Sonnar (Nigeria) Limited & Anor V. Partenreederi M.s. Nordwind & Anor (1985)
LawGlobal-Hub Lead Judgment Report
KOLAWOLE, J.C.A.
This is an appeal from the Ruling of Sowemimo, J. of the Federal High Court, Lagos given on July 7, 1981. The cases arises in these circumstances. The plaintiffs claim from the defendants the sum of N417, 524.50k as special and general damages for breach of contract arising out of non-delivery of 15,322 bags of parboiled long grain rice shipped to Lagos from Bangkok, Thailand on board M. V. “Nordwind” which was due in Lagos on 25 November, 1978. The particulars subjoined to the writ of summons are as follows:
(1) Cost of 15,322 bags at $29 or N16.66
per bag C & F – N255,264.52.
(2) Duty paid to Nigerian Customs at N5.25 per bag – N80,440.50
(3) Difference between market price of N22 per bag and C & F price of N 16.66. per bag, N81,819.48
Total N417, 524.50
There were three defendants originally. In accordance with the rules of court an application was brought before the court that the defendants be served in Germany, Liberia and Thailand respectively. In the affidavit in support of that application for leave to serve the writ of summons outside the jurisdiction of the court, learned counsel for the plaintiffs deposed that their chambers had been instructed to appear on behalf of the plaintiffs by Holman, Fenwick and Willan, Solicitors in London. The order was granted on December 6, 1979. On 20 March, 1980 Mr. Jimi Oduba of counsel appeared for the defendants and immediately thereafter before any steps were taken in the proceedings, he filed an application on behalf of the first defendant praying that the action be stayed on the ground that the cause of action as against the first defendant arose out of a contract of affreightment evidenced by a bill of lading dated 26th August 1978, which was subject to a foreign jurisdiction clause. Mr. Oduba, in his affidavit in support of his own application, deposed in paragraph 4 & 5 as follows:
“4 Therein in paragraph 6 of the said affidavit the deponent deposes inter alia that the 1st defendant carries on business as shipowners in Germany and that a bill of lading is relevant to this suit.
“5. I am informed by my said clients that the only bill of lading relevant to this suit is No.1 dated 26 August, 1978 … Therein in clause 3 it is provided as follows:”Jurisdiction. Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein”.
After some adjournments of the motion, learned counsel for the plaintiffs, Mr. Mbanefo, discontinued the action against the second defendant. Thereafter, Mr. Mbanefo took a preliminary objection to paragraphs 3, 4, 5 & 6 of Mr. Oduba’s affidavit in support of his own motion for stay of the proceedings.
In a considered ruling, the learned judge upheld the preliminary objection of Mr. Mbanefo and paragraphs 4, 5 & 6 of the further affidavit of the defendants were struck out. The stage was then set for the substantive motion.
Learned counsel for the first defendant/applicant who is the respondent to this appeal contended before the learned judge that the Federal High Court had no jurisdiction upon two principal grounds: first, that the respondent was based in Germany and carried on business as ship-owners in Germany; secondly, that the relevant bill of lading which was the basis of the contract contained a provision that any dispute arising under the bill of lading should be decided in the country where the carrier had his principal place of business and that German law should apply except as provided elsewhere in the bill of lading.
On his part, Mr. Mbanefo, learned counsel for the plaintiffs, who are now the appellants, admitted the contents of the bill of lading but he contended that the mere fact that there was a foreign jurisdiction clause in the bill of lading would not oblige the Nigerian Court to stay proceedings and then order the party to go to the jurisdiction provided in the bill of lading. Mr. Mbanefo contended that the learned judge had a discretion in the matter whether to try the action in Nigeria or stay the proceedings. Learned Counsel put forward further arguments why the Nigerian court, in preference to the German Court, should try the case. These are:
(1) When the bulk of the evidence is in Nigeria
(2) Where the German court cannot entertain the suit on the ground of procedural difficulties such as time bar.
(3) Where, on the balance of convenience, it is better for the Nigerian courts to exercise jurisdiction, and
(4) Where the applicant does not genuinely want the case to be tried in the foreign court but is only seeking procedural advantage.
Mr. Mbanefo finally contended that the Nigerian court was the proper court in view of the fact that Lagos was the place of performance; the proper law is that of Nigeria, the customs duty payable was in Nigeria.
