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What is the structure of Ghanaian Courts?
What processes are involved in instituting Civil Actions? What are the processes involved in enforcing an agreement? Does Ghana uphold the Rule of Law and Independence of Judiciary? Would
the courts of Ghana uphold the contractual choice of law (e.g. either
Will the courts of Ghana uphold an election of jurisdiction provision? Will the courts of Ghana uphold the judgment of a foreign court? Will the courts of Ghana uphold a foreign arbitration award? What is the structure of Ghanaian Courts? The legal
framework of the courts in Ghana can be found in the 1992 Constitution
and The
Supreme Court Appeals lie
to the Supreme Court from the Court of Appeal in any matter which has
been initially determined by a High Court or Regional Tribunal in the
exercise of their original jurisdiction. Appeals also lie from the Court
of Appeal to the Supreme Court and from any court lower than the High
Court and Regional Tribunal, where the Court of Appeal is satisfied that
the case involves a substantial question of law or is in the public interest.
The Supreme Court also has appellate jurisdiction to the exclusion of
the Court of Appeal, in treason cases and chieftaincy matters from the
National House of Chiefs. Court
of Appeal High
Court Regional
Tribunal Circuit
Court & Circuit Tribunal The Circuit
Tribunal has no jurisdiction in civil matters. It has original jurisdiction
in all criminal matters arising within its specified area of jurisdiction
except that it does not have jurisdiction to try the offence of treason
or murder, a first-degree felony or an offence punishable by death or
by life imprisonment. Appeals from the Circuit Tribunal Community
Tribunal Houses
of Chiefs and Traditional Councils The National House of Chiefs is made up of five paramount chiefs from each region of the country. The function of the National House of Chiefs is to advise any person or authority on matters affecting Chieftaincy, codify customary law and undertake an evaluation of traditional customs aimed at eliminating outmoded customs. A Judicial Committee performs the judicial functions of the National House of Chiefs. It has Original jurisdiction in any case affecting Chieftaincy, which lies within the competence of two or more Regional House of Chiefs and in any case which is not properly within the jurisdiction of a Regional House of Chiefs, or which cannot otherwise be dealt with by a Regional House of Chiefs. The National House of Chiefs has appellate jurisdiction in any cause or matter affecting chieftaincy which has been determined by the Regional House of Chiefs. Appeals lie as of right to the Supreme Court in cases decided by the National House of Chiefs in its original jurisdiction and by leave in cases decided in its appellate jurisdiction. There is
a Regional House of Chiefs in each of the ten regions of the country.
The Regional Houses of Chiefs advise persons and authorities on chieftaincy
matters, make recommendations for the early resolution of chieftaincy
disputes and undertake the compilation of the customary laws and lines
of succession applicable to each stool or skin in the region. The Judicial
Committee of a Regional House of Chiefs has original jurisdiction in all
matters relating to a paramount stool or skin or the occupant of a paramount
stool or skin, including a Queenmother to a paramount stool or skin. It
also has jurisdiction to determine appeals from the traditional councils
in the region in respect of the nomination, election, selection, installing
or deposition of a person as a chief. What processes are involved in instituting Civil Actions? The procedure for civil litigation in Ghana is governed by the High Court (Civil Procedure) Rules, 1954, (L.N. 140A). The process
of taking legal action in a civil matter commences with the issue of a
Writ Where personal service of a Writ cannot be effected after three or more attempts, the court may make an order for substituted service by serving the defendant through a registered letter, posting the writ on a notice board at the court premises or at some other public place or at the usual or last known business or residential address, or by advertisement in the Gazette or in a national newspaper. A defendant
who has been duly served with a Writ of Summons and Statement of Claim
is required to enter an appearance within 8 days of service by filing
a Notice of Appearance. After this period, the defendant has 14 days within
which to file his defence and/or counterclaim. If the plaintiff decides
to reply to the defence of the defendant, he must file a reply and/or
defence to the counterclaim within 7 days. Where pleadings have been closed,
the plaintiff is required, within 7 days, to take out Summons for Directions
returnable in not less than 7 days. Hearing commences after Summons for
Directions. What are the processes involved in enforcing an agreement? Under Ghana law, one may enforce an agreement or part thereof by the institution of legal action in the courts in accordance with the processes described above. The processes involved in enforcing a judgment obtained in such proceedings would depend on the remedy sought and granted in the proceedings, dictated by the contractual obligation which the aggrieved party seeks to enforce. If the obligation
is a debt, the party concerned would commence proceedings and having obtained
judgement in his favour, would be entitled to proceed to enforce the judgement
by the attachment and sale of the judgement debtor's property or by the
imprisonment An aggrieved party under an agreement may also seek either to compel the other party to do perform some act or do some thing that the latter is contractually obliged to perform or do or to restrain that other from doing some act which the contract or agreement enjoins them not to do. In the first case the order sought would be an order of specific performance and in the second, the aggrieved party would seek an injunction. Specific
performance is a decree of a court directed at a particular person or
