JURISDICTION

In the case of Kumnipa II v Ayirebi and Others, Amua-Sekyi J.A

remarked that “Jurisdiction means the power or authority to
adjudicate. Where it is lacking, any judgment or orders
emanating from the court or judge is a nullity and a person
affected adversely by it is entitled to ignore it ... or to sue for a
declaration that it is a nullity... Indeed, there is no fixed
procedure for dealing with such an order which has been
described as ‘not only bad, but incurably bad......”
This statement was quoted with approval by Essiem JA in the
case of Darke v Dei.
Then again, in the case of Amonoo v Central Regional House of
Chiefs[2003-2005] 1 GLR 577, Ansah JSC noted that, “all said and done,
jurisdiction means the power to decide a matter in controversy
by a properly constituted court with control over the subject
matter and the parties before it.”
In Ampong v Amankwa, Charles J said: “Jurisdiction means the
conditions on which the right or powers of a tribunal to
determine a matter depends.”

Example of Territoriality Jurisdiction

GHANA SHIPPING ACT
Section 440—Jurisdiction in case of Offences
(1) For the purpose of determining jurisdiction under this Act,
an offence shall be considered to have been committed and a
cause of complaint to have arisen either at the place where the
offence was actually committed or cause of complaint arose, or
at a place where the offender or person complained against is
found.
(2) Where, in any legal proceedings under this Act, a question
arises whether any ship or person is or is not within the
provisions of this Act, that ship or that person shall be taken to
be within these provisions unless the contrary is proved.
PERSONAL JURISDICTION
Sections 18, 19 and 20 have provisions relating to the
jurisdiction of the High Court in respect of infants, persons of
unsound mind and maritime matters respectively.
JURISDICTION OVER INDIVIDUALS
GROUNDS?
Presence: In Ghana the court will exercise or assume
jurisdiction over a person when that person is present within
the jurisdiction and is served with the legal process. So the
traditional Common law rule or PIL rule is that the foundation
of jurisdiction in Ghana is presence within the jurisdiction. The
rule is that the defendant who is served with the court process
within the jurisdiction is amenable to the court’s powers within
Ghana.
See Edusei v. Diners Club Suisse [1982/83] GLR 809.
Here, the plaintiff, a Swiss limited liability company, obtained a
summary judgment against the defendant in the High Court.
The defendant appealed contending inter alia that the
transactions took place in Zurich, Switzerland so that the Courts
in Ghana could not entertain such an action and that the
plaintiff being a foreign limited liability company lacked the
capacity to sue in Ghana as it was neither registered nor
carrying on business in Ghana.
Francois JSC noted that: “there was nothing on the evidence to
show that Zurich was intended as the exclusive forum for the
settling of disputes between the parties. Besides, by appearing
unconditionally to the writ, the appellant is deemed to have
waived any issue relating to the appropriateness of a forum.”

No matter how fleeting your presence is, the court can assume
jurisdiction over you.
In Baroda v Wildenstein, the defendant arrived in England for a
horse race, where he was served with the writs. He applied
successfully to have it set aside that to continue the trial in
England would inconvenient and cause some hardship to him.
It was held on appeal that: where a foreign defendant had
been properly served with the writ whilst in England, albeit only
on a short visit, the plaintiff was prima facie entitled to
continue the proceedings until the end unless the defendant
could satisfy the court that continuance of the plaintiff’s action
in England would work an injustice because it would be
oppressive or vexatious to the defendant, and that a stay of the
action would not cause injustice to the plaintiff. There was no
presumption that proceedings were oppressive to the
defendant simply because the writ had been served on him
while he was on a visit; and a mere balance of convenience in
favour of another forum was not a sufficient ground to stay the
proceedings.
Per Lord Denning “if a defendant is properly served with a
writ a writ whilst he is in this country, albeit on a short visit,
the plaintiff is prima facie entitled to continue the proceedings
to the end. He has validly invoked the jurisdiction of the
Queen’s courts; and he is entitled to require those courts to
proceeds to the end. The courts should not strike it out unless
it comes within one of the acknowledged grounds, such as
that it is vexatious or oppressive, or otherwise an abuse of the
process of the court…it does not become within those grounds
simply because the writ is served on the defendant whilst he
is on a visit to this country. If his statement of claim discloses
a reasonable cause of action, he is entitled to pursue it here,
even though it did it did arise in a foreign in a foreign country.
It is not to be stayed unless it would plainly be unjust to the
defendant to require him to come here to fight it, and that
injustice is so great as to outweigh the right of the plaintiff to
continue it here.”
Colt Industries Inc. v. Sarlie [1966] 1 All E.R. 673; [1966] 1 WLR
440.
Facts: The defendant while visiting London for a few days for
business reasons was served with a writ claiming an amount
adjudged against him by the Supreme Court of the State of New
York, whose subject matter was not connected with England.
The defendant entered conditional appearance contending that
where a defendant is not a resident in the country and has not
otherwise submitted to the jurisdiction, the court has no
jurisdiction to adjudicate on a claim merely because the writ is
issued and served while he is temporarily staying
Held per Lyell J : it is implicit that in the absence of fraud
inducing the defendant to come into the country so that he … is
tricked to come within the jurisdiction for the sole purpose of
serving him with a writ, …jurisdiction was well founded by
serving a writ on a foreigner who was here merely casually … In
this case, there is no question but that the defendant , Mr.
Sarlier came here, not on any invitation of the plaintiffs, but
entirely for his own purposes, and in those circumstances the
refusal of the master to set aside the writ and service was
entirely right and proper..
Tafa Company Ghana Ltd v. Tafa Company Ltd [1977] 1GL3
Facts: The plaintiff company sued for 200,000 cedis being
commissions due to them for promoting the business of the
defendants, a foreign company, doing business in Ghana, by
their president-director, who held himself out as being a
substitute for the defendant company and had complete
control over the company. The writ of summons was served on
the president-director, he was also arrested on an absconding
warrant and ordered by the trial court to give bail for his
appearance with three sureties in the sum of 200,000 cedis.
The defendant company entered appearance under protest and
filed the instant application to dismiss the plaintiff’s claim on
the grounds, inter alia that the bail for appearance exacted
from the president – director of the defendant company was
invalid because the action was not against the president –
director personally but against the defendant company, a
limited liability company legal person, distinct from the
president director.
Held:that the presence of a foreign company within the country
doing business gave the court jurisdiction over it.

