- trustee in the jurisdiction
- contract within the jurisdiction
- injunction iro doing something in the jurisdiction
- action brought against a person within the jurisdiction but
were somebody outside the jurisdiction is a proper and
necessary party
- action began by a mortgagee of immovable property situate
within the jurisdiction except for an order of payment of
monies due under the mortgage
- mortgagor for redemption, discharge, delivery but not
personal judgment
- contract with Ghana as choice of forum

An order for service outside the jurisdiction will be made on the AK Investment CJSC v Kyrgyz Mobil Tel Limited
following grounds;

1. there is a serious issue to be tried

2. a good arguable case i.e. one side has a much better
argument than the other
3. the claimant must satisfy that in all circumstances the lex
fori is clearly and distinctly the appropriate forum for the
trial of the dispute

Decline of Jurisdiction/Stay of Proceedings

It depends on the following
- where forum non convenience applies
- where it will be contrary to an exclusive jurisdiction clause
- where it will be contrary to an arbitration clause

Where the court is satisfied that there is some other available forum,
having competent jurisdiction, which is the appropriate forum for the
trial of the action
Spiliada Maritime Corp v Cansulex Ltd [Liberian vessel chartered
to carry cargo of sulphur from Vancouver to India, cargo caused
corrosion to ship and owners brought action against charterer in
England. Judge considered a similar action being tried in England,
availability of witnesses, experts, lawyers would lead to savings in
time and money and held that England was forum conveniens.
Affirmed on appeal to HL after CA overturned decision]

Lubbe v Cape Plc [tort committed in SA but D had no presence or

assets in SA by the time of the action. Held: England is the forum
conveniens]

It is not impossible, nor is it even unusual, for a court with undoubted C.I.L.E.V. v Chiavelli [although courts in Ghana could hear the
jurisdiction in a case to decline to exercise it in deference to a court of case, the best forum to do justice to the case is the court in Italy]
a foreign country also with jurisdiction in the case

Where parties had contracted that disputes are to be referred to a C.I.L.E.V. v Chiavelli [it was stated on the invoice that in case of
foreign tribunal then prima facie the court in which an action was disputes, only the courts in Modena, Italy were competent to
brought in breach of such agreement would stay the proceedings so adjudicate the matter]
brought.

Such a provision does not oust the jurisdiction of our courts. Whether
or not effect was given to the provision depended on the particular
circumstances of each case.
C.I.L.E.V. v Black Star Line [it was agreed that all disputes arising
out of the BL should be submitted to the courts of England but the
court held that staying proceedings will work injustice against the
plaintiffs as huge rents kept accumulating for each day that the
goods were detained by the GoG]

Limitation Upon Exercise of Jurisdiction

It depends on the following

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- the subject matter in issue

- the kind of relief sought
- the person with whom issue is joined e.g. foreign sovereign

Where the court will be unable to enforce a judgment e.g. iro foreign
immovable, it will not exercise its jurisdiction

The court has no jurisdiction over sovereign states and persons with Kwarteng v Sackey [a diplomat has no immunity in his own
diplomatic immunity country]

Armon v Katz [court cannot question immunity certificate once

issued by MoFA]

Diplomatic Immunity Act, 1962 (Act 148)

CHOICE OF LAW
It’s the process by which a court will ascertain that a foreign law
should be applied in the lex fori.

The post-mortuary distribution of the effects of a deceased person Re Fuld’s Estate [affirming decision in Bremer v Freeman]
must be made according to the law of his domicile at the time of his
death

In determining choice of law, the law of evidence is the lex fori which S1(2), Evidence Decree, 1975 (NRCD 323) [the determination of
governs the courts foreign law is a question of fact before the court]

Re Fuld’s Estate [German-born Jew, moved to England and then to

Canada where he naturalised. Back to England which he called
‘home’ and resident in Germany by registration]

Proof of Foreign Law

Foreign law is treated as a fact in Ghana and must be pleaded as well S1(2) of NRCD 323
as proved by the party seeking to rely on it
In Re Canfor (decd.); Canfor v Kpodo [marriage in Lome,
ordinance or customary? Showing marriage certificate doesn’t
necessarily mean same as ordinance in Decd’s domicile]

Davies v Randall [Sierra Leonean married Fante under Fante

customary law, divorced, married SL. SL law to show validity of
the marriage is a question of fact to be proved.]

