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ADR ASSIGNMENT – PART A
DESCRIBE IN DETAIL THE PROCEDURE INVOLVED IN CONVERTING THE
JUDGEMENT OF AN ARBITRATION TRIBUNAL FOR THE JUDGEMENT FOR
EXECUTION IN SIERRA LEONE.
In describing the procedure involved in converting the judgement of an arbitration tribunal for
execution in Sierra Leone, it is important we start by noting the following. An award can only be
enforced by the Supreme Court as referenced in the interpretation section of Cap 25 which
unequivocally states that: “Court means the Supreme Court of Sierra Leone”.
Section 13 of Cap 25 further states that: “an award on submission may by leave of the court be
enforced in the same manner as a judgement or order to the same effect”. This means that without
leave of the court, enforcement and execution of an award may be undermined.
With this in mind, we will now go further discuss the procedure involved. These include the
following:
1. Commencement and Registration
2. Application processes and procedures
3. Conditions making registration impossible
4. Notice and service of registration.
5. Application to set aside registration
6. Grounds for setting aside judgements
7. Re-registration of judgement
8. Power to make judgement unenforceable in Sierra Leone.
9. Issue of certificate of judgement in Sierra Leone.
Commencement and Registration
Registration is a cardinal procedural requirement. Section 4((1) of the Foreign Judgments
(Reciprocal Enforcement) Ordinance 1935 and Order 45(2) High court Rules 2007) outlines the
requirements for registration and commencement. It states that: “…a judgment creditor…may
apply to the Supreme Court at any time within six years after the date of the judgment, or, where
there have been proceedings by way of appeal against the judgment, after the date of the last
judgment given in those proceedings, to have the judgment registered in the Supreme Court, and
on any such application the court shall, subject to proof of the prescribed matters and to the other
provisions of this Ordinance, order the judgment to be registered”.
Provided…that where an Order is made extending…this Ordinance to a foreign country, the fact
that a judgment was given before the coming into operation of the Order shall not prevent it from
being a judgment…but the time limited for the registration of a judgment so given shall be twelve
months from the date of the judgment or such longer period as may be allowed by the Supreme
Court (Section 4(1)(d) Foreign Judgments (Reciprocal Enforcement) Ordinance 1935).
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The application shall be supported by an affidavit exhibiting the judgment, or a verified or certified
or otherwise duly authenticated copy.
thereof, stating that to the best of the information and belief of the deponent the judgment creditor
is entitled to enforce the judgment and the judgment does not fall within any of the cases in which,
under subsection (1) of section 4 of the Act, a judgment cannot properly be ordered to be registered.
(2) The affidavit shall also state, so far as the deponent can, the full name, title, trade or business
and usual or last known place of residence or business of the judgment creditor and the judgment
debtor and all other maters required by subsections (2), (3), (4) (5) and (6) of section 4 of the Act.
Order 45(2) High court Rules 2007) further discusses the commencement procedure. It states that,
“to have a judgment obtained in a superior court in a country to which the Act has been or shall
hereinafter be extended, registered in the High Court shall be made by originating summons ex
parte”.
Application processes and procedures
The application processes and procedures is clearly set out in Order 45. Application shall be made
by originating summons exparte (Order 45 (2) and “[t]he application shall be supported by an
affidavit of the fact exhibiting the judgment, or a verified or certified or otherwise duly
authenticated copy thereof, stating that to the best of the information and belief of the deponent
the judgment creditor is entitled to enforce the judgment…”. The affidavit shall also state, so far
as the deponent can, the full name, title, trade or business and usual or last known place of
residence or business of the judgment creditor and the judgment debtor.
The register of judgments ordered to be registered…shall be kept in the Master’s office by or under
the direction of the Master [and] [t]he judgment shall be registered in the register in accordance
with the order giving leave to register it Order 45(7) (1) & (2).
Conditions making registration impossible
Even though registration is a condition precent for enforcement of arbitration award, there are
conditions that could inhibit registration and make judgements unregistrable. These include the
following: Judgment shall not be registered where:
1. if at the date of the application judgement has been wholly satisfied (rule 4(1) Cap 21).