Per Edusei J “ it must be observed from the outset that the

defendant company is a foreign company whose president and
director has been visiting Ghana to do various business on an
number of occasions, which was binding on the defendant
company. The presence of a foreigner within this jurisdiction is
sufficient for service of a writ of summons on him. Jurisdiction
in my view is granted upon territorial dominion and any person
who is within the territorial dominion owes obedience to its
sovereign power and therefore must be obedient to its laws
and to the jurisdiction of its courts. However in the case of an
artificial person like the defendant company, the fact that
business is carried on in his country by such a foreign
company gives the court jurisdiction over the company and an
artificial person must work through human beings. In this
case the president –director of the defendant company has
been carrying on various business in this country on behalf of
the defendant company and , no doubt at the time of the
service of the writ on him in Accra, he was doing business here
for the defendant company…Furthermore Mr. George Sahw
Cha-Cin has held himself out as being a substitute in Ghana for
the defendant company in Taiwan and has conveyed a clear
impression that , for all practical purposes, he is the Taiwan
company whilst resident in Ghana. He comes to Ghana very
often, transacts various business here binding on the Taiwan
Company, and always holds himself out as being in effect the
Taiwan Company. In the circumstances, I am advised and verily
believe that the bail bond is valid and ought not to be
discharged.”
“I should be the last person to lend support to the view that a
foreign company cannot be served with a writ of summons
through any of its directors or important officers who happen
to be in his country and do business except in its country of
incorporation. If this were so, foreign companies could come
here to do business, except in its country of incorporation. If
this were so, foreign companies could come here to do
business, make their profits and institute an action if need be
but if they are sued then they seek shelter under the umbrella
of their foreign character of unassailability. I cannot be a party
to this lack of reciprocity, and especially in this modern world
when a foreign company through its recognized officers can be
in one country to transact business in the morning and leave in
the evening by plane, and any talk of suing a foreign company
in its country of incorporation will, I suppose stifle international
commerce. This also would open the door to frauds of all types
that no self-respecting country would permit within its
territory.”

SUBMISSION
Moubarak v Holland West Afrika:
Facts: in the contract between the parties one clause provided
for the application of the law of the Netherlands and another
read as follows: “Jurisdiction –all actions under the present
contract shall be brought before the Court at Amsterdam and
no other Court shall have jurisdiction with regard to any such
action unless the carrier appeals to another jurisdiction or
voluntarily submits himself thereto.” The plaintiff’s writ of
summons against the Holland Line specified a return date. The
defendants did not move for a stay of the proceedings but,
pursuant to an order for pleadings, put in, after that date, a
defence, in which, inter alia, they pleaded that the Court had
no jurisdiction. This was argued as a preliminary plea, and the
Judge dismissed the action.
Section 5 of Cap 16-The Gold Coast Arbitration, provides that a
party to a submission may, if sued, apply, after service of the
writ and before the date fixed for hearing, for the proceedings
to be stayed. Again in view of section 22 of the Ordinance, an
application to stay proceedings ought still to be made before
the date fixed for hearing.
Per Coussey JA “The defendants if they intended to enforce the
agreement to submit the dispute to the Court in Amsterdam,
should have moved before the return date to stay the
proceedings under section 5 or 22 of Cap. 16. Instead of taking
that course, they filed a statement of defence on the 25th
November 1949. Although by paragraph 2 of the Defence it was
pleaded that the Court had no jurisdiction they had at that
stage submitted to an order for pleadings and taken a step in
the proceedings; they had failed to observe the procedure laid
down by section or 2 of Cap. 16 and they had thereby waived
any objection to the jurisdiction of the court”

Polimex (Polish Export & Import) Co, Ltd. v. B.B.C. Builders &
Engineers Co. Ltd
Facts : by an agreement between the plaintiffs, a Polish
Company and the defendants a limited liability company
operating in Ghana, all disputes or disagreement between the
parties were to be settled by the Arbitration Court of the Polish
Chamber of Foreign Trade in Warsaw. At the request of the
defendants the plaintiffs shipped goods from Poland to Ghana.
Part payments for the goods were made in Ghana. In an action
by the plaintiffs against the defendants in respect of the
balance of the amount due and owing, the defendants objected
to the competence of the Ghanaian courts to hear the dispute
in view of the clause quoted above.
Held : although the parties may at their own will choose the
forum , in determining such a forum of in international
contracts, preference should be given to the country which was
most closely associated with the case and in the instant case
Ghana, rather than Poland, was more closely connected with
the dispute. And again by the conduct of the defendants, they
had waived their right to oust the jurisdiction of the court to
set aside the writ of summons for lack of jurisdiction or
alternatively for a stay of execution.
Per Edusei J “assuming that there was such a provisions in
exhibit A. I am prepared to hold that by their conduct the
defendants have waived their rights to oust the jurisdiction of
these courts of Ghana in that they did not enter appearance
conditionally or under protest. They have taken some steps in
the proceedings by filing a defence and counterclaim; they filed
additional issues when the application for summons for
directions came on for hearing; they were ordered by the court,
on the plaintiffs’ application to supply further and better
particulars to the plaintiffs and these were filed and in them it
is of some interest to remark that the defendants stated certain
payments made by them to the plaintiffs, which according to
the defendants, were not reflected in the accounts attached to
the writ of summons. In all these pleadings the defendants
never either expressly o by implication challenged the
jurisdiction of the courts of this country, until at this hopeless
late time on 10 January 1968.
the proper course in a legitimate case was for the defendants
to have entered appearance conditionally or under protest and
then move the court to set aside the writ of summons for lack
of jurisdiction or alternatively for a stay of proceedings. This
they failed to do and by taking the various steps already
referred to in the proceedings they have waived any objection
to the jurisdiction of the court. See Elias Moubarrack v. Holland
West Africa Lijn (1953) 14 W.A.C.A. 262)
“In the case before me, the goods were shipped from Poland by
the Plaintiffs to the defendants in Ghana at the latter’s own
request, the defendants are a limited liability company carrying
on business in Ghana. Exhibits A and B were entered into in
Ghana. By their defence the bulk of the defendants’ evidence is
available in Ghana: for instance, the conditions on the arrival in
Ghana of some of the goods sold to the defendants; and
payments allegedly made by the defendants on the plaintiffs’
behalf to persons in Ghana. I think it is proper and legitimate
for me to take into consideration matters of convenience, and I
have no doubt in my mind that it would cause greater hardship
and inconvenience and expense to the defendants themselves
if this case were to be determined in Poland. I am of the view
that the dispute is more closely connected with Ghana than
with Poland.”

