Anna Fordjuor
AB & David, Accra
anna@abdavid.com

Introduction

In an era of increasing globalisation, cross-border disputes are becoming more prevalent. A solid understanding of how foreign judgments and arbitral awards are recognised and enforced is important. Ghana offers a structured framework, grounded in both reciprocity and statute. This article explores the intricacies and nuances of navigating the process, proving key guidelines for successful enforcement of foreign judgments and arbitral awards.

Enforcement of foreign judgments in Ghana

Foreign judgments are recognised and enforced principally under:

• the Courts Act, 1993 (Act 459);
• the High Court (Civil Procedure) Rules, 2004 (CI 47); and
• the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575).

Concurrently, arbitral awards benefit from a more liberal and accessible regime under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), domesticated through the Alternative Dispute Resolution Act, 2010 (Act 798 or the ADR Act), as well as the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).

Scope of reciprocity

A foreign judgment may be enforced in Ghana if the judgment is final and conclusive, and issued by a superior court of a reciprocating country listed in the First Schedule to LI 1575 as follows:, Brazil, France, Israel, Italy, Japan, Lebanon, Senegal, Spain, the United Arab Emirates and the United Kingdom.

Where the judgment emanates from a jurisdiction which is not listed in the First Schedule to LI 1575, it cannot be directly registered. Instead, the judgment creditor must initiate a fresh lawsuit in Ghana and rely on the foreign judgment as evidence of the debt or to create an estoppel.

Recognition v registration

The recognition and enforcement of a foreign judgment are distinct. Recognition is the acknowledgment that a foreign judgment is valid and could be enforceable in Ghana; however, the recognition of a foreign judgment would not automatically result in enforcement. A foreign judgment must be registered by the judgment creditor before it can be enforced, and the judgment creditor may enforce the judgment by garnishee proceedings, writ of fieri facias, charging order and appointment of a receiver where appropriate.

Registration of a foreign judgment, on the other hand, is the procedural step that makes the foreign judgment executable in Ghana. Enforcement is the process of executing a foreign judgment by the various modes of execution available. The beginning of the process of enforcement is when the judgment creditor levies execution against the judgment debtor.

Requirements and procedure

In order for a foreign judgment to be recognised for registration in Ghana, it must:

• emanate from a superior court of a reciprocating country;^[1]
• be final and conclusive: a judgment is deemed ‘final and conclusive’ notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal;
• require the payment of a definite sum of money, excluding taxes, fines, or penalties;^[2] and
• six years should not have elapsed since the foreign judgment was delivered either at first instance or on appeal (whichever may be the case).

The judgment creditor must apply to the High Court by a motion ex parte for leave to register the foreign judgment. The motion must be supported by an affidavit accompanied by:

• a certified copy of the judgment;
• a certified English translation (if applicable);
• proof of enforceability in the country of origin; and
• a statement that the judgment remains unsatisfied.

When the judgment is registered, notice must be served personally on the judgment debtor, who may challenge the registration on grounds such as lack of jurisdiction, fraud or violation of public policy. The execution can proceed only after the challenge window closes. The notice of registration of the foreign judgment shall state:

• the full particulars of the foreign judgment registered and the order for registration of the judgment;
• the name and address of the judgment creditor or of the lawyer of the judgment creditor on whom any notice issued by the judgment debtor may be served;
• the right of the judgment debtor to apply to have the registration set aside; and
• the period within which an application to set aside the registration may be made by the judgment debtor.

Execution shall be levied only after the expiration of the period specified for an application to be made to set aside the registration of the judgment.

Challenges to enforcement

There are several circumstances under which the recognition or enforcement of a foreign judgment may be challenged. A judgment debtor may challenge enforcement where:

• the foreign court lacked jurisdiction;
• the judgment is not final and conclusive between the parties;
• the judgment could not be enforced by execution in the country of the original court;^[3]
• the debtor did not receive proper notice of the proceedings in sufficient time to enable them to defend the proceedings;^[4]
• the foreign judgment was obtained by fraud;^[5]
• enforcement would be contrary to Ghanaian public policy;
• the judgment has been wholly satisfied;^[6] or
• a prior Ghanaian judgment exists on the same matter.