persons, If any person against whom an order for specific performance or an injunctive order restraining the doing of a particular act is made refuses to comply with the order he is guilty of contempt of court and the person in whose favour the order was made may apply to the court for a Committal Order that holds the guilty party in contempt of court. The punishment usually takes the form of commitment to prison for disobeying the order and remaining so incarcerated, until the party is prepared to purge his contempt by agreeing to do what he has been ordered to do and offering a suitable apology. Agreements
may also be enforced through arbitral proceedings where there is an arbitration
agreement between the parties. The Arbitration Act, 1961 (Act 38) provides
that unless otherwise indicated in an arbitration agreement an arbitral
award shall be final and binding on the parties and the persons claiming
through them. The Act 38 further provides that an award on an arbitration
agreement may, by leave of the Court, be enforced in the same manner as
a judgment or order to the same effect and where leave is given, judgment
may be entered in terms of the award. Does Ghana uphold the Rule of Law and Independence of Judiciary? Ghana has
a constitutional and democratic system of governance within the framework
The principle of rule of law, one of the pillars of a constitutional government is declared and affirmed in the preamble of Ghana's Constitution. The compliance with rule of law in practice has improved since the country returned to democratic governance in 1992. The Constitution
guarantees the independence of the Judiciary under Article 127, which
provides inter alia that "In the exercise of the judicial power of
Ghana, the Judiciary, in both its judicial and administrative functions,
including financial administrations, is subject only to this Constitution
and shall not be subject to the control or direction of any person or
authority." There is every indication that the judiciary is gradually
beginning to exercise its independence. Would the courts of Ghana uphold the contractual choice of law (e.g. either New York or English)? The Courts
Act, 1993 (Act 459) recognises the choice of law made by the parties to Will the courts of Ghana uphold an election of jurisdiction provision? The courts
of Ghana are not bound to uphold an election of jurisdiction by the parties.
Jurisdiction is determined by an application of doctrine of forum convenient.
However where the parties have chosen a jurisdiction that jurisdiction
is prima facie the most appropriate from and will be upheld unless it
can be shown that the choice is not reasonable which would seem to be
the equivalent of the common law test of Will the courts of Ghana uphold the judgment of a foreign court? Under the Courts Act and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575), judgments of the following courts, and courts to which appeals from these courts lie, are enforceable in Ghana, by registration of the judgment in Ghana:
Any judgment
obtained in proceedings in any other jurisdiction, may be enforced by
the Courts of the Republic of Ghana by the institution of fresh proceedings
in the High Court, relying on the foreign judgment obtained as evidence. Will the courts of Ghana uphold a foreign arbitration award? Foreign arbitration
awards are enforceable under the Arbitration Act, 1961 (Act 38). Although
Ghana is a party to the 1958 New York UN Convention on the Recognition
and Enforcement of Foreign Arbitral Awards and although the Convention
has been enacted by Act 38 into Ghana law, its application to foreign
awards is restricted to specified countries. The Arbitration Act and the
Arbitration (Foreign Awards) Instrument, 1963
A foreign
award from any of the specified states shall be treated as binding for
all purposes on the persons as between whom it was made and will not have
to be proved in an action for its enforcement. It may also be relied on
by either party by way of defence, set-off or otherwise in any legal proceedings.
In relation to enforcing rights under any agreement, is it relevant that the enforcing party is domiciled in Ghana? No, except to the extent that domicile of the parties is taken into consideration in deciding whether a choice of jurisdiction made by the parties is 'reasonable'.
Residence Domicile Carrying
on Business This opinion is based on a number of considerations. Firstly, the word "business", defined in the Internal Revenue Act to include "any trade, profession or vocation", and described by Lindley LJ in Rolls v. Miller [1881-5] All ER 915 at 920, to embrace "almost anything which is an occupation, as distinguished from a pleasure - anything which is an occupation or a duty which requires attention is a business", is wide enough to cover any activity performed in Ghana by a foreign party. Secondly, the foreign party need not establish a place of business in Ghana for it to be deemed to be carrying on a business in Ghana. For instance, proviso (a) of section 302 of the Companies Code provides that a corporate body shall not be deemed to have an established place of business in Ghana merely because it carries on business dealings in Ghana. This suggests that "carrying on business in Ghana" may be held to exist as a fact although the affected person may not have established any office or other such fixed place of business in Ghana. On the basis
of the above considerations, it is our opinion that where the performance
of a foreign party's obligations under an agreement involves its performance
of any business activity within Ghana, either by itself or by some other
person on its behalf, that party will be held to be carrying on a business
in Ghana. Are there any "public policy" considerations that a foreign party should be aware of that Ghanaian courts might take into account? The basic
principle of public policy applied in Ghana is that the courts will not
lend their aid to a person whose cause of action is based on an immoral
or illegal act. The courts have refused to enforce illegal transactions,
contracts that infringe statutory provisions, and contracts based on unlawful
considerations such as a contract for a person acting in an official capacity
procuring an advantage for another person for a private reward. |
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