HIGH COMMISSIONER OF INDIA V. GHOSH

By their statement of claim the High Commissioner for India,
the Union of India, and the Government of West Bengal sued
Dr. Satya Ranjan Ghosh, for the return of money lent or,
alternatively, damages for breach of contract. The defendant
counterclaimed damages for slander against the first two
plaintiffs. The alleged slander was in respect of certain
statements alleged to have been made by the two doctors on
different occasions in 1956 and 1957 to students in the hostel,
who were patients of the defendant, to the effect that the
defendant was an undesirable doctor. The first two plaintiffs
applied by summons to Master Diamond to strike out the
counterclaim. The grounds of the application were that the
High Commissioner was immune from suit and legal process
under the Diplomatic Immunities (Commonwealth Countries
and Republic of Ireland) Act, 1952 , and that the Union of India
was a sovereign State.
JENKINS L.J. stated the facts and continued: The law which we
have to apply is, I apprehend, well settled. A person entitled to
diplomatic immunity, as the High Commissioner for India
indisputably is, or a foreign sovereign state, as for this purpose
the Union of India admittedly is, cannot be impleaded in the
courts of this country in an action such as the plaintiff's
counterclaim in respect of slander. It is unnecessary to refer to
the law relating to diplomatic immunity and the immunity
accorded to foreign sovereign states, because in this particular
case it is quite manifest that the subject of the defendant's
counterclaim could not have been maintained against the High
Commissioner for India and the Union of India as an original
action. But the High Commissioner and the Union of India have
chosen to come to the courts in this country and to submit to
the jurisdiction of those courts for the purpose of establishing
their claim in debt against the defendant. By that course of
action it is undoubtedly true that they must be taken to have
waived their immunity to a certain extent, and the extent of
such waiver for the present purpose is this: By bringing their
action in this country and submitting to the jurisdiction, the
plaintiffs must be taken to have submitted to the jurisdiction
not only for the purpose of having their claim adjudicated upon
but also for the purpose of enabling the defendant, against
whom they are prosecuting their claim, to defend himself
adequately, and his adequate defence may include a claim or
demand asserted by way of counterclaim. That does not,
however, mean that the plaintiffs, having brought their action
here, are thereby exposed to any sort of claim which the
defendant may choose to raise against them by way of
counterclaim, however far removed from the plaintiffs' cause of
action the counterclaim may be.

SERVICE OF NOTICE OF WRIT ABROAD

Apart from the territorial landmass and water mass of Ghana, if
you want to serve a writ outside Ghana, there is a procedure to
follow-any time you are starting an action against a person and
you want to serve a process outside the country, you do not
serve the writ itself you serve notice of the writoutside the
jurisdiction. The rationale is that because of sovereignty issues,
we do not want to go and command a subject or non-subject of
another country I other not to toil with the rules of sovereignty.
See Gohoho v. Guinea press [1962] 3 AER 785
Again under O 2 r 7(5), no writ of notice is to be served outside
the republic without leave of the court. Hence you need to
apply for leave if you are serving a writ outside the court. This is
done ex parte.
Thus it was held in Lokko v. Lokko 1989/90 1GLR pg. 96, that
where a plaintiff wanted to proceed to serve a writ on a
defendant who was outside the jurisdiction, the plaintiff must
first obtain leave of the court before issuing the writ and serve
notice of the writ.
What about serving multiple defendants?
See SHIRLSTAR CONTAINER v KADAS SHIPPING
 Facts: the plaintiffs filed an ex parte application for leave to
serve out of the jurisdiction a writ of summons (previously
issued against five named defendants) on the third, fourth
and fifth defendants who were described as resident in the
United Kingdom whilst the first and second defendants were
described as resident in Ghana. The application was granted
by Brobbey J. Subsequently, counsel for the third, fourth and
fifth defendants entered conditional appearance on their
behalf and brought the instant proceedings to have the
service of the writ of summons set aside. The action against
the third and fourth defendants was dismissed as having
been withdrawn. Counsel for the fifth defendants however
argued, inter alia, that the plaintiffs ought to have obtained
the prior leave of the court or the judge before issuing out
the writ of summons as provided by Order 2, r. 4 of the High
Court (Civil Procedure) Rules, 1954 (L.N.140A). He therefore
contended that the requirement of prior leave was a
mandatorycondition and therefore the writ of summons was
not properly and lawfully issued and thus the plaintiffs’writ
must be set aside as incompetent and that the plaintiffs did
not satisfy the conditions laid down under Order 11, r. 4
which required that a writ of summons should state the
grounds upon which the applicationwas made.
 Holding: where (as in the instant case) some of the
defendants resided within the jurisdiction while others
resided out of the jurisdiction it would be undesirable, unfair
and unjust to contend that Order 2, r.4 of the High Court
 (Civil Procedure) Rules, 1954 (L.N. 140A) (which prohibited
the issue without the leave of the court of a writ of summons
for service out of the jurisdiction) should be religiously
complied with if the failure to so comply with that rule would
lead to the whole writ of summons being invalidated. The
power granted the court or judge by Order 11, r.1 of L.N.
140A to order service out of the jurisdiction of a writ of
summons was discretionary and not mandatory. If for
reasons stated by the rule there arose the need to revise that
order in any way whatsoever, that application to review and
set aside or both must necessarily go before the judge that
made the order. The failure by the plaintiffs to state the
grounds upon which they had made the application as
mandatorily required by Order 11, r.4 of L.N. 140A was not
fatal because they had filed a comprehensive statement of
claim together with the writ of summons. The court or judge
was entitled to look at the statement of claim in considering
the application presented by the plaintiffs. The High Court
was entitled on that basis and on the facts to make an order
for service of the writ of summons on the fifth defendant
company out of the jurisdiction.
CONDITION THE COURT LOOKS OUT WHEN YOU WANT TO
APPLY FOR THE LEAVE –O 8 r 3 of C.I. 47.
The procedure that is adopted is that a notice can be served
through the government of that country (using the judicial
authority) or through the Ghanaian Consul of that country. O 8
r6