Because it’s a civil matter, the standard of proof is on the balance of Thompson v Thompson [the court’s ‘variation’ of Yuroba law in the
probabilities ’28 case did not lay down a rule but based its decision on the facts
and evidence of the particular case. P proved his case iro judgment
from Nigeria on the proper lex successionis]

Foreign law must be proved by an expert witness Godka Group of Companies [Indiana law iro the grant of POA
was only shown to the court and not proved]

Khoury v Khoury [Lebanese matrimonial law proved by priest of

Maronite Roman Catholic church]

The competence of a person to be an expert witness is determined by a Khoury v Khoury [petition for judicial separation; a priest was
judge accepted as an expert on Lebanese matrimonial law]

Said Ajami v Comptroller of Customs [a bank manager accepted as

expert on identifying foreign currency]

De Beech v South American Stores

Cooper-King v Cooper-King [an ex-governor of the colony of

Hong Kong was accepted to prove a marriage]

Merely presenting the text of a foreign law without an expert to prove In Re Canfor
it means failure to prove foreign law

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An expert witness need not be a lawyer De Beeche v South American Stores [

Cooper-King v Cooper-King [a former governor of Hong Kong,

acquainted with the laws of the colony, was accepted as an expert
witness to prove a marriage contracted in HK when the usual
lawyer-expert charged prohibitive fees]

The court may take judicial notice when the foreign law can be Fui Tsikata, Proving Familiar Foreign Law
determined accurately and readily from a source of unquestionable
accuracy such as English laws and cases Evidence Decree

Jadbranska v Oysa Ltd [no evidence of an expert witness on

English law being called iro English rules on capacity]

Foreign law is presumed to be the same as the laws of Ghana. Thus if S40, Evidence Decree, 1975 (NRCD 323)
the one asserting foreign law is unable to prove foreign law, Ghana
law will be applied.

The Exclusion of Foreign Law

Where application of foreign law will be against the public policy of Donkor v Greek Consul General [obiter of Crabbe J; if widow had
the lex fori not sued as next friend of her kids contention of GCG that marriage
was invalid per Greek law cuz not done in church n so she had no
“Sex knew no nationality and when a man transcended the barriers of capacity would not have been accepted on grounds of public policy
race and nationality through the avenue of sex, common sense and natural justice.
demanded that the determination of his rights and liabilities should be
by the same rules for the man as well as for the woman” – Charles Gray v Formosa [a decree of annulment iro marriage contracted in
Crabbe J in Donkor v GCG. England at a registry by Maltese court cuz not done in a roman
catholic church was excluded and an annulment wasn’t granted to
woman]

Where the enforcement of the revenue laws of another state is Govt of India v Taylor
involved.

This is because allowing a foreign state directly or indirectly to obtain

judgment in another country for taxes imposed on residents may be
violating the sovereignty of the lex fori.

Where the enforcement of foreign penal laws is involved AG of New Zealand v Ortiz

Where other foreign public laws are involved i.e. state laws other than AG of New Zealand v Ortiz
penal and revenue laws which are ejusdem generis with penal laws
including export regulation, price control legislation, anti-trust
regulations

Where foreign expropriatory legislation is involved e.g. compulsory

acquisition, requisition, nationalisation, confiscation, etc

RECOGNITION & ENFORCEMENT OF FOREIGN JUDGMENTS

In Ghana, a judgment creditor cannot enforce a judgment debt directly

Two parallel regimes of enforcement govern foreign judgments, Colt Industries v Sarlie [no reciprocity btn US and UK hence P
common law and statute. issued a writ for summary judgment of the NY judgment]

The choice of either regime depends on either the country or the court
where the judgment originates.

