- one. Basic Common Law necessities
Enforcement of a judgment is to compel the observance of and compliance with a judicial decision or regulation by a capable courtroom or establishment of a Point out. In the United Kingdom, for case in point, judgments for payment of income may possibly be enforced in the Superior Court by a writ of charging get, appointment of receiver, get of committal or a writ of sequestration in the scenario of judgments for possession of land, enforcement may possibly be by writ of possession in the scenario of judgments for delivery of items, enforcement may possibly be by writ of delivery for judgment relating to overall performance of or abstention from some act, enforcement may possibly be by get of committal or writ of sequestration. (See, Segment four of the Civil Jurisdictions and Judgments Act, 1982 and Section15 of the Courts and Legal Providers Act, 1990, both of those of Uk). Beneath common law, the most critical necessity for recognizing and implementing foreign judgments is that the foreign courtroom which rendered the judgment in issue should really have jurisdiction and in the international sense, to entertain the judgment or should really be jurisdictionally capable according to the policies of conflict of rules. Buckley LJ, in the generally cited scenario of Emanuel v. Symon, mentioned:
“In steps in personam, there are five cases in which the courts of this place will implement a foreign judgment:
- i. Exactly where the defendant is a subject matter of the foreign place in which the judgment has been received
- ii. Exactly where he was resident in the foreign place when the motion began.
iii. Exactly where the defendant in the character of the plaintiff has selected the discussion board in which he is afterwards sued
- iv. Exactly where he has voluntarily appeared and
- v. Exactly where he has contracted to post himself to the discussion board in which the judgment was received”
Buckely LJ’s obiter emphasised residence (actual physical existence) as set up in the Scenario of Adams v Cape Industries Plc and voluntary submission as applied in the Scenario of Schibsby v. Westenl, as the most critical elements for fulfilling jurisdiction to implement foreign judgment.
There are other necessities relating to the compound of the judgment. A foreign judgment can be enforced in distinctive strategies by distinctive sovereign States in just the common law jurisdiction. The scope of the current post would not permit a discussion on the tactics of other common law States. Nonetheless, getting India a special scenario, a foreign judgment can be enforced in one of two strategies:
- Judgments from courts in “reciprocating territories” can be enforced immediately by filling with an Indian courtroom an government decree (by declaration according to area 44A of India’s civil process code).
- Judgments from “non – reciprocating territories” can be enforced only by filling a regulation match with an Indian courtroom for a judgment based mostly on the foreign judgment which is regarded as evidentiary.
Reciprocity listed here refers to partnership concerning two States, every of which provides the other, and its inhabitants, comparable privileges which include reciprocal enforcement of judgment.
- two. The Ghanaian regulation and practice
Portion V of the Courts Act, 1993, (Act 459) provides the policies for the enforcement of foreign judgments and maintenance orders in Ghana. It is exciting to observe in Segment eighty one(one) that the enforcement of foreign judgments in Ghana is based mostly on reciprocity. Consequently, the President can enter into bilateral or multilateral agreements with nations around the world that are ready to reciprocally implement in their nations around the world judgments received in Ghana. This kind of an settlement is demanded to specify the place and the courts of jurisdiction. And the named courts need to be thought of as excellent courts of that place for that reason. Beneath area 87 of Act 459, the president is empowered to withdraw this kind of reciprocal cure in particular when judgments received from Ghana are dealt with unfavourably in individuals other nations around the world. The President’s purpose in area eighty one(one) is simply an physical exercise of his government powers granted less than Post seventy five(one) of the 1992 Constitution which provides:
“The President may possibly execute or lead to to be executed treaties, agreements or conventions in the identify of Ghana. This kind of treaty or settlement shall be subject matter to ratification by an Act of Parliament”.
As this kind of, the president only decides the States whose judgments should really be identified and enforced. At the time the plaintiff arrives from one of this kind of nations around the world and seeks to implement in Ghana a judgment received from any of the identified nations around the world, he or she need to register it with the Superior Court and then go via judicial procedure to have it enforced.
In Ghana for a foreign judgment to be identified and enforced, the mentioned judgment need to be registered in Ghana and need to emanate from any of the next courts:
- Supreme Federal Court, Federal Court of Charm and the Point out Superior Court of Brazil
- Cours de Cessation and Cours d’Appel of France
- Supreme Court of Israel
- Corte d’Appello and Corte de Cessizime of Italy
- Court of Charm and Superior Court of Lebanon
- Cours Supreme and Cours d’Appel of Senegal
- Tribunal Supremo, Audenicia Territorial, Juez be Primera and Instencia of Spain
- Court of Cassation and Court of Charm of the United Arab Republic and
- Superior Courts of England and Northern Eire and the Court of Session of Scotland.