In a considered ruling, the learned judge held that the plaintiffs who had the burden thrust on them had not established good cause why they should not be held to their agreement to have the dispute resolved in a German court. He, therefore, granted the stay of proceedings as far as it related to the first defendant. The plaintiffs are dissatisfied with the ruling and they have appealed to this Court. Five Grounds of appeal were filed on behalf of the plaintiffs/appellants. In the appellants brief the five grounds were divided and argued in two parts: grounds 1 and 5 were argued together and grounds 2, 3 and 4 were argued as one. The whole of the evidence upon which the proceedings were conducted was affidavit evidence.
Mr. Mbanefo’s launched his first attack on the learned Judge’s ruling in which he refused to strike out paragraph 3 of the further affidavit of Jimi Oduba sworn on 10 July, 1980, in support of the motion of for stay of proceedings.
Mr. Mbanefo’s contention is that the learned judge erred in relying on a letter annexed to the further affidavit in support of the 1st defendant/respondent’s motion when large portions of the said letter had been deliberately obliterated. The learned judge held that:-
I do not agree with the submission of learned counsel on this point because paragraph 3 of the further affidavit clearly states that a copy of relevant part of the letter is reproduced and there is nothing wrong in exhibiting a portion of a letter”.
Mr. Mbanefo further contended in his brief on this ground that the obliterations were not made for the purpose of assisting the court, and therefore, from an improper motive. In his short reply, Mr. Oduba relied on his brief and submitted that the letter to which Mr. Mbanefo’s attack has been vigorously directed emanated from the Appellants’ Solicitors. In the affidavit in support of the appellants’ application to serve the writ of summons out of jurisdiction, the appellants deposed in paragraph 3 thereof as follows:-
“That our chambers have been instructed to appear on behalf of the Plaintiffs/applicants in this matter by Holman, Fenwick and Willan, Paragraph 3 of the further affidavit of Jimi Oduba about which so much has been heard stated thus:-
“My clients the 1st defendants/applicants have informed me through their Protection and Indemnity Club, the West of England Association and I verily believe the same to be true, that the instructing solicitors Messrs Holman, Fenwick and Willan referred to in paragraph 6 of the counter affidavit of P.M. Mbanefo aforesaid, have been “forum hunting” on behalf of the plaintiffs. There is now produced, shown to me and marked J04, copy of relevant parts of a letter written by the said Messrs. Holman, Fenwick and Willan to the said West of England Association to this effect”.
Now, how can learned counsel for the appellants take the stand which he has taken in relation to the letter from their instructing solicitors when such letter is easily available to them? If any material part of the letter was obliterated for an improper motive why did the appellants’ counsel not produce the full letter to portray the bad faith or motive of the respondents?
I am of the view that the argument of learned counsel for the appellants on ground 2 of the grounds of appeal is rather technical; learned counsel, with due respect to him, evaded the substance of the matter. I am therefore in agreement with the learned judge when he held that he saw nothing wrong in exhibiting a portion of a letter having regard to the surrounding circumstances of the case. He did not agree that the purpose of the obliteration was to hide anything from the court. If anything was hidden, which was of vital importance to the case, it was open to the appellants to disclose those hidden facts to the court by producing the full letter from their principals. Apart from the objection to the exhibit, learned counsel did not show in which way that letter from their London Solicitors was prejudicial to their case having regard to the foreign jurisdiction clause except to say later that the letter contained some statement to the effect:
“As we understand, advice which has been received, the German court would not enforce these Bills of Lading as a contract between our clients and the owners, but would identify the carrier as Barbridge Shipping Limited of Liberia. Furthermore, they would not enforce clause 17 in the absence of express provision in the relevant charter party allowing this.”
It is pertinent to observe that while Mr. Mbanefo was quarrelling with the admissibility of this document, he has in his other submission attempted to take advantage of the statement reproduced above to buttress his argument which I shall deal with later that the Nigerian court is the forum convenience. I do not think that it is open to Mr. Mbanefo to reprobate and approbate. As Bankes L.J. said:-
“This is an attempt to blow hot and cold, or to approbate and reprobate, in the language of others”.
Lord Justice Scrutton put it so succinctly when he said:-
“A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction”. (See Verschures Creameries, Ltd v. Hull, & Netherlands Steamship Company, Limited, (1921) 2 K.B. 608 at 610 & 612).