SOVEREIGNS
REPUBLIC V HIGH COURT (COMMERCIAL DIVISION), ACCRA, EX
PARTE AG (NML CAPITAL & REPUBLIC OF ARGENTICAN
INTERETED PARTIES)
In December 2012 the applicant, the Attorney-General of
Ghana applied for orders of certoriari and prohibition against
the High Court of Ghana, which had ordered the detention of
the Argentinian warship ARA Libertad and had refused to set
aside that order. The judge held that the High Court had
jurisdiction to arrest the Argentinian warship since the Republic
of Argentina had contractually waived its sovereign immunity.
In October 2012 Argentina submitted its dispute with Ghana
over the detention of the ARA Libertad to arbitration under
Annex VII of the United Nations Convention on the Law of the
Sea 1982 (UNCLOS). Pending the decision of the arbitration
tribunal, Argentina requested the prescription of provisional
measures from the International Tribunal for the Law of the Sea
(ITLOS). The release of the ARA Libertad was ordered by ITLOS
on 15 December 2012 (see The 'Ara Libertad' Case (Argentina v
Ghana)
In applying for the certiorari and prohibition orders, the
applicant sought to enable Ghana to comply with its
international obligations, in particular the ITLOS order. He
argued, amongst other things, that the High Court had erred in
international law by finding that the immunity of warships
could be waived, maintaining that UNCLOS was incorporated
into Ghanaian law by art 75 of the 1992 Constitution.

