Captain Tony Nso V. Seacor Marine (Bahamas) (Inc.) & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE, J.C.A.
This is an appeal from the Ruling/Judgment of Honourable Justice O. I. Itam sitting at the Calabar Division of the High Court of Cross River State delivered on the 14th day of November, 2005 in Suit No: HC/276/2005.
The Appellant as Plaintiff before the lower court issued a writ of summons accompanied with a statement of claim dated 28th June, 2005 against the Respondents as Defendants and claimed as follows:
(a) A declaration that the Defendants purported termination of the Plaintiffs employment with them. Vide the 1st Defendant’s letter dated 13th October, 2004 is invalid and ineffectual, being in violation of the statute governing the plaintiffs said employment, thus, the Plaintiff is still in the employment of the Defendants, and entitled to all emoluments and benefits flowing therefrom.
(b) An order compelling the Defendants to pay the outstanding salary arrears due to the Plaintiff from October 31, 2004, till the date of judgment in the suit, at the rate of four thousand, two hundred and thirty three Dollars, thirty-three cents (US$ 4,233.33) per month.
(c) An order compelling the Defendant to reinstate the Plaintiff to his position of Superintendent/Port Captain, with the 2nd Defendant, with all benefits, salaries, emoluments thereof, and restraining the Defendants from further interfering with the Plaintiff’s performance of his duties, until the expiration, or sooner, effective, determination of the Plaintiff’s contract of employment with the Defendants.
(d) An order compelling the Defendant’s to pay the Plaintiff his retirement benefits and gratuities, due upon the Plaintiffs attainment of sixty-five (65) years of age, or fifteen (15) years in service.
The Defendants entered a conditional appearance to the Plaintiff’s/Appellant’s suit on 14th day of July, 2005 and on 15/2/2006 brought a motion on notice praying the court to strike out the Plaintiff’s suit for lack of jurisdiction or in the alternative, an order setting aside the service of the writ summons and statement of claim on the Defendant. The Plaintiff/Appellant reacted to the Defendants/Respondents motion on Notice with a five (5) paragraph counter-affidavit dated and filed on 6/3/2006.
Plaintiffs/Appellant’s application was heard and the learned trial Judge – O. I. Itam, delivered a considered ruling on 14/11/2006. In the said ruling, the learned trial Judge found contrary to the Plaintiffs/Appellant’s contention that the service on the Defendants was proper but held in terms of the Plaintiff’s/Appellant’s 1st prayer from pages 37 – 38 of the printed record as follows:
“It seems the position of the law may be succinctly summarized as follows:
I think that in the interests of international commercial relations court have to be wary about departing from fora chosen by parties in their contract. There ought to be very compelling circumstances to justify such a departure” per Nnamani JSC Sonnar Ltd vs. Parten Vendri M. S. Norwind (1987) 4 NWLR (Pt. 66) 520.
Thus where as in the instant case, the Defendants/Appellants show that the parties by their own contract chose a particular fora for the resolution of their differences, the onus of establishing compelling circumstances to overrule or overturn an integral and express terms/stipulation of their own contract rests squarely on the Plaintiff.
Like I stated earlier in this Ruling, the Plaintiff filed a 5 paragraph counter affidavit, I have perused the counter affidavit with undivided attention. None of the paragraphs appears to directly or indirectly concern itself with the issue of fora not to talk of facts or circumstances to warrant or justify a departure from the fora chosen by the parties themselves. I cannot see any. In the event, I find and hold that in the instant proceedings, the Plaintiff who has the onus to do so, has failed to show any good cause and/or any compelling reason that can justify a decision of this court to deny either party, the benefit of an express stipulation of their own contract.
In the event, I find and hold that I have no reason whatsoever to refuse prayer 1 on the motion paper, prayer 1 is accordingly granted with order as prayed.”
It is against this ruling that the Plaintiff/Appellant filed a Notice of appeal containing three (3) grounds of appeal to this court on 12/2/2007.
The Appellant’s brief in this appeal dated 28/2/2008 was filed on the same date. The Respondent’s brief dated 14/5/2008 was by order of this Honourable Court deemed to have been properly filed on 26/5/2008.
