As the world becomes increasingly interconnected, individuals and businesses are more likely to engage in cross-border interactions, whether through transactions, communications, or even disputes. A person may commit a wrong against another, such as defamation, which can lead to judgments and damages.
However, even after a judgment is obtained, there’s a critical question that remains: how can the victorious party ensure that the judgment is enforced and the obligations outlined in it are complied with, especially if the defendant’s assets or residence are located in a different country?
Under international law, each country is considered independent and in charge of its own affairs. This means that court decisions made in one country usually don’t automatically apply in another. Because of this, it’s important to understand how foreign court judgments can be enforced across borders. In this article, we’ll look at how Ghana handles foreign judgments and the laws that guide this process.
A foreign judgment means a court decision from another country that says one person or party has to pay money to someone else. Enforcing the judgment in Ghana means using the legal system here to make sure that payment happens. The person who won the case and is supposed to receive the money is called the judgment creditor, while the one who has to pay is the judgment debtor.
Before a foreign judgment can be enforced in Ghana, it must first be accepted as valid by a Ghanaian court. After that, the person who won the case can take steps to make sure the other party follows the court’s decision.
In Ghana, there are two main ways to recognize and enforce foreign court judgments: one is based on common law, and the other follows specific laws (called the statutory regime). Both systems are used, but which one applies depends on the country and court where the original judgment came from.
Enforcement Under the Common Law Regime
Under the common law system, a foreign judgment is seen as proof that the judgment debtor owes money. To enforce it in Ghana, the judgment creditor must file a new case in a Ghanaian court and use the foreign judgment as evidence to ask the court to order payment.
As this is a fresh action, the judgment creditor must comply with all the requirements and timelines for instituting a lawsuit in Ghana, including those related to service, pleadings, and limitation periods.
There are three key conditions that the judgment creditor must prove before their foreign judgment can be recognized in the Ghanaian court. These conditions are:
1. International competence:
This means the foreign court must have had the right to hear the case. In Ghana, a foreign court is seen as having that right if the person owing the money (the judgment debtor) lived in that country when the case started or agreed to let that court handle the case, either through a prior agreement or by showing up to defend themselves.
Here, a “court” simply refers to any legal body that can hear cases, apply the law, and make decisions.
2. Fixed sum of money:
A foreign judgment must be for a fixed or definite sum of money. This means the judgment must require the payment of a specific amount of money, rather than other forms of relief. If the amount is not fixed, the judgment cannot be enforced.
3. Final and Conclusive Judgment
For a foreign judgment to be enforced in a Ghanaian court, it must be final and settled. This means the judgment must fully resolve the case, and the court that made the decision cannot change or undo it. A judgment is not final if the court can change its decision. However, just because a judgment can be appealed does not mean it isn’t final.
If these conditions are met, the foreign judgment can be enforced in Ghana. However, there are certain situations where the judgment may not be enforced, even if all three conditions are satisfied. These include: lack of substantial justice, violation of natural justice rules, tainted with fraud, enforcing it would be contrary to public policy, or if the foreign court lacked jurisdiction or authority to try the case.
Enforcement under the Statutory Regime
The recognition and enforcement of foreign judgments in Ghana under the statutory regime is regulated by the Courts Act, 1993 (Act 459). This regime is based on reciprocity, where Ghana and other countries agree to recognize and enforce each other’s judgments.
The President, according to section 81 of Act 459, can order the use of this regime if Ghana’s judgments are treated similarly in another country. Under the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575), Ghana has such agreements with countries including:
i. Japan ii. Spain
iii. Senegal iv. France
v. Israel v. Italy
vi. Brazil vi. Lebanon
vii. United Kingdom. viii. United Arab Republic
Judgments from these countries are enforced in Ghana using the statutory system.
Here too, the foreign judgment must be final and conclusive, and must order the payment of a sum of money as compensation or damages to an injured party.
Procedure for Registration
Where the statutory regime applies, the judgment creditor can apply to the High Court to have the foreign judgment registered. This application can be made without notifying the judgment debtor. The statutory period for registration is generally six years after the date of the judgment.
Once registered, the foreign judgment obtains the same status as if it had been originally given by a Ghanaian court.
Notably, if the foreign judgment is expressed in a currency other than the Ghanaian cedi, it will be registered as if it were a judgment for an equivalent amount in Ghanaian cedis, based on the bank exchange rates prevailing on the date of the original judgment.
Challenging the Registration
After registration, the order for registration must be served on the judgment debtor, informing them of the registration. The judgment debtor can then apply to the court to set aside the registration, challenging its validity. The circumstances under which the judgment debtor can set aside the registration include:
1. Where the statutory regime was not applicable, such as where the country that gave the judgment is not listed among those with reciprocal arrangements with Ghana.
2. If the judgment was tainted by fraud or procured by fraud.
3. If the judgment would be contrary to public policy in Ghana.
4. If there was a breach of natural justice rules, such as insufficient time for the judgment debtor to defend the proceedings or bias on the part of the original court
5. If the original court did not have the power or jurisdiction to hear the case.
In Ghana, both the common law and statutory systems for enforcing foreign judgments exist separately. However, the statutory system takes priority over the common law system. This means that if the statutory system applies, the common law system cannot be used. If the statutory system doesn’t apply, then the common law system is the only option for enforcing foreign judgments. This setup helps ensure foreign judgments are enforced in Ghana, supporting international cooperation and the rule of law.
Alhassan Aboagye on behalf of OSD and Partners. [email protected]
