 Private International Law and the Ghanaian Legal System

Social and commercial interactions among individuals and corporate entities across
jurisdictional borders present challenges as to the applicable legal regime for the
resolution of disputes and the determination of rights, status, and obligations. Conflict
of laws or private international law refers to the rules designed for the resolution of
such multijurisdictional legal problems. At the heart of this subject of law is the
confluence of inter-jurisdictional legal regimes. In this context, the arbiter is often
faced with a strife for mastery by competing sets of rules from the different
jurisdictions in question, which has the potential of producing incongruous results, if
not harmoniously applied to assure uniformity and predictability.

By reason of being former British colony, Ghana's legal system is founded on

the common law tradition. Thus, the central themes of the legal principles currently
applied in Ghana owe their source to English law, which was formally introduced into
the then Gold Coast Colony (which later became Ghana) under the Supreme Court
Ordinance of 1876.2 As a result, English law continues to be the principal source of
persuasive authority before Ghanaian courts. The Supreme Court of Ghana captured
the courts' attitude towards foreign cases when it observed:

We do not hold ourselves bound by this [English] decision but the reason underlying
the formulation of these principles appeal to us and we respectfully follow it.
Indeed, we cannot shut our eyes to the desirability of a homogeneous development
and application of the law in two Commonwealth countries having cognate
jurisprudence.

Conditions in pre colonial Ghana engendered conflict of laws problems. Separate

kingdoms and ethnic groups with distinct customary laws interacted both
commercially and interpersonally. These dealings also existed between the inhabitants
of pre-colonial Ghana, Europeans, and other for foreigners. These circumstances bred
the potential for conflict of laws problems. For example, the matrilineal and
patrilineal family systems of the various ethnic groups resulted in different rules on
marriage, custody, maintenance, and succession. Children from matrilineal groups are
considered part of the mother's family and inherit property and office through their
mothers line. In customary law, children from patrilineal groups are considered part of
the father's family and inherit property and office through their father’s line. In a
marriage between persons from matrilineal and patrilineal ethnic groups, conflict of
laws problems arise regarding the law that determines which family the child belongs
to and from which of the parents he or she can inherit. The following illustration in
Feinberg's Africans and Europeans in West Africa typifies conflict of laws issues in
succession:

On the day before his death, the mulatto caboceer, Jacob van Dijk, had his will
recorded by the first clerk of the Company administration, with witnesses present. The
will has not been found, but we do know that he designated his son as his heir and
appointed three Dutch officials as executors of his estate and guardians of his son. By
designating his son Pieter, van Dijk (because he had an European father) went against
Akan inheritance rules, apparently influenced by the European system.
The kingdoms and ethnic groups, which were highly organized, developed rules and
practices aimed at avoiding conflicts of laws issues. Although many of these rules and
practices can be gleaned from the works of historians, sociologists and
anthropologists who have explored pre-colonial Ghanaian societies, we have been
unable to locate an account of them from an academic conflict of laws perspective,
especially with regard to the positive rules for resolving conflict of laws problems.
The barter system of trade, the absence of a distinction between movable and
immovable property, rules against inter-ethnic marriages, restrictions on alienation of
land to foreigners, the fact that strangers or foreigners in the pre colonial societies
'lived circumscribed lives, and the ancient tradition of allowing a settling community
of foreign merchants to govern itself by its own law9 are examples of rules and
practices that inadvertently avoided conflict of laws issues in pre-colonial societies.

The sophistication of pre-colonial societies in ensuring that separate laws applied to

foreigners as appropriate, is evident from the fact that customary law systems in
Ghana did not seek to apply their rules of devolution of estates to strangers.

o In *Youhana v. Abboud* Apaloo JA (as he then was) in his characteristic

illuminating judgment chronicles some of the relevant cases that are worth
reproducing here in full. He noted:

The question is: Does the customary lex situs apply its rules of succession to
strangers who have not identified themselves sufficiently with their areas to be
regarded as part of them?

In so far as decided cases in this country and independent legal research

provide any guide, that question must be answered firmly in the negative. One
must begin from the turn of the century.

In 1906, in the case entitled Weytingh v. Bessaburo (1906) 2 Ren. 427 one of
the questions which arose for determination was the claim to succeed to a
Dutchman who had died possessed of land in Cape Coast. It was held that the
claimant could only validly do so under Dutch law not native law. In other
words, the domestic rules of descent could not apply to succession to land in
Cape Coast of a Dutch national.

Two decades later, that is, in 1925, the court was again called upon to consider
the choice of law that was to be applied to the distribution of the estate of a
Nigerian national who died domiciled in Lagos but with considerable
immovable property in Accra. Michelin Ag. C.J. held in Thompson v
Thompson (1925) D.CI. '21' 25, 155 at p. ] 61 that the customary law of the
deceased's domicile of origin was the relevant law. This was found to be
"Lagos or Yoruba customary law." A similar question came again before
Jackson J. in Ekem v. Nerba (1947) D.C. (Land) '38' 47, 268.

 The question was the same as in Thompson v. Thompson (supra).

The intestate in this case was also a Nigerian who had died domiciled
in Lagos with landed property in Cape Coast. Jackson J.'s conclusion
was out of step with those of his predecessors. He held at p. 269 that,
 "In matters affecting the devolution of land, the appropriate law to be
applied is that of the 'lex situs' which in this case is the customary law
of the Oguaa State." His conclusion was questioned on appeal reported
in (1947) 12 WACA 258. He was not sustained. The West African
Court of Appeal thought there was a possibility of applying not the
domestic lex situs but a system of foreign law binding on the parties.
On that basis, the case was remitted to the Land Court for evidence to
be taken of the law governing succession to a Nigerian domiciliary.
This case came before Quist J. in the Land Court in Cape Coast (see
(1948) D.C. (Land) '48' 51, 40). He held, following Thompson v.
Thompson (supra) that the proper law was the customary law of the
deceased's domicile. This was Eboe customary law, which he applied.

 In Ghamson v. Wobill (1947) 12 WACA 181,

no question of foreign law was involved but the issue was as to the
choice of law where there was internal conflict between Efutu and
Fanti customary laws. The judge applied Efutu law on the principle
that it was the lex loci rei sitae. He was reversed on appeal because the
proper law was the system of customary law binding as between the
parties.

This again was in 1947.

 As recently as 1970, a choice of foreign law problem arose in Ofori v.

Adu, High Court, Sunyani, 7 July 1970, unreported.

The issue was who was entitled to succeed to an Ivory Coast national
who was brought here as a slave and who died possessed of landed
property in the Brong Ahafo Region of Ghana. If the lex situs applied,
succession would go to the family which originally brought him, if his
personal law applied, his children were entitled to inherit him in
accordance with Ivorian law. Baidoo J. decided that Ivory Coast law
applied and that the children and not the family were entitled to
succeed. The position is, that for the best part of a century, where the
courts of this count

The fact that customary law systems in Ghana do not seek to apply their rules
of devolution to strangers, is also independently vouched for by Pogucki, the
erstwhile Commissioner of Lands. The latter researched into land tenure in
customary law of non-Akan areas. At p. 18, para. 54 of his Report on Land
Tenure in Ga Customary Law, he makes the following finding, "A stranger in
his dealings, and as regards incidents of rights in land is subject to the Lex loci
rei situs. But he is governed by his personal law in matters of inheritance and
succession." He refers in a footnote at p. 18 to two decisions of the Ga courts,
i.e. "Kwabea & ors. vs. Dako & ors., Ga Court B 1, 85/47; Boyah & ors. vs.
Saratah & ors., Ga Court B2, l 297/48." In part 2 of his Report on Land Tenure
in Adangbe Customary Law, at p. 43, para. 106, he finds that, "Devolution
upon death of real property of a stranger follows the principles of his personal
law... " On this, both judicial decisions and independent research aread idem
 that customary law systems do not apply their rules of devolution to strangers
unless they have identified themselves with the areas they lived so much so
that it would be just to say they embraced the customary law of that place.
With regard to such aliens as Lebanese, Europeans and other persons of non-
African descent, the evidence of "identification" must be particularly strong.

It is clear from the above that-pre colonial societies in Ghana were sensitive to a
fundamental ethos of private international law that injustice can sometimes arise if a
legal system decided to apply its laws to every claim or disputes that it has to resolve.
In other words, the kingdoms and ethnic groups were attentive to the demands of
justice in cases. involving a foreign element. However, it may be argued that no
coherent body of conflict of· laws rules — and certainly no conflict of laws treatise
akin to those developed in other legal systems— existed. For example, while
customary law systems in Ghana did not seek to apply their rules of devolution to
strangers, they appear not to have developed rules for ascertaining the applicable law.
Should it be the law of the place where the stranger comes from? What if the stranger
comes from two or more places? Should it be the law of the stranger's mother's or
father's community?

To date, there has been no systematic historical account of the origin and evolution of
private international law as an academic discipline and a field of legal practice in
Ghana. The influx of Europeans into the Gold Coast, which ultimately culminated in
the United Kingdom as the colonial power, would certainly have given rise to conflict
of laws disputes as we know them today. Such disputes were likely settled through
force, diplomacy or settlement practices which allowed for the application of laws
restricted to the settlements. The judicial systems subsequently introduced in various
parts of the Gold Coast entertained problems of conflict of laws dimensions, but this
did not lead to the introduction of a full-blown private international law regime. It is
arguable that the courts did not decide disputes before them on the basis of choice of
law. Furthermore, perhaps more important, English private international law was•

In the Gold Coast there are five or six distinct regions wherein the customary law
differs from that of neighbouring areas, and there is a good deal of migration from one
to another, particularly into the forest country which will support cocoa from areas
with a drier climate. There are obviously great opportunities for conflicts of laws, not
only between English law and customary law, but between different systems of the
latter type. Similar problems arise in any colonial territory, but British jurists have not
given the matter nearly as much systematic attention as did the Dutch in the
Netherlands East Indies.

It may be argued that private international law in Ghana, as we now know it, began its
life under the Supreme Court Ordinance of 1876. The Ordinance introduced two
things that were significant in the development of Ghana's private international law
regime. First, it made the common law, the doctrines of equity and the statutes of
general application applicable in Ghana. 14 This meant that private international law
problems arising before courts established by the Ordinance could be resolved on the
basis of English rules.

Second, the Ordinance mandated the application of customary law to the extent that
the latter was not 'repugnant to natural justice, equity and good conscience'.15 The
 application of this repugnancy provision resulted in internal conflict of laws problems
between the received English law and customary law: When could a court assume
jurisdiction over a matter involving customary law or over a native? Which law was
applicable if the court assumed jurisdiction? Which law was to be used to characterize
a particular problem? What happened in the event of conflict between customary law
and English law or between different customary laws? Private international law
principles have become increasingly valuable in addressing internal conflict of laws
issues. For example, the English private international law rule that foreign law is a
question of fact was immediately applied to customary law,16 and proof of customary
law was treated as a question of fact.

In summary, the history of private international law in Ghana is the history of a

subject that was conceived in conflict avoidance rules and practices, developed in an
internal conflict of laws setting and, with time, was nurtured into a body of private
international law rules.

 Private International Law and Internal Conflict of Laws in Ghana

Like many African countries, Ghana operates a pluralistic legal system. State law —
in the form of the common law and statutes applies uniformly and throughout the
jurisdiction. It operates alongside customary law, which, by definition, are the rules of
law that, by custom, are applicable to particular communities in Ghana.17 Within this
pluralistic legal setting, it is plausible for the same person or transaction to have
contact with multiple forms of law. For example, succession to the estate of a
deceased intestate and the validity of a marriage or a contract for the sale of land
might all be governed by a combination of customary laws, common law, and
statutes. This gives rise to internal conflict of laws problems which historically have
been predominantly concerned with choice of law, but issues also arise with respect to
jurisdiction.

Private international law principles are often relevant in resolving internal conflict of
laws problems. However, the courts and academic writers have cautioned against the
automatic invocation of private international law principles in addressing internal
conflict of laws problems. For example, it has been held that the principle that
succession to a deceased int-estate's immovable property is determined by the lex loci
rei sitae - the law of the place where the property is situated - has no application when
the deceased is Ghanaian and the estate is in Ghana.20 This is because there are
different systems of inheritance- patrilineal and matrilineal. 21 If one applies the
matrilineal rules of succession to the immovable estate of a deceased from a
patrilineal clan in the place where the deceased's property is situated, very bizarre and
unexpected outcomes could ensue. To a large extent, this particular issue is no longer
a major problem because of the introduction of a unified system of intestate
succession.

Currently, choice of law issues a rising from internal conflict of laws problems are
dealt with under sections 54 of the Courts Act,1993 (Act459). Section 54 is the
progeny of section 66 of the Courts Act, the first post-independence choice of law
rules enacted in Africa. This, section is worth quoting in full:
 54. (1) 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, will be
guided by the following rules in which references to the personal law2 of a
person are references to the system of customary law to which he is subject or
to the common law where be is not subject to any system of customary law:

Rule 1: 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, be
taken to have intended to govern the issue.

Rule 2: In the absence of any intention to the contrary, the law applicable to 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 pers.?ns 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 title 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 personal law, be that law; and
where they are not subject to the same personal law, the court shall apply the relevant
rules of their different systems 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 law, 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.

Section 54(1) applies when determining the law applicable to an issue arising out of
any transaction or situation. In other words, its focus is not the entirety of the case that
is before that court but specific issues. It welcomes the interplay of rules from several
legal systems - customary and common law - in the same case. Thus, while some
 issues in the case may be governed by customary law, others may be governed by the
common law. Indeed, in Ghana's legally plural society, it is not unusual that different
issues in a claim may be governed by different types of laws. Land disputes,
matrimonial causes, and succession are fertile areas where this becomes manifest.

The method of picking and choosing legal rules from several legal systems to govern
different issues in a claim is known in private international law as depecage. For
example, where a person sells land by way of conveyance, it may be necessary to
determine the vendor's title to the land using a body of customary laws. If it is
established under the applicable customary laws that the vendor had title, then
common law or statute may apply in determining the distinct issue of the legal effect
of the conveyance. Admittedly, in most cases that come before the courts, there may
be no need to apply this method of choice of law. However, it is important for the
courts to be mindful that rules from different legal systems may apply to different
issues in the same case.