Despite the clarity of the statutory framework, some practical hurdles still exist. These include delays in the hearing of applications to register the foreign judgments due to backlog of pending cases, and difficulties in personal service of the notice of registration of the foreign judgment on the judgment debtors.

Enforcement of foreign arbitral awards in Ghana

A foreign arbitral award may be enforced by leave of the High Court in the same manner as a judgment or order of the Court.^[7]

The enforcement of a foreign arbitral award in Ghana requires an award creditor to file an originating motion on notice to the award debtor for leave of the High Court for the award to be enforced. The application must be supported by an affidavit that sets out facts which demonstrate:

• a valid contract between the parties which contains an arbitration clause or a separate arbitration agreement;
• the tribunal was properly constituted;
• issues submitted to arbitration fell within the scope of the arbitration agreement;
• all parties participated voluntarily in the arbitration; and
• that the award has not been complied with (wholly or in part) and that the period for setting aside the award has elapsed.

Important exhibits to attach to the supporting affidavit include;

• a certified copy of the arbitral award, duly authenticated;
• a certified English translation (if applicable);
• a copy of the arbitration agreement or the contract containing the arbitration clause to establish the arbitrator’s jurisdiction and the award to substantiate its terms.

Unlike foreign judgments, which must be enforced within six years, there are no fixed statutory deadlines for the filing of the application for enforcement of an arbitral award, but the general limitation periods apply under Ghana’s Limitation Act, 1972 (NRCD 54). It is noteworthy that Ghanaian courts adhere strictly to statutory requirements for the enforcement of foreign arbitral awards. In the case of Dutch African Trading Company BV v The West African Mills Company Ltd [High Court Commercial Division), Accra],^[8] the award creditor applicant failed to exhibit the arbitration agreement as well as the award when it applied for leave to enforce the foreign award. The High Court refused the application and opined that the requirement to provide both the arbitration agreement and the award was mandatory, and failure to do so would be fatal.

The High Court shall grant leave for the enforcement of the foreign arbitral award only if it is satisfied that the foreign award was made by a competent authority under the laws of the country in which the award was made, emanates from a reciprocating country or a New York Convention state, or any other international convention on arbitration ratified by Parliament, and also that there is no appeal pending against the award in any court under the law applicable to the arbitration.

One crucial limitation to this process is that the High Court will not grant leave to enforce a foreign arbitral award if the award debtor is able to demonstrate that the arbitrator lacked substantive jurisdiction to make the award.^[9]

When leave is granted for the enforcement of the foreign arbitral award, judgment may be entered in terms of the arbitral award.

Ghana has acceded to the New York Convention and this has been given effect by the Alternative Dispute Resolution Act, 2010 (Act 798). In addition, Ghana is a member state of the International Centre for the Settlement of Investment Disputes (ICSID) and a signatory to the (ICSID Convention).^[10] Ghana is therefore obliged to recognise and enforce arbitral awards rendered under the Convention.^[11]

Conclusion

Unlike the reciprocity regime for foreign judgments, the arbitral framework in Ghana is liberal, convention-driven, and internationally harmonised. Ghana’s ADR Act covers both domestic and international arbitration and substantially integrates the UNCITRAL Model Law principles into local law, ensuring consistency with international best practices.

The Ghanaian courts uphold valid arbitration agreements and expect parties to honour their choice to arbitrate. In the case of Klimatechnik Engineering Ltd v Skanska Jensen International,^[12] the Supreme Court opined that any powers of the Court should be aimed at facilitating the smooth conduct of the arbitration and not to interfere with the process. Also, in the case of Mining and Building Contractors Limited v Anglogold Ashanti Ghana Limited,^[13] the court held that ‘once there is an arbitration clause, the same should be respected by the parties’.

Similarly, the Supreme Court held in the case of Westchester Resources Ltd v Ashanti Goldfields Limited & Others^[14] that ‘the arbitration process should be jealously guarded and there should be no or little interference with the process’.

These cases highlight Ghana’s pro-arbitration stance, which should reassure investors that Ghana recognises arbitration as a legitimate and an important mode of dispute resolution.