A number of enactments supply the framework for the recognition and enforcement of any judgment received from any of the outlined jurisdictions. This is ruled largely by 3 rules specifically, the Courts Act, 1993 (Act 459) as amended, the Overseas Judgments and Routine maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI.1575) which emanates from bilateral treaties concerning Ghana and the States concerned and the Arbitration Act 1961 (Act 38). With regard to the recognition and enforcement of foreign maintenance orders in Ghana, the Point out is nonetheless guided by the reciprocal cure theory as for each area 89 of Act 459.
In the absence of any specific assertion of recognition and enforcement, the presumption is that the provisions of Act 459 and LI. 1575 apply. Consequently, exactly where a celebration obtains judgment from a place which is not privy to LI. 1575, the man or woman can only implement the decree by instituting contemporary proceedings in Ghana and rendering the decree as evidence.
Ghana, staying a signatory to the 1958 New York Convention on the Recognition and Enforcement of Overseas Arbitral Awards has immediately enacted the provisions of the Convention in Sections 39 and 40 of the Arbitration Act, 1961 (Act 38). The New York Convention was open for signature 1958 and was acceded to by Ghana on April nine 1968, just after which it arrived into power on July 8, 1968.
The combined influence of area 39 and 40 of Act 38 are established out in Post VII of the mentioned Convention. Post VII upholds the proper of contracting get-togethers to enter into treaties or agreements for the reason of implementing arbitral awards by furnishing that this current Convention shall not have an impact on the validity of multilateral or bilateral agreements relating to the recognition and enforcement of arbitral awards entered into by the contracting States.
The promulgation of the Arbitration (Overseas Awards) Instrument 1963 (L1 261) has limited the software or implementation of the 1958 New York Convention on the Recognition and Enforcement of Overseas Arbitral Awards to only precise nations around the world talked about or who are signatories to LI. 261.
Disappointingly, none of the States talked about less than LI. 261 is from the West African Sub-location. Some of the contracting get-togethers to LI. 261 are Austria, Bulgaria, Cambodia, Ceylon and Ecuador.
Therefore, foreign arbitral awards received from States other than individuals specified in LI. 261 are enforceable not less than Act 38 but less than the policies of personal international regulation (which are incorporated into the regulation of Ghana, by virtue of Segment 54 of the Courts Act) by way of a contemporary motion at which the award would have to be introduced. The basic elements for the thriving enforcement of this kind of an award are that, the arbitration was carried out in accordance with the settlement of get-togethers and that the award was both of those ultimate and valid by the regulation of the place in which it was supplied.
Also, Segment 36 of the Matrimonial Brings about Act, 1971 can make provision for the recognition of foreign decrees. It provides:
“The Court shall acknowledge as valid a decree of divorce, nullity or presumption of loss of life and dissolution or relationship, received by judicial procedure or otherwise, which is not contrary to natural justice, and which, –
a) has been granted by any tribunal which had a considerable and sizeable link with the get-togethers to the relationship or
b) is in accordance with the regulation of the position exactly where both of those get-togethers to the relationship were being ordinarily resident at the time of the motion dissolving or annulling the relationship.”
It is noticed that apart from Senegal which is talked about as a celebration to the Overseas Judgments and Routine maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI.1575) to delight in reciprocal cure in Ghana, no other member Point out of the Financial Group of West African States (ECOWAS) is talked about as a celebration to any of the legislative devices. This situation, regardless of whether deliberate or inadvertent, does not serve the fascination of the citizenry of Ghana.
The Member States which represent the ECOWAS are: Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo. Every single working day people today are on the transfer to other States, much more significantly in just the ECOWAS Group, performing exercises the flexibility of movement which does not require rigid compliance with journey paperwork, to do business or as refugees. Some are married in foreign States and may possibly have judicial divorce. Some others are lawful entrepreneurs of house in other States and may possibly be faced with challenges demanding judicial settlement. Citizens of one Point out may possibly also be influenced by courtroom declaration or decision of another Point out, which may possibly warrant payment or some other variety of treatment. It is in the light-weight of all these that Ghana should really have a much more detailed foreign plan method that will enrich a reciprocal enforcement of judgments. It is an indictment on the judicial system of Ghana if Ghana unilaterally recognizes and enforces judgments received from other jurisdictions when individuals exact nations around the world do not implement ours. This could persuade a sense of judicial chauvinism in individuals States due to the fact they would be implying that their judicial system is excellent to the Ghanaian.