The courts are to be 'guided' by the rules in section 54 (1). Arguably, this implies that
the provisions represent a set of principles as opposed to rigid rules. On another score,
the rules may not be amenable for application in all cases. In that case, the court
would be expected to interpret the rules to fit the case at hand, having in mind the
jurisdiction strengthening exhortation under section 54(1) r.6 to do substantial justice.

A careful reading of section 54(1) reveals that its utility is not limited to internal
conflict of laws problems. It can also be invoked in private international law claims.
In Braun v. Mallet which was an application by a German mother for custody of a
German child 'kidnapped' into Ghana by his Ghanaian father, the court held that,
because of the different personal laws of the parties, the issue should not solely be
decided on the basis of Ghanaian law. Similarly, section 54(1) has been invoked in
deciding the law applicable to succession to the immovable estate in Ghana of
foreigners who died intestate in Ghana.

As noted above, courts and academic writers have cautioned against the automatic
invocation of private international law principles in addressing internal conflict of
laws problems. However, there is no doubt that private international law rules may be
useful in understanding internal conflict of laws or applied by analogy in resolving
internal conflict of laws problems. As Yakpo notes:

There is the temptation to assume that the rules of private international law cannot
apply to inter - local conflict of laws, since the two types of conflict of laws operate in
different spheres, private international law between sovereign states while inter-local
conflict of laws operates between various regions within the same sovereign state. In
this chapter, the attempt will be made to show that the rules of 'private international
law apply equally to inter - local conflict of laws, or at least must be applied by
analogy where they cannot be applied directly. 3

 Sources of Private International Law

o National Laws

Article 11 of the Constitution, 1992 lists the following as the sources of

Ghanaian law:
 (a) the Constitution;

(b) enactments made by or under the authority of the Parliament established by

the Constitution;

(c) any Orders, Rules and Regulations made by any person or authority under
a power conferred by the Constitution;

(d) the existing law; and

(e) the common law.

Although customary law is a central aspect of Ghanaian law, it is not distinctly

and separately listed as a source of Ghanaian law. Rather, Article 11 (2) of the
Constitution provides that 'the common law of Ghana shall comprise the rules
of law generally known as ( the common law, the rules generally known as the
doctrines of equity and the rules of I customary law including those
determined by the Superior Court of Judicature'.

In this book, the term 'common law' refers to the rules of law generally known
as the common law and the doctrines of equity. In areas where it is relevant,
specific reference is made to customary law that is, the rules of law that by
custom are applicable to particular communities in Ghana.

The private international law regime in Ghana is not codified in a single

statute. Indeed, there are only a few statutes that directly aim at addressing
private international law issues. Rules of private international law are often
contained in legislation dealing with other matters. In effect, the main source
of private international law rules is decided cases, of which there are relatively
few. Thus, on many issues, there is no authoritative pronouncement by the
legislature or the courts. On such issues, the courts often turn to the
jurisprudence of the English courts- and less frequently to other common law
countries, including those in Africa - for persuasive authority.

In some countries, human rights law and constitutional law are beginning to
make an impact on private international law. So far, this has not been the case
in Ghana. It is unlikely this state of affairs will remain for long, as Ghana's
Constitution contains provisions and human rights norms that could
potentially affect the application of a number of private international law rules,
and international transactions generally.

o International Conventions

Ghana is a dualist state - an international convention does not have the force of
law in the Republic unless it is expressly incorporated into national law. The
fact that Ghana has signed an international convention, or even ratified it at the
international level is not enough to give the convention the force of law in
Ghana.
 Ghana is party to a number of conventions dealing with private law matters
and having an effect on private international law. It is a party to the United
Nations Convention of 10th June 1958 on the Recognition and Enforcement of
Foreign Arbitral Awards and the Convention of 12 October 1929 for the
Unification of Certain Rules Relating to International Carriage by Air. It is a
signatory to the Convention of 28 May 1999 for the Unification of Certain
Rules Relating to International Carriage by Air,38 the United Nations
Convention of 11 December 2008 on Contracts for the International Carriage
of Goods Wholly or Partly by Sea, UNIDROIT Convention in International
Financial Leasing 1995, UNIDROIT Convention on International Interests in
Mobile Equipment 2001, and the UNIDROIT Convention on International
Factoring 1988. Ghana is a party to the International Convention for the
Unification of Certain Rules relating to Bills of Lading signed at Brussels on
25 August 1924. However, it is not party to the Protocol to amend the
International Convention for the Unification of Certain Rules of Law relating
to Bills of Lading signed at Brussels on 25 August 1924 (Hague Rules),
adopted 23 February 1968.

Ghana has signed the United Nations Convention on the Carriage of Goods by
Sea of 31 March 1978. However, it has not ratified it. Accordingly, it is not in
force in Ghana. Notwithstanding this, the Supreme Court has held that the
convention may provide useful guidance in deciding cases relating to the
carriage of goods by sea. Ghana has ratified the Convention on the Limitation
Period in the International Sale of Goods 1974.

Ghana is not a member of The Hague Conference on Private International

Law. It is a party to the Hague Convention on the Protection of Children and
Co-operation in Respect of Intercountry Adoption 1993. Also, in at least one
instance, principles developed in one of th1i; Conference's conventions have
been adopted in Ghana.

Ghana is a member of the Economic Community of West African States

(ECOWAS).

Article 57 of the Revised Treaty establishing ECOWAS enjoins Member

States to 'cooperate in judicial and legal matters with a view to harmonizing
their judicial and legal systems' This provision could be the basis for
ECOWAS laws on private international law issues, but, so far, no such laws
have been adopted.

 Preliminary Issues in Private International Law

o **Foreign law
 **Nature and Proof of Foreign Law

In Ghana, foreign law is proved as a question of fact. By section 1(2)

of the Evidence Act 1975 (N.R.C.D. 323), 'the determination of the
law of an organization of states to the extent that such law is not part of
the law of Ghana, or of the law of a foreign state or sub-division of a
foreign state, is a question of fact, but it shall be determined by the
court'. Foreign law must be proved by expert evidence. In Davis v.
Randall for instance, it was held that the law of Sierra Leone was
foreign law and had to be proved as a question of fact.

A party who seeks to rely on foreign law must both plead and prove it.
Otherwise, the content of foreign law would be assumed to be similar
to Ghanaian law. This is the effect of section 40 of the Evidence Act,
which provides that 'the law of a foreign state is presumed to be the
same as the law of Ghana'. In Ama Serwah v. Yaw Adu Gyamfi and
Vera Adu Gyamfi, the court had to determine whether certain payments
resulting from the death of a Ghanaian in Italy were insurance
compensation, or pension benefits which formed part of the estate of
the deceased under Italian law. Although the respondent pleaded what
he considered to be the applicable Italian law, this was not proved with
evidence. The court held, invoking section 40, that the issue must be
determined using Ghanaian law.

Section 40 is tersely worded, and it is clearly intended to simplify

matters by the presumption it raises. However, it appears to over-
simplify issues as its application is fraught with difficulty and may
sometimes lead to injustice. Notwithstanding its obvious practical
utility, it wrongly assumes that there is corresponding Ghanaian law
for every specific issue on which foreign law would be relevant. This
may not always be the case. Ghana's legal system is relatively
underdeveloped, and it is unlikely there will be any substantive
Ghanaian law on some subjects. Also, the laws of individual states
vary. Accordingly, there is a high probability that there may be no
corresponding cause of action or remedy in Ghana for any cause of
action or remedy that exists in a foreign country on several matters. If a
court deems it appropriate in such a situation, it should invite counsel
to address the court on the, issue including how the issue is dealt with
in the foreign state to ensure that the interest of justice is served.

As noted above, foreign law has to be pleaded as a question of fact.

Failure to plead foreign law may prevent a party from relying on it.
This principle provides an avenue for parties to escape the dictates of
foreign law. In other vvords, pleading operates as a choice of law 'rule'.
In many instances, the failure to plead foreign law , which amounts to
an implied selection of the lex fori*-* the law of the forum as the
applicable law, will be unproblematic. Also, in many instances, the
party that stands to gain from the application of foreign law will lead it.
However, in a few instances, the need to plead foreign law can be a
problem. This could be the case if, in not pleading foreign law, both
parties are attempting to escape the mandatory laws of a foreign legal
system. For instance, parties may seek to enforce a contract in Ghana
that would otherwise have been illegal under the putative applicable
law, or they may try derive rights under a marriage that would be void
under the law of their domicile.
Courts should be alert to this possibility in cases where they perceive a
'foreign' element in the claim and the parties' pleading are silent on that
element.

Even though a contract is governed by foreign law, the plaintiff may

choose not to plead foreign law. If the defendant does not also make
foreign law an issue, then by virtue of section 40 of the Evidence Act,
the dispute would be resolved as if it was governed by Ghanaian law.
However, if the defendant chooses to plead foreign law (where the
plaintiff has failed to do so), the burden is on the defendant to prove
the foreign law. In Inter Afrique Holdings Ltd. v. Tsakos Shipping
&Trading, an issue arose regarding the enforceability of an agreement
expressly governed by English law. The plaintiff did not plead foreign
law. The defendant's contention that the plaintiff must lead evidence to
prove English law regarding the enforceability of the contract was
rejected. Aduama Osei JA rightly held:

It goes without saying that for the Defendant's case as regards the
legally non-binding nature of the transaction and as regards the
relevance of English law to stand, it had to produce evidence on those
issues. The onus of proof regarding those issues rested with the
Defendant. The Defendant's contention in this appeal that since it was
the Plaintiff who sought to rely on a contract whose enforceability
depended on English law, the onus was on the Plaintiff to lead
evidence on English law is therefore not tenable. The case of the
Plaintiff does not suffer if no evidence of English law is introduced.
Indeed, by section 40 of the Evidence Act, the law of a foreign state is
presumed to be the same as the law of Ghana. It is in the interest of a
party who considers the law of a foreign state on an issue to be
different from the law of Ghana on that issue to lead evidence of that
foreign law. If he fails to do so, the law of Ghana will be applied to his
case to his detriment. Such a party bears the burden of producing
evidence of the applicable foreign law.

Foreign law has to be proved on the balance of the probabilities; it

does not have to be proved beyond a reasonable doubt. On another
score, it has been held that merely presenting a judge with the text of
foreign law and leaving him to draw his own conclusions, does not
satisfy the requirement of proof by evidence. An expert witness is
preferred. The competency

of an expert witness is a question of law for the judge. The court must
be satisfied that the person is an ”expert on the subject to which his
testimony relates by reason of his special skill, experience or training”.
In Khoury v. Khoury, it was held that a priest of the Maronite Roman
Catholic church could give evidence as an expert witness on the
matrimonial laws of Lebanon. The fact that the testimony of an expert
lends no credence to his claim of expertise on a subject goes to the
weight of the evidence given and not to its admissibility. Foreign law
cannot be proved by means of affidavits.
 Since Ghana is a Commonwealth country that adheres to the common
law tradition, many of its legal professionals are directly and indirectly
trained in English law. Accordingly, it has been queried whether the
above principles should be extended to cases in which a party seeks to
rely on English law or the law of another common law country as the
applicable law. It has been suggested that, in such cases, the courts
could take judicial notice of English law and dispense with the need to
call expert witnesses. There is comparative jurisprudence in Africa
supportive of this position. In Ghana, there does not appear to be a
judicial decision directly supporting this proposition but it is admitted
that, in practice, especially in relation to English law, an application of
the suggestion can be inferred from some decided cases. This,
however, should not blind us to potential problems with the suggestion.

The rules on proof of foreign law interact with those on choice of law
and, outside the realm of private international law, those on the
allocation of the burden of proof and resources in litigation. A court
seeking to take judicial notice of English law or any other foreign law
with a view to applying it as the lex causae - the law of the cause-
should have these considerations in mind. Also, the fact that Ghanaian
law deems foreign law as a fact does . not make it a 'fact' properly so
called. Unlike a pure fact (e.g., the sun rises in the east and sets in the
west), of which a court could easily take judicial notice, law operates
within a. socioeconomic, political and cultural matrix and serves
specific goals. Accordingly, rules that , are designed for pure facts
cannot be easily extended to foreign law. By taking judicial notice of
foreign law, a judge may miss the broader context that is relevant to
the proper understanding and application of foreign law.

 Exclusion of Foreign Law

The common law allows for the exclusion of an applicable foreign

law in defined circumstances. In Ghana, the applicable law could be
excluded for violating Ghana’s public policy. As Justice Date-Bah has
noted:

There is a rule in the common law on conflict of laws which states that
the courts will not enforce or recognize a right, power et cetera arising
under the law of a foreign country, if the enforcement of that right,
power etc. would be inconsistent with the fundamental public policy of
the law of the forum. For instance, Lord Simon of Glaisdale said in
Vervaeke v Smith [1983] AC 146 at 164: "There is abundant authority
that an English court will decline to recognize or apply what would
otherwise be the appropriate foreign rule of law when to do so would
be against English public policy; although the court will be even
slower to invoke public policy in the field of conflict of laws than
when a purely municipal legal issue is involved."

Foreign law may also be excluded by statute. Under section 35 of the

Matrimonial Causes Act, 1971 (Act 367) for instance, all proceedings
 under the Act are governed by Ghanaian law with the exception of
proceedings for nullity of void marriages. Ordinarily, on matters of
status, the law of a person's domicile which potentially could be a
foreign law would apply. Also, under the Electronic Transactions Act,
2008 (Act 772), notwithstanding a provision of an agreement to the
contrary, the supply of goods pursuant to a contract to consumers in
Ghana is subject to the provisions of the Act. A provision in an
agreement that excludes consumer rights provided for in the Act is
void. Thus, the enforcement of a foreign choice of law clause in a
contract entered into in an online market for the delivery of software to
a consumer in Ghana is subject to the provisions of the Act. Then,
under section 62(1) of the Public Private Partnership Act, 2020 (Act
1039), the 'governing law of a partnership agreement is the law of
Ghana'. Therefore, a public private partnership arrangement between
the government or a state owned entity and a private person under the
Act cannot be governed by foreign law, and the parties are not at
liberty to select a foreign law.

