KWAME NKRUMAH UNVERSITY OF SCIENCE AND TECHNOLOGY

COLLEGE OF ARTS AND SOCIAL SCIENCES

FACULTY OF LAW

LLB YEAR 4

CONFLICT OF LAWS I

LAW 493

COURSE OUTLINE AND STUDY GUIDE/MANUAL

First Semester, 2023/2024 Academic Year

By

Prof. Lydia Nkansah

1
COURSE FACILITATORS

Prof Lydia Nkansah

Faculty of Law, KNUST
Phone: 0200242066
Email: [email protected]

Mr Enoch Amoah (NANA AKWA. III)

Faculty of Law, KNUST
Email: [email protected]

COURSE DESCRIPTION
The course examines the principles of law adopted by Ghanaian courts for resolving issues of
conflict of laws. The general principles relating to conflict of laws to be considered are; the choice
of law rules, jurisdiction and enforcement of foreign judgment(s) by Ghanaian courts.

COURSE OBJECTIVES
The course is based on the premise that legal systems and for that matter the Ghana legal system
is occasionally confronted with cases which contain foreign elements of law which they must
resolve. There are rules of law fashioned by the courts to aid in the resolution of such cases. The
overall objective of this course therefore is to acquaint the students of Bachelor of Laws (LL.B.)
degree programme with the basic tenets of Conflict of Laws.

LEARNING OUTCOMES
At the end of the course students will be able to;
▪ Explain the legal basis and justification for conflict of laws;
▪ Identify the sources of conflict of laws in Ghana;
▪ Demonstrate understanding of the legal principles adopted by the Ghanaian courts for
resolving issues of conflict of laws;
▪ Explain the basis of jurisdiction of Ghanaian courts for admissibility of cases with foreign
element(s);
▪ Explain the basis of recognition and or denial for the enforcement of foreign judgements
by Ghanaian courts; and
▪ Demonstrate understanding of the challenges posed by conflict of laws in the dispensation
of justice.

MEASUREMENT OF LEARNING OUTCOMES:

Learning outcomes may be measured through;
▪ Focus group discussions and presentations;
▪ Class assignments;
2
 ▪ Students’ participation in class; and
▪ Mid-term examination

GRADING POLICY GRADES

Continuous assessment (class assignments) 10
Attendance 5
Mid term exams 15
Final examination 70
Total 100%

CONTENT
INTRODUCTION
• Definition &Characteristics
• The Issue of Foreign Element
• Meaning of Country
• Conflict of Laws (Private International law) distinguished from public international law
• The questions to be answered
• Scope—torts, contract, succession, family law, and all forms of obligations
• Rationale or Justification
• Historical development and current theories
• Glossary of Terms

THE CHOICE OF LAW

Introduction

The Mechanics and Processes Involved

• Characterisation
Solving the problem of characterisation
▪ The Lex fori theory
▪ The Lex causae theory
▪ Analytical jurisprudence and comparative law
▪ Falcombridge’s views

• The Incidental question

• Renvoi

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 o Meaning and problem of renvoi
o Possible Solutions to Renvoi
o Arguments for and against renvoi
o Areas of application of renvoi

• The Time factor

o Changes in the connecting factor
o Changes in the conflict rule of the forum; lex causae

• Connecting factors
o Personal Connecting Factors
▪ Domicile
• Domicile of origin
• Domicile of choice
• Domicile of dependence
▪ Habitual residence and ordinary residence
▪ Nationality
▪ Ghanaian Situation on Domicile, Nationality and Residence
o Other connecting factors
Ghanaian choice of law rules
Proof of Foreign Law
Exclusion of Foreign Law

THE ISSUE OF JURISDICTION

• Definition and nature of actions

• Jurisdiction in Actions in personam
o Natural Persons
▪ Presence
▪ Residence
▪ Submission
▪ Extended Jurisdiction by service abroad
o Companies
• Jurisdiction in Actions in rem
• Staying and Restraining foreign proceedings

ENFORCEMENT OF FOREIGN JUDGEMENTS

• Introduction
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 • Basis of recognition and enforcement
• Enforcement at common law
o Jurisdiction of the foreign courts
▪ Presence or residence
▪ Presence or residence of companies
▪ Submissions
▪ Office or place of business
o Fixed sum
o Conclusiveness and finality of judgement
o Methods of enforcement at common law
o Foreign currency, interests and limitations
o Defences to enforcement of foreign judgement
▪ Fraud
▪ Natural justice
▪ Public policy
▪ Conflicting judgments: res judicata
• Enforcement of foreign judgement under statutory regime
• Foreign judgement as a defence
o Action estoppel
o Issue estoppel

Enforcement of Foreign Arbitral Awards

o Enforcement under common law
o Enforcement under Statute
o Enforcement under ICSID Convention

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 TOPIC I

INTRODUCTION

LEARNING OBJECTIVES:

• To explain the nature and scope of the rules of conflict of laws

• To identify the sources of conflict of laws rules in Ghana

1.1 Definition
We should start by examining some definitions on conflict of laws. Cheshire, North &Fawcett
defined it as “the law which comes into play when the issue before the court affects some facts,
events or transaction that is so closely connected with a foreign system of law as to necessitate
recourse to that system”1. In the words of Dicey and Morris, it is “that part of law of England
[Ghana] which deals with cases having a foreign element”2 Morris referred to it as “that part of a
private law of a country which deals with cases having foreign elements”3

Conflict of laws is based on the premise that although every country has its legal system and
legislates on its social issues to uphold its values, yet its citizens and foreigners enter into
relationships or transactions which give rise to marriage squabbles, defective goods or breach of
contract etc which it might be called upon to resolve.

1.2 Foreign Element

The defining factor of conflict of laws as gleaned from the definitions is the presence of “foreign
element”. A court is said to be confronted with a case with a foreign element when the facts of the
case bring the court into “contact” with a legal system outside the legal system of the forum seized
with the matter4

For an illustration; If A and B both Ghanaians, enter into a contract for sale of goods in Ghana
under Ghanaian law which in this case is the Sale of Goods Act, and a problem arises with the
contract before a Ghanaian court, there will be no foreign element before the court in Ghana and
the domestic law on sale of goods will be applied by the Ghanaian court to resolve the matter.
Hence the rules of conflict of laws shall not come into play. Conversely, if the contract under
consideration were to come before a Nigerian court, conflict of laws will arise because the Nigerian
court which is seized with the case will come into contact with the Ghanaian law on sale of goods.

1
Cheshire, North & Fawcett (2008): Private International Law (14 Ed.)p.5
2
Dicey & Morris (2000). The Conflict of laws (13th, Ed.). Collins, L. ed. London : Sweet&
Maxwell. P.3
3
Morris, (2000). The conflict of laws (3rd Ed.). McClean, D. ed, London : Sweet& Maxwell, P.2
4
Morris op. cited.
6
1.3 Country
Within the contexts of conflict of laws, the meaning of country goes beyond the traditional
meaning of a country as a political entity with a geographical boundary. Rather a country is
considered from the perspectives of a bounded legal system. In this regard Ghana as a unitary state
with its legal system is a country. Likewise states within federations like the United States are
countries to the extent that they are bounded by their own legal systems from that of others within
the federation. In this sense California, Texas, and others would be regarded as countries England
and Scotland which form part of the United Kingdom are countries in the sense being discussed5.

1.4 Conflict of Laws Distinguished from Public International Law

It is important to distinguish conflict of laws also known as private international law from public
international law. In terms of scope, private international applies to matters arising from the
domain of private law, whereas that of public international law deals with public law. Also there
is no uniformity of the rules of private international law whereas the rules of public international
law seek to apply a uniformed set of rules to the international community. Thus, conflict of laws
does not constitute a single system whereas public international law constitutes a single system6.
Thirdly, conflict of laws deals with relationship among persons whereas public international law
largely regulates relationship among states (although individual accountability for breaches of
international law has been recognised).

1.5 Scope
In terms of scope, the rules of conflict of laws seek to answer three basic questions regarding cases
with foreign elements of law, namely;
1. Whether the court (Ghanaian court) has jurisdiction over a case which has foreign elements
of law?
2. If it does have jurisdiction what law should determine the case? ( choice of law ) and
3. Should the court (Ghanaian Court) enforce foreign judgements? And under what
circumstances?7
In terms of subject matter the conflict of laws deals with matters emanating from contracts, family
law, succession, and torts.

1.6 Sources of Conflict of Law Rules in Ghana

Article 11 of the Constitution provides for the sources of law in Ghana so please take note of that.
The rules making up the conflict of laws in Ghana are obtained from statutory and mainly common

5
Collier op. cited p.6-7; Morris op ct p.2-3
6
Morris op. cited p.3-4
7
Morris op cted. P. 4-5
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law/case law sources. Case law comprises of Ghanaian case law and cases from other common
law jurisdictions especially English case law which may be of persuasive effect. Ghana is also a
party to some international and regional treaties on private international law. Please take note of
the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958 which Ghana ratified on April 9, 1968. Relevant also is Article 57 of the Revised Treaty
establishing the Economic Community of West African States which enjoins member states to
“cooperate in judicial and legal matters with a view to harmonizing their judicial and legal
systems”8

1.7 Justification
Reasons why a country will depart from its laws to apply rules from a foreign jurisdiction include
but not limited to the following:
• To give effect to the reasonable expectations of parties to a “transaction or occurrence”
• To avoid otherwise an injustice situation to foreigners and citizens alike
• Insistence on applying internal laws only will lead to grave injustice in certain
circumstances9

1.8 Historical Development of Conflict of Laws

• Early history: Note that in the early times the common law was applicable only in
England and the use of foreign law was excluded because they could not entertain
foreign causes. Note that when Englishmen extended their “commercial activities
beyond the sea it was not possible to obtain remedies for transactions they had
contracted abroad. This was resolved through the Admiralty Court which
entertained foreign causes by the middle of the 14th Century. By the 16th Century the
Admiralty Court had stared entertaining foreign causes which were determined by
the general law maritime and for commercial causes the general law merchant. Thus,
the choice of law was not considered. The common law started exercising this
jurisdiction by the end of the 18th century by dealing with mixed cases. In time the
international nature of these laws ceased because it was incorporated as part of the
English domestic law. Even though the common law was ready to recognise foreign
law their first reaction was to require such cases to be tried by foreign court with their
readiness to enforce foreign judgement.

