JURISDICTION

An important issue in private international law is the ground or basis upon which a court will
have jurisdiction to hear an action or claim, especially involving a foreign element.
Jurisdiction as a topic in conflict tries to answer three questions. First, whether the Ghanaian
court has jurisdiction, i.e. has capacity or power to try a case involving a foreign element.
Secondly, whether there are any factors affecting its decision as to whether or not to exercise
its jurisdiction, i.e. whether the court will decline jurisdiction or stay the proceedings.
Thirdly, whether or not there are any limitations on the court’s power or capacity to try the
case. This paper deals with the grounds on which a forum court will hear a claim involving a
foreign element.

Jurisdiction is the authority of a court to make a pronouncement on a particular cause or

matter before it. According to J G Collier, Conflict of Laws, 3 rd Ed, ‘Jurisdiction’ means the
competence of the courts to hear and decide a case. The case of Republic v High Court, Ex
Parte Bediako provides parties to a case cannot by consent confer jurisdiction on a court
which otherwise would not have had jurisdiction over the case. For the purpose of
determining the jurisdiction of courts, actions are of two kinds. (i) Actions in personam: these
are actions brought to compel a defendant to do or to refrain from doing something or to pay
damages. Jurisdiction over such actions depends primarily, though not exclusively, on the
defendant’s presence in Ghana. (ii) Actions in rem: these are actions against ships and aircraft
when jurisdiction depends upon the presence of the ship or aircraft in Ghana.

In an action in personam, jurisdiction in Ghana is determined and regulated by the common

law and statutes (eg Courts Act, 1993 (Act 459): High Court Civil Procedure (C.I 47). The
foundation in international matter under jurisdiction is service of the writ or notice of the
writ. Thus, as long as the defendant can be served with the summons, the court will assume
jurisdiction. In Edusei v Dinners Club Suisse SA, it was held that the fact that a contract was
to be executed and performed outside the jurisdiction does not deny jurisdiction to the
Ghanaian court. In Wachter v Harley, it was held that the fact that a tort was committed
outside the jurisdiction does not oust the jurisdiction of Ghanaian court. The importance is
that the defendant is in Ghana’s jurisdiction. This may however be harsh because the case
may have a tangential (little or no connection) connection with Ghana. This is sometimes
mitigated by the doctrine of forum non conveniens. Basis For Assumption Of Jurisdiction In
International Matters are as follows;
1. Physical Presence 2. Effectiveness 3. Submission 4. Residence 5. Service out of
jurisdiction. These would be explicated in seriatim below:

1. Physical Presence

The defendant must physically be present in the jurisdiction to enable the court to assume
jurisdiction. In Tafa & Co (Ghana) Ltd v Tafa & Co. Ltd, the Plaintiff company sued for
commission due to it for promoting the defendant company which was a foreign company
doing business in Ghana. The writ was served on the president/Director of the defendant
company who held himself out as a substitute for the defendant company. The court held that,
the presence of a foreigner in the jurisdiction of Ghana was sufficient for the writ to be served
on him, no matter how short the presence is. Thus, in Colt Industries v. Sarlie (No. 1)
wherein a New York company got a judgment in New York against a Frenchman and sought
to enforce it in England. Process was served on him at a London hotel where he was staying
for one night. It was held that the court had jurisdiction over him. It must however be noted
that service of writ on a defendant who has been tricked into coming within the jurisdiction or
who has been brought into the jurisdiction after being kidnapped will, however, be set aside
as per the case of Watkins v. North American Lands etc. Co. This principle was applied in
Tickle v Barton wherein the Defendant was lured, through misrepresentation, into the
jurisdiction.

2. Residence

Residence of the defendant within the jurisdiction in an action in personam will enable the
court to assume jurisdiction. A company that is resident in Ghana is subject to the jurisdiction
of the Ghanaian courts. The test for residence is whether it is carrying out business at some
definite and more or less permanent place in Ghana, as was established in Ackerman v.
Société Générale de Compensation. It was further noted that whether a company is resident
in Ghana for the purposes of jurisdiction is to be determined by the facts as they exist at the
commencement of an action.