The court has jurisdiction to exclude the entirety of foreign law, or

specific aspects that offends Ghana's public policy. Mere differences in
law is not a basis for excluding the applicable foreign law. latherer
court excludes foreign law, it will apply Ghanaian law to resolve the
issue.

o Connecting Factors: Domicile

 Definition of Domicile

Domicile refers to the connecting factors that link one to the system of
law which content constitute his or her personal law. It is the
jurisdiction a person has a substantial connection with, or considers as
his fixed or permanent home or in which he principally resides. It is a
construct of law that is often determined at birth but may be changed
voluntarily. The concept of domicile is relevant to the law governing a
person's status and property.

It is generally recognised that questions affecting the personal status of

a person should be governed constantly by one and the same law,
irrespective of where that person may happen to be, or where the facts
giving rise to the question may have occurred. The law, which
regulates a person's status (and sometimes property), is technically
referred to as the personal law. At common law, questions of personal
status are generally determined under the law of a person's domicile.

Domicile is an important connecting factor in Ghana. This is especially

so in determining choice of law in property and matrimonial
proceedings. Domicile is also a basis of jurisdiction in matrimonial
causes and a ground on which the court may grant leave for service of
notice of a writ abroad. Despite its multiple uses, there is a unitary
approach to the concept. In other words, what it takes to be domiciled
in Ghana does not vary with the object of the inquiry. Thus, whether
 the court is ascertaining domicile for the purposes of determining
jurisdiction or the applicable law, the requirements, which are
discussed below, are the same. This unitary conception of domicile is
reflected in Abu-Jaudeh v. Abu-Jaudeh, where the court held that
matrimonial domicile is not easier to acquire than domicile in the
ordinary sense. The propriety of this unitary approach is unclear. The
interests at stake are not the same in the various situations when a court
has to determine domicile, such as deciding a basis of jurisdiction in a
matrimonial cause, or as a factor to consider in allowing service of
notice of a writ out of the jurisdiction or the devolution of the movable
estate of a deceased.

Domicile should be distinguished from nationality and residence.

Nationality is political concept, and its existence depaends on the
citizenship laws of states. Evidence in support of residence may also be
evidence in support of domicile. However, one cannot automatically
infer domicile from a person’s residence. The law requires more for
residence to mature into domicile.

Also, while a person may have more than one residence at a time, a
person can have only one domicile at any particular point in time.

 Acquisition of Domicile

An individual's domicile is determined by the lex fori- the law of the

forum. The law distinguishes between domicile of origin and domicile
of choice.

At common law, a child acquires the domicile of the father at birth, if

legitimate, and the domicile of the mother at birth, if illegitimate.

Although the burden of proof is the normal civil standard of proof by

the preponderance of probabilities, there must be strong evidence to
support a claim that a person with a domicile of origin in Ghana has
abandoned it in favour of a foreign domicile. Thus, it has been held
that naturalization in a foreign country does not necessarily amount to
abandoning one's domicile of origin in Ghana.

Domicile of origin is not lost until a domicile of choice is acquired.

Indeed, domicile of origin is never extinguished.

At common law, it remains in abeyance upon the advent of a domicile

of choice and it is revived when the domicile of choice is abandoned.
This is the doctrine of revival of domicile of origin, which
demonstrates the importance placed by the common law on domicile as
a connecting factor.

As Okoli and Oppong have noted:

The doctrine of revival, however, has its advantages and
disadvantages. Regarding its advantages, it can be argued that, firstly,
it provides certainty and predictability to a person who wishes to
renounce a domicile of choice, or simply does so without adopting an
alternative domicile of choice. Secondly, the resilience of a person's
domicile of origin makes it easier to provide advice on the applicable
law arising from the revival of that domicile of origin. Thirdly, the
failure to revive a domicile of origin on abandonment of a domicile of
choice could lead to uncertainty by giving rise to three possible
domiciles: the continuation of the 'abandoned' domicile of choice if
that person maintains personal and physical connections there; the
adoption of another domicile of choice such as a place to which that
person has moved residence; or reinstating the domicile of origin. In
summary, automatic revival of a domicile of origin provides clarity in
choosing one among the three possible domiciles.

Regarding its disadvantages, it can be argued that firstly, a domicile of

origin serves no further purpose than a point of commencement from
which , a person may literally depart, although it does provide certainty
in regard to domicile.

Secondly, a domicile of origin ought not to be revived unless there is

objective evidence that a person seriously intends to revive it.

Thirdly, a person's reversion to a domicile of origin ought to revive

only if it is supported by renewed connections to that place. The
overriding rationale against the automatic revival of domicile is that we
have passed the age of territoriality in which a person is held to
embrace a domicile of origin with which that person no longer has any
reasonable affiliation. Finally, reverting automatically to a domicile of
origin after a domicile of choice is abandoned 'may be arbitrary and
perverse.

The doctrine of revival of domicile of origin has been abandoned in

favour of a doctrine of continuance of the domicile of choice in some
common law jurisdictions such as the Canadian province of Manitoba.
We submit that the doctrine, which allows a person’s domicile of
choice to continue until that person acquires a new domicile, is more
appropriate to cater for the interregnum between the abandonment and
acquisition of domicile of choice.

A person acquires a domicile of choice in Ghana by residing in the

jurisdiction with an animus manendi - intention to remain permanently.

 Residence without an animus manendi, no matter for how long,

will not suffice for acquiring a domicile of choice in Ghana as
typified in Davis v. Randall.

The deceased, in that case, was born in Sierra Leone and had
his domicile of origin there. He married a Ghanaian under
 customary law and frequently visited Sierra Leone. He also had
a house in Sierra Leone. He subsequently divorced the
Ghanaian and married a Sierra Leonean. He died intestate
leaving properties in Ghana. It was held that he still maintained
his domicile of origin in Sierra Leone.

 Davis may be contrasted with Omane v. Poku.

In Omane, the deceased, a national of Cote d'Ivoire, moved to

Ghana and lived in Ghana for over sixty years. He never visited
Cote d'Ivoire again. He adopted a Ghanaian name, married two
Ghanaians, acquired immovable property and died intestate in
Ghana. It was held that his domicile was to be determined by
the law of Ghana, and, under it, he had acquired a domicile of
choice in Ghana at the time of his death.

The intention to remain permanently must be proved with strict

evidence. A mere statement of a person's intention, without any
supporting evidence of extraneous facts, cannot suffice to prove a
change of domicile. Thus, it has been held that evidence of the
acquisition 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 his intention, after obtaining a divorce, to marry a

Ghanaian and settle permanently in Ghana, where 'his whole future

lies'. In the words of Granville Sharp JA “ we do not think that a mere
statement of intention on the part of a petitioner, without any
supporting evidence of extraneous fact, can suffice to justify a ruling
that he has changed his domicile, by choice.”

A domicile of origin is distinguishable from a domicile of choice in

some important respects.

First, domicile of origin is received at birth by operation of law;

domicile of choice is aquired by an individual from the voluntary
action of residence, plus an intention to remain permanently.

Second, a domicile of origin is more tenacious. It is more difficult to

prove that a person has abandoned his domicile of origin than to prove
that he or she has abandoned a domicile of choice. One manifestation
of this tenacity of the domicile of origin is that it revives when a
domicile of choice is abandoned and remains until a new domicile of
choice is acquired.

 Domicile of Dependency

The domicile of a dependent person is, in general, the same as, and
changes (if at all) with, the domicile of the person on whom he or she
(as regards his or her domicile) is legally dependent.
Historically, the law deemed certain persons incapable of acquiring or
having a domicile of their own. For such persons their domicile
depended on another person's domicile - hence the name domicile of
dependency. Women, children, and mentally incapable persons fell
within that category.

It has been suggested that a domicile of dependency is simply a

domicile of choice, but the two kinds of domicile differ in some
respects.

Like the domicile of origin, a domicile of dependency is imposed by

operation of law, whereas a domicile of choice is always acquired
through residence plus the requisite intention.

Also, it is easier to prove that a formerly dependent person has

abandoned their last domicile of dependency (e.g. by ceasing to be a
dependant) than it is to prove the abandonment of a domicile of choice.

 Domicile of Married Women

At common law, a woman acquires the domicile of her husband

at the time of marriage. This rule takes its source from the
classical conception of marriage at common law, which is
based on Christian notions of singularity of married couples in
monogamous unions and the headship of the husband in the
union, residing in a matrimonial home. Thus, the woman
abandons her "home" upon marriage and moves into the
husband's "home". This conception of matrimonial home is
translated to affix the determination of a married woman's
domicile.

The rule has been criticized and abolished in some common

law jurisdictions.

In Ghana, there has been judicial criticism of the rule. In

Amponsah v. Amponsah, the court described it as
not 'progressive'. There has been no outright abrogation of the
rule, but it is doubtful whether the courts will follow it in future
cases. It is also doubtful whether the rule applies equally to
customary marriages, in which case any future abrogation of
the rule should be explicit on this aspect.

Certainly, the rule infringes the equality and non-discrimination

provisions of the Constitution, 1992. The time has come for the
Ghanaian courts to hold that a woman keeps her domicile upon
marriage, unless she opts to abandon it in favour of her
husband's. Indeed, the same rules must be applied to determine
the domicile of a married woman as for a married man.
 The tying of a woman's domicile to that of her husband's in
Ghana is relevant mainly in respect of choice of law issues. So,
for instance, section 32 of the Matrimonial Causes Act, 1971
(Act 367) provides, regarding jurisdiction in matrimonial
causes where domicile is used as a basis of jurisdiction that, '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'.

 Domicile of Children

At common law, a child acquires the domicile of the father at

birth, if legitimate, and the domicile of the mother at birth, if
illegitimate. This rule is also borne of the common law's
Christian foundations of the legitimacy of the birth of a child
where the parents were married at the time of the child's
conception. There is no direct authority on this point in Ghana,
and the Ghanaian courts are not bound to follow this common
law rule.

Under the Children's Act, 1998 (Act 560)- to the extent that its
contents, which deal with issues such as maintenance, custody
and adoption, are relevant to private international law- a child
is a person below the age of 18.

In Ghana, there appears to be a shift from domicile to residence

as the connecting factor in proceedings for custody,
maintenance and adoption.

We recommend that when this issue comes up for

determination, the courts should not follow the common law
rule. Rather, they should fashion a rule that does not
discriminate as between the parents and as between children; a
rule that projects neutrality and avoids the tagging of some
children as illegitimate.

 Section 28 of British Columbia's Infants Act, RSBC c.

223 provides a useful model that the courts could adopt.

It provides that:

The domicile of an infant is,

 if the infant usually resides with all of the

infant's parents and those parents have a
common domicile, that domicile,
 if the infant usually resides with one parent only,
that parent's domicile,
 if the infant usually resides with a person who is
not a parent of the infant and that person has
 guardianship or custody of the infant, that
person's domicile, or
 if the infant's domicile cannot be determined
under paragraph (a), (b) or (c), the jurisdiction
with which the infant has the closest connection.

This is more so, as the significance of the distinction between a

legitimate and an illegitimate child, to the extent of its
relevance at common law in respect of issues of succession, has
been all but eroded in Ghana. This is the effect of Article 28(1)
(b) of the Constitution, which provides that 'every child,
whether or not born in wedlock, shall be entitled to reasonable
provision out of the estate of its parents'.

 Domicile of Legal Persons

A legal person such as a company is domiciled in a State if it

has its seat in that country. That is to say, if it is incorporated in
that country, has its registered office there, or its central
management or control is exercised there.

A company does not automatically become Ghanaian because it

is domiciled in Ghana by reason of incorporation in Ghana, the
location of its registered office in Ghana, or that its central
management or control is exercised in Ghana. That
determination is often functionally specific by way of statutory
contextual prescription.39 For example, under section 10(10) of
the Land Act, 2020 (Act 1036) a company or corporate body is
not a citizen if more than forty percent of the equity
shareholding or ownership is held by non-citizens.

 Domicile and Personal Law

Since Ghana's legal system is pluralistic, deciding that a person

is domiciled in Ghana is often not enough to enable a judge to
determine the applicable law. On some matters, it will be
instructive to ascertain the personal law of a person who
domiciled in Ghana. The personal law of a person is a reference
to the system of customary law to which he is subject or, the
common law where he is not subject to any system of
customary law. Self-identification is an important piece of
evidence in deciding whether a person is subject to a particular
system of law, but it is not conclusive. The degree of
association through conduct with the particular system of law is
very relevant.

A foreigner who acquires a domicile of choice in Ghana does

not necessarily become a person subject to customary law,
regardless of where he settles in Ghana. Thus, a Dane who
chooses Ghana as his domicile does not automatically become
 subject to Asante customary law because he settles in Asokore
or to Kwahu customary law because he settles in Akwatia,
Such a person would be held to have become subject to
customary law only if he could be shown by positive evidence
regarding manner of life and other relevant facts, to have
embraced a particular system of customary law.

o Connecting Factors: Others

Domicile aside, other connecting factors such as habitual residence, ordinary

residence and nationality are used in various aspects of Ghana's private
international law. The determination of where one is 'ordinarily resident' is a
highly fact specific inquiry. Therefore, one must pay careful attention to the
facts of each case. To be ordinarily resident in Ghana does not require a
counting of days in which a party may spend in Ghana. Also, it is not the
length of the visit or stay that determines the question. A person is ordinarily
resident in the place where in the settled routine of his or her life, he or she
regularly, normally or customarily lives. There is some element of permanence
attached to being ordinarily resident in a jurisdiction; casual or intermittent
visits or stays are not enough. Also, a person can be, ordinarily resident in
more than one jurisdiction.