• Later development; Note later development in Robinson v Bland 10 and Mostyn v

Fabrigas11

8
Oppong , R. F. (2010) Private International Law. Kluwer Law International: Netherlands, p.28
9
Dicey and Morris op. cited p.4-5
10
(1760)1.Wm Bl 234, 2 Burr 1077
11
(1774)1 Cowp 161
8
 • Modern theories and development
o Theories of acquired rights
o Local law theory
o The American Revolution
o The English approach

1.9 Glossary of Terms

Definitions of some common terms on the subject are provided below:
The Lex causae: the law which governs the issue. Examples are:
The Lex fori; the law administered by the court hearing the case
Lex actus; the law governing a transaction, such as the applicable law of a contract.
Lex domicli: the law of a person’s domicile. Ghana’s law is the lex fori for the courts in Ghana
Lex loci actus—the law of the place where a transaction is concluded; in relation to the conclusion
of a contract called lex loci contractus and to the celebration of a marriage, lex loci celebrationis
Lex loci delicti commissi—the law of the place where a tort is committed.
Lex loci solutions—the law of the place of performance (of a contract).
Lex situs—the law of the place where property is situated 12

Readings
Constitution of the Republic of Ghana 1992
Cheshire, North & Fawcett (2008), Private International Law (14 Ed.),
Collier, J.G. (2001). Conflict of laws (3rd Ed.). United Kingdom: Cambridge University Press.
Dicey & Morris (2000). The Conflict of laws (13th, Ed.). Collins, L. ed. London : Sweet&
Maxwell.
Halsbury’s Laws of England (4th Ed.) Volume 8(1)
Morris, (2000). The conflict of laws (3rd Ed.). McClean, D. ed, London : Sweet& Maxwell
Oppong, R. (2006). The Hague Conference and the Development of Private International Law in
Africa: A Plea for Cooperation. Yearbook of Private International Law, Volume 8, pp. 189-212.

TOPIC 2

CHOICE OF LAW RULES

LEARNING OBJECTIVES

At the end of the session, students will able to;

• Explain the mechanics of choice of law in conflict of laws

12
Collier op. cited p. 7
9
 • Demonstrate understanding of choice of law rules in Ghana
• Explain the concept of characterization and the incidental question
• Identify the connecting factors used by the courts in determining personal law
• Demonstrate an understanding of the problem of renvoi and
• Explain the issue of time factor in conflict of laws
2.1 Introduction
This section discusses the choice of law used by the courts to determine cases with foreign element.
It should be pointed out that the courts have to first and foremost determine whether it has
jurisdiction in a matter. The issue of jurisdiction is however discussed in detail later. This section
discusses the technicalities and mechanics used by the courts to determine the applicable law. It
addresses the issue of characterization and incidental question, the problem of renvoi, the
connecting factors, and the choice of law under Ghanaian statutes and case law.
The general conflict of law rules governing the choice of law can succinctly (of course there may
be few exceptions in the Ghanaian situation) be stated as:

1. The formal validity of a marriage is governed by the law of the place of celebration
2. Capacity to marry is governed by the law of the parties’ domiciles.
3. Succession to movable property is governed by the law of the last domicile of the deceased.
4. Succession to immovable property is governed by the lex situs
5. Procedure is governed by the lex fori
6. Contracts are governed (in general) by the law intended by the parties13.

Please note that the above represents the common law tradition and not all of them apply to the
Ghanaian situation. The differences will be pointed out in the course of the discussions.

2.2 The Technicalities Involved

2.2.1 Characterization or classification
Characterization known in English law as classification and as qualification in French law refers
to the process and mechanics used by the courts to determine the nature of a cause of action
presented by a given set of facts with foreign elements. It determines the category in which it falls
i.e. validity or capacity to contract, torts, succession etc. In the words of Cheshire, North
&Fawcett14 it means “the allocation of the question raised by the factual situation before the court
to its correct legal category”. The essence of characterization is to determine the rule of law
applicable to a given set of facts. This is necessary before the applicable connecting factor can be
identified. A case may be characterized as substantive or procedural.

13
Ibid. p.11
14
Op. cited p.
10
Characterization is seen as the most important and difficult problem in conflict of laws because of
the ever continuing exchanges among countries in trade, marriage or relocations of persons from
one country to the other etc. The first problem has been; what is it that has to be characterized? Is
it “a legal relation”, “a legal claim”, “a legal question”, “a factual situation”, “the facts of the case”,
or “the rule of law [Ghanaian law]”?15 It is generally agreed that what is to be characterised is the
legal question.16

The problem is what law should be used to classify a case and put it in its category. An illustration
may be helpful. In Ghana marriage of whatever kind by law is contracted at the age of 18 years
and above17 whereas by international standard a person can marry at 16 with parental consent and
18 without parental consent (This applies in England and several countries in the world).
Assuming, a 17 year old English boy and a 16 year English girl marry with the consent of their
parents. The couple relocates shortly after their marriage to Ghana and the couple find themselves
in Ghanaian Court over a squabble and wanting a divorce. To the Ghanaian court the marriage did
not take place at all because the parties under Ghanaian law had no capacity to enter into marriage,
so the cause of action will be a nullity and annulment of the marriage, whereas by English law
divorce may suffice. The forum court which in this case is the Ghanaian court should decide on
the choice of law to apply. (See SIMONIN V. MALLAC (1860)2 SW,&TR, 67; OGEN V.
OGDEN [1908] P 46 CA; 297); LEROUX V. BROWN (1852) 12 CB 801; HUNTINGTON V.
ATTRILL [1893] AC 150 PC).

Suggested Solution to the Problem of Characterisation

Several theories have been offered to solving the characterisation problem as discussed below;
1. The lex fori theory—This was proposed by German and French writers Kahn and Bartin
who discovered the problem. This theory suggests that the law of the forum should be used
to characterize a foreign law. That is it should take into consideration the contexts of the
foreign law and characterize it as it would by its own domestic laws. By this process the
court of the forum “chooses the most closely analogous rule” of how its own law is
characterize to do so with the foreign rule18. This is supported by several continental
writers.

2. Lex causae theory—This theory suggests that the process of characterization should be by
the lex causae theory. This means that the “appropriate foreign” law should be used. In
the words of Wolff “every legal rule takes its classification from the legal system to which

15
Collier, op cited, p. 15; Morris op cited, p.15
16
Collier, op. cited, p. 14
17
The Children’s’ Act, (Act….)
18
Dicey and Morris, Op. Cited. P.35
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 it belongs”19. It is argued that if foreign legal rule is to apply and its characterization is not
taken from it, it amounts to non application of that foreign law. The problem with this
theory is that it assumes the applicable law is known before characterization without
realizing that characterization is done in order to determine the applicable law20.

3. Analytical jurisprudence—This theory is propagated by Ernst Rabel author of

encyclopaedia of comparative conflict of laws and W.E. Beckett. Succinctly put, the rules
of conflict of law should assume “conceptions of an absolutely general character” and
“These conceptions are borrowed from analytical jurisprudence, that general science of
law, based on the results of the study of comparative law, which extracts from this study
essential general principles of professedly universal application-not principles based on, or
applicable to, the legal system of one country only”21. There are drawbacks:
a) The task involve makes its application impractical,
b) It’s application may come up with similarities but also differences which will be
difficult to resolve
c) There hardly exists such universal application conflict of law rules22

4. Falcombridge’s views— The proponent, a Canadian lawyer proposed that the court should
follow a two stage processes. First, the court should use the lex fori to determine the scope
of the legal category by its conflict of law rules. Second, it should examine the foreign
legal rule in its own contexts to see whether it will fit into the legal category of the forum.

For analysis of English cases on characterisation read RE COHN [1945]CH 5; NATIONAL

BANK OF GREECE AND ATHENS SA V MELTLISS[1958]AC 509; ADAMS V NATIONAL
BANK OF GREECE AND ATHENS SA [1961]AC 255; MACMILLAN INC. VBISHOPGATE
INVESTMENT TRUST (No.3) [1996]1WLR 387, CA

2.2.2 The Incidental Question

The incidental question arises in a situation where after characterising the main question a
preliminary or a subsidiary question also arises. For example Mr A an English man lived and
acquired property in France. He willed the property to his wife Mrs A, a French woman. After
characterizing which law should apply as succession, the court is also called upon to determine
whether Mrs A was indeed the wife of Mr A. According to Cheshire et al, the incidental question
arises where three conditions exist;

19
Cited in Dicey and Morris Op. Cited. P. 35
20
Dicey and Morris, Op. Cited. P. 36
21
Cited in Collier, Op. Cited, p. 17
22
Collier, Op. Cited, p. 17
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 1. The main issue under consideration should be governed by private international law

2. There should be a subsidiary question which should have a foreign element and could arise
separately with its own rule of choice of law

3. The choice of law rule should lead to a different conclusion other than what the primary
choice of law would have led to.

It should be noted that in the absence of the above the issue of incidental question does not arise
(See SHAW V GOULD (1868) LR 3 HL 55, P. 347). The issue raised by the incidental question
is whether the main law as characterized for the primary issue should be used to govern the
incidental question or vice versa? The authorities are not certain on this; in some cases the primary
law as characterised has been used to determine the subsidiary question. In other cases the reverse
has been the case: Read SCHWEBEL V UNGAR [1962] 42 DLR (2d) 622; BRENTWOOD
MARRAGE CASE [1968]2QB 956; LAWRENCE V LAWRENCE [1985] FAM. 106.

2.2.3 Renvoi Problem

Renvoi literally means “send back”. Where by the rules of conflict of laws of a country, a foreign
law governs a case as to a choice of law the court has to determine whether foreign law means the
domestic law of the county or “the whole of the laws of the country including its conflict of law
rules”. Where the court seized with the case determines that foreign law means the domestic and
the conflict of law rules of a given jurisdiction, the application of the conflict of law rules of the
foreign country may refer the forum back to its own rules. This is because there are different
systems of conflict of laws. This may give rise to a problem due to the difference in the connecting
factors. For example, the forum court may regard domicile as the connecting factor whereas the
foreign law may consider nationality as the connecting factor. In such a situation the court seized
with the matter has to decide on how to handle it. This is the problem of renvoi. Dicey and Morris
succinctly stated: “The problem of renvoi arises whenever a rule of the conflict of laws refers to
the law of a foreign country, but the conflict rule of the foreign country would have referred the
question to the law of the first country or to the law of some third country”23 (See RE ANNESLEY
[1926] Ch 692; RE ROSS [1930] 1 CH.337.