So prolonged as there is shut social, cultural and financial conversation concerning the citizens of ECOWAS Member States, there is the have to have for the Group to formulate multilateral treaties which will oblige member States to implement foreign judgments received from any of the Member States. Cooperation in this area between the ECOWAS Member States will not only harmonize the policies relating to the practice and techniques in their courts but most importantly, all people today in just the Group will be similarly subjected to the rule of regulation irrespective of their nationality or the legal system they occur from.
- three. Inadequacies in the Ghanaian situation
A single outstanding shortcoming of the necessity is that judgments received from foreign nations around the world which do not have bilateral treaties with Ghana need to institute contemporary proceedings in which the judgment can only be tendered in as evidence.
To start out with, instituting contemporary legal proceedings in Ghana imposes unwarranted financial load on the plaintiff due to the fact he or she would be suing on the exact lead to of motion 2 times. Also, this kind of an motion is most likely to lengthen litigation unnecessarily due to the fact the courts of Ghana are previously saddled with a backlog of cases awaiting adjudication.
More, there is most likely to be a trouble of choice concerning the judgment received outside the house and the judgment received in Ghana, exactly where the judgment received in Ghana at the close of the contemporary proceedings is at variance with what is received previously from the foreign courtroom. In this circumstance, the judgment in Ghana would supersede the one previously received from the foreign place.
- four. A new model for recognition and enforcement of foreign judgments
Towards the backdrop of the inadequacies in the Ghanaian technique the Indian model of immediate enforcement from “reciprocating territories” and oblique enforcement from “non-reciprocating territories” should really be adhered to by Ghana but with modification in the latter system (e.g. judgments coming from non-common law nations around the world and States which have no diplomatic relations with Ghana should really be supplied much more really serious consideration to safeguard the fascination of Ghanaians dwelling in individuals jurisdictions). Ultimately, a multilateral treaty should really be concluded at the very least between the ECOWAS Member States to treatment the conflict of rules. There are about 20 Protocols connected to the 1975 ECOWAS Treaty but none of them significantly relates to recognition and enforcement of foreign judgments between the fifteen Member States. The one relating to the definition of ECOWAS Group Citizen (Protocol A/P.three/5/eighty two) is also silent on the make any difference. A protocol relating to cooperation in this area should really be thought of by the business as a make any difference of urgency. A conclusion of settlement on frequent conditions and system of enforcement of foreign judgments between West African States will go a prolonged way in maximizing a unified justice system based mostly on rule of regulation in just the West African sub-location whose people today are previously having fun with the legal regimes of socio-financial conversation and visa-totally free movement throughout their frontiers.
At the suggest time, the next conditions are advisable for seriously thought of at the bilateral degree:
(i) The judgment need to emanate from a UN member place irrespective of regardless of whether a earlier bilateral settlement exists concerning Ghana and that place.
(ii) The plaintiff need to initially and foremost show that he or she has received in a foreign place a judgment in regard of a match concerning himself or herself and the defendant in a particular lead to of motion. Regardless of whether the judgment was received in a common law place or a civil regulation place would be irrelevant. The plaintiff need to show the judgment as evidence in the match.
(iii) The Attorney Basic should really build a division accountable for the registration of foreign judgments which are to be enforced in Ghana. In get not to enable this kind of judgments to develop into the subject matter of needless objections which are most likely to hold off the continuing, the plaintiff need to show that: The judgment is ultimate and conclusive the judgment need to not be for the enforcement of a income or penal regulation the judgment need to not be in opposition to the public plan of the foreign place from which the judgment was received.
(iv) The judgment need to be registered in just a specified time period of time, for occasion twelve months just after delivery or on arrival in the place of the celebration trying to find recognition and enforcement.
(v) With reference to federal States no difference should really be built concerning foreign judgments received from neighborhood courts and individuals received from the federal courts. They should really be supplied equal cure.
(vi) The ability of the president to determine which judgment should really be enforced and identified should really be exercised in just a established standards approved by parliament, help you save that ECOWAS nations around the world shall delight in computerized recognition and enforcement of judgments in Ghana.