The term habitual residence was not a concept regularly used in common law;
jurisdictions as a matter of judgment made law. However, it is now used as a
connecting factor' in a number of common law jurisdictions mainly as a result
of the influence of certain Hague Conference of Private International Law
Conventions. Habitual residence avoids the rigid and arbitrary rules which
surrounds the concept of "domicile". While domicile is concerned with
whether there is a future intention to live elsewhere, habitual residence
involves only a present intention of residence. Habitual residence is primarily
a question of fact to be decided by reference to the circumstances of each
particular case. The duration of residence is only one factor to be considered in
deciding if a person is habitually resident in a place. However, it is unlikely
that habitual residence can be acquired based upon a very brief period of
residence, regardless of the person's intention. This is because habitual
residence implies a significant period of presence together with an intention to
live in a place. The word "habitual" implies a more enduring and permanent
connection between a person and a place than simple residence. In that sense,
habitual "residence" is in between "residence" and "domicile" on a spectrum
of connections between a person and a place.

 Jurisdiction In Actions In Personam

o Introduction

Jurisdiction is a word that has several different meanings. In the present

context, it refers to to the question of whether a Ghanaian court has the
authority to hear and determine a claim involving a foreign element and, if
yes, whether it will do so.
 The jurisdiction of the Ghanaian court is determined, and regulated by
common law and statute in an action in personam- against a specific person. In
Ghana, like in other common law countries, the foundation of jurisdiction in
international matters is service of court processes. The courts assume
jurisdiction over a defendant as long as he can be served with the originating
(usually a writ of summons) and other processes. Thus, the fact that a contract
was executed and was to be performed abroad or that a tort was committed
abroad does not deny jurisdiction to the Ghanaian courts. The injustice that
could result from this approach to jurisdiction (particularly where the cause of
action has little or no connection with Ghana) is mitigated by the application
of the doctrine of forum non conveniens, which allows a court to stay its
proceedings for the claim to be litigated in a more appropriate forum abroad,
which is better suited to hear the matter.

o Bases of Jurisdiction in International Matters: Natural Persons

 Presence

In Ghana, physical presence is a basis of jurisdiction in international

matters. The fact that a defendant is present in Ghana, no matter how
fleeting, empowers the courts to assume jurisdiction over him. This
position was affirmed in *Tafa & Co. (Ghana) Ltd v. Tafa & Co.
Ltd.*3 The plaintiff company sued for commission due to it for
promoting the defendant, a foreign company, which did business in
Ghana. The writ was served on the president-director of the company,
who had complete control of the company and held himself out as a
substitute for the defendant company. It was held that the presence of a
foreigner within the court's jurisdiction was sufficient for service of a
writ on him. In the words of Edusei J:

The presence of a foreigner within this jurisdiction is sufficient for

service of a writ of summons on him. Jurisdiction in my view is
granted upon territorial dominion and any person who is within the
territorial dominion owes obedience to its sovereign power and
therefore must be obedient to its laws and to the jurisdiction of its
courts.

 Residence

In an action in personam, the courts can assume jurisdiction over a

defendant on the basis of residence. A plaintiff, resident in Ghana, can
act by an order or on behalf of a person resident outside Ghana. In such
a case, the court's jurisdiction will be founded on the residence of the
plaintiff in Ghana. However, there is a mandatory legal requirement
that before a writ is filed by a plaintiff who acts by an order or on
behalf of a person resident outside Ghana, the writ should be indorsed
with a statement of that fact and with the address of the person so
resident. This rule has been applied strictly and the courts are unwilling
to waive non-compliance with this requirement.
 The reluctance to relax the rule was played out in Standard Bank
Offshore Trust Company Limited v. National Investment Bank Limited,
where the Supreme Court reasoned that the:

[r]ule is there to ensure that foreigners, human as well as corporate, are

in existence in fact and have an address at which they may be reached
by the defendant and by the court, if need be. This ensures that the
identity of the real plaintiff is known by the defendant and the court
lest an impostor should secure judgment only for the real claimant to
surface later and saddle the defendant with another suit. It also ensures
that a judgment or order obtained against a foreigner could be executed
against him in his country of residence, through the address supplied
on the writ, if need be.

 Submission

A defendant who submits to the jurisdiction of a Ghanaian court

confers jurisdiction on it to hear a dispute between him and the
plaintiff. Submission can be by conduct or through a choice of forum
agreement.

Commencing an action in Ghana gives the court jurisdiction over a

counterclaim brought by the defendant. A person who invokes the
jurisdiction of a court as plaintiff implicitly consents to the exercise of
the court's jurisdiction in respect of the main claim and counterclaims
brought against him. Similarly, a defendant who, on being served with
a writ, enters appearance unconditionally and does not move the court
to stay the proceedings or set aside the writ submits to the jurisdiction
of the court through his conduct. If the defendant wants to contest the
jurisdiction of the court, then, in the words of Edusei J.,

'the proper course in a legitimate case was for the defendants to have
entered appearance conditionally or under protest and then move the
court to set aside the writ of summons for lack of jurisdiction or
alternatively for a stay of proceedings'. If the defendant fails to do so
and takes steps in the proceedings he would be deemed to have waived
any objection to the jurisdiction of the court.

A person may also submit to the jurisdiction of the court by a contract

or contractual provision. In international contracts, it is common
practice for the parties to agree that in the event of a dispute arising
between them a designated court in a designated country will have
jurisdiction. This is known as a jurisdiction agreement or a choice of
forum clause. As a term of contract, such a clause is binding on the
parties. The defendant must do well by himself by insisting on the
choice of forum clause from the onset to avoid being deemed as
submitting to the forum he objects to. In Moubarak v. Holland West
Afrika Lijn, a contract between the parties contained a Netherlands
choice of forum clause. In the action, the defendant did not move for a
stay of proceedings. Instead, the defendant put in a defence and argued
 that the court had no jurisdiction. It was held that, by submitting to the
order of pleadings and taking steps in the proceedings by filing a
defence, the defendant waived any objection to the court's jurisdiction.

This forever-hold-your-peace rule appears somewhat questionable at

first glance since the question of jurisdiction is at the heart of litigation
in Ghana and can be raised at any time, even on appeal. However, its
utility lies in preventing parties who voluntarily submit to the
jurisdiction of the courts from subsequently doing a volte-face by
asking after the fact questions of jurisdiction when they get or are
getting the shorter end of the proceedings.

 Service of Writ Abroad

 Introduction

As already noted, in Ghana, the foundation of jurisdiction in

international matters is service of court processes. As long as a
defendant can be served with the processes, the Ghanaian
courts will assume (albeit they may not exercise) jurisdiction
over him. Service is usually not and problematic in respect of a
defendant who is present or resident within the jurisdiction or
who submits to the jurisdiction of the courts. However, where a
defendant is abroad, serving him with a writ could be
problematic. Under Order 8 of the High Court (Civil
Procedure) Rules, lant 2004 (C.I. 47), no writ shall be served
out of the jurisdiction. However, with leave of the court, notice
of the writ, in a specified form, can be so served.

The requirement that notice of the writ be served instead of the

writ itself originates in England. Under English civil procedure,
a writ is a command from the Sovereign. It was considered that
it would be more courteous, where the writ was to be served on
a person who was neither a British subject liable to that
command nor a person resident in a country in which the
command could be enforced, to serve notice of the
command and not the command itself. We submit that this is
an unnecessarily technical rule whose foundations and utility
are not informed by any empirical evidence. It is unlikely that a
sovereign state— with its many pressing socio-economic and
political problems— will be too concerned by the fact that,
rather than notice of a writ, the writ itself has been served
within its jurisdiction. This does not deny that diplomatic
courtesies are taken seriously by every country, irrespective of
its domestic challenges. However, in our opinion, what is
important is that service is effected using the appropriate
institutions in the state in question. The real cause of concern
would be the bypassing of a state's institutions to assume
jurisdiction over its subjects and residents, rather than the
character of the document served. Accordingly, we suggest that
where a writ itself, instead of notice of the writ, is served in the
foreign state, this should be considered a mere irregularity that
should not render subsequent proceedings void.

Order 2 rule 7(5) of C.I. 47 provides that 'no writ, notice of

which is to be served out 0f the jurisdiction, shall be issued
without leave of the Court'. An issue that arose under the
predecessor of this Order was the time at which the application
for leave should be made in cases in which the plaintiff
contemplates service outside the jurisdiction. In Lokko v.
Lokko, it was held that, where a plaintiff intended to proceed
against a defendant who was resident outside the jurisdiction,
the plaintiff must first obtain leave of the court before issuing
the writ. Accordingly, when the plaintiff issued a writ against a
defendant who was resident in New York before obtaining
leave, it was held that the writ was incurably bad and, thus
completely null and void.

However, in Shirlstar Container Transport Ltd v. Kadas

Shipping Co. Ltd, a modification of this principle was
introduced in cases of multiple defendants. It was held that
where some defendants reside within the jurisdiction and others
reside outside the jurisdiction, it would be undesirable, unfair
and unjust to require compliance with Order 2 rule 4 (now
Order 2 rule 7(5)). In other words, in cases of multiple
defendants some within and others outside the jurisdiction —
the plaintiff can issue a writ before obtaining leave to serve
notice of the writ on those defendants who are abroad. It has
also been held that where a person is resident outside the
jurisdiction but happens to come within the jurisdiction, that
person can be served wilh a writ that had hitherto been
issued for service within the jurisdiction. In appropriate cases, a
failure to obtain leave before serving a writ out of the
jurisdiction may be waived by the court as an irregularity.

In Jonathan Nortey Sowah v. Lands Commission, the court

appears to have equated 'which is to be served out of the
jurisdiction' in Order 2 rule 7(5) with an intention to serve the
writ out of the jurisdiction. It held that there was no intention
to serve the writ outside the jurisdiction at the time it was
issued, hence leave of the court was not required. The court
came to this conclusion because of the absence of a foreign
address for the defendant on the writ, the plaintiffs lack of
knowledge that the defendant may be resident outside the
jurisdiction, and the fact that the claim related to land in Ghana.
It was further held that the presence of a foreign address on the
writ is a strong indication that it is intended for service outside
the jurisdiction. We submit that the intention to serve the writ
out of the jurisdiction should be objectively ascertained. The
assessment should be based on the prevailing circumstances at
the time the writ is issued.
Order 8 deals with service outside the jurisdiction. Its
provisions are mandatory, and parties cannot contract out of
them. As far as the proper service needed to commence an
action is concerned, it is ineffective to argue that a contract
between the parties provided that, in the event of any action
commenced with respect to the contract, the writ can be served
on the defendant, or on any other specified person on behalf of
the defendant, in a place outside Ghana. In other words, such a
contractual stipulation does not negate the need to apply for
leave to serve notice of the writ outside Ghana. This is
appropriate. The issuance and service of a writ are sovereign
acts; they are a manifestation of a state's power over persons
within its jurisdiction. Accordingly, the character and mode of
exercising that power should not be left to the will of private
parties. A foreign country might deem effecting service of a
writ within its jurisdiction without the assent of its institutions a
violation of its sovereignty.

A person who seeks leave to serve notice of a writ out of the

jurisdiction must make an application to the court. The
application must be supported by an affidavit stating the
grounds on which the application is made. It should also state
that, in the deponent's belief, the plaintiff has a good cause of
action. The affidavit must show the place or country the
defendant is located or could probably be found. It has been
held that a plaintiffs failure to state the grounds on which he is
making the application is not fatal if he filed a comprehensive
statement of claim together with the writ.

Under Order 8 rule 2, the court will not grant leave to serve
notice of a writ out of the jurisdiction unless it is made
sufficiently so the court is satisfied that (a) the case is a proper
one for service out of the jurisdiction and (b) the case falls
within one of the grounds in Order 8 rule 3. In Kwabena Osei
Asibey v. Nana Amo Adjepong, the Court of Appeal held that:

Order 8 Rule 2 imports definite knowledge; accordingly, a

Plaintiff who does not know that the Defendant is domiciled or
ordinarily resident out of the jurisdiction, and/ or who is NOT
in the position to provide to the court the address of the
Defendant outside the country, or even to indicate the country
where the Defendant may probably be found outside Ghana
cannot apply for or be granted leave to serve a document or
notice of a writ out of the jurisdiction.

That being so, in order to succeed in persuading the court to

exercise its discretion in his favour, a Defendant who applies
for an order seeking to set aside service of a writ on him in the
ordinary way without following the procedure required under
Order 8 of C.I.47 must prove to the satisfaction of the court that
 the Plaintiff knew or ought to have known that he (the
Applicant) was domiciled or ordinarily resident outside Ghana
or that he knows or ought to have known the place or country
where he could be found.

Therefore, a court minded to do justice cannot set aside service

of a writ or notice thereof unless the Applicant satisfied the
court that the requirements of Order 8 of C.I.47 applied to him.

It must further be noted that the terms "domiciled" and

"ordinarily resident" applied to persons living outside the
jurisdiction, under Order 8 of C.I.47 are technical terms. They
are terms of art cognisable under the regime of the Conflict of
Laws, and must be so understood when dealing with issues
touching upon or relating to Order 8 of C.I.47.

The exercise of the power granted to the courts to order service

out of the jurisdiction is discretionary and not mandatory. The
courts must exercise this discretion with great care and resolve
any doubt in favour of the prospective defendant. This is
because an application for service out of the jurisdiction is
made and heard ex parte. The foreign defendant is neither
notified nor heard. It is unjust to drag a person into Ghana to
defend an action without substantial grounds and justification.
In the words of Justice Griffiths-Randolph, 'the courts generally
are not enamoured of putting parties resident outside their
jurisdiction to the unnecessary expense involved in, and
inconvenience that might be occasioned by answering frivolous
claims before them'. Thus, the applicant must furnish plausible
evidence to convince the court that he has a good cause of
action or that there is a real issue to be tried and the other party
does not have a reasonable defence to the claim.