Illustration; Mr YF a Ghanaian had died domiciled in France. In his will he deposed of his estate
in a manner contrary to the law of France, but not of Ghana. The relevant Ghanaian choice of law
rule was that the validity of this disposition was to be determined by the law of his domicile (lex
domiclli), whilst the relevant French choice of law rule was that the estate is to be distributed
according to the law of his nationality (lex patriae).

23
Dicey and Morris p.66
13
In the words of Maugham J in RE ASKEW “When English courts refer the matter to the law of
Utopia as the lex domicile, do they mean the whole of that law or do they mean the local or
municipal law which in Utopia would apply to Utopian subjects?” Three possibilities suffice by
way of solution.

Possible Solutions to Renvoi

1. Application of internal rules of a country: This view suggests that the law of a country
should be interpreted to mean the domestic laws of a country. In this regard where conflicts
of law rules require a court to apply a foreign law, it will have to apply the internal or
domestic laws of the foreign country excluding its rules of conflict of laws. In this regard
the law of Utopia means its domestic law minus its conflict of law rules (See HALMILTON
V DALLAS (1875)1Ch D 257; RE ANNESLEY [1926] Ch 692 at 709; RE ASKEW
[1930]2 Ch 692 at 709).

2. Doctrine of single renvoi: This approach suggests that when a court by its conflict rules
is to use foreign law (and by the foreign law rules of conflict the court is referred to use its
own laws, the court should use its internal rules on the matter including its conflict of law
rules (See FORGO’S CASE (1883)10 CLUNET 64). Thus law of Utopia means its laws
including its conflict of rules but minus its conflict rules on renvoi.

3. Total renvoi: This means that the court which has been referred to a foreign law must use
the law which would have been used by the court of the foreign law this include the
complete conflict of law rules. The forum court assumes the position of the foreign court.
A major criticism is that it entirely negates the laws of the forum of the court. There have
been criticisms against the total renvoi doctrine. Among them are:

a. It does not ensure uniformity in decisions

b. It virtually brings about the capitulation of the rules of choice in a given forum.
c. It is difficult to apply.

On arguments for and against renvoi in general read Collier, J.G. (2001). Conflict of laws (3rd Ed.)
United Kingdom: Cambridge University Press.

Scope of Application of Renvoi

The renvoi rule has been applied to cases on validity of wills and intestacy, claims to immovable
properties and issues in family law. (See BARROS MATTOS JUNIOR V MACDANIELS LTD
(2005) IL, PR 45; RE ADAMS [1967] IR 424; RE O’KEEFE [1940] CH 124)

Read these cases on renvoi: COLLIER V RIVAZ (1841) 2 CURT 855; RE ANNESLY [1926] CH
697; RE ASKEW [1930]2CH 259; DUKE OF WELLINGTON [1947] CH 506; RE FULD’S
14
ESTATE (NO 3) [1968] P 675; NELSON OVERSEAS PROJECTS CORPORATION OF
VICTORIA LMITED (2005)221 ALR 213.

2.2.4 Time Factor

In conflict of laws, there can be changes in the rule of the forum, changes in the connecting factor
and changes in the lex causae over a period of time.

• Changes in the conflict rule of the forum—This may occur when a statute amends an
earlier statute, changes an earlier judge made rules or a court reverses its earlier precedent.
The approach to solving the temporal problem has been to rely on the statutory
interpretation and judicial precedent. In Ghana the Interpretation Act, 2009 (Act 792) is
relevant. See Section 34 (1) which provides:
(1) Where an enactment repeals or revokes an enactment, the repeal or revocation shall not,
except as in this section otherwise provided,

(a) revive an enactment or a thing not in force or existing at the time at which the
repeal or revocation takes effect;

(b) affect the previous operation of the enactment that is repealed or revoked, or
anything duly done or suffered under the enactment;

(c) affect a right, a privilege, an obligation or a liability acquired, accrued or incurred

under the enactment that is repealed or revoked;

(d) affect an offence committed against the enactment that is repealed or revoked, or
a penalty or a forfeiture or a punishment incurred in respect of that offence; or

(e) affect an investigation, a legal proceeding or a remedy in respect of a right, a

privilege, an obligation, a liability, a penalty, a forfeiture or a punishment;

and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and
the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed
or revoked.

• Changes in the connecting factor—They are usually constant such as where a marriage
was celebrated, tort was committed, and a will executed or the situs of an immovable
property. Changes do occur however in domicile, residence, or nationality of an individual
or situs of a movable. No general rule is formulated on the subject

• Changes in the lex causae; That is a change in the foreign law which the connecting factor
refers. The overriding consensus among scholars is that the lex causae should be taken to
mean the law in its entirety; to include changes from the date of the event or transaction to
15
 the date of the application. Note that changes may occur in respect of (a) torts; (b) contracts;
(c)formal validity of marriage; (d) succession to immovable; succession to movables; and
(e) formal validity of wills (Read Collier pp.29-32 and Dicey & Morris 53-64 for
comprehensive information on time factor). In these instances, the English Courts have
applied changes in the lex causae to matters which are of continuous nature. But upheld
the old rule in matters that are “once and for all acts or events which are over and done
with” such as will (See LYNCH V. PROVISIONAL GOVERNMENT OF PARAQUAY
(1871) LR 2 P& D 268; R V. INTERNATIONAL TRUSTEE FOR THE PROTECTION
OF BONDHOLDERS A/G [1937] AC 550.

2.2.5 Connecting Factors

In conflict of laws, the connecting factors form part of the characteristic process of the form of
choice of law. It is what links a person to a given legal system. It is to identify the lex causae;
governing law by means of a connecting factor. This “consists of a link between the event, a thing,
a transaction, or a person, on one hand and a country on the other hand”. Also, the connecting
factors determine the personal law of a person in conflict of laws. Personal law means that part of
law that deals with matters pertaining to a person and his or her family. This may be determined
by ones domicile, residence and or nationality as the case may be. Thus if someone is domiciled
in Ghana his personal law on succession is the applicable law on succession in Ghana. In this
regard if a court in Nigeria has to determine an issue about him on succession, the Ghanaian law
on succession will apply.

Personal Connecting Factors

In several legal systems especially common law countries, the notion of domicile is of great
importance as it “identifies an individual’s personal law, which governs questions concerning the
personal and proprietary relationships between members of a family”24 Domicile means permanent
home. In the words of Lord Cranworth “By domicile we mean home, the permanent home…and
if you do not understand your permanent home, I am afraid that no illustration drawn from foreign
writers or foreign languages will very much help you to it”.25 Domicile has assumed different
meanings over the years and should be seen rather as a legal concept or idea. There are three types
of domicile: Domicile of origin, domicile of dependency and domicile of choice.

General Rules on Domicile (Common Law)

1. No person from birth until death is without a domicile. UDNY V UDNY (1869)
2. No person can have more than one domicile at a time. UDNY V UDNY (1869
3. A person’s domicile must be in territorial unit having its own system of law; i.e. Ghana.
England and Wales or Scotland and not United Kingdom

24
Morris, op cited. P.23-24
25
Whicker v. Hume (1858)7 H.L.C. 124 at 160 also cited in Morris op. cited, p. 24
16
 4. There is the presumption against change of domicile and the onus of proving the change is
on the person who alleges it. The degree of difficulties is as follows;-domicile of
dependence being the easiest , then domicile of choice, then domicile of origin being the
most difficult

Domicile of Origin
By law everyone receives a domicile at birth. This is known as domicile of origin. It is attributed
to a person at birth by operation of law “of the person whom he is legally dependent” 26 such as
ones parent. It is not where he was born or the residence of his parents at the time of his birth. This
is necessary in order to connect every person to a legal system. In UDNY V. UDNY Colonel
Udny’s father a British Consul gave birth to him at a time he lived in Tuscany but was domiciled
in Scotland. The Court held that Colonel Udny was domiciled in Scotland.

In Ghana a person’s domicile is determined by the lex fori—the law of the court hearing the case
(OMANE V. OPOKU [1972] 1 G.L.R. 295 affirmed in [1873] 2 G.L.R. 66). A person with
domicile of origin cannot be said to have abandoned it easily not even where he or she naturalises
as a citizen of another country (See AMPONSAH V. AMPONSAH [1997-1998]1G.L.R. 43).

Domicile of choice
At common law domicile of choice is the domicile which every independent person can acquire
by a combination of residence and intention. It should be distinguished from a domicile of origin.
1. Domicile of origin is by operation of law, whereas that of choice is by intention i.e.
acquired by a person who lives in a country without any intention of leaving that country.
2. Domicile of origin is lost by abeyance but can be revived whereas domicile by choice is
lost by abandonment such as leaving the relevant country without the intention to return.
3. Domicile of origin is more tenacious or durable than that of choice in that it is difficult to
establish that domicile of origin has been displaced.

Requirements for Acquisition of Domicile of Choice

There are two requirements involved, namely the factum of “actual presence or residence in a
country” and animus manendi—the “requisite intention”27. These two requirements must be
present together for a claim to a domicile of choice can suffice (See BELL V. KENNEDY 1868).

In Ghana a person acquires domicile of choice with residence and “the intention to remain
permanently”28 (See ABU-JUADEH V. ABU-JUADEH [1972]2 G.L.R. 444). Residence no

26
Dicey and Morris op cited, p.115;
27
Collier op cited. P.40
28
Oppong , R. F. (2010) Private International Law. Kluwer Law International: Netherlands, p.32
17
matter how long without the requisite intention will not suffice for acquiring a domicile of choice
in Ghana.