In relation to UNCLOS, there has been no incorporation of its

provisions into Ghanaian municipal law, except to a limited
extent in the Maritime Zones (Delimitation) Act 1986. Where
the actions of national courts attract delictual or contractual
responsibility for a State on the international law plane, the
most effective remedial measure will usually be the enactment
of national legislation. Without prejudice to the merits of this
present application, this approach is urged on the Government
of Ghana in relation to its obligations under UNCLOS. It should
be mentioned, though, that some of the provisions of UNCLOS
have become customary international law through the practice
of States. Such customary public international law would, of
course, be given effect in Ghanaian law as part of the common
law of Ghana.
The second ground relied on by the Attorney-General is that
the High Court wrongly assumed jurisdiction in this case by
putting an incorrect interpretation on a clause by which
Argentina is alleged to have waived its sovereign immunity. This
ground is upheld. Although Argentina waived its immunity
through the contractual waiver clause, that waiver of immunity
is not binding on the Ghanaian courts in so far as it relates to a
military asset. Customary international law permits sovereign
States to decide whether to accord a wider immunity in their
municipal law than required under international law. There is
thus no obligation in municipal law to recognise waivers of
sovereign State immunity in all circumstances, except those
required by public international law.
The trial judge, who was not bound by any previous decided
Ghanaian case on this issue, made a fundamentally and
patently wrong decision by holding that Argentina’s contractual
waiver of immunity, in so far as it related to the seizure of a
military asset, should be given effect to. The courts of Ghana
ought not to promote conditions leading to possible military
conflict, when they have the judicial discretion to follow an
alternative path. This public policy consideration persuades the
court that waiver of sovereign State immunity over military
assets should not be recognised under Ghanaian common law.
With this clarification of the law by the court, there should be
no need for any order of prohibition to be issued. All lower
courts are obliged to follow and apply the law as clarified in this
case. There should accordingly be no further seizures of military
assets of sovereign states by Ghanaian courts in execution of
foreign judgments, even if the sovereign concerned has waived
its immunity.
JURISDICTION OVER FOREIGN COMPANIES
- Residence of the company: A company that is resident
in Ghana is subject to the jurisdiction of the Ghanaian
courts. The test is whether or not the company is
carrying on or carrying out business at some definite
and more or less permanent place in Ghana. See
Ackerman v. Societie Generale [1967]GLR pg. 212
ACKERMAN v SOCIETE GENERAL DE COMPENSATION
• Facts: By a contract drawn in the French language but
executed in Ghana, the plaintiff, an Israeli national, agreed to
serve the defendants, an external French company as the
defendants’ works supervisor at Tema. The plaintiff’s salary was
made payable in French currency in France with the exception
of his living expenses which were to be paid in Ghana Currency.
In an action by the plaintiff for damages for breach of contract,
the defendant entered an unconditional appearance to the writ
and raised a preliminary objection to the jurisdiction of the
court to entertain the suit because since (a) the defendant was
an external company, (b) the contract was drawn in the French
language and (c) the plaintiff’s salary was made payable in
France then, the proper law governing the transaction was
French civil law.
• Holding: the proper law of a contract was the law of the
country with which the contract was most closely factually
connected. On the facts, the proper law of the contract was
Ghana law. Whether a corporation aggregate, like the
defendant, was resident in a particular country (Ghana) for the
exercise of the country’s jurisdiction, would be dependent on
the fact that at the commencement of the action, business as in
the instant case, was being carried on at some definite and
more or less permanent place in the country that arrogated to
itself the right to adjudicate.
• Reasons: Per Edusei J, It is to be observed that matters of
jurisdiction and proper law of the contract are distinct legal
concepts, though it is admitted that the proper law of the
contract may in certain circumstances decide the jurisdictional
aspect of a case of this nature. Having mentioned the proper
law of the contract I feel compelled, without dwelling on any
lengthy exposition of this juridical concept, to state that all that
it means is the law of the country with which factually the
contract is most closely connected.
 A company doing business in Ghana is also subject to the
jurisdiction of the Ghanaian courts: See Tafa & Co. Gh
Ltd v. Tafa &Co Ltd. 1977 1 GLR 422.
Facts: The plaintiff company sued for 200,000 cedis being
commissions due to them for promoting the business of the
defendants, a foreign company, doing business in Ghana, by
their president-director, who held himself out as being a
substitute for the defendant company and had complete
control over the company. The writ of summons was served on
the president-director, he was also arrested on an absconding
warrant and ordered by the trial court to give bail for his
appearance with three sureties in the sum of 200,000 cedis.
The defendant company entered appearance under protest and
field the instant application to dismiss the plaintiff’s claim on
the grounds, inter alia that the bail for appearance exacted
from the president – director of the defendant company was
invalid because the action was not against the president –
director personally but against the defendant company, a
limited liability company legal person, distinct from the
president director.
Held:that the presence of a foreign company within the country
doing business gave the court jurisdiction over it.
Per Edusei J “ it must be observed from the outset that the
defendant company is a foreign company whose president and
director has been visiting Ghana to do various business on an
number of occasions, which was binding on the defendant
company. The presence of a foreigner within this jurisdiction is
sufficient for service of a writ of summons on him. Jurisdiction
in my view is granted upon territorial dominion and any person
who is within the territorial dominion owes obedience to its
sovereign power and therefore must be obedient to its laws
and to the jurisdiction of its courts. However in the case of an
artificial person like the defendant company, the fact that
business is carried on in his country by such a foreign
company gives the court jurisdiction over the company and an
artificial person must work through human beings. In this
case the president –director of the defendant company has
been carrying on various business in this country on behalf of
the defendant company and , no doubt at the time of the
service of the writ on him in Accra, he was doing business here
for the defendant company…Furthermore Mr. George Sahw
Cha-Cin has held himself out as being a substitute in Ghana for
the defendant company in Taiwan and has conveyed a clear
impression that , for all practical purposes, he is the Taiwan
company whilst resident in Ghana. He comes to Ghana very
often, transacts various business here binding on the Taiwan
company, and always holds himself out as being in effect the
Taiwan company. In the circumstances, I am advised and verily
believe that the bail bond is valid and ought not to be
discharged.”
“I should be the last person to lend support to the view that a
foreign company cannot be served with a writ of summons
through any of its directors or important officers who happen
to be in his country and do business except in its country of
incorporation. If this were so, foreign companies could come
here to do business, except in its country of incorporation. If
this were so, foreign companies could come here to do
business, make their profits and institute an action if need be
but if they are sued then they seek shelter under the umbrella
of their foreign character of unassailability. I cannot be a party
to this lack of reciprocity, and especially in this modern world
when a foreign company through its recognized officers can be
in one country to transact business in the morning and leave in
the evening by plane, and any talk of suing a foreign company
in its country of incorporation will, I suppose stifle international
commerce. This also would open the door to frauds of all types
that no self-respecting country would permit within its
territory.”
It has been held that a foreign unincorporated partnership
that is not carrying on business in Ghana cannot sue in the
name of the firm.
See Attorney General v. Lewandowski [1971] 2 GLR pg. 58.-
Facts: the respondents were a foreign partnership firm which
neither carried on business in Ghana nor did any of its partners
reside in Ghana. They sued the government by means of a
specially endorsed writ that was issued in the name of the firm.