On the proper approach of the learned judge to the foreign jurisdiction clause, the appellants admitted with commendable candour in their brief that the foreign jurisdiction clause contained in the relevant Bill of Lading was applicable and that the clause pointed to Germany as the place of jurisdiction. The appellants also admitted that German law would be applicable. The appellants contended, however, that where such a clause existed, as in the present appeal, but nevertheless the action was filed in the Nigerian Court then if a cause of action is disclosed on the face of the writ, the Nigerian Court is not bound to stay the proceedings but has a discretion whether or not to do so.
Learned counsel contended that such a discretion should be exercised judicially after a careful balancing of the factors favouring or militating against a stay of the action. It is submitted by learned counsel that all the relevant authorities are agreed that a Judge has a discretion whether or not to stay proceedings, but where there is a foreign-jurisdiction clause, the plaintiffs must prove that it is just and proper to allow them to continue in the home court. In exercising his discretion certain tests were laid down by Brandon J. in the “Eleftheria” (1969) 1 Lloyd’s Rep. 237 at 242.
Incidentally, the foreign jurisdiction clause in the present appeal is worded word for word as in “The Eleftheria”. The principles established by the authorities regarding the granting of stay which for the purpose of this appeal are apposite, in counsel’s view, are the second and the fourth in “The Eleftheria”. They are:-
“(2) The discretion should be exercised by granting a stay unless a strong cause for not doing so is shown.
“(4) In exercising its discretion the Court should take into account all the circumstances of the particular case.
In his reply on the foreign jurisdiction clause, Mr. Oduba referred to Dicey & Morris on the Conflict of Laws 10th edition (1980) at pages 255 and 256, where in Rule 31 it is provided as follows:
“Where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, English courts will stay proceedings instituted in England in breach of such agreement, unless the plaintiff proves that it is just and proper to allow them to continue”.
In Dicey and Morris reference was made to the case of “The Fehmarn” (1957) 1 WLR 815, 819. Learned counsel further submitted that the court’s power to grant a stay is discretionary but, once the contract has been proved, as in this case, the onus of inducing it not to do so rests on the plaintiff. The ground on which the court grants a stay is that the court makes people abide by their contracts.
The learned judge having quoted clause 3 of the Bill of Lading which provides for the foreign jurisdiction clause held that there was no dispute that the respondent being the owner of the vessel M.V. “Nordwind” was the carrier of the goods for which the appellants were claiming damages for non-delivery.
The learned judge also found the respondent carried on business in Germany and that the Bill of Lading was relevant to the suit. The learned judge then concluded in these words:-
“Since there is uncontradicted evidence that the 1st Defendant has its principal place of business in Germany, and the; dispute is one which arises under the bills of lading, it follows that, under clause 3 the parties have agreed to refer any dispute to the court where the 1st Defendant has its place of business which is Germany”.
As to whether the court should exercise its discretion by staying the proceedings, the learned judge quoted in extenso the principles which have become commonly called the Brandon tests, set out in “The Eleftheria” (1969) 1 Lloyd’s Rep.237. It is well settled now that, where there is a provision of the kind in clause 3 of the bill of lading in this appeal, then prima facie Nigerian courts will stay proceedings instituted in the country in breach of such solemn agreement. The appellants who wished to invoke the jurisdiction of the Nigerian court despite the contractual submission to the exclusive jurisdiction of the German court must show a strong case, more than a balance of convenience, why the Nigerian proceedings should not be stayed.
The learned judge found that there was no evidence to prove that the witnesses which the appellants intended to call were in Nigeria. The affidavit of the appellants never disclosed where their witnesses were based and the learned judge held, rightly in my view…that in the absence of any evidence to that effect, it was mere speculation for the learned counsel to submit that the witnesses they intended to call were in Nigeria. I agree with the learned judge.
There is a heavier burden on the appellants who had applied to serve the respondent in Germany than on an appellant who instituted proceedings in Nigeria against a defendant present in Nigeria. The learned judge concluded by holding that the appellants on whom the burden lay had not established a good cause why they should not be held to their agreement. I am also of the same opinion. I think that what Lord Justice Cairns said in “The Makefjell” (1976) 2 Lloyd’s Rep. 29 at 34 should now be used as a guide for the appellants in this case and those who may contemplate an escape from their solemn obligation.