 Grounds for Service Out of the Jurisdiction

Order 8 rule 3 sets out the following exhaustive grounds on

which an applicant can make a case for service out of the
jurisdiction:

1. if the whole subject matter of the action begun by the

writ is immovable property situated within the
jurisdiction (with or without rents or profits) or the
perpetuation of testimony relating to any such property;
2. if an act, deed, will, contract, obligation or liability
affecting immovable property situated within the
jurisdiction is sought to be construed, rectified, set aside
or enforced in the action begun by the writ;
3. if, in the action begun by the writ, relief is sought
against a person domiciled or ordinarily resident within
the jurisdiction;
4. 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 that might be
obtained in any such action;
5. if the action begun by the writ is for the execution, as to
property situated within the jurisdiction, of the trusts of
a written instrument, being trusts that ought to be
executed according to the laws of this country and of
which the person to be served with the writ is a trustee,
or for any relief or remedy that might be obtained in any
such action;
6. 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,
that was made within the jurisdiction; that 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; or that is by its terms, or by
implication, governed by the laws of this country;
7. if the action begun by the writ is brought against a
defendant not domiciled or ordinarily resident within
the jurisdiction, with respect to a breach committed
within the jurisdiction of a contract made within or out
of the jurisdiction, 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
and ought to have been performed within the
jurisdiction;
8. if the action begun by the writ is founded on a tort
committed within the jurisdiction;
9. if, in the action begun by the writ, an injunction is
sought that orders the defendant to do or refrain from
doing anything within the jurisdiction (whether or not
damages art all also claimed with respect to a failure to
do or to the doing of that thing); all
10. if the action begun by the writ is properly brought
against a person duly served within the jurisdiction, but
a person out of the jurisdiction is a necessary or proper
party to it;
11. if the action begun by the writ is by a mortgagee of
immovable property situate to within the jurisdiction
and seeks the sale of the property, foreclosure of the
mortgage the or delivery by the mortgagor of possession
of the property, but not an order for payment of any
moneys due under the mortgage;
12. if the action began by the writ is by a mortgagor of
immovable property situared as within the jurisdiction
 and seeks redemption of the mortgage, discharge of the
****mortgage or delivery by the mortgagee of
possession of the property, but not be personal
judgment;
13. if the action begun by the writ concerns a contract that
contains a term to the effect that the court will have
jurisdiction to hear and determine any action with
respect to the contract.

Where the contract is made through an agent resident in Ghana,

the court can, on an ex parte application, make an order that
authorizes service of the writ, which commences an action
relating to the contract, to be effected on the agent instead of
the principal.

The predecessor of Order 8 rule 3(h) was discussed in Signal

Oil and Gas v, Bristow Helicopters. This was an action for
damages in tort and contract arising from a helicopter crash in
Ghana. The helicopter was manufactured and maintained
outside Ghana. The defendants were foreign companies
domiciled and resident outside Ghana. In an application to
discharge an order that granted the plaintiff leave to serve out
of the jurisdiction, it was held that, since the manufacture,
maintenance and repair of the helicopter occurred outside
Ghana and only the crash occurred in Ghana, it followed that
the tort was not committed in Ghana and that Ghana could not
be said to be the most appropriate or convenient place for the
trial of the action. Accordingly, the order for service out of the
jurisdiction was discharged.

The Signal Oil decision that Ghana was not the forum
conveniens for the action was right, given the facts. However,
the decision should be criticized as wrong for holding that the
tort was committed outside Ghana. A cause of action in
negligence is established by proof of the existence of a duty of
care, breach of that duty and damage resulting therefrom. In
many cases, these elements will occur in one country, but this
is not always so. In Signal Oil, both the damage to the
helicopter and the personal damage- the death of an employee-
occurred in Ghana. It was thus wrong for the court to suggest
that the tort was not committed in Ghana as it posits rather
perplexingly that the death and damage did not occur in Ghana.
It is submitted that, to the extent that the elements of a tort
occurred in Ghana, the courts should be prepared to hold that
the tort was 'committed within the jurisdiction'. However, on
the facts, they can refuse service out of the jurisdiction if it is
deemed that Ghana is not the forum conveniens.

Establishing that an action falls under one of the grounds in

Order 8 does not confer an automatic right to service out of the
 jurisdiction. The court has the discretion to refuse service out of
the jurisdiction even if one of the grounds in Order 8 is
established.

An important issue is whether a plaintiff can combine an action

falling outside the scope of the grounds in Order 8 with one
having grounds in Order 8 and still obtain leave to serve out of
the jurisdiction. It has been held that, if a writ of summons
contains any claim with respect to which leave for service out
of the jurisdiction cannot be granted, then even though it
contains other claims with respect to which leave can be
granted, the court cannot, by reason of the former claims, grant
leave for service out of jurisdiction, as such a writ does not fall
within any of the provisions of Order 11 rule 11 (now Order 8).
32 This principle can lead to the fragmentation of litigation,
which is inappropriate and unhelpful. A better view would be
for the courts to pay attention to the circumstances of each case
and decide whether, in spite of the claims that fall outside
Order 8, service out of the jurisdiction should be allowed. In
any case, a plaintiff can always apply for service out of the
jurisdiction on appropriate claims and— if successful, and if
the defendant enters an appearance— serve him with a writ for
the additional claims and have the two actions consolidated for
hearing.

 Procedure for Serving Out of the Jurisdiction

The Rules of Court outline the method by which notice of a

writ is served out of the jurisdiction. In countries where there is
a civil procedure convention that provides for service of
processes of the courts of Ghana, the notice can be served
through the judicial authorities of that country or through a
Ghanaian consul there. In non-convention countries, notice can
be served through the government of that country or through
the Ghanaian consul in that country.

The principal international agreement regulating the service of

documents is the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters 1965. Ghana is not party to the convention. There is
also no African convention dealing with this issue.
Accordingly, countries that might be 'convention countries' for
the purposes of serving notice of writs from Ghana are likely to
be few, if any, (Indeed, we have been unable to locate any law
in Ghana that names any of these convention countries.

It is not altogether settled whether substituted service may be

ordered in cases where the plaintiff is unable to effect personal
service abroad. In Bruce v. Barrett, the defendant was (in
London when the action was instituted. The writ was issued for
 service outside the jurisdiction, and an order was obtained for it
to be so served, but the plaintiff failed to effect service. The
court ordered substituted service on the defendant's wife in
London. It should be noted that the court was not presented
with much juridical problems since the jurisdiction was a
British Crown Colony at the time and the writ was intended for
service in Britain. Then in Bawa v. Oyegoke, the plaintiff
issued a writ in ordinary form against the first defendant, h
who was formerly resident in Ghana but resident in Nigeria at
the time the writ was issued. (The plaintiff did not state the
address at which the first defendant could be served. The
plaintiff then brought an ex parte application for an order of
substituted service of the writ on h his wife, who was resident
in Ghana. It was held that where a writ was issued in the
ordinary (form for service within the jurisdiction against a
person who, before the issue of the writ, had left the country
and had since remained out of the jurisdiction, and where it did
not appear that the defendant had gone out of the jurisdiction to
avoid service of the writ, an order for substituted service could
not be made. Where a writ cannot be served on a person
directly, it cannot be served indirectly by means of substituted
service

o Jurisdiction over Foreign Companies

 Residence

A company that is resident in Ghana is subject to the jurisdiction of the

Ghanaian courts. The test for residence is whether it is carrying on
business at some definite and more or less permanent place in Ghana.
The question of residence, for the purposes of jurisdiction, is
determined by the facts as they exist at the commencement of an
action.

 Doing Business

A company doing business in Ghana is subject to the jurisdiction of the

Ghanaian courts.

Such a company need not have a permanent place of business in

Ghana. It is enough if it sells its products or renders services in Ghana.
A foreign unincorporated partnership that is not carrying on business in
Ghana cannot issue a writ of summons or sue in the name of the firm.
This is a sound principle. Such a foreign entity might not possess a
separate legal personality in its country of origin that could be
recognized by the Ghanaian courts.

A company incorporated in another country has the capacity to sue in

Ghana. The Ghanaian courts will recognize the legal personality
conferred on a company by a foreign state. Such a company is,
 however, bound to disclose its place of incorporation in the writ of
summons.

The law does not authorise a body that is not properly incorporated to
evade the requirements of incorporation or registration by suing by an
attorney. Thus, a business that has no legal personality cannot sue
through their lawful attorney. It was held in Kirnon Compania Naviera
S.A.R.P. v. Volta Line Ltd (Consolidated) that a person suing by a
lawful attorney could only sue in the name of the principal and not in
his own name. If the principal has no legal personality, he cannot
acquire one by suing through an attorney.

 Service onCompanies

Ghanaian law has special procedures for service of documents or legal

processes on companies and, more important for our purpose, on
'foreign companies'. It has been held that service on a company
registered in or with a registered office in Ghana is to be effected
u11der the provisions of the Companies Act, 1963 (Act 179) and not
under the High Court (Civil Procedure) Rules. The main provisions in
the Companies Act, 2019 (Act 992) that deal with service of
documents are sections 291 and 333, the latter of which is reserved for
service on 'external companies'.

An external company is a body corporate formed outside Ghana that

has an established place of business in Ghana. An 'established place of
business' means a branch, management, share, transfer, or registration
office, factory, mine or other fixed place of business. It does not
include an agency unless the agent has, and habitually exercises, a
general authority to negotiate and conclude contracts on behalf of the
body corporate or maintains a stock of merchandise belonging to that
body corporate from which he regularly fills orders on its behalf. A
body corporate will not be deemed to have an established place of
business in Ghana merely because it carries on business dealings in
Ghana through a genuine broker or general commission agent acting in
the ordinary course of his business as such. Also, the fact that a body
corporate has a subsidiary that is incorporated, resident or carrying on
business io Ghana, whether through an established place of business or
otherwise, will not of itself constitute Ghana as the place of business of
that body corporate.

Regarding external companies, section 333 of Act 992 provides that a

process or any other document shall be sufficiently served on an
external company if delivered or sent through an electronic address
provided by the company to the Registrar, or delivered or sent by post
to the person last registered as the process agent of the company at the
last registered address of that agent, even if the process agent refuses to
accept service or the company has ceased to maintain a place of
business in Ghana,50 or sent by facsimile machine to a telephone
number used for the transmission of documents by facsimile at the
 registered office, address for service or the head office or principal
place of business of the company. These rules do not apply to the
service of a document if the company was struck off the register of
external companies under section 340 for more than six years
previously; if one person was last registered as process agent and that
person is dead, or, in the case of a body corporate, dissolved; or if two
or more persons were last registered as process agents and both are
dead, or, in the case of a body corporate, dissolved.

o Jurisdiction under the Warsaw and Montreal Conventions

Ghana is a party to the Convention for the Unification Of Certain Rules

Relating International Carriage by Air, 1929 (Warsaw Convention), which is
implemented in the Carriage by Air, (Colonies, Protectorates and Trust
Territories) Order, 1953 (LN 155 of 1954).

The Warsaw Convention is the umbrella under which another convention and
a host of protocols have been adopted, forming the so-called "Warsaw
System". Within that system, Ghana is a party to only The Hague Protocol
(1955); Guadalajara Convention (1961); Additional Protocol No. 1; Additional
Protocol No. 2 and the Montreal Protocol No. 4. It is however unclear whether
Ghana has domestically implemented all these international instruments to
give them the force of law in Ghana.

Ghana is also a party to the Convention for the Unification of Certain Rules
for International Carriage by Air, 1999 (Montreal Convention). The Montreal
Convention was an attempt to overcome the fragmentation of the Warsaw
System by its consolidation and modernisation. It however does not replace
the Warsaw System as not all countries that are parties to the Warsaw
Convention are parties to the Montreal Convention. Ghana has domestically
implemented the Montreal Convention such that it has the force of law in
Ghana.

The question of which of the various conventions, if any, applies to a

particular case of carriage turns on the reference to the places of departure and
destination in the definition of "international carriage" in each convention.
One must identify the places of departure and destination, and then determine
to which, if any, conventions the state in which each of those places is situated
is a party. The most recent convention to which both states are parties will
apply. For example, where the place of departure and destination are Ghana
and the Unit Kingdom respectively, the Montreal Convention would apply as
both countries are parties: that convention, and it is the latest in time. On the
other hand, where the place of departure and place of destination is Ghana and
Zimbabwe respectively, the Warsaw Convention and the Hague Protocol
would apply as Zimbabwe is not a party to the Montreal Convention. It is
important to emphasise that, in every case, what must be examined is the
carriage of the particular passenger or cargo, not that of the aircraft effecting
the carriage.
 The Ghanaian courts can assume jurisdiction in a claim for damages under
either the Warsaw or Montreal Conventions only in accordance with the
jurisdictional rules they provide. Article 28 of the Warsaw Convention
provides that an action for damages must be brought, at the option of the
plaintiff, in the territory of one of the High Contracting Parties before one of
the following: (a) the court having jurisdiction where the carrier is ordinarily
resident; or (b) the court having jurisdiction where the carrier has its principal
place of business; or (c) the court having jurisdiction where the carrier has an
establishment by which the contract has been made; or (d) the court having
jurisdiction at the place of destination.

The Montreal Convention retains these four grounds of jurisdiction, but it adds
a fifth ground under Article 33, which provides that an action for damages
must be brought, at the option of the plaintiff, in the territory of one of the
States Parties, before one of the following (a) the court of the domicile of the
carrier; or (b) the court of the carrier's principal place of tl business; or (c) the
court where the carrier has a place of business through which the contract u
had been made; or (d) the court at the place of destination; or (e) in respect of
damage n resulting from the death or injury of a passenger, before a court in
the territory of a state party in which at the time of the accident the passenger
had his or her principal and permanent residence and to or from which the
carrier operates services for the carriage of passengers by air, either on its own
aircraft, or on another carrier's aircraft pursuant to a commercial agreement,
and in which that carrier conducts its business of carriage of passengers by air
from premises leased or owned by the carrier itself or by another carrier with
which it has a commercial agreement.

These bases of jurisdiction are exhaustive such that an action cannot be

brought by a passenger or cargo owner against a carrier on any other basis of
jurisdiction.

o Limitations on the Exercise of Jurisdiction

 Jurisdictional Immunities

The jurisdiction of the Ghanaian courts is subject to certain limitations.