The High Court held that there were no triable issues and that
the respondents were entitled to enter judgment for the
amount claimed in their specially endorsed writ. On appeal
against this summary judgment the Government’s argument
was that as the Group was a firm carrying on business outside
Ghana, a writ of summons could not be issued in the firm’s
name as plaintiffs in the courts of Ghana because Order 48A, r.1
referred specifically to two or more persons carrying on
business within the jurisdiction.
Held:it was held that the Group was not competent to sue
under the firm’s name I the courts of Ghana as it was not
carrying on business within the jurisdiction and that the writ of
summons should not have issued in the first place in the firm’s
name. The writ was consequently null and void and of no effect.
Thus the court held that on the application of Order 74, if an
unincorporated foreign firm who were not carrying on business
within the jurisdiction had issued a similar writ in England, it
would have been rejected at the registry; and therefore the
writ issued by the respondents was null and void and that
because the respondents did not carry on business in Ghana
they were precluded from taking advantage of the privilege in
Order 48A, r.1 by suing under the firm’s name in Ghana.
Per Archer “a firm carrying on business outside the jurisdiction
cannot sue or be sued in the firm’s name.”
“Now what is the position of the Group in this appeal? First of
all the Group did not carry on business within Ghana as a firm.
Therefore the Group is precluded from taking advantage of the
privilege in Order 48A, r.1 by suing in Ghana under the name
“Levandowsky &B.A.S.E. Group.” Secondly, there is no evidence
that the Group is an artificial person, that is, a corporate body.
If that is the case, then the Group could not have sued under the
partnership name. The Group could only sue in Ghana by
disclosing all the names of the partners in the Group as
plaintiffs. That should have been the proper course because
then the individual partners would have come to court as
natural persons.”
SERVICE ON COMPANIES
Section 291 of Act 992
(1) A document may be served on a company by
(a) leaving it at, or sending it by post to, the registered office of
the company, or the latest office registered by the Registrar as
the registered address of the company.
(2) A document to be served by post on a company shall be
posted in the time that admits of its being delivered in due
course of delivery within the time prescribed for the service of
the document.
(3) In proving service it shall be sufficient to prove that a letter
containing the document was properly addressed, prepaid and
posted, whether or not by registered post.
(4) Where the registered office of a company cannot be traced,
service on a director of the company or, if a director cannot be
traced in the Republic, on a member of the company, shall be
deemed good and effectual service on the company.
(5) Where it is proved that a document was in fact received by
the director, managing director or Company Secretary, the
document shall be deemed to have been served on the
company despite the fact that service may not have been
effected in accordance with subsections (1), (2), (3) or (4 ).
Meaning of "external company"
Section 329.
(1) Sections 330 to 342 apply to external companies as defined
in this section.
(2) An external company is a body corporate formed outside
the Republic which, has an established place of business in the
country.
(3) The expression "established place of business" means a
branch, management, share, transfer, or registration office,
factory, mine, or any other fixed place of business, but does not
include an agency unless the agent has, and habitually
exercises, a general authority to negotiate and conclude
contracts on behalf of the body corporate or maintains a stock
of merchandise belonging to that body corporate from which
the agent regularly fills orders on behalf of the body corporate.
(4) For the purposes of subsection (3),
(a) a body corporate does not have an established place of
business in the Republic merely because the body corporate
carries on business dealings in the Republic through a genuine
broker or general commission agent acting in the ordinary
course of business as a broker or general commission agent; or
{b) the fact that a body corporate has a subsidiary which is
incorporated, resident, or carrying on business in the Republic,
whether through an established place of business or otherwise,
does not of itself constitute the place of business of that
subsidiary, an established place of business of that body
corporate.
Section 333
(1) A process or any other document shall be sufficiently served
on an external company if {a) delivered or sent through an
electronic address provided by the company to the Registrar or
delivered or sent by post to the person last registered as the
process agent of the com- pany at the last registered address of
that agent, even if the process agent refuses to accept service
or the company has ceased to maintain a place of business in
the Republic; or {b) sent by facsimile machine to a telephone
number used for the transmission of documents by facsimile at
the registered office of the company, or address for service or
the head office or principal place of business of the company.
(5) In proving service, it shall be sufficient to prove that a letter
containing the document was properly addressed, prepaid, and
posted, whether or not by registered post.
(6) Where it is proved that a document was in face received by
(a) a local manager or a process agent,
(b) the board of directors of the external company, or
(c) the managing director or Company Secretary of the external
company, the document shall be deemed to have been served
on that company although service may not have been effected
in accordance with subsections ( 4) and (5).
Section 792 of the Interpretation Act, 2009, Act 792 states that
where an enactment authorises or requires a document to be
served by post that document shall be sent by registered post
to the person on whom the document is to be served at that
person's last known place of abode or business. Where an
enactment authorises or requires a document to be served on a
person without directing it to be served in a particular manner
the service of that document may be effected by personal
service, by post or by leaving it with an adult person at that
person's usual or last known place of abode, occupation,
vocation or business or in the case of a corporate body or of an
association of persons, whether incorporated or not, by
delivering it to the secretary or clerk of the body corporate or
association at the registered or principal office of the body
corporate or association or serving it by post on the secretary
or clerk at that office or where it is not practicable after
reasonable enquiry to ascertain the name or address of an
owner, a lessee, or an occupier of premises on whom the
document ought to be served, by addressing the document to
that person by the description of "owner" or "lessee" or
"occupier" of the premises (naming them) to which the
document relates, and by delivering it to an adult person on the
premises.
DAKAR LTD. v. INDUSTRIAL CHEMICAL AND PHARMACEUTICAL
CO., LTD. AND ANOTHER [1981] GLR 453
The defendant-company (I.C.A.P.) were a limited liability
company registered under the Companies Code, 1963 (Act
179), with a registered office in the country. The plaintiffs (D
Ltd.) brought an action to recover the sum of ¢4,402,700 being
the balance of the price of goods sold and delivered by D Ltd. to
I.C.A.P. On failing to get any employee of I.C.A.P. to accept
service, D Ltd. brought the instant ex parte application under
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order
10 for an order of substituted service against I.C.A.P.
It was held that it was clear on reading Order 9, r. 8 (2) of L.N.
140A in conjunction with section 263 of the Companies Code,
1963 (Act 179), that service of a company registered in or with
a registered office in Ghana was to be effected under the
provisions of Act 179 and not under the rules of court.
The procedure for and effect of serving a limited liability
company which had a registered office was clearly indicated by
the combined effect of the Companies Code, 1963 (Act 179), s.
263 and the Interpretation Act, 1960 (C.A. 4), ss. 13 (2) and 32.
By Act 179, s. 263 service of a document on a company should
be effected by leaving the document at, or sending it by post to
the registered office of the company or the latest office
registered by the Registrar-General as the registered address of
the company. By the Interpretation Act, 1960 (C.A. 4), s. 13 (2)
where an enactment authorised or required a document to be
served, that could be effected by prepaying, registering and
posting an envelope containing the document, addressed to
the person on whom the document was to be served at his last
known address; and, unless the contrary was proved, the
document should be deemed to have been delivered in the
ordinary course of post. A “person” as defined by C.A. 4, s. 32
included a body corporate, whether a corporation aggregate or
a corporation sole.