Enforcement of Foreign Judgment Under Common Law in Ghana

1. The judgment creditor must issue a writ against the judgment
debtor i.e. a fresh action, backed by a statement of claim in which
the judgment creditor pleads that a debt is due and owing.

2. The defendant/judgment debtor enters appearance and files a

defence (which isn’t a defence properly so called cuz can’t deny
a foreign judgment has been entered)

3. After judgment given (in favour of plaintiff/creditor), execution

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proceedings may commence

A limitation with this approach is that, the defendant must be served Order 8, C.I. 47
within the jurisdiction as there’s no provision for service out of the
jurisdiction

Residence or presence is thus important

Conditions for Enforcement of Foreign Judgment Under Common Law

1. The judgment should have been given by a competent court Adams v Adams [divorce decree of judge sworn in under ’65 South
under Ghana Private International law. Rhodesian constitution held to be unenforceable cuz court not
competent]

Adams v Cape Industries & Ors [class action against asbestos

mining & mktg company, held the US court had no jurisdiction
over Ds in Tyler 2]

The court’s lex fori will be looked at to determine if it was competent/ John Holt v Christopher Nutsugah
had jurisdiction

Submission and residence, and in some limited circumstances, Morguard Investment Ltd v De Savoye [the best approach for
presence, will be a basis for determining competence of the court determining jurisdiction is whether the court had a real connection
adjudicating the matter to the parties]

2. The judgment must be for the payment of a fixed and definite Sadler v Robins [the law implies a promise to pay a definite sum
sum of money not an indefinite sum]

Any other judgment may not be enforced in Ghana e.g. where the
court will be required to supervise due to policy considerations

3. The judgment must be final and conclusive

The fact that a judgment is open to appeal does not make it

inconclusive. The pendency of an appeal may however be
considered by the court in determining whether a judgment is
final or not

Defences to Actions to Enforce Foreign Judgments

1. Fraud

2. Judgment procured through breach of rules of natural justice Adams v Cape Industries [Tyler 2 cases; there was no judicial
hearing, Cape not given opportunity to rep itself]

3. Enforcement will be against the public policy of the lex fori

4. The original court had no jurisdiction Mossi v Bagyina [HC sitting as appellate court had no jurisdiction
to make an order for writ of possession ifo P-R iro judgment for
possession made by native court]

5. Inadequate notice to the judgment debtor iro the instant

proceedings

Enforcement of Foreign Judgment Under Statute

The statutory regime is meant to provide an effective and expedited
mechanism for enforcing foreign judgments on a reciprocal basis

1. The statutory regime applies to only designated countries and S81, Act 459
particular courts in those countries
Foreign Judgments and Maintenance Orders (Reciprocal
Enforcement) Instrument, 1993 (L.I. 1575)

Yankson v Mensah [judgment of an English court may be registered

in Ghana per the L.I.]

2. The judgment must be final and conclusive between the parties S81(2)(a)

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3. There must be payable under the judgment a sum of money that S81(2)(b)
is not a tax, fine or penalty

4. The L.I. must mention the name of the country and the court at S81(2)(c)
the time the judgment is given

Service may be outside the jurisdiction

Procedure for Enforcement of Foreign Judgment Under Statute

The judgment-creditor makes an application for registration of the S82, Courts Act 1993 (Act 459)
foreign judgment to the HC

The application for registration must be made within 6 years after date Yankson v Mensah [judgment of English court ifo P, but application
of judgment or its appeal. for registration was made out of time]

A judgment shall not be registered if at the date of the application

• it has been wholly satisfied; or
• it could not been forced by execution in the country of the
original court.