The effect of the limitations is to render a court incompetent to
determine a claim brought before it, notwithstanding the fact that the
defendant has or can be served with the writ. There are certain persons
against whom the jurisdiction of Ghanaian courts cannot be enforced,
and others by whom it cannot be invoked. ln addition to immunity
from jurisdiction, limitations also placed on the extent to which
execution may be levied against the property of such persons. This is
known as immunity from execution. The decision to grant immunities
from jurisdiction and execution to certain persons is founded on broad
considerations of public policy, international law, and comity. Foreign
states, heads of state and government, diplomats and international
organisations are examples of such persons. This arises from the notion
of the inviolability of the persons, residence and property from the
jurisdiction of the courts of other states.
Ghana is not a party to United Nations Convention on Jurisdictional
Immunities of States and Their Property, 2004, which seeks to immune
state parties and their property from the jurisdiction of the courts of
other states.

The law on jurisdictional immunities, and indeed the associated

immunities from execution and other legal processes should be
construed and applied within the context of the constitutional
guarantees of fundamental rights, including the right to a fair trial.
Jurisdictional immunities advance the public interest by facilitating the
government of Ghana's dealings with other governments, diplomats,
and international organisations. But it is not inconceivable that, in an
appropriate case, this public interest may have to give way to the
demands of the Constitution - which, after all, is the supreme law of
the land. It is, however, important that constitutional arguments against
jurisdictional and related immunities are not carried too far. As stated,
the need for immunity is founded on broad considerations of public
policy, international law and comity. Also, rights can exist in law even
though remedies for their violation may be limited by procedural bars;
and remedies ar by no means automatic or unlimited. The maxim
'where there is a right, there must be a remedy for its violation' while it
may placate the man on the Kejetia bus, does not accurately depict the
true workings of the law. The law is replete with many instances in
which substantive rights are implemented within a framework of
procedural limitations. Jurisdictional immunity is a procedural
limitation on the right to sue and access to justice.

 Foreign States and Governments

Historically, at common law, sovereign immunity was absolute

such that the state or its representative could not be impleaded
before a foreign court unless there was submission to the
jurisdiction of the court. The doctrine of absolute immunity has
significant disadvantages and it results in unfair consequences
for persons dealing with states, particularly in commercial
transactions. It could enable a sovereign state and its
representative to engage in commercial transactions but avoid
any resulting obligations or liabilities by relying on the
doctrine.

Accordingly, many countries have moved away from this

doctrine and now apply the restricted or qualified doctrine of
sovereign immunity. Under the restricted doctrine, immunity
from the jurisdiction of national courts is granted with respect
to acts jure imperii (governmental public acts), but not acts
jure gestionis (commercial activities).

There is no legislation in Ghana that regulates sovereign

immunity; that is, im111l1ni of states and heads of government.
However, the existing jurisprudence endorses the restricted
 doctrine of sovereign immunity."6 This position is further
strengthened by the fact that first, although the Diplomatic
Immunities Act, 1962 (Act 148) does not deal directly Wit the
immunity of states and heads of state, it adopts the restricted
doctrine of immunity with regard to diplomatic agents. Second,
although Ghana's Constitution does not provide that customary
international law is automatically part of the laws of Ghana, it
is arguable that, consistent with the position in other common
law countries, this is the case. Accordingly, the customary
international law on restricted immunity for states and heads of
state is applicable in Ghana. If for nothing at all, common sense
so dictates. It also appears that the trend hi many countries,
including in Africa, is towards the restricted doctrine of
immunity.

Sovereign immunity may be waived by the state. However, a

Ghanaian court may refuse a waiver of sovereign immunity on
ground of public policy. Thus, in the NML Capital case, even
though it appeared that Argentina waived its immunity through
a contractual waiver clause, it was held that the waiver of
immunity was not binding on the Ghanaian courts in so far as it
related to military assets, in this instance an Argentinean
warship. The facts of this case were obviously unique and
justified the Supreme Court's refusal to uphold the contractual
waiver of immunity. The decision should thus be restricted to
its facts- courts should not lightly refuse to uphold contractual
provisions even if one of the parties is a state.

 Diplomatic Staff

Ghana is party to the Vienna Convention on Diplomatic

Relations 1961, which has been implemented under the
Diplomatic Relations Act, 1962 (Act 148). According to Article
31 oi the convention:

A diplomatic agent shall enjoy immunity from the criminal

jurisdiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction, except in the case
of:

1. real action relating to private immovable property

situated in the territory of the receiving Slate, unless he
holds it on behalf of the sending State for the purpose of
the mission;
2. an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the
sending State;
 3. an action relating to any professional or commercial
activity exercised by the diplomatic agent in the
receiving State outside his official functions.

In this regard, it has been held that 'commercial activity' means

any commercial or business transaction entered int by a
diplomat in his private capacity. Personal profit is not a key
element in the commercial activities envisaged under Article
31. On the contrary, any private commercial transaction entered
into by the diplomatic agent outside his official actions,
whether for personal profit or not, is a commercial activity
within the meaning and intent of Article 31.

It has been held that from a combined reading of Articles 31

and 42, a single act of buying vehicles and other personal
effects could not constitute commercial activity. This is a very
unfortunate decision. A diplomat should not be able to avoid
the jurisdiction of the Ghanaian courts merely because he sold -
once only - a fake painting to an individual but was not in the
habit of selling paintings. From the perspective of a plaintiff,
whom the commercial activity exception aims to protect, the
regularity or frequency with which the activity complained of
was undertaken by the diplomat does not matter. Indeed,
Article 31 specifically refers to 'commercial activity' and not a
combination of commercial activities. Other examples of
commercial activity may include any contract for the supply of
goods or services, and any loan or other transaction for the
provision of finance and any guarantee or indemnity in respect
of any such transaction or of any other financial obligation.

A person who claims to be a diplomatic agent must provide

proof to that effect. A letter from the Ministry of Foreign
Affairs is admissible and conclusive proof of a person's
diplomatic status in Ghana. The relevant date at which a
diplomatic agent's right to immunity from jurisdiction must
exist is not the date on which the cause of action arose, but the
time the action is brought.

Although a diplomatic agent enjoys immunity from the

Ghanaian courts with respect to the matters not exempted in
Article 31(1) of the convention, that immunity can be waived.

However, a waiver of immunity is not to be lightly inferred. ln

Armon v. Katz, it was held that the fact that a diplomatic agent
insured his car in compliance with the Motor Vehicle (Third
Party Insurance) Act, 1958 did not mean he had thereby
expressly waived his diplomatic immunity. Such a waiver
could validly be made only by his sending government, in this
instance, the Israeli government— under Article 32(1)(2) of the
Vienna Convention on Diplomatic Relations.
 Immunity need not be waived in facie curiae - in the face of the
court. It may be done through a written agreement prior to the
dispute. This is because at common law, a waiver of immunity
could only be made by submission, and this submission must
be express and made in the face of the court. Accordingly,
submission could only be undertaken when the court: was
asked to exercise jurisdiction and not at any previous time. It
has been held that the traditional English common law position
is inconsistent with modern international practice and should
not be followed in Ghana.

Diplomatic immunity protects foreign diplomats from the

Ghanaian courts' jurisdiction. It does not protect a Ghanaian
diplomat who is sued in Ghana for acts committed abroad. So
in Kwarteng v. Sackey, the appellant brought an action in the
High Court claiming damages for wrongs he allegedly suffered
in Liberia at the hands of the first respondent, who was, at the
time, the charge d'affaires at Ghana's embassy in Liberia. The
respondent denied the various allegations and he relied on
Article 38(1) of the Vienna Convention on Diplomatic
Relations. He raised a preliminary objection on the ground that
all actions taken by him were done in his official capacity and
he was, therefore, immune from the court's jurisdiction. It was
held that the respondent was a citizen of Ghana and a person
sent by the government of Ghana to take charge of its embassy
in Monrovia. In terms of the Vienna Convention on Diplomatic
Relations as implemented by the Diplomatic Relations Act,
1962, he was entitled to diplomatic immunity while in Liberia
or travelling through foreign countries to or from Liberia.
However, it was clear from the Act and Article 31(4) of the
convention, which conferred jurisdiction over a diplomatic
agent on the sending state that no such immunity existed for
him in his own country.

 International Organizations

The legal framework for immunities and privileges of

diplomatic agents is entirely different from that of international
organisations. Under Article 2 of the Diplomatic Relations Act,
the President of Ghana can, by legislative instrument, extend
any or all of the immunities and privileges conferred on
diplomatic agents by virtue of the Act to prescribed
organizations and to their representatives and officials.

In Deutsche Gesselschaft Fur Technische Zusammenarbelt

(Gtz) Gmbh v. Africa Legal Aid, it was held that merely
entering into a Headquarters agreement with the government of
Ghana was not enough to insulate an international organisation
from being sued in the Ghanaian courts. A letter from the
Ministry of Foreign Affairs confirming that an entity is a
 diplomatic mission enjoying privileges and immunities in
Ghana is equally not enough. What is required is a legislative
instrument enacted under section 2 of the Diplomatic Relations
Act, 1962 (Act 148). In the words of Adjei, JA:

[It is an error to substitute] the Headquarters agreement with

Legislative Instrument. They are two different documents, and
it is the Legislative Instrument which could tell the type of
privileges and immunities Ghana would confer on the
Defendant. Legislative Instrument is a law and has the force of
law while the headquarters agreement is a contract, a breach of
which will result in the payment of damages and one cannot
substitute one for the other.

Furthermore, it is the Legislative Instrument that may confer

any or all of the immunities and privileges on the international
organization It is the duty of the executive to pass the
Legislative Instrument and indicate the type of privileges and
immunities to be enjoyed by the defendant for same to be
respected and affirmed by the Judiciary. The Judiciary cannot
confer immunities and privileges on an international
organization as in the case of the Defendant when the
Executive has not passed the Legislative Instrument specifying
the type of privileges and immunities it has extended to the
Defendant which is an international organization. It is not
enough for the Ministry of Foreign Affairs to produce a letter to
say that government of Ghana wishes to inform the general
public that Africa Legal Aid has become a diplomatic mission
by virtue of the Headquarters Agreement.

 Jurisdiction over Foreign Immovable Property

A Ghanaian court has no jurisdiction to entertain proceedings

principally concerned with a question of title to, or the right of
possession of, immovable property situated outside the jurisdiction. 71
This is often referred to as the Mocambique rule. It derives from
British South Africa Co v. Companhia de Morambique, in which it was
held that an English court has no jurisdiction to entertain an action to
recover damages for a trespass to land situated abroad. Historically, it
was thought that the rule was based on the technicalities of English
civil procedure law, especially the distinction between local and
transitory actions. At common law a local action was an action, which
could be brought only, where the subject matter of the controversy
exists. A transitory action, on the other hand, could be brought in any
place where the defendant could be served. Typically, actions dealing
with ownership of property were local matters, whereas personal
actions such as an action for breach of contract and damages for
negligence were transitory. In addition to its historical foundations,
there are practical dictates and considerations founded on international
law and comity that inform the· rule. In practice, only the situs can
 make an effective decree with regard to land. A judgment given in
respect of foreign land would be ineffective unless it is accepted and
implemented by authorities of the place where the land is located.

There is at least one important exception to the Mocambique rule. This

is that - where the court has in personam jurisdiction over the
defendant, it has jurisdiction to entertain proceedings against him in
respect of a contract or equity running between the parties, even
though the contract or equity indirectly affects foreign land. Thus,
where a person has dealt most inequitably with a jointly acquired
foreign immovable, a Ghanaian court will assume jurisdiction in equity
to correct the injustice occasioned by such a dealing.

o Declining Jurisdiction: Stay of Proceedings

 Introduction

The fact that a writ has been served on a defendant - whether within or
outside Ghana - does not mean a Ghanaian court will exercise
jurisdiction over him. The court is competent to decline jurisdiction in
favour of a foreign forum by staying its proceedings. In doing this, the
Ghanaian court is technically only regulating its own jurisdiction.
However, the effect of a stay of proceedings is to force the plaintiff to
litigate abroad, or in some cases, to go to arbitration, or settle the case.
Thus, in essence, the court, in making this decision, is choosing
between alternative forums for trial, or between trial and arbitration.
Accordingly, it is a decision that has to be made very cautiously.

The power of a Ghanaian court to stay proceedings is derived from its

inherent jurisdiction. It is a power which exists at common law and
under statute deriving from three sources the doctrine of forum non
conveniens and cases where the parties have entered into either a
jurisdiction agreement or an arbitration agreement. It is important for
the courts to maintain the distinction between these scenarios as each
evokes a different body of law in their resolution.

 Forum non Conveniens

There is a general discretionary power exercisable by a Ghanaian court

to stay proceedings on the basis of forum non convenien. This Latin tag
is somewhat misleading because it suggests inconvenience. The
doctrine is not a question of convenience, but of the suitability or
appropriateness of Ghana as the forum for litigating an action.

In deciding whether there is a more appropriate forum than Ghana for

the trial of an action, the court will weigh the balance of the factors
connecting the parties and cause of action to the jurisdiction and any
other foreign forum(s). This is done with a view to deciding the forum
which projects the best interests of all the parties to meet the ends of
justice. There are no limits on the number of factors the court must
weigh in its forum non conveniens analysis. The location of the parties
 and their witnesses, the applicable law for resolving the dispute, the
enforcement of the eventual judgment, and the need to avoid
multiplicity of legal proceedings and the prospect of inconsistent
judicial decisions are all relevant, albeit non exhaustive factors to be
considered. Lamptey J., undertook this careful balancing of factors in
Shirlstar Container Transport Ltd v. Kadas Shipping Co Ltd when he
wrote:

In this action two of the defendants reside within the jurisdiction while
three reside out of the jurisdiction. Some of the containers are located
within the jurisdiction whereas other containers are presently located in
the UK. The contract in respect of which the plaintiff company had
sued was stated to have been entered into within the jurisdiction. The
plaintiff company itself is ordinarily resident within the jurisdiction. In
my judgment the facts to which I have made reference support a
decision in favour of the case being heard in this jurisdiction rather
than in a court in the UK. Perhaps I should draw attention to the
equally important and compelling fact that there is now before this
court only one defendant that is ordinarily resident outside the
jurisdiction as opposed to two defendants residing within the
jurisdiction; the action against the third and the fourth defendants
having been dismissed. I therefore rule that this court is a more
convenient forum than a court in the UK.