In DAVIS V. RANDALL29 the deceased was born in Sierra Leone with his domicile of origin as
Sierra Leone. He married a Ghanaian and visited Sierra Leone frequently. He divorced his
Ghanaian wife and married a Sierra Leonean. He died intestate leaving properties in Ghana. It was
held that the deceased maintained his domicile of origin of Sierra Leone.30 In OMANE V. POKU31,
the deceased Omane was a national of Cote D’Ivoire who moved to Ghana over sixty years. He
never visited Cote D’Ivoire. He married two Ghanaians, adopted a Ghanaian name, acquired
immovable property and died intestate. It was held that Ghanaian law determined his domicile and
by it he had acquired his domicile in Ghana at the time of his death.

The Condition of Residence

In the contexts of domicile, residence means “physical presence in that country as an inhabitant of
it” 32 (See IRC V. DUCHESS OF PORTLAND [1982] Ch 314 at 318-319; HIGH TECH
INTERNATIONAL AG V DERIPASKA [2006] EWCH 3276) (QB).

Although residence is an evidence of intention for acquisition of domicile residence is considered

“as being a question of fact”(MARK V MARK [2005] UKHL 42

It should be pointed out that no matter how long a person stays in a foreign country he does not
acquire a domicile of choice except his intentions to that effect is established. On the other hand a
person may acquire a domicile once his intention is established even though he may not have lived
in the foreign country for a long period (See WHITE V. TENNANT (1888)31 W Va. 790.).

The length of residence is irrelevant in these circumstances. Long stay does not confer domicile
neither does brief stay negate it. All depends on the circumstances surrounding each case. Length
of time is not the sole criteria (See HOGSON V DE BEAUCHESNE (1858) 12 Moo PC 285;
BOWIE (OR RAMSAY) V LIVERPOOL ROYAL INFIRMARY [1930] AC 588).

Thus where a person winds up the affairs of his country to live in another country for good, his
mere arrival in the new country will confer a new domicile on him (HOGSON V DE
BEAUCHESNE (1858) 12 Moo PC 285.

29
[1962 1] G.L.R. 1
30
Reported in Oppong op. cited
31
Ibid p. 32
32
Cheshire, North and Fawcett. Op cited, p. 157
18
Similarly where a person leaves country A with all his belongings and family to live in country B
for good, and died subsequently in country A where he had returned with his family to spend a
night with a relative (See WHITE V. TENNANT (1888)31 W Va. 790).

Residence serves as evidence of intention (JOPP V WOOD (1865) 4 De GJ & Sm 616; A-G V.
YULE (1931) 145 LT 9; IRC V. BULLOCK [1976] 1 WLR 1178). This notwithstanding residence
should be voluntary. As a result doubts might be raised concerning prisoners, refugees, fugitives
from justice, fugitives debtors, invalids and others.33 (Please read on these categories of persons
from Cheshire, North and Fawcett).

The Requisite Intention

The question as to what constitute requisite intention is a real problem. Collier defined requisite
intention as a “permanent or indefinite residence; the person must intend, at the relevant time, to
stay in a country for good, or at least for an unlimited period” (See RE FULD (NO 3) [1968] P
675; RE CORE (NO. 2) [1984] STC 609) and it does not matter that he changes his mind later.

On the other hand if he intends to live in a country for good, indefinitely or for a fixed period
however he thinks he might leave someday he does not acquire a domicile of choice. The
possibility of leaving should be based on a real contingency other than a fanciful condition (SEE
IRC V. BULLOCK [1976]1 WLR 1178 CA; RE FURSE [1980]3 ALL ER 838; PLUMMER V.
IRC [1988]1 WLR 292

The burden of proof lies with the person who makes claim to domicile of choice. The standard of
proof is that of civil claims; balance of probability (See RAMSAY V. LIVERPOOL ROYAL
INFIRMARY [1930] AC 588 HL; WINANS V. ATTORNEY GENERAL [1904] AC 287 HL;
BROWN V. BROWN [1982] 3 FLR 212 CA.

Evidence in proof of existence or otherwise of domicile can be drawn from “any act, event or
circumstance in the life of an individual, may be evidence from which the state of his mind may
be inferred with more or less precision; every aspect of his life, his actions and statements may be
adduced”34.

In Ghana strict evidence is required in proof of acquisition of domicile. Thus it was held in
SIMPSON V. SIMPSON35 that “evidence of acquisition of intention of a domicile in Ghana cannot
be derived from a petitioner’s statement that he had no settled home outside Ghana and that it was

33
Cheshire, North & Fawcett. Op. cited, p. 167-170
34
Halsburys, op cited, p. 522
35
1960 G.L.R. 105 also reported in Oppong op. cited, p.33
19
his intention, after obtaining a divorce to marry a Ghanaian and settle permanently in Ghana where
his ‘whole future lies’

Abandonment of Domicile of Choice

Evidence should be adduced to the effect that an acquired domicile has been abandoned. A person
should leave his domicile of choice in order to establish its abandonment. The person should (1)
cease to reside in the country and (2) “cease to have the intention to return to it as his permanent
home”36 (See UDNY V. UDNY).

Absence without intention of abandonment will not hold. Likewise intention without abandonment
of residence will not have any effect (See ZANELLI V. ZANELLI (1948)64 TLR 556, CA;
RAFFENEL (1863)3 SW& TR. 49). A person does not have to acquire another domicile to
establish that the domicile of choice is abandoned. It should be noted that a domicile of origin
revives once a domicile of choice is abandoned.

Domicile of Dependence

Domicile of Married Women in Ghana

At common law a woman acquires the domicile of her husband. Note that this position has been
criticised by the Ghanaian Court (See AMPONSAH V AMPONSAH [1997-1998] 1 G.L.R. 43 at
45). Note however that for purposes of determining jurisdiction in family proceedings, Section 32
of the Matrimonial Causes Act 1971(ACT 367) provides “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”.

Outside matrimonial causes it appears the common law position will apply to determine the
domicile of married women. This is discriminatory by virtue of Article 17(1)(2) of the Constitution
of Ghana.

Domicile of Children
A child is a person under the age of eighteen years (Article 28 (5) of 1992 Constitution of Ghana).
At common law a legitimate child takes his domicile at birth from his father and an illegitimate
child from his mother and changes with that of the appropriate parent RE BEAUMONT [1893].
At the age of 16 that child is at liberty to change his domicile37.

36
Halsburys. op cited. P. 520
37

20
The common law situation in making a distinction between legitimate and illegitimate child is not
applicable in Ghana because the idea of illegitimate child does not form part of the Ghanaian legal
philosophy. Thus Article 28 (1) (b) provides “every child, whether or not born in wedlock, shall
be entitled to reasonable provision out of the estate of its parents”.

In the absence of any specific authority on the issue Oppong maintained that the common law
position may prevail in Ghana for determining a child’s domicile. It also appears that nationality
may be a connecting factor to decide the personal law of a child where the parents of such a child
is not known by virtue of Article 6(3) of the 1992 Constitution which states; “A child of no more
than seven years of age found in Ghana whose parents are not known shall be presumed to be a
citizen of Ghana”.

Residence
Residence and domicile are different concepts in conflict of laws. The defects associated with
domicile have led to the development of the idea or concepts of residence as a connecting factor
to a person’s personal law. The Hague Conventions on Private International Law have influenced
the popularity of residence in place of domicile. It uses the term “habitual residence” as a
connecting factor. Likewise the Rome Conventions in commercial spheres.

Residence means where a person lives and this is a question of facts to be determined 38. The law
distinguishes between ordinary residence and habitual residence. Yet the distinction is blurred. In
the view of LORD SCARMAN in R V BARNET LONGDON BOROUGH COUNCIL EX P
SHAH there is no conceptual difference between the two concepts of residence. Except that
habitual residence has become more fashionable.

According to Lord SCARMAN in SHAH’s case, ordinary residence connotes two elements; 1)
voluntary adoption 2) settled purpose(s) i.e. education, business etc. Ordinary residence does not
mean residence simpliciter. 3)There should be an evidence of a degree of continuous stay (See
IRC V LYSAGHT [1928] AC 217 HL). Ordinary residence can be changed in a day and a person
may have his ordinary residence in more than one country. Ordinary residence of a new born baby
is that of the mother. Ordinary residence of a handicapped adult incapable of forming intention is
that of the person he is legally dependent on.

Habitual residence though used in the Hague conventions on Private International Law has not
been defined statutorily. The test to be applied here is “a persons abode in a particular country
which he has adopted voluntarily and for settled purposes as part of the regular order of his life for

38
Collier op. cited. P. 54
21
the time being”.39(See R V. BARNET LONDON BOROUGH COUNCIL, EX P.NILISH SHAH
[1983] 2 A.C. 309 at; KAPUR V. KAPUR). It is difficult to determine what constitute an
appreciable period of time. What matters most is “a settled intention” (See NESSA V. CHIEF
ADJUDICATION OFFICER [1999]4 ALL E.R. 677).

Even though habitual residence does not have the same legal artificialities, it is increasingly
becoming complex and the one claiming a change of habitual residence bears the burden of proof.

Nationality
It should be noted that nationality and domicile are two different concepts. Nationality determines
ones political status and allegiance to a particular state. It depends on ones parentage or the process
of naturalisation. Domicile on the other hand determines the law which regulates ones “personal
rights and obligations”40 It is anchored in the concept of residence. In this regard in the strict sense
of English law, a person may be a national of one country and retain the domicile of another.

Cheshire, North and Fawcett however argued that the idea of nationality as a connecting factor for
one’s personal law is an adulteration of domicile. Until the beginning of the nineteenth century a
person’s domicile was generally taken as the connecting factor to the personal law for conflict of
laws. The idea of nationality as a personal law in Europe was initially introduced in France with
the passage of the Code and was adopted by some other European countries.

The principle of nationality was however popularized by Mancini’s lectures in 1851. He argued
that laws are made for “ascertained people than for ascertained territory”. Mancini maintained that
a “sovereign in making laws for his people should consider their habits and temperament, their
physical and moral qualities, and even the climate, temperament, and fertility of the soil”. 41 This
idea found expression in Codes in continental Europe where the concept of nationality replaced
domicile except in Norway and Denmark. Thus the world is divided on what is meant by one’s
personal law. This is a major hindrance to the development of universal principle of conflict of
law rules42.