Execution shall not issue on the judgment so long as it is competent

for any party to make an application to have the registration of the
judgment set aside, or, where an application is made, until after the
application has been finally determined

The application for registration may be made by motion ex parte Order 71 r2 C.I. 47

Application for registration shall be supported by affidavit stating the Order 71 r3, C.I. 47
following
- exhibit of the judgment or a verified, certified or duly
authenticated copy of it and where it’s not in English, a
translation into English certified by a notary public or
authenticated by affidavit

- name, trade or business and the usual or last known place of

abode or business of both the judgment creditor and the judgment
debtor

- state to the best of the information or belief of the deponent that

the judgment creditor is entitled to enforce the judgment, at the
date of the application the judgment had not been satisfied; at the
date of the application, the judgment can be enforced by
execution in the country of origin and that if it were registered,
the registration would not set aside under s83 of Act 459

- specify the amount of the interest if any which under the law of
the country of the original court has become due under the
judgment up to the time of the application for registration

The affidavit shall be accompanied with such other evidence iro the Order 71 r3(3), C.I. 47
enforceability of the judgment by execution in the country of the
original court, and of the law of that country under which interest has
become due under the judgment as may be registered

Where the sum payable under a judgment which is to be registered is S82(7) Act 459
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 Order 71 r3(2)
Ghana based on the rate of bank exchange prevailing at the date of the
judgment of the original court. Broderick v Northern Engineering Pdt [rate of exchange to be used
for calculating judgment debt was rate of GBP on the day judgment
was given in England]

Defences to Registration
A foreign judgment may be set aside on both mandatory and
discretionary grounds.

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Mandatory grounds of rejection S83(1), Act 459

- judgment is outside the scope of Act 459 Ashurst Morriscrisp v Peter Awoonor Rena

- the foreign court had no jurisdiction to give judgment

- judgment was obtained by fraud

- enforcement will be contrary to public policy

- judgment debtor didn’t receive notice of the original action in

sufficient time to enable defence and so didn’t appear

- where final and conclusive judgment had been given by another

court with jurisdiction before the matter came before the
‘original’ court

Discretionary ground

If court satisfied that appeal is pending or judgment debtor is entitled S84(1), Act 459
and intends to appeal

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

There are two regimes of enforcement, common law and statutory Arbitration (Foreign Awards) Instrument, 1963 (L.I. 261)

Grinaker LTA v Stype Investment Ltd

Enforcement of Foreign Arbitral Awards Under Common Law

1. the award was made by a competent authority under the laws of S59, ADR Act, 2010 (Act 798)
the country in which the award was made
Grinaker LTA Ltd v Stype Investment Ltd [objection to jurisdiction
2. the award was made under the international Convention specified of the court on grounds that SA not a reciprocating state under L.I.
in the First Schedule to this Act or under any other international 261, held; in the absence of reciprocity, the award can be enforced
convention on arbitration ratified by Parliament by common law action]

3. the award creditor produced the original award or a copy

authenticated according to the law of the country where the
award was made, and the agreement pursuant to which the award
was made or a duly authenticated copy.

4. The award should be final and conclusive by the law of the

country in which it was made

The pendency of an appeal or the existence of a right of appeal will

not bar enforcement of an arbitral award. However, where a foreign
court has ordered a stay of execution pending the conclusion of an
appeal, that will bar enforcement of an award

Procedure
S57 ADR Act, 2010 (Act 798)
Commence action, motion + affidavit, plead the award, D may come
up with defences and then P files an application for summary
judgement

Defences

- Breach of natural justice (audi alteram partem)

- Enforcement will be against public policy
- Lack of jurisdiction
- Fraud
- Inadequate notice iro commencement of action to enforce

Conditions for Enforcement of Foreign Arbitral Awards Under Statute

1. The HC must be satisfied that the award was granted by a S59, Act 798
competent authority under the law of the country where it was

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made. The determination of a competent authority is by the lex

fori.

2. The court must be satisfied that a reciprocal arrangement exists

between Ghana and the country where the award was made by
reference to L.I. 261.

3. The award must have also been made by countries which are
signatory to the New York Convention (UN Convention on the
Recognition & Enforcement of Foreign Arbitral Awards) or the
award was made under an international arbitration treaty ratified
by Ghana. This reduces the limitations in L.I. 261.