Cairns L.J. said:-
“…the Court should be very slow to refuse a stay if the claim is just the sort of claim to be rejected. When a clause of this kind is introduced into a contract it must be supposed that the parties consider that, in general, trial in the place mentioned in the clause is more convenient than trial elsewhere. It does not lie in the mouth of one party to say when a claim arises:
“Although this claim differs in no way from the generality of claims that might be made by me under the bill of lading, I say that the specified place of trial is inconvenient”.
Precisely what the appellants are saying is:
“Yes, we entered into the contract of bill of lading fully appreciating the implications but German law and German court specified in the bill of lading are forum non conveniens“. I am of the view that once the appellants have failed to impugn the solemnity of the bill of lading, they must be held to their agreement fully realising that they knew what they were doing at the time of the execution of the bill of lading either by themselves or by their agents unless they can shown that it is not just and proper to go to Germany.
I have found the arguments of Mr. Mbanefo in this appeal rather fascinating having regard to his stand in the appeal G.B.N. Line & 2 ors v Allied Trading Company Limited FCA/L/128/83 delivered on 26th April, 1984. Mr. Mbanefo was counsel for the appellants in that case as he is for the appellants in the present appeal. In that case the trial judge refused to grant a stay of proceedings in accordance with clause 25 of the Bill of Lading which provided that English courts had exclusive jurisdiction. The difference in that case is that after the service of the defendants with the writ of summons, the defendants entered an appearance and filed a defence.
Thereafter, an application was filed on behalf of those defendants served in London and whose principal place of business was in London praying that the proceedings be stayed. In this court, Mr. Mbanefo who was for the appellants, the foreign company, submitted that clause 25 of that bill of lading was a biding contract on the parties and whenever a party to that contract proceeded to sue in a wrong jurisdiction different from the one mentioned in the contract, the other party was entitled to apply for a stay of proceedings. He submitted further that the onus was on the party suing in a wrong jurisdiction to convince that court that it should exercise its jurisdiction despite the clear provision on jurisdiction to the contrary.
In fairness to learned counsel, his stand in the present appeal has not changed from his stand in the G. B. N. Line; what has happened is that the shoe in the present appeal is on the other fool. The court (per Kazeem J.C.A. as he then was) held that:-
“In the absence of any evidence of balance of convenience, the trial judge could have been in a position to exercise his discretion to grant a stay but for the fact that the appellants had entered appearances without protest when the writ of summons was served on them, thus submitting to the jurisdiction of the Nigerian court”.
In the present appeal, the respondent took an objection to the jurisdiction of the Nigerian court in limine and so, that brings out the distinction between the two appeals but were it not for the steps taken in the proceedings in the G.B.N. Line a stay of proceedings would have been granted.
Another case to which my attention has been drawn by Mr. Mbanefo is “The Adolf Warski” (1976) 2 Lloyd’s Rep.241. I should say straight away that the case is distinguishable from the present appeal. The bill of lading quite rightly contained the foreign jurisdiction clause but at the time the actions were commenced in England the actions had become statute barred in Poland but not in England.
The question then was whether the actions should be stayed in England on motion by Polish ship-owners. The judge refused to grant a stay of proceedings and ruled that the actions should proceed in England. The Polish shipowners appealed.
Lord Justice Cairns held the view, on the question of proof of the foreign law applicable, that “no elaborate evidence on the matter should be required”. In the Adolf Warski case, an extract from the Polish Maritime code was produced which showed that there was no difference between the Polish and English Law. At page 246 Lord Justice Cairns said “if, however, it be asked how this case differs from the general run of cases that might be expected under these bills of lading, the short answer is the necessity of calling English expert witnesses on a highly technical matter”.
Mr. Mbanefo submitted before us that the German courts would not assume jurisdiction; further, he submitted that the appellants annexed a letter from a German Lawyer to their instructing solicitors in London, Holman, Fenwick and Willan which stated that “Following recent Hamburg court decision owner cannot be considered as carrier under German law”.