Proponents of nationality believe that nationality as a connecting factor is more stable than
domicile because one cannot change it without formal “consent of the state of new nationality”.43It
is therefore easy to ascertain nationality than domicile because it involves formalities as opposed
to the subjective intentions of the person involved.

39
Ibid, p. 22
40
Cheshire, North and Fawett op. cited , p. 180
41
Cited in Morris, op cited, p.44
42
Morris, op cited, p.45
43
Halsbury’s Laws of England (4th Ed.), 8(1) p. 517
22
It should be noted that the courts in America, United Kingdom, Australia and Canada take
exception to the issue of nationality and have held as such for the following reasons;

1. The purpose is to connect a person to a legal system for purposes of choosing applicable
law. Using nationality as basis for the choice of law does not work in federations where a
country may have different legal systems yet a common nationality. For example, a person
living in Texas in the United State of America is a citizen of the US. Yet federal laws may
not govern all personal laws as some may be regulated by Texas State laws which are not
uniformed with the laws of other states in the US.
2. It may connect a person to a legal system which he may have broken all practical links
with.
3. It is not always practical because a person may have dual nationality and or be stateless
whereas no one is ever without a domicile or has more than one domicile at a time.

The Ghanaian Situation on Domicile, Nationality and Residence

The concepts of domicile, nationality, and residence run through Ghanaian law; in matrimonial
and property proceedings; as basis for service of writ abroad and on wills. Please note some of the
applicable statutes as follows;

Matrimonial Causes Act; Section 32 provides;

The court shall have jurisdiction in any proceedings under this Act where either party to the
marriage;
(a) is a citizen of Ghana; or
(b) is domiciled in Ghana; or
(c) has been ordinary resident in Ghana for at least three years immediately preceding the
commencement of the proceedings.

Section 35 of the Matrimonial Causes Act, 1971 (ACT 367) on the choice of law provides;
“In any proceedings under this Act, except in proceedings for a decree of nullity of a void marriage,
the issue of choice of law shall be determined as if both parties to the marriage were domiciled in
Ghana at the commencement of the proceedings”.

Section 16 of the Wills Act 1971(Act 370) on change of domicile states;

“A will shall not be held to be revoked or to have become invalid, and its construction shall not be
altered, by reason of any subsequent change of domicile of the testator”.

Order 8 of the High Court (Civil Procedure) Rules, 2007(C.I.47) which deals with service out of
jurisdiction provides in part;

23
3(1) Service out of the jurisdiction of notice of a writ may be effected with leave of the Court in
the following cases….
(c) if in the action begun by the writ relief is sought against a person domiciled or ordinarily
resident within the jurisdiction ;
(d) if the action begun by the writ is for the administration of the estate of a person who died
domiciled within the jurisdiction or for any relief or remedy which might be obtained…
(f) if the action begun by the writ is brought against a defendant not domiciled or ordinarily resident
within the jurisdiction to enforce, rescind, dissolve, annul or otherwise affect a contract, or to
recover damages or obtain other relief in respect of the breach of a contract which
(i)was made within the jurisdiction: or
(ii) was made by or through an agent trading or residing within the jurisdiction on behalf of a
principal trading or residing out of the jurisdiction;
(iii) is by its terms, or by implication governed by the laws of this country;
(g) if the action begun by the writ is brought against a defendant not domiciled or ordinarily
resident within the jurisdiction, in respect of a breach
(i) committed within the jurisdiction of a contract made within or out of the jurisdiction; and
(ii) 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.

As seen, domicile is an important connecting factor in Ghanaian law as it is used to determine the
jurisdiction and the choice of law in matrimonial causes, serves as a basis for permission to serve
a writ outside the jurisdiction, and on matters on validity and construction of wills. It should be
noted that the conception of domicile in Ghana is unitary “despite its multiple uses”. And what it
takes to be domiciled in Ghana does not vary with the object of inquiry”44 (See ABU-JAUDEH V.
ABU-JAUDEH [1974]2 G.L.R. 444). Oppong notes that this approach is unsatisfactory.

Another point to make is that in applying domicile as a connecting factor for a personal law, the
court should also determine what a person’s personal law is; either as a customary law or common
law because of Ghana’s pluralistic society (See Section 54 of Courts Act as quoted above). It is
not enough to use domicile under the Ghanaian situation45.

Please note Section 54 of the Courts Acts, 1993 on choice of law between the common law and
customary law. Strictly speaking Section 54 addresses internal conflict of laws however it should
be kept in view that it is relevant in determining the personal law, an important element in the
conflict of laws rules.

44
Oppong , R. F. (2010) Private International Law. Kluwer Law International: Netherlands, p.32.
45
Ibid
24
Section 54(1) provides; Subject to this Act and any other enactment, a court when determining the
law applicable to an issue arising out of any transaction or situation, shall be guided by the
following rules in which references to the personal law of a person are references to customary
law or to the system of common law where he is not subject to any system of customary law:

Rule1. An issue arising out of a transaction shall be determined according to the system of law
intended by the parties to the transaction to govern the issue or the system of law which the parties,
may from the nature or form of the transaction to be taken to have intended to have govern the
issue.

Rule 2. In the absence of any intention to the contrary, the applicable law for any issue arising out
of the devolution of a person’s estate shall be the personal law of that person.

Rule 3. In the absence of any intention to the contrary, the law applicable to an issue as to title
between persons who trace their claims from one person or group of persons or from different
persons all having the same personal law, shall be the personal law of that person or those persons.

Rule 4. In applying Rules 2 and 3 to disputes relating to titles to land, due regard shall be had to
any overriding provisions of the law of the place in which the land is situated.

Rule 5. Subject to Rules 1 to 4, the law applicable to any issue arising between two or more
persons, shall where they are subject to the same law, be that law; and where they are not subject
to the same personal law, the court shall apply relevant rules of their different system of personal
law to achieve a result that conforms with natural justice, equity and good conscience.

Rule 6. In determining an issue to which the preceding Rules do not apply, the court shall apply
such principles of the common law, or customary, or both, as will do substantial justice between
the parties, having regard to equity and good conscience.

Rule 7. Subject to any directions that the Supreme Court may give in exercise of its powers under
article 132 of the constitution, in the determination of any issue arising from the common law or
customary law, the court may adopt, develop and apply such remedies from any system of law
(whether Ghanaian or non-Ghanaian) as appear to the court to be efficacious and to meet the
requirements of justice, equity and good conscience.

(2) Subject to this Act and 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 any development of the rules
which may occur.

25
Other connecting factors
Connecting factors as already indicated link a person to a legal system. Apart from domicile,
nationality, and residence, there are other connecting factors namely the situs of immovable
property, place of celebration of marriage, where a tort is committed, and a will executed as the
case may be ( For comprehensive reading on this see Cheshire, North and Fawett).

2.3. The Ghanaian Choice of Law Rules on Specific Situations

Note the choice of law rules on specific aspects of conflict of laws in Ghana as follows:

Contracts

• The choice of law applicable to contracts is the law intended by the parties and in the
absence of that “by the law of the country with which the contract has its closest and most
real connection” 46(See SOCIETE GENERALE DE COMPENSATION V.ACKERMAN
[1972]1 G.L.R. 413; ACKERMAN V. SOCIETE GENERALE DE COMPENSATION V.
ACKERMAN [1967] G.L.R. 212 (although the intention of the parties may be ignored by
the courts and there may also be variations in the choice of law for specific contracts).

• On capacity to contract, the Ghanaian Courts have held that the applicable law is the
“system of the law with which the contract was mostly connected”47(See JADBRANSKA
SLOBODNA PLOVDBA [1979]G.L.R. 129 and also reported in Oppong).

Torts

• On torts, the Ghanaian courts are not specific on choice of law rule. (See WACHTER V.
HARLLEY [1968] G.L.R. 1069, at 1073 where the court addressed an issue on
international torts from the basis of jurisdiction and did not decide on the choice of law).
In the absence of specific authority on the subject Oppong recommends the adoption of the
lex loci delictile commissi rule for dealing with international torts because of (1) its wide
application in other jurisdictions48, (2) the likelihood of it meeting with the expectations of
the parties and (3) the certainty of it.

Family Law

• Formal validity of marriage under Ghanaian law is governed by the place where the
marriage was celebrated (See CANFOR V. KPODO [1968] G.L.R. 177; Also read Fiadjoe
on CANFOR V. KPODO from Review of Ghana Law (19690) 62) for details.

46
See Oppong Op. cited p.53
47
Ibid. p. 60
48
Ibid. pp 61-62
26
 • Essential validity of marriage in Ghana is regulated by the law of the ante-nuptial domicile
of the parties that is where both parties had their domicile before the marriage. Note the
difficulty which may arise where differences exists in the laws of the domiciles of the
respective parties (See DAVIES V. RANDALL [1962] IG.L.R. 1. For detailed reading see
Oppong pp. 65-66).

• For matrimonial causes the choice of law according Section 35 of the Matrimonial Causes
Act, is that of the lex fori that is the law of the forum and in this case the Ghanaian law.
For Section 35 of the Act assumes parties to matrimonial causes are domiciled in Ghana.
The exception to this assumption is that the lex fori does not apply to proceedings for “a
decree for nullity of void marriage”. But what happens if either or both parties are not infact
domiciled in Ghana as assumed? Will the court insist on applying its own laws? Note the
obvious harshness of this provision in Oppong, pp. 70.

Property

• Nature of property: Determination as to whether property is movable or immovable is

determined by the lex fori.

• Transfer of movables: No authority on it yet. Note Cheshire, North, and Fawett propose
the use of several connecting factors as the way out.

• Transfer of immovables especially “land and interest in land” is governed by the lex situs
and in this case the Ghanaian law (See GARRETT V. GARRET [1991]1 G.L.R. 23;
DAVIES V. RANDALL).

Administration of Estates

• Administration of estate is governed by the lex fori that is the Ghanaian law, but the
distribution of benefits is governed by the domicile of the deceased (See Section 75 of
Administration of Estate Act)

Succession

• Intestate Succession to movables

o Intestate succession to movables is governed by the law of the deceased’s domicile

at the time of death. Where deceased is a Ghanaian domiciled in Ghana, the
Intestate Succession Law (PNDC Law 111) will apply. Where deceased is a
foreigner who has not subjected himself to any customary law, the Intestate
Succession Law will apply without the customary law.