4. There should be no appeal pending against the award in any court

under the law applicable to the arbitration - s59(1)(e) of Act 798.

The courts will not enforce if; S59(3), Act 798

a. The award has been annulled in the country in which it was

made;

b. the party against whom the award is invoked was not given
sufficient notice to enable the party present the party's case;

c. a party, lacking legal capacity, was not properly represented; Jadbranska v Oysa Ltd

d. the award does not deal with the issues submitted to arbitration;
or

e. the award contains a decision beyond the scope of the matters

submitted for arbitration.

Limitation of action iro arbitral awards is 6 years from the date the S4(1)(e), NRCD 54
cause of action arose

It’s immaterial whether the award was made at a time when the Strojexport v Edward Nassar & Co. (Motors) ltd [award made in
country the award was made in was not a reciprocating state so long as Czechoslovakia in ’62. L.I. naming Czechoslovakia was passed in
at the time of registration in the Ghana court it had been made a ’63, application to enforce made in ‘65]
reciprocating state.

CONTRACTS IN CONFLICT OF LAWS

Involves contracts with a foreign party who could be a sovereign,
corporation, person, etc and is largely international in nature

The following must be determined before the breach

• The choice of law governing the contract
• The formal validity of the contract
• Law governing capacity
• Law governing performance
• Law governing interpretation

In determining these, there are two fundamental rules; party reference

and incorporation

Party reference is the parties agree in the contract that a particular C.I.L.E.V. v Black Star Line [English law]
legal system’s rules or a country’s laws should govern the contract.

Incorporation is the selection of discrete rules (of different legal

systems) for various aspects of the contract and incorporating them
into the contract. Thus no one legal system or country’s rules govern
the contract.

Proper Law or Applicable Law of the Contract

The proper law of the contract is the law or set of laws by which the
parties intended or may fairly be presumed to have intended the
contract to be governed. In the alternative, it’s the law or set of laws

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which the parties intended or may fairly be presumed to have intended

to submit themselves.

It helps to determine the obligations as well as the intentions of the

parties to the contract.

1. The parties may decide the applicable law by express intention

2. Where the intention of the parties is not express, it can be

inferred from the terms of the contract and the surrounding
circumstances including;

o Place of contract
o Place of performance
o The country under whose flag a ship sails

3. Where neither of the two above can be ascertained, the applicable Societe Generale de Compensation v Ackerman [P, an Israeli,
law is where the contract has the closest and most real employed by French company, contract in French, salary payable in
connection. Francs in France, but contract executed and performed in Ghana.
Held; the applicable law is Ghana

Godka Group of Companies v PS International Ltd [closest

connection of the contract was Ghana not Indiana]

The following presumptions provide prima facie inferences for the
connection of the contract with a different legal system;
• The lex loci contractus – the law of the place the contract is made
• Lex loci solutionis – the law of the place the contract is
performed
• Lex situs – the law of the location of property where immovable
property is involved
Societe Generale v Ackerman [The court is assisted in ascertaining
the proper law by certain presumptions such as the lex loci
contractus and lex loci solutionis which are rebuttable and not
arbitrary; they are merely prima facie inferences which may be
rebutted in a particular case by counter indications suggesting the
connection of the contract with a different legal system.]

Limitations on Party Autonomy

1. Public policy Fatal v Fattal [governing law of partnership among F, F, Rana

Motors and Kia was Lebanese. D sought to throw out court case
2. Court imposed rules on specific areas cuz of this when matter sent for arbitration. Held; contract was
wholly and exclusively to be performed in Ghana, choice of law
3. International convention must be bona fide and must not offend public policy else it will not
be enforced]
4. Illegality
Roger Parry v Astral Operations Ltd [SA company enters into a
contract with Malawian company where M employs people on
behalf of SA but in the event of a dispute, Malawian law should
govern cuz M laws more lax. Held; a company cannot enter into an
employment contract that contradicts mandatory labour rules or
legislation. Court refused to enforce the governing law and imposed
obligation on SA to meet the demands of the Malawian workers.]

s32, Convention for the Unification of Certain Rules Relating to

International Carriage by Air 1929 [any clause contained in the
contract and all special agreements entered into before the damage
occurred by which the parties purport to infringe the rules laid
down by this Convention whether by deciding the law to be applied
or by altering the rules of jurisdiction shall be null and void]

Law Governing Formal Validity

It’s been suggested that it should be lex loci contractus. Others think it
should be lex loci solutionis and others still think it should be the lex
docile or the place of residence.