THE THEODOHOS
In (The Theodohos) the owners of Theodohos chartered the
vessel to contract to carry a cargo of bagged resin belonging to
a 2nd party from Finland to Hong Kong and Thailand. The cargo
was damaged en route and the 2nd party issued a writ in
personam against the owners claiming damages. The writ was
served personally on someone, named as the president and
director of the owners, another company. The owners entered
a conditional appearance and applied to set aside the service of
the writ on the ground that service on the director was not
good service on them. It was held that unless a foreign
company was carrying on business within the jurisdiction it
could not be served with process within the jurisdiction.
NEWBY V VAN OPPEN
In (Newby v Van Oppen)Colts co. was not an English
corporation; it was an American company, incorporated by
American law; but this foreign corporation had a place of
business in England, and there de facto carried on business just
as an English corporation might do, though their principal place
of business and head office is in America. The contract which
the plaintiff alleged to have been broken was, as he alleged,
made in England by the foreign corporation thus carrying on
business here. The writ was served on the manager of their
business in England, who appears to be the head officer, and
indeed the only officer, of their English branch, but who
certainly was not the head officer of the American corporation
in the United States.

The other and more difficult question is, whether the

corporation has been properly served, supposing them to be
suable. It was argued that the American corporation was
resident in America, and must be served, if at all, as a foreigner
resident out of the jurisdiction, subject to the difficulties which
are pointed out in Ingate v. Austrian Lloyd's Co. 7 This would be
so, if the foreign company had merely employed an agent here,
who made a contract for them; but we think it is different
where the foreign corporation actually has a place of business
and trades in this country. This is a point of very considerable
practical importance. There are already several Scotch banking
corporations that have established branches in London. We
see, from this case, that there is at least one American
corporation that has set up a branch business here, and there
will probably soon be more. Such a corporation does, for many
purposes, reside both in England and in its own country. In the
case of Carron Iron Co. v. Maclaren 8 Lord St. Leonards, taking a
different view of the facts from that taken by Lords Brougham
and Cranworth, thought the Scotch corporation was resident in
England. In the present case the fact is clear that the American
company are carrying on trade themselves in London, and
therefore, we think, must be treated as resident there.

PARTNERSHIPS
ATTORNEY GENERAL V LEVANDOWSKY
The respondents were a foreign partnership firm which neither
carried on business in Ghana nor did any of its partners reside
in Ghana. They sued the government by means of a specially
endorsed writ that was issued in the name of the firm. The High
Court held that there were no triable issues and that the
respondents were entitled to enter judgment for the amount
claimed in their specially endorsed writ. On appeal against this
summary judgment the appellants submitted inter alia that
since the respondents were a firm carrying on business outside
Ghana then they could not issue a writ of summons in the
firm’s name as plaintiffs.
It was held that if an unincorporated foreign firm who were not
carrying on business within the jurisdiction had issued a similar
writ in England, it would have been rejected at the registry; and
therefore the writ issued by the respondents was null and void
and the judgment of the High Court was of no legal
consequence. Because the respondents did not carry on
business in Ghana they were precluded from taking advantage
of the privilege in Order 48A, r. 1 by suing under the firm name.
LYSAGHT v CLARK
 Facts: Two persons, subjects of a foreign state, carried on
business as co-partners in England. One of them resided in
England; the other resided and was domiciled abroad. A writ
having been issued against them in the name of their firm,
the partner resident in England was served with such writ
and appeared. There being no defence to the action,
judgment was entered against the firm.
 Holding: the service on the partner was a good service on
the firm, and that judgment was rightly entered against the
firm.
 Reasons: Per Cave J, the appearance of one partner is the
appearance of the firm; and one partner here having
appeared, judgment was rightly entered against the firm.

ACTION IN RESPECT OF FOREIGN IMMOVABLES

BRITISH SOUTH AFRICA v COMPANHIA DE MOCAMBIQUE
 Facts: The plaintiff was in possession and occupation of large
tracts of land and mines and mining rights in SA; and that the
defendant company by its agents wrongfully broke and
entered and took possession of the said lands, mines and
 mining rights and ejected the plaintiff company, its agents
and tenants therefrom; and also took possession of some of
the plaintiffs personal property and assaulted and
imprisoned some of the plaintiffs. The plaintiffs alleged that
the defendants did this maliciously and without any just
cause or excuse and with intent to injure and destroy the
plaintiff’s trade and to deprive the plaintiffs of their lands,
mines and mining rights and to put an end to their existence
as a trading company in SA.
 Holding: the supreme court of judicature has no jurisdiction
to entertain an action to recover damages for a trespass to
land situate abroad; the rules of procedure under the
Judicature Acts with regard to local venue did not confer any
new jurisdiction.

HESPERIDES HOTELS V MUFTIZADE

Two companies registered under the law of the Republic of
Cyprus owned Greek Cypriot hotels in Kyrenia when it was
occupied by troops from Turkey invading the north of the island
in 1974. They issued a writ in 1977 against an English travel
company and an individual purporting to represent in London
the "Turkish Federated State of Cyprus," claiming damages and
an injunction to restrain the defendants from conspiring to
procure, encourage or assist trespass to the hotels by
circulating brochures and inviting tourists to book holidays in
the hotels.
The court held that the rule in the Mocambique case that the
Supreme Court of Judicature had no jurisdiction to entertain an
action to recover damages for trespass to land situate abroad
precluded the action for damages for trespass to the hotels in
Cyprus even though no question of title arose; and that the
claim for conspiracy was equally precluded since the
unlawfulness on which the conspiracy was based depended on
proving the intention to effect a trespass on foreign land on
which point the court would not adjudicate. The court held
further that, having regard to the fact that the rule was
accepted in other common law jurisdictions; that by its nature
it involved possible conflict with foreign jurisdictions; that its
revision might involve consequential changes in the law and
that, since it was formulated, there had been no such change in
circumstances as to justify the House of Lords in changing it,
the House should not modify the rule.