The Appellant formulated only one issue from the three (3) grounds of appeal filed that is:
(1) Considering the processes filed in this suit, particularly the writ of summons and statement of claim whether or not the Appellant disclosed compelling circumstances to justify a departure by the lower court from the fora chosen by the parties themselves.
The Respondent similarly formulated only one issue that is:
Whether the learned trial Judge was right to have declined jurisdiction.
This appeal shall be determined on the sole issue formulated by the Appellant.
Learned Counsel to the Appellant contends that a trial court in considering whether or not it has jurisdiction to entertain a matter must have recourse to the relief or reliefs sought in the writ of summons and statement and that the moment the reliefs sought come within the jurisdiction of the court as administered by the facts, the court must assume jurisdiction.
On this, learned Counsel for the Appellant referred to the cases of Onwudiwe vs. F.R.N (2006) 10 NWLR (Pt. 988) 383 at 388, PDP vs. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 541, Balogun vs. Ode (2007) 4 NWLR (Pt. 1023) 1 at 14 and Amadiume vs. Ibok (2006) 6 NWLR (Pt. 975) 158 at 180.
Learned Counsel to the Appellant made copious references to Exhibit ‘A’ that is the written Agreement between the parties and submitted that irrespective of paragraph 23 which states that English Law should apply, the terms and conditions of employment between the parties made it clear that they intended Nigerian Law to apply. And that even if the parties intended that English Law was applicable, the lower court was wrong to have declined jurisdiction more especially as the different English statutes applicable had been pleaded by both parties.
Learned Counsel for the Appellant relied on the cases of Chemical and Allied Products Plc vs. Vital Investments Ltd. (2006) 6 NWLR (Pt. 976) 220 at 267, Nika Fishing Co. Ltd. vs. Lavina Corp. (2001) 16 NWLR (Pt. 740) 572 and Lignes Aerienness Congolaises (L.A.C.) vs. Air Atlantic Nigerian Limited and submitted that the question that would ordinarily flow is whether in the peculiar circumstances of this case the agreement between the Appellant and the 1st Respondent can operate to oust the jurisdiction of the lower court. Answering the question in the negative, learned Counsel for the Appellant submitted further that the finding of the learned trial Judge while placing reliance on the authority of Nika Fishing Co. Ltd. vs. Lavina Corp (supra) to the effect that the Appellant failed to show compelling circumstances to justify a departure from the fora they have chosen is non-sequitor. According to Appellant’s Counsel, it was wrong for the trial Judge to have solely placed reliance on the Appellant’s Counter affidavit alone when his writ and statement of claim formed parts of the record. He urged the court to resolve the sole issue in favour of the Appellant.
Learned Counsel to the Respondent emphasized the express agreement between the Appellant and the 1st Respondent that the contract of employment between them shall be subject to English Law and that English courts would have exclusive jurisdiction with respect to the contract. He noted that the Appellant was indeed an expatriate employee as the employment was not confined to Nigeria but rather to any part of West Africa. Further, that the Appellant’s contract of employment was subject to the Employment Rights Act 1996 (as amended); Mental Health Act 1983 and other English Laws relating to other subject matters such as Inheritance Tax (17.1.3., Insurance (17.1.4.) and Trust (17.1.5). Learned Counsel for the Respondent relied on the cases of WEJIN vs. Ashaka Cement Co. Ltd. (1991) 8 NWLR (Pt. 211) 608 at 615, Bookshop House Ltd. vs. Stanley Consultant Ltd. (1986) 3 NWLR (Pt. 26) 87 at 93, Idonoboye-Obu vs. NNPC (2003) FWLR (Pt.146) 959, re-echoed the content of Exhibit ‘A’ especially clause 23.1 which says that the English Courts should have exclusive jurisdiction over matters relating to the contract and urged this court to uphold the principle of PACTA SUNT SERVANDA.