27
 o Where deceased is domiciled abroad with movables in Ghana, the law of his
domicile will apply

• Intestate succession to immovable

o Intestate succession to immovables is governed by the lex situs (See YOUHAMA

V. ABBOUD [1974]2 GLR 201).

• Testate Succession

o Testamentary succession is governed by the law of the domicile of the testator.

2. 4. Proof of Foreign Law

It should not be taken for granted that the courts will recognise and enforce foreign law in cases
before them. The party who wishes to rely on foreign law should “plead and prove it 49”. It is to
be pointed out that conflict of laws rules are not limited to an area of the law. It may arise in any
matter of private law nature. Therefore, an action is not initiated on the basis of conflict of laws.

Foreign Law as a Question of Fact

The rules of foreign law in Ghana have a status of facts to be proved. By Section 1(2) of the
Evidence Act, 1975 (NRCD 323) foreign law is a question of facts to be determined by the Court.
Section 42 of the Evidence Act provides “The law of a foreign country is presumed to be the same
as the law of Ghana”. The import of this provision is that whoever makes claim to foreign law
must prove its existence and also show that it is not the same as Ghanaian law.

It also presupposes that there are corresponding remedies in Ghanaian law for every foreign
remedy which might be called into question before the courts of Ghana. But this certainly may not
always be the case. What therefore happens where the foreign law is materially different from
Ghanaian situation or does not exist in Ghana at all (See CANFOR V. KPODO [1968] G.L.R. 177;
DAVIES V. RANDALL [1962] IG.L.R. 1)?

How to Prove Foreign Law

The standard of proof is that of balance of probability. The issue which may arise is whether expert
evidence would be required for proof? (Read KHOURY V. KNOURY (1953)3 W.A.L.R. 52;
GODKA GROUP OF COMPANIES V. P S INTERNATIONAL LTD [1999-2000]1GLR 409;
OPPONG, R. F. (2010) Private International Law. Kluwer Law International: Netherlands, pp.30-
31.

2. 5 Exclusion of Foreign Law

49
See Collier op. cited p. 33; Oppong op cited p.2
28
 • Foreign law may be excluded under circumstances such as where it breaches fundamental
public policy
• It is excluded by Statute i.e. Section 35 of the Matrimonial Causes Act which insists on the
application of Ghanaian law in matrimonial causes except where the matter is on nullity of
a void marriage. Note other statutory exclusion of foreign law in Ghana by reading
Oppong.

Readings

Oppong, R. F. (2010) Private International Law. Kluwer Law International: Netherlands, p.32.
Cheshire, North & Fawcett (2008), Private International Law (14 Ed.),
Collier, J.G. (2001). Conflict of laws (3rd Ed.). United Kingdom: Cambridge University Press.
Dicey & Morris (2000). The Conflict of laws (13th, Ed.). Collins, L. ed. London: Sweet& Maxwell.
Morris, (2000). The conflict of laws (3rd Ed.). McClean, D. ed, London: Sweet& Maxwell
Halsbury’s Laws of England (4th Ed.) Volume 8(1)
The Courts Act, 1993(Act 439)
Evidence Act, 1975, (NRCD, 323)
High Court (Civil Procedure Rules), 2004 (CI 47)
The 1992 Constitution of Ghana
Matrimonial Causes Act, 1971(ACT 367)
Interpretation Act, 2009 (Act 792)
Wills Act 1871 (ACT 370)
Administration of Estate Acts 1961 ACT 63
Intestate Succession Law, 1985(PNDCL 111)
The Children’s Act

TOPIC 3

JURISDICTION

LEARNING OBJECTIVES:

• To explain the bases of the court’s jurisdiction/competence in international matters;

• To identify limitations on the court’s jurisdiction in international matter;
• And circumstances under which the court will decline jurisdiction over an international
matter

4.1 Definition and nature of actions

29
Jurisdiction is defined as “the competence of the courts to hear and decide a case” 50 Jurisdiction
involves three issues namely (1) whether the courts and in this case the Ghanaian courts have
power to hear the case (2) whether the courts will decline jurisdiction to hear the case or stay the
proceedings or (3) whether there is limitation upon the exercise of jurisdiction by the court.

In Ghana, jurisdiction is regulated by statutes and common law. At common law once a person is
served with a writ within the forum, the court can exercise jurisdiction in the matter. Thus the
Ghanaian courts can exercise jurisdiction in international matters once the defendant has been
served. It is immaterial that the subject matter may have no connection with Ghana (See OPPONG
generally on Jurisdiction. See also ADUSEI V. DINERS CLUB SUISSE S.A. [1982-1983] GLR.
809).

Jurisdiction will be discussed in respect of actions in personam and action in rem. By action in
personam references is being to actions between individuals as to their rights such as an action
against the defendant to pay debt or to refrain the defendant from doing something. It excludes
actions against ships and aircrafts. It also excludes actions in respect of matrimonial causes,
administration of estates etc.

4.2 Jurisdiction in Action in personam

4.2.1 Natural Persons

The Ghanaian courts assume jurisdiction over international cases where (1) the person is present
in Ghana, (2) submits to the jurisdiction of the court, (3)has his residence in Ghana and or (4)
served with the writ abroad.

Presence

Where the defendant is present in Ghana even for a “fleeting” period the court can exercise
jurisdiction over him (See TAFA&CO (GHANA) LTD V. TAFA &CO LTD [1977]1G.L.R. 422;
COLT INDUSTRIES V.SALIE (NO 1[1966] 1 WLR 440; MAHARANEE OF BARODA V.
WLDENSTEIN [1972]2 QB 283 CA.)

Residence

Where a defendant is resident in Ghana, the Ghanaian Court can assume jurisdiction in actions in
personam over him or her (See Oppong).

Submission

Where a defendant submits to a court, the court will exercise jurisdiction over him or her.
Submission can be inferred from ones conduct i.e. where a defendant enters an appearance

50
Collier Op. cited, p.71
30
unconditionally or without staying the proceedings (See MOUBARAK V. HOLLAND WEST
AFRICA LIJN (1953)14 W.A.C.A. 262; POLIMEX V. B.B.C. BULDERS& ENGINEERS
CO.LTD [1968] G.L.R. 168). It may also come about because a defendant contracted to submit to
a foreign court.

Service Abroad

Where a defendant is served with a writ abroad, the court can exercise jurisdiction over him. In
Ghana the High Court (Civil Procedure) Rules 2004 (C.I.47) regulates service of writ out of the
jurisdiction. Order 8 Rule 1 (1) provides: “No writ will be served out of the jurisdiction”. However
by Order 8 Rule (2) “notice of a writ… may be served out of the jurisdiction with leave of Court”.
Note Order 2 Rule 7(5) states “No writ, notice of which is to be served out of the jurisdiction, shall
be issued without leave of the court”. This means that the person purporting to issue a writ for
service out of the jurisdiction should first apply to obtain leave of court to serve notice of the writ
outside (See LOKKO V. LOKKO [1989-1990] I G.L.R. 96).

In situations where some of the defendants are in Ghana with others outside Ghana, the writ can
be issued and served on those in Ghana before leave of the court is sought to serve those outside
Ghana (See SHIRLSTAR CONTAINER TRANSPORT LTD V. KADAS SHIPPING CO.LTD).

By Order 8 Rule 2 of C.I. 47, an application for leave to serve writ out of the jurisdiction must be
supported with an affidavit indicating (1) the grounds for the application and (2) that the deponent
believed the plaintiff has a good case (3) and shows the place or country where the defendant may
be found.

By order 8 Rule 2(2) C.I. 47, the court will grant leave on grounds that “(a) …the case is a proper
one for service out of the jurisdiction; that the case falls within one of the provisions of rule 3”
Note rule 3 provides for a comprehensive ground for granting leave to serve writs out of the
jurisdiction (Read the grounds under Order 8 as attached).

The power of the court to grant leave for service out of the jurisdiction is discretionary and is
exercised with caution because the application is ex parte without notice to the defendant who is
outside the jurisdiction. Hence frivolous applications are not entertained to cause undue and
unnecessary burden to the defendant. It should be established that there is “a good cause of action,
there is a real issue to be settled and the other party does not have a proper defence to the claim”51
(See EBOE V. EBOE [1962]1, 453; SIGNY OIL AND GAS V. BRISTOL HELICOPTERS [1976]
1 G.L.R. 371).

Methods of Service and Authorities to Effect service

51
Oppong Op. cited, p. 38.
31
 1. Service is to be effected subject to the laws of the country where the service is to take place
(Order 8 rule 5 (2).

2. Service does not have to be effected personally on the person against whom the writ is
issued (Read BRUCE V. BARRETT [1931] 1 W.A.C.A. 116; BAWA V. OYEGOKE
[1977 2. GLR. 412). However, the mode of service should be in accordance with the laws
of the country of service.

3. It does not have to be served by the plaintiff or his representatives (Order 8 rule 5 (3)). It
can be served through a Ghana Consul in that country or the judicial authorities of that
country where a Civil Procedure Convention exists. In the absence of a Convention through
the Government of that country where they are willing to effect the service or through the
Ghana Consul only if such service is permitted by the laws of the country.

4. The application should specify whether it will be served through the judicial authority,
Ghana consul of the Government of the country as the case may be (Order 8 rules 5 &6).
Note that Ghana is not a party to the applicable convention. Hence it is not likely to effect
service through the judicial authorities of foreign countries.

5. Service can also be directed by the court to be effected through airmail by the person
making the application (Order 7 rule 11).

6. The person making the application for service out of the jurisdiction is responsible for
payment of all the expenses incurred by the service (Order 8 rule 7(4)).

It should be noted that the High Court Civil Procedure Rules make room for service to be effected
on an agent residing in Ghana or a corporate body with a registered office or a place of business
in Ghana in respect of contracts entered into on behalf of their principals abroad. The principals
should not have their residence in Ghana or in the case of corporate bodies a registered office or a
place of business in Ghana (Order 7 rule 13).