ARE THERE FACTORS THAT AFFECT THE EXERCISE OF

JURISDICTION BY THE COURTS?
FORUM NON-CONVENIENS
C.I.L.E.V V CHIAVELLI
Here, the court asked the simple question: is that the best
forum to do justice?
The court then said, the conduct of the plaintiffs confirmed the
court in the view that the best forum to do justice in the case
would be the court in Italy. It was not impossible, nor even
unusual, for a court with undoubted jurisdiction in a case to
decline it in deference to a foreign court also with jurisdiction in
the case.

SPILIADA MARITIME V CANSULEX LTD

The question arose whether the case had not been shown to be
"a proper one for service out of the jurisdiction”?
 The court held that in order to determine whether a case
was a proper one for service out of the jurisdiction the court
had, as in applications for a stay of proceedings founded on
the ground of forum non conveniens where the action was as
of right by service on a defendant within the jurisdiction, to
identify in which forum the case could most suitably be tried
for the interests of all the parties and for the ends of justice;
that, accordingly, the judge having identified the correct test
and considered the relevant factors, including the
advantages of efficiency, expedition and economy in bringing
the action in England following the Cambridgeshire action,
the Court of Appeal had had no grounds for interfering with
the exercise of his discretion.
THE ABIDIN DAVER
 Facts: a collision occurred in the Bosphorus, an
international waterway, between two ships owned by the
Cuban plaintiffs and the Turkish defendants respectively.
The Cuban vessel was arrested in Turkish territorial waters
at the suit of the defendants, who began proceedings in a
Turkish court claiming damages against the plaintiffs. The
plaintiffs brought an action in rem in the Admiralty Court
against the defendants for damage caused by the collision,
the writ being served within the High Court jurisdiction on
the defendants' sister ship, which was released after
security had been given. On the defendants' motion to stay
the English proceedings, Sheen J. held that the Turkish
court was a forum in which justice could be done between
the parties at substantially less inconvenience and expense
that a stay would not deprive the plaintiffs of a legitimate
personal or juridical advantage and he ordered a stay. On
appeal by the plaintiffs, the Court of Appeal allowed the
appeal.
 Holding: allowing the appeal, that where a suit concerning
a particular subject matter between a plaintiff and a
defendant was already pending in a foreign court which
was a natural and appropriate forum for the resolution of
the dispute between them, and the defendant in the
foreign suit sought to bring as plaintiff an action in England
about the same matter to which the person who was
 plaintiff in the foreign suit was made defendant, then the
additional inconvenience and expense resulting from
allowing two sets of legal proceedings to be pursued
concurrently in two different countries, could only be
justified if the would-be plaintiff could establish objectively
by cogent evidence that there was some personal or
judicial advantage that would be available to him only in
the English action that was of such importance that it
would cause injustice to him to deprive him of it and that,
accordingly, in the circumstances, the Admiralty judge had
rightly exercised his discretion in staying the English
proceedings.

LUBBE v CAPE PLC.

 Facts: Lubbe was injured at work while manufacturing
asbestos for a SA subsidiary company of the UK parent
company. The SA subsidiary had no money left and Cape Plc.
Had no assets in SA. The case was initiated in a HC in
London. Cape plc. Was applying to stay the actions on the
basis of forum non conveniens, submitting that they were an
abuse of process on grounds that intention to launch a multi-
party action was not disclosed to the court. Lubbe argued
that the claims should not be stayed since in SA the legal aid
necessary to continue the claim had been withdrawn, no
contingency fee arrangement was available and no other
 source of funding would be available. The CA refused his
argument. He appealed.
 Holding: although SA was the more appropriate forum for
hearing the claim, it was highly likely that legal
representation for the claimants would be unavailable. The
expert evidence suggested a denial of justice would result,
exacerbated by lack of procedures in SA to accommodate
multi-party actions. This meant that lifting the stay was
appropriate and the action continued in the English Courts.
On a side issue, however, matters of public interest and
policy were not relevant to determining which forum was
best and only private interests would be taken into account.

AGREEMENT TO SUBMIT DISPUTE TO A FOREIGN COURT

THE ELEFTHERIA
The court noted here that where plaintiffs sued in England in
breach of an agreement to refer disputes to a foreign court and
the defendants applied for a stay, the English court, assuming
the claim to be otherwise within the jurisdiction, was not
bound to grant a stay but had a discretion whether to do so or
not.

CILEV V BLACK STAR LINE

arose under bills of lading in which the parties had expressly
agreed that the contract should be governed by English law and
that all disputes should be adjudicated upon by the courts in
England. The dispute arose out of an alleged improper
detention of goods in Ghana by the defendants; goods which
were said to be collecting vast rents for the Government of
Ghana for every day that they continued to be detained.
Held: where parties had contracted that disputes were to be
referred to a foreign tribunal then prima facie the court in
which an action was brought in breach of such agreement
would stay the proceedings so brought, but such a provision did
not oust the jurisdiction of our courts. Whether or not effect
was given to the provision depended on the particular
circumstances of each case. In the instant case the
circumstances were such that to ask the parties to seek their
remedy in England was in effect telling the plaintiff to forgo his
rights because by the time the action was disposed of, the rents
due on the goods might have been well in excess of their value.
There was no reason why the court could not proceed with it
and apply the English law the parties had agreed upon, which in
this case could not be very different from the law of Ghana on
the point.
In CILEV V CHIAVELLI, the court held that where parties
contract that disputes arising between them should be referred
to a foreign tribunal, if the court was of opinion that the parties
should take their chance before the foreign tribunal, the proper
order would be one staying the proceedings.