2. Where award could not be enforced by execution in the country of the original court (Rule
4(1)(b) Cap21):
3. If at the date of the application for registration the judgment of the original court has been
partly satisfied, the judgment shall not be registered in respect of the whole sum payable
under the judgment of the original court, but only in respect of the balance remaining
payable at that date (Rule 4(4) Cap 21).
Notice and service of registration.
Judgement debtor shall be served with notice in writing of the judgement together with the order
granting leave to register 7 days after registration (Order 45 Rule 9 Subrule 1). In the absence of
an order to the mode of service, notice shall be by personal service with power to order substituted
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service or service out of the jurisdiction or both) as in the case of a writ of summons. The order
giving leave to register the judgment shall state the time within which the judgment debtor is to be
entitled to apply to set aside the registration (Order 45 Rule 6 Subrule 1).
Application to set aside registration
Order 45 Rule 11 grants judgment debtor the right of application to set aside registration at anytime
with the time limited by the order giving leave to register after service on him of the notice of the
registration of the judgment. Judgement debtor my apply by summons to a judge to set aside the
registration or to suspend execution on the judgment. The Judge on good and sufficient cause
shown may allow the application where reasons for application fall within one of the reasons which
falls under 6 section of Cap 21.
Grounds for setting aside judgements
Section 6 of Cap 21 outlined the circumstances where registered judgment may be set aside. The
judgement debtor may on application set aside registered judgement contingent on the following
conditions precedent. These include:
(i) [Where] judgement is registered in contravention of this ordinance.
(ii) [Where] the judgment debtor, being the defendant in the proceedings in the original
court, did not (notwithstanding that process may have been duly served on him in
accordance with the law of the country of the original court) receive notice of those
proceedings in sufficient time to enable him to defend the proceedings and did not
appear;
(iii) [where] judgment was obtained by fraud.
(iv) [where] the enforcement of the judgment would be contrary to public policy in the
country of the registering court.
(v) [where] the rights under the judgment are not vested in the person by whom the
application for registration was made.
(vi) where the registering court is satisfied that the matter in dispute in the proceedings in
the original court had previously to the date of the judgment in the original court been
the subject of a final and conclusive judgment by a court having jurisdiction in the
matter.
Re-registration of judgement
“Where the registration of a judgment is set aside…the setting aside of the registration shall not
prejudice a further application to register the judgment when the appeal has been disposed of or if
and when the judgment becomes enforceable by execution in that country, as the case may be”
S(section 7(2) Cap 21 1935).
Power to make judgement unenforceable in Sierra Leone.
Section 11(1) Cap 21 1935 discusses when a judgement is deemed unenforceable in Sierra Leone.
It specifically states that: “If it appears…that the treatment in respect of recognition and
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enforcement accorded by the courts to any foreign country to judgments given in the superior
courts in Sierra of Sierra Leone is substantially less favourable than that accorded by the courts of
Sierra Leone to judgments of superior courts of that country, the Governor in Council may by
Order apply this section to that country.
(2) Except in so far as the Governor in Council may by Order under this section otherwise direct,
no proceedings shall be entertained in any court in Sierra Leone for the recovery of any sum alleged
to be payable under a judgment given in a court of a country to which this section applies.
Issue of certificates of judgments obtained in Sierra Leone.
Pursuant to section 12 Cap 21 of 1935,”[w]here a judgment [is for] a sum of money is payable, not being
a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty,
has been entered in the Supreme Court against any person and the judgment creditor is desirous of
enforcing the judgment in a country or territory to which…this Ordinance applies, the Court shall, on an
application made by the judgement creditor and on payment of such fee as may be fixed for the
purposes…issue to the judgment creditor a certified copy of the judgment, together with a certificate
containing such particulars with respect to the action, including the causes of action, and the rate of
interest, if any, payable on the sum payable under the judgment, as may be prescribed. Provided that,
where execution of a judgment is stayed for any period pending an appeal or for any other reason, an
application shall not be made under this section with respect to the judgment until the expiration of that
period”.
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ADR ASSIGNMENT – PART B
How do you reconcile the view as established by the schedule in Cap 25 that is shall be final
and binding on the parties as against the view that it is a subject matter of appeal.