Apart from this bare assertion, no attempt was made to establish what the German law was and how different it was from the Nigerian law. Mr. Mbanefo has submitted that that assertion was not challenged but it is his duty to convince the learned judge that the law in Germany is different on the matter of the contract from the Nigerian law. In any event, what is the law on the matter even in Hamburg? Mr. Oduba submitted, and I think he is right, that courts generally do not change the law they interpret the law; recent Hamburg decision could not have changed the statute law, it would have declared what the law was on the particular subject. That is not the end of the matter; it is the duty of the appellants to prove what the foreign law on the subject was. Upon the state of the affidavit evidence, could the learned judge have relied upon the opinion contained in the letter of the Hamburg solicitors as expert opinion as to foreign law? I do not think so.
Section 57(1) of the Evidence Act Cap. 62 Laws of the Federation of Nigeria provides that:
“Where there is a question as to foreign law the opinions of experts who in their profession are acquainted with such law are admissible evidence thereof, though such experts may produce to the court books which they declare to be works of authority upon the foreign law in question, which books the courts, having received all necessary explanations from the expert, may construe for itself”.
In my view, there was a question as to foreign law raised by the appellants in their affidavit with reference to the bill of lading and the opinions of experts who were acquainted with the German law became important. No such opinion was tendered before the learned judge, consequently no strong reason was shown why he should have refused to exercise his discretion to grant the stay.
I am of the view that on the authorities, the Nigerian courts will assume the law in any foreign country including that in Germany to be the same as the law in Nigeria if no evidence is tendered before it. In Joseph Adeniyi Ogunro v. Christiana Ajoke Ogedengbe (1960) 5 F.S.C. 137, the deceased owned land in Lagos and in Ghana and the applicants took out a summons for directions as to who were entitled to his estate and for an order of distribution.
Counsel for the other side contended that the court had no jurisdiction to deal with property in Ghana, but failed to produce evidence on the Ghanaian law of succession. It was held, in the absence of any evidence that the law of Ghana was different, that the trial court was correct in assuming that the Ghanaian law in respect of the subject-matter of the action was the same as the Nigerian law and consequently applying the law in the case.
If this case is applied to the present appeal and it is assumed, in the absence of any evidence to the contrary, that the Nigerian law was the same as the German law on the subject matter, there is every compelling reason to suppose that the German courts would accept jurisdiction and consequently, the second test in the “Eleftheria” was adequately considered.
Mr. Mbanefo had submitted in his brief on the second test that the learned judge failed to acknowledge that German law differed from Nigerian law in a very material respect, but there is no evidence of the difference.
Learned counsel further submitted that German law would not interpret the jurisdiction clause in the Bill of Lading as giving jurisdiction to the German court and that a reference of the dispute to a German court would end in frustration. From the case of Ogunro v. Ogedengbe (supra) that submission is fallacious. To that extent the Adolf Warski case does not support the appellants’ case. Similarly, the case of Carvalho v. Hull, Blyth Limited (1979) 1 WLR 1228 is distinguishable from the present ease. There was every justification for the English courts to assume jurisdiction in that case and to refuse a stay because of the peculiar intervening circumstances of change of government, constitution and court system in Angola, the country of the parties choice for the determination of their disputes. I am of the view that it is not sufficient for the appellants to allege that the learned judge did not apply the tests laid down by Brandon J. (as he then was) in “The Eleftheria” without any attempt to adduce some evidence, no matter how slim, to show in what way the tests were not applied or were misapplied.
Could the judge have speculated that the respondents genuinely desired trial in Germany or they were merely seeking procedural advantages? What evidence did the appellants adduce? I say none! Was there any evidence that the appellants would be prejudiced if they sued in the foreign court? Would they be deprived of security for their claims, would they be unable to enforce any judgment obtained in their favour, or would they be faced with a time bar not applicable in Nigeria? There was no shred of evidence on all these.
I think the sensible approach is that where parties have agreed to submit all their disputes under a contract to the exclusive jurisdiction of a foreign court, we should require very strong reasons to induce us to permit one of them to go back on his words (See “The Chaparral” (1968) 2 Lloyd’s Rep.158 at 164).
My Lords, having given this matter some serious thought, the grounds of appeal so ably canvassed before us have failed. For the various reasons which I have given, I would affirm the decision of Sowemimo J dated July 7, 1981, which seems to me quite unassailable, and dismiss the appeal with costs assessed at N250.00 against the appellants jointly and severally.
Other Citations: (1985) LCN/0013(CA)