The mere fact of the pendency of a similar suit is not determinative in

forum conveniens analysis. Neither is the fact of which case is more
likely to be completed first. In other words, lis alibi pendens - a lawsuit
pending elsewhere - is an important additional element to be
considered in forum non conveniens analysis but it is not 'a decisive
factor in the sense of making a foreign forum clearly more
appropriate ... It does not matter, in principle, whether the action was
commenced first in England or abroad; this is merely an accident of
timing'. In Fattal v. Fattal, the court emphasised that when a plea of
lis alibi pendens is raised, it must be proved that both the foreign and
the Ghanaian actions arethe same with respect to the parties and
relief(s) sought.

 Jurisdiction Agreements

A jurisdiction agreement is one by which the parties designate the state

or country for thi l settlement of disputes arising between them. There
are several types of jurisdictioij ( agreements. First, a jurisdiction
agreement may assign jurisdiction to a country with which one or
more of the parties has a connection, or it may grant jurisdiction to a
neutral forum.

Second, a jurisdiction agreement may be bilateral or unilateral.

Bilateral agreements apply to and may be invoked by, both contracting
parties. Conversely, unilateral agreements (sometimes referred to
as one-way jurisdiction agreements) may allow only one party to rely
on the agreement or may afford greater jurisdictional flexibility to the
party in whose favor the agreement operates.

Third, the parties may confer exclusive, non-exclusive, or hybrid

jurisdiction to their chosen forum. An exclusive jurisdiction agreement
nominates the cou11s of one country to determine disputes between the
parties concerned. A non-exclusive jurisdiction agreement confers
jurisdiction on one forum, but not to the exclusion of others, allowing
each party to bring an action in the named forum, or before any other
competent court. As a subset of the non-exclusive jurisdiction clause,
parties may also agree to give jurisdiction to two courts concurrently.
Concurrent jurisdiction agreements are useful where for example, the
contracting parties reside in different countries and cannot reach an
agreement as to the preferred court. Then there is the hybrid agreement
(also referred to as a unilateral non-exclusive clause), which requires
one party to submit to the exclusive jurisdiction of a particular court
and the other party, to the non-exclusive jurisdiction of that court. This
type of agreement is often used where there is an imbalance in
negotiating power. For example, in the context of loan agreements, a
hybrid jurisdiction agreement would stipulate that a creditor, as the
commercially dominant party, could commence an action wherever
their borrower's assets are located.

The type of jurisdiction agreement that is chosen by parties to a

contract will depend on the parties' needs in each case and may also
reflect the negotiating powers on each side. A party may prefer actions
to be commenced in their home country on the basis of convenience, or
out of preference for the local laws governing the dispute. Such parties
are therefore likely to favour an exclusive jurisdiction agreement.
Others may prefer a non-exclusive jurisdiction agreement because they
seek greater flexibility or the assurance that they can bring an action in
any jurisdiction where the other party has assets.

As noted above, in Ghana, it is well established that a jurisdiction

agreement serves as a basis of jurisdiction. When parties provide in
their contract that in the event of a dispute it shall be settled in Ghana,
it amounts to submission to the jurisdiction of the Ghanaian courts.
How, then, have the courts addressed the question the question of the
position where (i) a contract provides that in the event of a dispute it
shall be settled in Ghana, and the defendant prays the Ghanaian action
to be stayed in favour of proceedings in another country, or where ii)
a contract provides that in the event of a dispute it shall be settled in
say, England, and in breach of the agreement the plaintiff ues in Ghana
and the defendant applies for the Ghanaian action to be stayed in
favour of proceedings in England?

In C.I.L.E.V. v. Chiavelli, the plaintiff brought an action for the value

of goods sold to the defendant. The defendants raised a preliminary
objection to the jurisdiction of the court on the ground that they had
agreed that disputes between them should be settled in the courts of
Modena, Italy. In upholding the jurisdiction agreement, it was held that
parties were free to enter into choice of forum agreements. The court
reasoned that the case for giving effect to such agreements is stronger
where the dispute is closely connected with the country whose courts
the parties have chosen. In upholding the decision on appeal, Amissah
JA outlined the considerations that informed the decision to hold the
parties to their bargain as follows:

It has been said that a ruling I gave in the case of C.I.L.E.V. v. Black
Star Line on 18 December 1967 ( reported in [1967] GLR 744) makes
it clear that this court ought not to decline jurisdiction in the present
case. But surely that need not follow. In the case against Black Star
Line there were considerations which made it imperative that even
though the parties had chosen their own forum, this court should
nevertheless exercise its undoubted jurisdiction to determine the case.
The forum chosen was England, a country with which the
contract otherwise had no connection whatsoever. The defendants were
a Ghanaian company holding goods of which the plaintiffs therein
claimed they were entitled to possession. With every day which
passed, vast rents were being accumulated against the person who was
eventually to take possession of the goods and in favour of the
Government of Ghana. There was no issue which the English courts
could try more conveniently than the Ghanaian courts. The hearing of
the action had been started and some evidence had been heard. Then
the defendants raised the question of the jurisdiction as agreed to by
the parties. In a case in which this court has jurisdiction by virtue of
the fact that the parties are effectively before the court, I think the court
ought not to decline to exercise its jurisdiction unless there is some
sufficient reason. That is what one finds in this case. There is an
arrangement closely connected with Italy. The plaintiffs are an Italian
company. The defendant Chiavelli is both a shareholder and
administrator of the plaintiff company and a shareholder and managing
director of a second company originally incorporated in Italy and only
registered in Ghana. The arrangement was made in Italy. All
documents connected with it are in Italian. The capacity in which the
defendant Chiavelli entered into the arrangement is a matter of dispute.
Ghana only comes into the picture because the goods, the subject -
matter of the arrangement, have been invoiced and shipped to the
company of which the defendant Chiavelli is managing director at its
address in Ghana.

At one stage the plaintiffs told the court how the defendant Chiavelli
dashed from the office of the company of which he is managing
director in Italy, an office which happened 10 be in the same building,
to the office of the plaintiffs to induce a certain course of action.

At the next stage the plaintiffs claimed that the company of which the
defendant Chiavelli is managing director had been liquidated in Italy
for years and that they have documents in Italian to prove this. On the
invoice of the goods is a note obviously inserted by the plaintiffs that
disputes arising out of the invoice should be adjudicated upon by a
court in Italy. Can it be said that the circumstances of this case are the
same as those in the Black Star Line case? I think not. In fact, a look at
the pleadings would lead and did lead this court to the conclusion that
the full story of the arrangement between the parties had not been told
and that if the action were allowed to continue here it would never be
told. The conduct of the plaintiffs confirmed the court in the view that
the best forum to do justice in the case would be the court in Italy. I am
still of that opinion. It is not impossible, nor is it even unusual, for a
court with undoubted jurisdiction in a case to decline to exercise it in
deference to a court of a foreign country also with jurisdiction in the
case.

The presence of a foreign jurisdiction agreement will not automatically

result in a stay of the Ghanaian proceedings. The court can, in an
appropriate case, allow the action to continue in Ghana. In C.I.L.E.V.
v. Black Star Line, the defendant objected to the Ghanaian court
assuming jurisdiction over a dispute arising under a bill of lading that
contained an English choice of law clause and jurisdiction. The court
held that where parties contracted that disputes between them were to
be referred to a foreign tribunal, then, prima facie, the court in which
an action is brought in breach of that agreement would stay the
proceedings so brought. However, such a provision did not oust the
court's jurisdiction. The particular circumstances of the case might
dictate that effect should not be given to that agreement. In the instant
case, the court found that the circumstances of the case were such that
the action should proceed in Ghana. The defendant was Ghana's
national shipping line. The goods involved had been detained in Ghana
and were collecting vast rents for th government, which would have
exceeded the value of the goods by the time they completed litigation
in England. Further, the defendant raised the objection after several
adjournments, and the court was of the view that it could apply English
law, which, in the instant case, wa not very different from Ghanaian
law.

A similar conclusion was reached in Fan Milk Ltd v. State Shipping

Corporation. This was an action for damages resulting from the
defendant's delivery of damaged goods to the plaintiff. The plaintiff
was a company registered in Ghana. The defendant was a Ghanaian
statutory corporation. The vessel that carried the goods was a Ghanaian
ship that flew Ghana’s flag. The **goods were delivered in Ghana for
use in Ghana. The defendant raised a preliminary objection to the
jurisdiction of the court on the ground that the bill of lading contained
an English jurisdiction agreement and choice of law clause. The court
held that reasonableness is the criterion for deciding whether or not a
jurisdiction agreement ought to be honoured. What is reasonable is a
question of fact. In this instance, it was held that since the parties were
Ghanaians, Ghanaian law and English law on the matter did not differ
in any material way, and the goods were delivered in Ghana, this was
not a proper case for staying the proceedings.
 We must highlight the court's emphasis on 'reasonableness' in deciding
whether or not to give effect to foreign jurisdiction agreements. In this
regard, it is essential to examine the elements that connect the contract
with the competing forums - Ghana and the foreign country. In
addition, the courts must pay attention to the relative bargaining
positions of the parties at the time the contract was concluded. Where a
jurisdiction agreement appears to have been imposed on a weaker party
in a non-arm's-length transaction, such as a consumer or an employee,
the courts should be slow in giving effect to it, especially in cases
involving standard form contracts. Ghanaian plaintiffs might incur
great expense if made to litigate in foreign countries.

The plaintiff who has sued in Ghana in breach of a foreign jurisdiction

agreement has the burden of establishing why a stay of the proceedings
should not be granted. The legal burden is not on the defendant to
establish why a stay of proceedings should b granted. This is because,
as Amissah JA noted in the Black Star Line case, 'where the parties
have contracted that disputes are to be referred to a foreign tribunal
then prima facie the court in which an action is brought in breach of
such agreement will stay the proceedings so brought'. Indeed, in some
common law jurisdictions, the plaintiff must show 'strong cause' why
the action should not be stayed in favour of the foreign court chosen by
the parties. Ghanaian jurisprudence is yet to explicitly adopt this
'strong cause' test, but the existing case law appears consistent with the
test.

The stance of the Black Star Line and Fan Milk courts in assuming
jurisdiction on the ground that English law and Ghanaian law on the
issues were similar is perplexing. Indeed, it does not appear from the
judgments that there was any detailed comparative analysis between
English and Ghanaian law before the courts came to their decisions.
Courts should approach this issue with caution. There should be
reasoned and thorough engagement with the indicated foreign law
before a court makes a determination as to their similarity or
otherwise,.

English law, for instance, has progressed on many subjects with no

parallel developments in Ghana. It has also come under various
influences, including Europeanization, which is not the. case with
Ghana. Accordingly, Ghanaian courts should not by say-so conclude
that English'. law, or for that matter any other foreign law, is similar to
Ghanaian law.

 Arbitration Agreements

The parties to a contract may provide in the contract or subsequently

agree that in the event of a dispute, it shall be settled by arbitration.
The issue addressed here is what happens when in breach of that
agreement the plaintiff brings an action in a Ghanaian court and the
defendant applies for a stay of the proceedings. Although this situation
looks very similar to the jurisdiction agreement cases discussed above,
as would become evident from the discussion below, the legal
approach and relevant law for resolving such a problem is very
different.

Ghana is party to the United Nations Convention on the Recognition

and Enforcement of Foreign Arbitral Awards 1958, which is
implemented by the Alternative Dispute Resolution Act 2010 (Act
798). Section 6 of the Act provides that where there is an arbitration
agreement and a party commences an action in court, the other party
may on entering appearance, and on notice to the party who
commenced the action in court, apply to the court to refer the action or
part of the action to which the arbitration agreement relates to
arbitration. The court should then refer the matter to arbitration if it is
satisfied that the matter in respect of which the application has been
made is a matter in respect of which there is an arbitration agreement.
Such a reference operates as a stay of the proceedings in the court.

Section 6 of Act 798 makes it imperative for the courts to give effect to
arbitration agreements. It is also worth noting that Ghanaian courts are
mandated to 'encourage and facilitate the amicable settlement' of
disputes before them. Except in cases where an arbitration agreement
is null and void, inoperative or incapable of being performed, the court
must stay the proceedings in favour of arbitration. In other words,
where the parties have entered into an arbitration agreement, these are
the only grounds on which a court may refuse to enforce an arbitration
agreement.

There is no room for a forum non conveniens analysis or the weighing

of connecting factors in respect of arbitration agreements, unlike
jurisdiction agreements, as was misapplied in Polimex v. B.B.C.
Builders & Engineers Co. Ltd, which involved a contract for the sale of
goods. The plaintiff, a Polish company, and the defendant, a Ghanaian
company, agreed that all disputes between them were to be settled by
the Arbitration Court of the Polish Chamber of Foreign Trade in
Warsaw. The goods were shipped from Poland to Ghana. Payment for
the goods was to be made in Ghana. In this action, the plaintiff sought
to recover the balance of the amount due on the shipment. The
defendant objected to the court's jurisdiction to hear the case on the
ground of the arbitration agreement. The court held that in determining
the forum for settling disputes relating to international contracts,
preference should be given to the country most closely associated with
the case. In the instant case, the court held that Ghana was more
closely connected with the dispute. To the extent that Polimex seems to
have adopted the forum non conveniens analysis in respect of an
arbitration agreement, we respectfully submit that it is not good law
and should not hold legal weight. It is only where the arbitration
agreement is null and void, inoperative or incapable of performance
that the court should refuse to stay its proceedings.
It is not the responsibility of the courts to rewrite agreements for
parties in the light T unforeseen future developments as the court did in
Paul Gyasi v. Abosso Goldfields Ltd.901\ al parties agreed in an
employment contract that disputes arising under it would be referred to
arbitration with an arbitrator appointed from the panel of the
Arbitration and Mediation Service of South Africa (AMSSA). At the
time of the dispute, AMSSA had been wound up. It **was held that an
arbitration agreement was not rendered inoperative merely because the
arbitration body that was initially agreed to had been wound up. It was
within the court’s discretion to appoint an alternative arbitrator for the
parties, taking into account the generality of the agreement. We submit
that this was an inappropriate exercise of discretion.