2.4.2 Jurisdiction over Foreign Companies

The courts have jurisdiction where the company is resident in Ghana. This means that the company
is carrying on business in Ghana. The issue as to whether or not a company is doing business in
Ghana is a question of fact determined by the circumstances of each case (See ACKERMAN V.
SOCIETE GENERALE DE COMPENSATION [1967] G.L.R. 212). Note that an external
company with established place of business in Ghana can be served. Established place of business
could be a branch, management, and factory or established place of business etc. Service on
companies is regulated by the Companies Act 1963 (Act 179), Sections 263 & 306 (Read external
companies and how service is effected on them from Oppong pp 43).

Limitations on the Exercise of Jurisdiction

32
The courts are open to dispense justice to all manner of people including disputes between
Ghanaians and disputes between foreigners who may not be connected to the legal system in
anyway so long as service is effected on the defendant and in matrimonial cases where they are
domiciled in Ghana. However, the fact that there has been service of the court process does not
mean that the court will exercise jurisdiction over the matter involved. The court may decline
jurisdiction to entertain matters involving sovereign states, foreign diplomats and international
organisations. Again, by the doctrine of forum non conveniens a court may decline jurisdiction
over a case where it considers foreign forum most appropriate to handle the case.

1. Foreign States and Governments: At common law States do not exercise jurisdiction over
foreign States on the basis of sovereign immunity. In the 19th century immunity included
governmental and commercial activities of states. Since the 20th Century the sovereign immunity
concept was revised to exclude commercial activities of countries from absolute immunity on the
basis of restricted immunity. This was due to the increase in commercial activities of states. Hence,
sovereign states had immunity in respect of acta jure imperii (acts of government) as opposed to
acta jure gestionis (acts of commercial nature)52. The issue of sovereign immunity is regulated by
statutes in a number of jurisdictions.

In Ghana there is no direct statute on the matter. Note Oppong’s position; that Ghana is likely to
adopt the restricted53 approach because:
a. It adopts restricted immunity for diplomatic staff under the Diplomatic Immunity Act
(1962)
b. By application of customary international law
c. Ghana is likely to adopt the position by a number of African States.

2. Diplomatic Staff: This is regulated by the Article 31 of the Vienna Convention on Diplomatic
Immunity (1961) which has been put into operation by the Diplomatic Immunity Act, 1962 of
Ghana. By this Act diplomats are entitled to immunity from Ghanaian courts for criminal, civil,
and administrative jurisdictions. There are exceptions to this rule such are where diplomats
contract in their personal capacities (See GARCIA V. TORREJOH [1992] 1G.L.R 134;
TORRENTON V. DIEZ [1992-1993] G.B.R. 1578). Immunity can also be waived (See also
ARMON V. KATZ [1976] 2 G.L.R. 115; KATZ V. ARMON 1967] G.L.R. 624).

Note; the immunity protects foreign diplomats in Ghana in Ghanaian courts and not Ghanaian
diplomats for acts done abroad in Ghanaian courts (See KWARTENG V. SACKEY [1984-1986]
1 G.L.R. 141).

52
Morris, Op. Cited, P. 60.
53
Oppong, OP. Cited, p. 44
33
3. International Organizations: The courts of Ghana will decline jurisdiction where a case
involves an international organization which has been granted immunity by the President under
Article 2 of the Conventions.

4. Forum non conveniens: The Ghanaian courts will also decline jurisdiction where in the opinion
of the court a foreign court will serve the interest of the parties and the ends of justice better. In
deciding on these, the courts take into consideration the connecting factors and the cause of action
and how it relates with the forum (See FAN MILK LTD V. STATE SHIPPING CORPORATION
[1971] 1 G.L.R. 238).
a. Choice of forum agreement (See C.I.L.E. V. CHIAVELLI [1967] G.L.R 651.). Choice of
forum agreement notwithstanding, the court may exercise jurisdiction ((See C.I.L.E.
V.BLACK STAR LINE [1967] G.L.R. 744).

b. Arbitration contracts in agreements: Ghana is signatory to the Vienna Convention on the

Recognition and Enforcement of Foreign Arbitration Award which is received in Ghana
by the Alternate Dispute Resolution Act, 2010(Act 798).

c. Lis Abili Pendens; A stay of the proceedings.

4.2.3 Action in Rem; Admiralty Cases

Admiralty or maritime actions are actions brought against ships, aircraft or hovercraft54. The scope
of the courts jurisdiction in maritime actions is provided for by Section 20 of the Courts Act, 1993
(Acts 459). (Read Section 20 of Act 459 attached for the scope of the nature of admiralty actions).

Order 62 of the High Court Civil Procedure Rules, 2004 (CI 47) regulates the procedure in
maritime actions. It provides that a warrant of arrest can be issued against a ship after a writ has
been served on it. Where a claim is for possession or wages in respect of a foreign ship belonging
to a port of a country with consulate office in Ghana is made the application for warrant of arrest
will not be issued until a notice of it has been served on the consulate. It should be noted that a
caveat can be entered, although this will not prevent the issuance of the warrant. Remedies will
rather be provided for damages or loss incurred.

In terms of service, the writ is served on the property against which the writ is issued or on the
Registrar where the property is sold and the proceeds deposited in court (Read Oppong p. 52
maritime actions).

Readings

54
Morris, op. cited , p.114
34
Oppong, R. F. (2010) Private International Law. Kluwer Law International: Netherlands,
Cheshire, North & Fawcett (2008), Private International Law (14 Ed.),
Collier, J.G. (2001). Conflict of laws (3rd Ed.). United Kingdom: Cambridge University Press.
Dicey & Morris (2000). The Conflict of laws (13th, Ed.). Collins, L. ed. London: Sweet& Maxwell.
Morris, (2000). The conflict of laws (3rd Ed.). McClean, D. ed, London: Sweet& Maxwell
Halsbury’s Laws of England (4th Ed.) Volume 8(1)
The Courts Act, 1993(Act 439)
High Court Civil Procedure Rules, 2004 (CI 47)
The 1992 Constitution of G

TOPIC 4

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS & AWARDS

LEARNING OBJECTIVES:

• To explain the bases of recognition and enforcement of foreign judgements by the courts
in Ghana;
• To explain the applicable common law and statutory regimes for the recognition and
enforcement of foreign judgement in Ghana; and
• To examine the common law and statutory regimes for the enforcement of foreign
arbitration awards in Ghana.

4.1 Introduction

Ghanaian courts may be called upon to recognise and enforce judgements given by other foreign
courts. How do the courts go about such enforcements and what bases inform their decisions.
These and many other issues relating to the enforcement of foreign judgements are discussed under
this section. Note that recognition and enforcement are two different concepts. A court may
recognise foreign judgement but may not enforce it. In Ghana recognition and enforcement of
foreign judgement is governed by statutes and common law.

4.2 Basis of Recognition and Enforcement

The underlying philosophy is encapsulated in the doctrine of comity—the law of nations requiring
countries to assist each other in the enforcement of their judgements (ROACH V. GARVIN (1748)
1 Ves. Sem.157). Comity is “founded on common interest, convenience and respect for individual
rights. Comity later gave way to the “doctrine of obligations”, which requires the enforcement of
35
the obligation imposed on the defendant by the judgement under consideration (See RUSSEL V.
SMYTH (1842) 9 M. &W. 810 at 819; WILLIAMS V. JONES (1845)13 M&W. 628 at 633). This
notwithstanding the principles of comity forms the underlying principles of conflict of laws.

4.3 Enforcement at Common Law

4.3.1: Required Conditions

1. Jurisdiction of the foreign courts

A judgement creditor seeking to enforce foreign judgement should first satisfy the Ghanaian court
that the foreign court whose judgement is being considered had jurisdiction or competence under
Ghanaian conflict of law rules to hear and decide the case. In other words the judgement was
granted by a competent court. It should be noted that jurisdiction by Ghanaian domestic law will
not suffice. Conditions which are required for international competence at common law in respect
of individual defendants are;

a. Residence or Presence: Note an individual defendant may be resident but not physically
present or may be physically present but not resident in the foreign country. Both situations
satisfy the requirement for jurisdiction (Read Buckley L.J. in EMANUEL V. SYMON
[1909]1 KB 302).

A corporate defendant may be considered resident or present where “(i) it has its fixed place of
business (a branch) office there, from which it has carried its own business for more than a minimal
time, or a representative has carried on the corporations business for more than a minimal time
from a fixed place of business and (ii) the corporations business is transacted from that fixed place
of business”55. With the condition of doing business through a representative, it should be clearly
established that the business was indeed being carried out by the agent for the corporation and not
for the agent (ADAMS V. CAPE INDUSTRIES PLC [1990] CH 433 at 530-533).

b. Submission: Jurisdiction is fulfilled if a defendant submits to the foreign court.

(EMANUEL V. SYMON [1909]1 KB 302). Submission may be inferred;
i. From being a claimant in the foreign action

ii. Through an agreement to submit

iii. Through voluntary appearance56

55
Cheshire, North & Fawcett, Op. Cited, p. 518.
56
Ibid. p. 520.
36
Note that the bases (residence, presence and submission) for establishing international competence
are considered restrictive.57 There is a debate to include “domicile, nationality, doing business in
the foreign country, and attachment of property”58 as grounds for international competence in other
jurisdictions. Canada has adopted the “real and substantial connection as the bases of private
international law” 59(See MORGUARD INVESTMENT LTD DE SAVOYE (1991)76 D. L. R.
(4th) 256). This was however unsuccessfully used in South African Court (See SUPERCAT
INCORPORATED V. TWO OCEANS MARINE. 2001(4) S.A. 27).

2. Fixed Sum
The enforcement should be in respect of a “fixed or definite sum of money” if it is an action in
personam. It is a trite common law rule that “the proper action on a foreign judgement is an action
in indebitatus assumpsit”60(See SADLER V. ROBINS (1808)1 CAMP. 235). Please note that the
common law position is considered restrictive. In that it does not take into account other remedies
which are usually ordered by the courts such as specific performance, transfer of share and
properties and other important remedies in international commercial litigations. Canada has
recognised the need for other bases for recognition and enforcement of foreign judgement (See
PRO SWING INC. V. ELTA GOLF INC. (2007) 273 D.L.R. (4th) 663). Ghana seems to be moving
in that direction (KOBINA HAGGAN V.SAM ABOAGYE MARFO SUIT NO. M. 745/02 (High
Court, Ghana, 2002).