Under Ghana law, formal validity is to be governed by the law of the Godka Group of Companies v PS International Ltd (supra).
country with which the contract is most closely connected. This

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should be objectively determined and may not have regard to any

choice of law agreements that the parties may have included in their
contract. The rational of this is to prevent the evasion of national laws.
The policy reason is that legal competence should not be sacrificed in
favour of party autonomy.

The place of contract governs the formal validity of the contract.

Law Governing Performance

The law to govern performance is the lex loci solutionis or the proper
law of the contract.

Parties are advised to use the incorporation rule when deciding on the
law governing performance because performance may be effected in
more than one country, so the incorporation rule will ensure that there
will be severance of the law governing performance iro each distinct
location/country.

Where there is a conflict between lex loci solutionis and the proper
law of the contract, the lex loci solutionis prevails.

Law Governing Interpretation

The proper law of the contract that governs interpretation.

TORT IN CONFLICT OF LAWS

This is iro actionable tortious claims by one party against another; a
cause of action (set of facts, the existence of which entitles a plaintiff
to a remedy in court) and jurisdiction must be determined.

The following questions must be asked…

- Whether or not the court has jurisdiction over the claim?

- Which law governs it?

In Ghana, it’s been held that in order to establish jurisdiction in a tort
committed outside Ghana, the tort complained of must be actionable
as a tort both according to the law of Ghana and the law of the country
where the tort was alleged to have been committed [double
actionability].
Wachter v Harlley [slander published in Switzerland. Tort must be
actionable both in Gh and in Switzerland. Defamation is an offence
in Switzerland but experts on Swiss law not agreed on whether
particular words spoken by W would actionable in Switzerland or
not]

This is referred to as dual jurisdictional principle. Thus jurisdiction is Phillips v Eyre [assault and false imprisonment in Jamaica,
grounded by the following; indemnity Act passed to absolve HM’s forces from civil liability,
action brought in England. Held; the act complained of isn’t illegal
- Lex fori in Jamaica so courts of England can’t recognise a cause of action]
- Lex loci delicti [commissi]
Chaplin v Boys [accident in Malta caused by C’s negligence and
question of how damages to be calculated. Held; albeit Maltese law
was prima facie applicable, the issues can be segregated as a matter
of policy and in this case, damages for pain and suffering was a
question of substantive law which is in the purview of the lex fori]

Red Sea Insurance v Bouygues SA [JV in Saudi Arabia iro

construction, P sought indemnity from insurers for repairs to
structural damages in HK court. Held; the rule of double
actionability can be departed from in order to avoid injustice by
holding that a particular issue between the parties to litigation
should be governed by the law of the country which, with respect to
that issue, had the most significant relationship with the occurrence
and with the parties. In this case the arguments in favour of
applying the lex loci delicti were overwhelming. Thus SA law
trumps HK’s]

The exception is that if at the time the writ of summons was served the Wachter v Harlley [W was in Ghana when the writ was served so
defendant was within the jurisdiction of the court, then the court has doesn’t matter where the cause of action arose, as long as it’s in
jurisdiction in respect of any cause of action regardless of where the personam, the courts have jurisdiction]
cause of action arose

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Law Governing Foreign Torts

The lex loci delicti commissi is the law that governs in most common
law countries. This is important because it brings about certainty and
is likely to meet the expectations of parties

SA however doesn’t agree with this test and applies the substantive
relation test.

Sometimes, it’s difficult to determine the locus of the tort (where the
tort occurred).

Duty of care and breach of that duty may occur in one country while
damage may result in another.

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