Where an arbitration agreement is void, inoperative or incapable of

performance, the proper course is for the court to give the parties time
to reach a new agreement, failing which, the matter should proceed to
trial.

Indeed, fairness is not a relevant consideration when an application is

made for a stay of proceedings on grounds that the proceedings is in
breach of an arbitration agreement. As Anin Yeboah JA (as he then
was) observed in George Kodua v. Interbeton BV:

The issue of fairness to me was immaterial and had no basis under the
circumstances of this case... All what the court ought to do was to
address itself of the following conditions: Whether there was any
arbitration agreement, the validity of the said arbitration agreement,
whether the party who was applying for stay of proceedings was a
party to the agreements, whether there was legal proceedings between
the parties, whether the applicant had been served with copies of the
legal proceedings, whether the applicant had not taken any step before
challenging the legal proceedings, whether the-party who is proceeding
with the legal action has been served and lastly whether the agreement
is not null and void, inoperative or incapable of being performed.

This contrasts sharply with the cases in which a stay is sought on

grounds of forum non conveniens or a jurisdiction agreement. In either
situation, fairness is a relevant consideration. However, fair
considerations as to the inconvenience and great expense in traveling
abroad for arbitration would be immaterial in respect of arbitration
agreements.

Justice Anin Yeboah's observation that fairness is immaterial in cases

dealing with stay of proceedings on grounds of arbitration agreement
should not, however, be carried too far. While this may be so in
commercial transactions between parties of equal bargaining **power,
it need not necessarily be the case in transactions with weaker parties
such as consumers and employees. Such contracting parties often do
not enjoy the freedom to freely negotiate dispute resolution clauses in
their contracts. This can sometimes force them into difficult situations.
Thus, in an appropriate case, albeit exceptionally, where the
enforcement of an arbitration agreement would be unconscionable,
courts should not give effect to the clause.

As we noted above, Ghanaian law favours the enforcement of

arbitration agreements. And judicial pronouncements have largely
followed suit. As the Supreme Court noted in Republic v. High Court,
Terna; ex parte MY Shipping PVT Ltd, 'the courts would always
respect the agreen1ent by parties to submit their dispute to arbitration
and would not stand in the way of the parties desirous of adopting
alternative dispute resolution mechanism in resolving disputes pending
before the courts'. Also, in BCM Ghana Ltd v. Ashanti Goldfields Ltd,
Adinyira JSC noted that 'the courts must strive to uphold dispute
resolution clauses in agreements' because that is a sound business
practice'.94 It is thus important for parties to carefully consider when
opting for arbitration outside Ghana as the means of settling their
disputes.

An arbitration agreement is treated as separate from the main contract.

Accordingly, the law governing the main contract is not necessarily the
law applicable to the arbitration agreement. It is the law governing the
arbitration agreement that is used to determine whether the agreement
is null and void, inoperative or incapable of performance. This may not
necessarily be Ghanaian law. The parties may expressly provide for the
law governing the arbitration agreement, which may be the same as or
different from the law governing the main contract. In the absence of
such an express choice, the court must determine the jurisdiction with
which the arbitration agreement has its most real and substantial
connection. The courts should not automatically apply the lex fori in
this regard.

In addition to an agreement being null and void, inoperative or

incapable of performance, a party's conduct may also prevent it from
relying on an arbitration agreement. Thus, where a party enters an
unconditional appearance, takes steps in the proceedings, or delays in
making an application for a stay of proceedings, it will be held to have
waived its right to rely on the arbitration agreement. A party ,with full
knowledge of the arbitration agreement will be deemed to have waived
his right for stay of proceedings if he files pleadings in the litigation
including a statement of defence and counterclaim. In the words of
Benin JSC:

As earlier stated, the right [to arbitration] is waived if the defendant

proceeds to file a defence to contest the case on merit. Thus, the court
can proceed to hear the case, the arbitration clause notwithstanding.
This is because a right to arbitration, like any contractual right, can be
waived either expressly or by conduct. The waiver of a defendant's
right to arbitration is conclusively presumed under section 6(1) of the
[Arbitration] Act if the defendant does not raise it after the entry of
appearance and goes on to take fresh steps in the matter aimed at
defending the claim. In those circumstances the court shall proceed to
hear and determine the dispute. The underlying reason is that parties
should not proceed with litigation if they do not intend to do so. Thus,
any objection to the court as the forum should be raised in the early
stages of the process, whilst the opportunity avails the parties. Section
6(4) clearly anticipates that at the time section 6(1) is invoked, only
interim measures would have been filed and considered. Obviously at
this point, the writ of summons and a statement of claim, if any, should
be the only form of pleadings on the file...Sections 6(4) and 7(3) when
read together would confirm that an application under section 6(1)
should be made before the defence is filed on merits, unless the
defence is coupled with an application to stay proceedings. The filing
of a defence on merit signifies a clear intent to litigate, and an
acceptance of the plaintiffs offer to waive arbitration, by the issuance
of the writ in court.

While the defendant has the duty of raising a timeous objection to

litigation, the plaintiff (who has sued in apparent breach of the
arbitration agreement) has the burden of. establishing why the court
should not enforce the agreement by staying the proceedings. As the
Supreme Court has noted:

[i]n any pending case whether the arbitration agreement is domestic or

non domestic, the filing of the action and taking steps in the action
does not oust the jurisdiction of the High Court to hear the action. It is
the duty of the party who wants the action to be referred to arbitration
to timeously raise the objection by the proper procedure provided by
law. It is also the duty of the plaintiff who wants to proceed with the
case to convince the court why the arbitration clause should be
disregarded to enable the court to hear the case.

As earlier noted, although an arbitration agreement is often part of a

contract, in law, it is treated as independent and severable from the rest
of the contract. This is the doctrine of severability which serves to
ensure that factors that may vitiate the main agreement would not
necessarily impair the arbitration agreement. The doctrine of
severability is enshrined in section 3(1) of the Alternative Dispute
Resolution Act, which provides that unless otherwise agreed by the
parties, an arbitration agreement which forms, or is intended to form,
part of another agreement shall not be regarded as invalid, non-existent
or ineffective because that other agreement is invalid bas not come into
existence, or has become ineffective, and shall for that purpose be
treated as a distinct agreement.

Only disputes that fall within the scope of an arbitration agreement are
amenable to arbitration under the agreement. Thus, a court must satisfy
itself of this before it stays proceedings in favour of arbitration. The
determination of whether a dispute falls within the scope of the
agreement is a qu stion of interpretation. The arbitration clause must be
construed according to its language and in the light of the
 circumstances in which it was made. The governing consideration in
every case must be the precise terms of the language in which the
arbitration clause is framed.

Although an arbitration agreement may be valid, operative or capable

of being performed, it may be defective or pathological in some
respects. Equivocation as to the bindingness of the clause, failure to
correctly name or identify an arbitral institution, failure to name a
place for the arbitration, or failure to define the process for appointing
arbitrator(s) are examples of such defects. In such cases, the court must
decide whether the clause can be cured of its defects or pathologies
through a process of interpretation.

In other words, not all defects render an arbitration agreement devoid

of any effect. Some imperfections in drafting an arbitration agreement
are resolvable. The rules for the interpretation of contracts are relevant
here. In this regard, Ghanaian courts should aim to give effect to the
parties' intention to refer disputes to arbitration except in cases of
hopeless confusion. Where the parties have demonstrated a clear
intention to settle any dispute by arbitration, the courts should give
effect to such intention, even if certain aspects of the arbitration
agreement may be ambiguous, inconsistent, incomplete or lacking in
certain particulars. So long as the arbitration can be carried out without
prejudice to the right of either party and so long as giving effect to
such intention does not result in an arbitration. that is not within the
contemplation of either party, the court must stay its proceedings and
refer the parties to arbitration

An interesting case in point is Eland International Company Ltd v

National Investment Bank. The clause at issue provided that "all parties
agree to resolve any differences in a friendly manner by discussion
failing which the matter may be referred to an Arbitrator under the
Laws of the United Kingdom in London". This clause - because of the
use of "may"- is ambiguous in terms of whether it requires arbitration
or gives the parties the freedom to choose other means of dispute
settlement, such as litigation. Thus, the respondent resisted an
application for a stay of proceeding on the grounds that arbitration was
not mandatory. Justice Jerome Noble-Nkrumah rejected this contention
and granted the application for stay of proceedings. He interpreted the
clause as compelling arbitration notwithstanding the use of "may" in
the clause. This decision is consistent with the jurisprudence in
England and other common law jurisdictions which have held that in
respect of such a clause, there is no compulsion to arbitrate until an
election is made by one of the parties. Once a party makes such
election, arbitration is mandatory to the extent that the dispute falls
within the scope of the arbitration clause. In essence, the "may"
becomes "shall" when either party elects arbitration.

o Restraining Foreign Proceedings— Anti-suit Injunctions

An anti-suit injunction is an in personam— against a particular person - relief
that restrains a party from instituting or continuing proceedings abroad. An
injunction may also be granted to restrain a party from institution or
continuing arbitration proceedings. The injunction is not directed at the
foreign court or arbitral tribunal. It is addressed only to a party which is before
a Ghanaian court.

An anti-suit injunction is a powerful remedy that can be used to repress forum

shopping, change the course of litigation, or even force the parties into
immediate settlement. As Bonomi and Fentiman note, 'to obtain an anti-suit
injunction may prevent a party from claiming, or counter-clairning, in its
preferred forum, and may thwart that party's own attempt to force settlement
favourable to itself by initiating proceedings in a forum disadvantageous to the
other party'. Thus, an anti-suit injunction is an important tool in the arsenal of
anyone engaged in international litigation.

The High Court of Ghana has jurisdiction to grant an anti-suit injunction to

restrain a party from pursuing proceedings abroad. This jurisdiction emanates
from Order 25 Rule 1 of the High Court (Civil Procedure) Rules. It provides
that 'the Court may grant an injunction by an interlocutory order in all cases in
which it appears to the Court to be just or convenient to do so, and the order
may be made either unconditionally or upon such terms and conditions as the
Court considers just'. Order 25 Rule 1 is similar to section 37(1) of the Senior
Courts Act 1981 c. 54 of the United Kingdom, which the English courts rely
on to grant anti-suit injunctions. Section 37(1) provides that 'the High Court
may by order (whether interlocutory or final) grant an injunction or appoint a
receiver in all cases in which it appears to the court to be just and convenient
to do so'. Thus, the comparative jurisprudence of the English courts should be
persuasive in applications for anti-suit injunctions in Ghana.

Order 25 Rule 1 provides a general power to grant injunctions. It is not limited

to situations in which parties have entered into a jurisdiction agreement or an
arbitration agreement. Thus, an antisuit injunction may be granted outside
these two contexts as long as the court deems it 'just or convenient'.

The jurisdiction to grant an injunction to retrain a party from pursuing

proceedings abroad - in this instance an anti-arbitration injunction- was
exercised by Justice Barbara Ackah-Yensu, in *The Attorney General v
Balkan Energy.*109 In her Ruling of 6 September 2010, she, quoting from
Amissah JA in Vanderpuye v. Nartey,110 set out the test that:

The governing principle should be whether on the face of the affidavits there
is need to preserve the status quo in order to avoid irreparable damage to the
applicant and provided his claim is not frivolous or vexatious.

The question for consideration in that regard resolves itself into whether on
balance greater harm would be done by the refusal to grant the application
than not. It is not whether a prima facie case however qualified and with
whatever epithet, has been made. In the case before us, the judge below
thought that a strong prima facie case had not been made by the appellant. But
in coming to this conclusion, considerations like whether the respondent has
the money to pay into court if asked to do so, seem to have exerted a
considerable influence on his mind. Reading the affidavits, we on the other
hand thought that such a prima facie case had been made by the appellant to
justify the grant of the relief he sought if the existence of a prima facie case
had been the proper test to apply. What we think on that, however, is of little
consequence. Because as we have said before, that is not the test.

Where the parties have expressly agreed to the jurisdiction of the Ghanaian
courts and one party, in breach of the agreement, sues abroad, the courts
should be more willing to restrain the foreign proceedings. Comparatively, in
Donohue v. Armco Inc the House of Lords held that:

If contracting parties agree to give a particular court exclusive jurisdiction to

rule on claims between- those parties, and a claim falling within the scope of
the agreement is made in proceedings in a forum other than that which the
parties have agreed, the English court will ordinarily exercise its discretion
(whether by granting a stay of proceedings in England, or by restraining the
prosecution of proceedings in the non-contractual forum abroad, or by such
other procedural order as is appropriate in the circumstances) to secure
compliance with the contractual bargain, unless the party suing in the non
contractual forum (the burden being on him) can show strong reasons for
suing in that forum...

Where the dispute is between two contracting parties, A and B, and A sues B
in a non-contractual forum, and A's claims fall within the scope of the
exclusive jurisdiction clause in their contract, and the interests of other parties
are not involved, effect will in all probability be given to the clause... A
similar approach has been followed by courts in the United States, Canada,
Australia and New Zealand.

Restraining foreign proceedings that have been brought in breach of a

Ghanaian jurisdiction agreement would be consistent with Adinyira JSC's
observation that the courts must strive to uphold dispute resolution clauses in
agreements because that is a sound business practice.

In Quantum Oils Terminals Ltd v. International Finance Corporation, the

parties had entered into a number of agreements that contained Ghanaian court
jurisdiction agreements.

In breach of those agreements, the International Finance Corporation (IFC)

and the OPEC fund for International Development (OPEC Fund)
instituted proceedings against the applicant in London. In a very terse ruling,
Justice KA Asiedu granted an anti-suit injunction restraining the IFC and the
OPEC Fund from taking any step or steps to pursue, prosecute or progress any
claims, suit or action in any court outside Ghana against the applicants.