3. Submission

A defendant who submits himself to the court confers jurisdiction on the court to hear the
dispute. Submission can be by conduct or through the choice of forum agreement. Polimex v
BBC Builders & Engineers Co. illustrates what is meant by submission by conduct. It was
held that a defendant who, on being served with a writ of summons, enters appearance
unconditionally and does not move the court to stay the proceedings, submits to the
jurisdiction of the court by his conduct. In Moubarak V Holland West Afrika Lijn, a contract
between the parties contained a clause making the Netherlands a forum for litigation of issues
arising out of the contract. In the action brought against the defendant in Ghana, the
defendant did not move the court to stay proceedings for them to elect an appropriate
jurisdiction but put up a defence and argued that the court has no jurisdiction to hear the case.
It was held that by submitting to the order of pleadings and taken steps in the proceedings by
filing a defence, the defendant had waived any objection to the court’s jurisdiction. Also,
where a claimant who is abroad sues a defendant in Ghanaian court, the court will have
jurisdiction over a counterclaim by the defendant if it arises out of a matter which is related to
the claim, but not if it is unrelated to it, as illustrated by the case United Bank of the Middle
East v. Clapham.

4. Effectiveness

Generally, a court of competent jurisdiction would not exercise its jurisdiction in futility. The
elementary fact several times stated by Holmes J. in McDonald v. Mabee is that, "The
foundation of jurisdiction is physical power." Edusei J in Ackerman v. Société Générale de
Compensation held that in this is enshrined the principle of effectiveness and because the
company was present at the time of service of the writ in Ghana, the court has jurisdiction.

5. Service Of The Writ Of Summons Abroad

The service of the writ on the defendant is not a problem where the defendant is a resident
within the jurisdiction or submits himself/herself to the jurisdiction. A problem arises when
the defendant is outside the jurisdiction. For the writ to be served outsider the jurisdiction,
provisions under Ord. 8 of C.I. 47 must be complied with. It is stated that no writ shall be
served outside the jurisdiction. However, with the leave of the court in a specific form, the
writ can be served on the defendant outside the jurisdiction. Under Ord. 82 r.3, a writ
includes a writ of summons, a statement of claim or a petition in a cause or matter. In terms
of Ord. 2 r. 7(5), no writ, notice of which is to be served outside the jurisdiction shall be
issued without the leave of the court. Under the predecessor of this rule (i.e. High Court
(Civil Procedure) Rules1954), there was an issue as to when should the plaintiff who intends
to serve outside the jurisdiction of the court apply to serve outside the jurisdiction. In Lokko
v Lokko the court held that where the plaintiff intended to proceed against a defendant
resident outside the jurisdiction, the plaintiff must first obtain the leave of the court before
issuing the writ of summons. Accordingly, where the plaintiff issues a writ against a
defendant resident in New York before obtaining the leave of the court, it was held that the
writ was incurably bad and completely null and void. In Shirlstar Container Transport Ltd v
Kadas Shipping Co. Ltd., the court introduced some modification to the principle established
in the Lokko case in respect of multiple defendants. The court held that where some of the
defendants reside within and others reside without the jurisdiction, it will be undesirable,
unfair and unjust to require the compliance of Ord. 2 r.4 in the 1954 Rules which is the
current Ord. 2 r.7(5) of C.I. 47. In cases of multiple defendants, the plaintiff can issue the
writ before he or she applies for leave to serve the defendants outside the jurisdiction.

The application for leave must be made supported by an affidavit stating the grounds upon
which the application is made. The affidavit must indicate what place or country the
defendant could be found. It must be noted that the court will not grant leave unless: the case
is a proper one for service out of the jurisdiction and the case falls within one of the grounds
specified in Order 8 rule 3 of CI 47.

Whether or not the court will grant the application or not is a discretionary matter. In
exercising the discretion, the court must do so with great care and if there is any doubt, it
must be resolved in favour of the potential defendant as established in Eboe v Eboe. This is
due the fact that an application for service out of the jurisdiction is made and heard ex parte.
The foreign defendant is neither notified nor heard. In Signal Oil & Gas Co. & Anor V
Briston Helicopters Ltd & Anor, Justice Griffiths-Randolph justified this in the following
words: “The court generally are not enamoured of putting parties resident outside the
jurisdiction to unnecessary expense involved in and inconvenience that might be
occasioned by answering frivolous claims before them”.

In conclusion, a court despite having jurisdiction may declining jurisdiction based on forum
non conveniens: Shirlstar Container Transport Ltd v Kadas Shipping Co. Ltd; or Arbitration
Agreements: Polimex v B.B.C. Builders & Engineering Co .Ltd; or Lis Alibi Pendens (Law
suit pending elsewhere): Fattal v Fattal. Also, the jurisdiction of courts is limited by the
principle par in parem non habet imperium: Ex parte Pinichet, ARA Libertad Case( Ghana v
Argentina), Tredtex Trade v Central Bank of Nigeria, Aerotrade Inc v The Republic of Haiti.