3. Finality
The judgement which forms the subject-matter of enforcement should be final. Final in the sense
that the judgement determined the rights involved in the matter between the parties. Whether the
judgement is on appeal in the foreign country does not take away its finality, although the forum
court may take the appeal into consideration and order a stay pending the appeal. The issue of
default judgement may arise; that is whether the court should consider it as final in view of the fact
that the defendant may exercise the right to apply to have it set aside. Where the period for
application to set aside is elapsed the forum court should consider the judgement final taking into
consideration that the defendant may raise the issue of natural justice.

4.3.2 Method of Enforcement under Common Law

...................................................................................................................................
4.3.3 Foreign Currency, Interests and Limitation on Foreign Judgement

57
Oppong, op. Cited, pp. 102-104
58
Ibid. p. 103.
59
Ibid.
60
Ibid. p.104
37
It should be observed that by law the Ghanaian courts award judgement in foreign currency. Hence
a judgement creditor does not have to convert the amount being sought into Cedis (See Section 81
of the Courts Act; Read details from Oppong, R.F. Recognition and Enforcement of Foreign
Judgements in Ghana: A Second Look at Colonial Inheritance. Commonwealth Law Bulletin, Vol.
31, No 4.; See also ROYAL DUTCH AIRLINES V.FARMEX LTD [1989–1990] 1 G.L.R. 46,
632, 682). Again note that judgement debts attract interest in Ghana (BUTT V. CHAPEL HILL
PROPERTIES LTD. [2003–2004] S.C.G.L.R. 636).

In Ghana foreign judgement has been characterised as “evidence of debts” and procedural issues
are determined by the lex fori. Hence, foreign judgement is subject to the Limitations Decree 1972
(NRCD 54). Oppong maintained that temporal limitation should be determined by the laws of the
foreign country to avoid the situation whereby a case which is statute barred will be enforced in
Ghana.

4.3.4 Defences to Enforcement of Foreign Judgement

At common law the following are defences to the recognition and enforcement of foreign
judgement:
o Fraud
o Natural justice
o Public policy
o Conflicting judgements
(Read details from Collier, J.G. (2001). Conflict of laws (3rd Ed.). United Kingdom: Cambridge
University Press).

4.3.5 Foreign Judgement as Defence

4.4 Enforcement of Foreign Judgment by Statute

In Ghana the Courts Act, 1993, (Act 459) deals with the enforcement of foreign judgement under
the statutory regime. Article 81 (1) provides;
Where the President is satisfied that, in the event of the benefits conferred by this Sub-Part being
extended to judgments given in the superior courts of any country, substantial reciprocity of
treatment will be assured in respect of the enforcement in that country of judgment given in the
Superior Courts of Judicature of Ghana, the president may by legislative instrument order
(a) that this Sub-Part shall extend to that country; and
(b) that such courts of that country as are specified in the order shall be the superior courts of
that country for the purposes of this Sub-Part.

Required Conditions for Enforcement

The following conditions are required for recognition and enforcement:
38
(a) That the judgement is final and conclusive between the parties. An appeal does not take away
the finality;
(b) That the Judgment is in respect of a sum of money
(c) That the Judgment is given by a country on which the President has conferred the benefit of
enforcement (Section 81 (2) of Act 459).
(d) That the judgement should have been given within the period of 6 years and in the case of an
appeal within six years of the judgement on the appeal

Method for Enforcement

In terms of procedure for enforcement, the judgment creditor has to apply to the High Court to
have the judgement registered (Read procedure for registering a foreign judgment from Order 71
of the High Court (Civil Procedure) Rules 2004; See also YANKSON V. MENSAH [1976] 1
G.L.R. 355).

It should be noted that the judgement debtor can also apply to set aside the registration (Read the
grounds for setting aside registered judgement from Section 83 (1) of the Courts Act; See also
ASHURST MORRIS CRISP V. PETER AWOONER RENNER (1931–1937) Div. Ct. 107.).

4.5 Application of the Common Law and Statutory Regimes

It should be observed that the statutory regime applies to the enforcement of judgments from the
countries which enjoy reciprocal benefits as determined or designated by the President of Ghana.
All foreign judgments outside the statutory scope are determined by the common law regime to
the extent that they meet the common law conditions (ROSEMOND SALEMI AKIL V.
ARISTOTLE KOTEY, HI/82/2007 (Court of Appeal, Ghana, 2008).

4.5 Enforcement of Foreign Arbitration Awards

Enforcement of foreign arbitration awards in Ghana is regulated by the common law and the
Alternative Dispute Resolution Act, 2010 (Act 798). Ghana is also a signatory to two international
conventions on enforcement of arbitration awards i.e. the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the
Convention on the Settlement of Investment Disputes between States and Nationals of Other States
(ICSID Convention). (For comprehensive reading see Alternative Dispute Resolution Act 2010
(Act 798), Chapter 6 of Civil Procedure : A practical Approach by S. Kwami Tetteh and Oppong,
R.F. Recognition and Enforcement of Foreign Judgements in Ghana: A Second Look at Colonial
Inheritance. Commonwealth Law Bulletin, Volume 31, No 4.).

4.5.1 Common Law Regime

At common law the following conditions must be fulfilled for the enforcement of foreign
arbitration awards;
a. The parties submitted to arbitration;
39
 b. Arbitration was conducted in accordance with submission;

c. The award is final;

d. The award is valid under the laws of the country where the award was made (See
GRINAKER-LTA LTD V. STYPE INVESTMENT (Suit No 34/2006(High Court,
Ghana, 2006).

4.5.2 Statutory Regime

Enforcement under the New York Convention/ADR Act

Ghana is signatory to the United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention). Awards under the New York Convention are
enforced in Ghana by the Alternative Dispute Resolution Act, 2010 Act 798 of Ghana which
regulates the statutory regime. Section 59 of Act 798 provide as follows;

Section 59 Enforcement of foreign awards

59. (1) The High Court shall enforce a foreign arbitral award if it is satisfied that
(a) the award was made by a competent authority under the laws of the country in which the
award was made;
(b) a reciprocal arrangement exists between the Republic of Ghana and the country in which the
award was made; or
(c) the award was made under the international Convention specified in the First Schedule to
this Act or under any other international convention on arbitration ratified by Parliament; and
(d) the party that seeks to enforce the award has produced
(i) 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;
(ii) 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; and
(e) there is no appeal pending against the award in any court under the law applicable to the
arbitration.
(2) A party who seeks to enforce a foreign award and who relies on a document which is not in
the English Language, shall produce a certified true translation of that document in English to
the Court.
(3) Despite subsection (1) the court shall not enforce a foreign award if
(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;
(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.

40
From the above provisions there are two categories of foreign awards enforceable under the
statutory regime;

a) States parties to the New York Convention which are recognised and designated by the
President as reciprocating States;

b) Non States parties to the New York Convention which are recognised and designated by
the President as reciprocating States.

The above categories indicate that the fact that a State is signatory to the New York Convention
does not make awards from that State enforceable by Ghanaian courts. Similarly, the fact that a
State is not a party to the New York Convention does not deny enforceability of awards from that
country. It should be noted that award is enforceable to the extent that it is from a reciprocating
State at the time of enforcement. It is immaterial that the State has not been designated as
reciprocating State at the time of the award was given (See STROJEXPORT V. EDWARD
NASSAR [1965] G.L.R. 591).

Once foreign arbitration awards are enforced they become binding on the parties involved and
could be used as defence, set off, etc in any other proceedings.

Refusal for Enforcement of Foreign Awards

The reasons for dismissal are provided for under Article V of the Convention which provides:
1.Recognition and enforcement of the award may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the recognition
and enforcement is sought, proof that:
(a) The parties to the agreement referred to in Article II2 were, under the law applicable to them,
under some incapacity, or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the country where the award was
made;
(b) The party against whom the award is invoked was not given proper notice of the appointment
of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
(c) The award deals with a difference not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope of the submission
to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, that part of the award which contains decisions on matters submitted
to arbitration may be recognized and enforced;
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with
the agreement of the parties, or, failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a
competent authority of the country in which, or under the law of which, that award was made.

41
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority
in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of
that country.
(b) The recognition or enforcement of the award would be contrary to the public policy of that
country.

Enforcement under ICSID Convention

Ghana is signatory to the Convention on the Settlement of Investment Disputes between States
and Nationals of Other States (ICSID Convention). The ICSID provides a platform for the
settlement of disputes between Governments and foreign investors under the auspices of the
International Centre for the Settlement of Investment Disputes (Centre). This offers a platform to
the government of Ghana to settle disputes with foreign investors. However there is no domestic
legislation for its enforcement. It is believed that implementation of the ICSID will attract foreign
investment in Ghana61

The unique feature of the ICSID is that national courts cannot modify or set aside awards
emanating from the Centre. Thus there is no external review of the award. Oppong is of the opinion
that ICSID is of interest to investors and Ghana stands to attract foreign investors if it were to
incorporate the ICSID into its laws. Again the finality of it makes it stronger than all other
international instruments on the enforcement of arbitration awards.

Readings

Oppong, R.F. Recognition and Enforcement of Foreign Judgements in Ghana: A Second Look at
Colonial Inheritance. Commonwealth Law Bulletin, Vol 31, No 4.
Oppong, R. F. (2010) Private International Law. Kluwer Law International: Netherlands,
Cheshire, North & Fawcett (2008), Private International Law (14 Ed.),
Collier, J.G. (2001). Conflict of laws (3rd Ed.). United Kingdom: Cambridge University Press.
Dicey & Morris (2000). The Conflict of laws (13th, Ed.). Collins, L. ed. London: Sweet& Maxwell.
Morris, (2000). The conflict of laws (3rd Ed.). McClean, D. ed, London: Sweet& Maxwell
Halsbury’s Laws of England (4th Ed.) Volume 8(1)
The Courts Act, 1993(Act 439)
High Court Civil Procedure Rules, 2004 (CI 47)
Alternative Dispute Resolution Act 2010 (Act 798).

61
Oppong, R. Op cited , pp. 121-123
42
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New
York Convention)
Convention on the Settlement of Investment Disputes between States and Nationals of Other States
(ICSID Convention).

43