Enforcement Of Foreign Judgments In Ghana

Generally, it is only judgments delivered by courts in Ghana that can be enforced in Ghana. However, judgments from certain jurisdictions may be enforced in Ghana without having to institute fresh legal proceedings. The President is empowered by the Courts Act to, by a legislative instrument, specify countries with which Ghana will enjoy reciprocal enforcement of judgments.

ELEMENTS REQUIRED FOR THE REGISTRATION OF A FOREIGN JUDGMENT

A foreign judgment intended to be registered in Ghana must generally be a judgment of a superior court of that country. The judgment must be final and conclusive between the parties. However, a judgment is deemed final and conclusive even though an appeal may be pending against it or may still be subject to appeal in the courts of that country. An application for registration must be made within six years from the date the judgment was delivered, and this period cannot be extended by the court.

PROCEDURE FOR APPLICATION FOR THE REGISTRATION OF A FOREIGN JUDGMENT

An application to register a foreign judgment is made by a motion ex parte and is heard in chamber.

The Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (L.I 1575) provides that Ghana shall have reciprocal enforcement of judgments with Brazil, France, Israel, Italy, Japan, Lebanon, Senegal, Spain, and the United Kingdom. In order words, the President of Ghana, by a legislative instrument, has exercised his power by specifying the countries mentioned above to enjoy reciprocal enforcement of judgment to be registered.

An application must be supported by an affidavit exhibiting the judgment or a certified copy of the judgment to be registered in Ghana. The name, trade or business, and usual or last known place of abode or business of the Judgment Creditor and the Judgment Debtor must be provided.

Where the court grants the order, the Judgment Debtor must be served with the order. The order must state the period within which an application may be made to set aside the registration. There must be a notice that execution will not proceed except after the period stated within which the registration may be set aside has expired.

The notice of registration shall be served on the Judgment Debtor personally unless otherwise directed by the court. The notice may be served outside the jurisdiction without leave, and it shall be served in the same way as a writ of summons is served.

Execution of the judgment shall not issue until the period stated by the court as the period within which the registration may be set aside has expired. The Judgment Creditor must satisfy the Registrar of the court that the notice of registration of the judgment and any order of the court have been served on the Judgment Debtor before the execution process can proceed.

EFFECT OF THE REGISTRATION
Where a judgment is registered, it shall have the same effect as though the judgment were originally delivered by the registering court. The judgment can then be enforced in the same manner as any judgment delivered by a Ghanaian court is enforced.

The courts will not register a judgment from a country that is not listed in the schedule to the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (L.I 1575) although such a Judgment may still be enforced by bringing a fresh action at common law.

PROCEDURE TO SET ASIDE THE REGISTRATION

An application supported by an affidavit may be brought to set aside the registration of a judgment within the time limit provided in the order that gave leave for the judgment to be registered. The court is required to state in an order giving leave to register the foreign judgment, the period within which an application may be made to set aside the registration. The court hearing the application may order any issue between the Judgment Creditor and Judgment Debtor to be tried. The court may set aside the registration of the judgment where it is satisfied that the judgment ought not to have been registered, that it is not just and convenient that the judgment should be enforced in Ghana, or there is some other sufficient reason. Other grounds upon which the registering court may set aside the registration include where an appeal is pending or where the applicant is entitled to appeal and intends to do so.

COMMON LAW APPROACH
At common law, a Judgment Creditor may not directly enforce a foreign judgment against a Judgment Debtor. Foreign judgments under common law are treated as evidence of a debt: therefore, a Judgment Creditor has to bring a fresh action on the same debt. The judgment has to be final and conclusive and must be delivered by a court with competent jurisdiction.

Professor Richard Frimpong Oppong, in his paper, Recognition and Enforcement of Foreign Judgments in Ghana: A Second Look at a Colonial Inheritance, argues that under the common law, a Judgment Creditor will have to issue a fresh writ and plead that the judgment is due and owing. The Judgment Creditor may then apply for summary judgment on the grounds that the Judgment Debtor has no real prospect of successfully defending the claim.

CONCLUSION
Registration of foreign judgments from countries that have reciprocal enforcement of judgments with Ghana enables the Judgment Creditor to enforce the judgment swiftly, without having to institute fresh legal action to obtain judgment.