Learned Counsel for the Respondent distinguished the facts of the present case from Nika Fishing Cio. Ltd. vs. Lavina Corp. (supra) and Lignes Aerienness Congolaises vs. Air Atlantic Nig Ltd (supra) relied upon by the Appellant’s Counsel. He submitted that in the Nika Fishing Co. Ltd. case, this Honourable Court declined to give effect to the foreign jurisdiction clause and held that the proceedings should be left to continue in the Nigerian court based on the ground that witnesses to prove the case such as the Nigerian Port Authority, are all in Nigeria and that from the totality of the averments in the statement of claim the Appellant does not genuinely desire trial in a foreign country but was seeking a procedural advantage and that in the interest of justice, it was a case to be tried by the Nigerian Courts. And that the Court of Appeal also declined to uphold the foreign jurisdiction clause giving Congolese Court jurisdiction in the Congolaises vs. Air Atlantic Nig Ltd case, because of the provisions of Section 20 of the Admiralty Jurisdiction Decree dealing with the Admiralty Jurisdiction of the Federal High Court which provides that any agreement to oust the jurisdiction of the court with respect to admiralty matters shall be null and void. The Court of Appeal observed that since the subject matter of the suit was within the Admiralty jurisdiction of the Federal High Court and the real intention of Articles 7 and 8 of the leasing agreement was to oust the jurisdiction of the Federal High Court in respect of disputes arising from the said agreement to that extent the agreement was null and void.
Learned Counsel for the Respondents submitted that in spite of the above findings; the broad ratia of the decision of the Court of Appeal in the Nika Fishing Co. Ltd vs. Lavina Corp. case (supra) is that “in the interest of international commercial relations, courts have to be wary about departing from forum chosen by parties in their contract” and that “there ought to be very compelling circumstances to justify such a departure.” Respondents’ Counsel further relied on the decision of the Supreme Court in Sonnar Nig Ltd. vs. Nordwind (1987) 4 NWLR (Pt. 66) 520 and said that the Nigerian Courts are enjoined to always exercise their discretion in favour of giving effect to the intention of parties where parties elect to refer disputes relating to their contract to a foreign court unless there are compelling circumstances to necessitate otherwise.
Respondents Counsel submitted further that the Supreme Court in the case of Sonnar Nig. Ltd vs. Nordwind (supra) and this Honourable Court in the cases of Lignes Aeriennes Congolaises vs. Air Atlantic Nig. Ltd (supra) and Nika Fishing Co. Ltd. vs. Lavina Corp. (supra) stated that Nigerian Courts in deciding whether or not to give effect to an agreement by parties where they have expressly chosen a foreign court as the forum to settle their dispute should in considering the circumstances of the case be guided by what is commonly known as the Brandon Test as follows:
(a) Whether the law of the foreign court applied and if so whether it differs from Nigerian law in any material respects.
(b) Whether the Defendant genuinely desire trial in the foreign country or is only seeking procedural advantages and
(c) Whether the Plaintiff would be prejudiced by having to sue in the foreign country.
Learned Counsel for the Respondents proceeded to justify the lower court’s decision on the ground that the facts furnished in the writ of summons, statement of claim and counter affidavit filed by the Appellant at best were to the effect that the Appellant was employed by the 1st Respondent a foreign company and that his employment was subject to English Law but that the Appellant did not exhibit facts to answer any of the questions posed by the said Brandon Test to prove that there was a compelling reason to necessitate a departure from the forum expressly chosen by the 1st Respondent.
Finally, the Respondents Counsel noted that Respondents objection before the High Court was not about whether the High Court can adjudicate on matters relating to termination of employment but rather about whether the High Court should respect the express wish and intention of the parties that English Courts should have exclusive jurisdiction over the contract and submitted that for this reason, the cases of Onwudiwe vs. FRN (2006) 10 NWLR (Pt. 958) 382, PDP vs. Abubakar (007) 3 NWLR (Pt. 1022) 515, Balogun vs. Ode (2007) 4 (Pt. 1023) 1 and Amadiume vs. Ibok (2006) 6 NWLR (Pt. 975) 158 cited by the Appellant’s Counsel do not apply to this case.
In pronouncing on the sole issue for determination in this case, it must be observed that the learned Counsel for the Appellant has himself shown an appreciation of the legal issues at stake by limiting the Appellant’s issue for determination to the question of fact as to whether the Appellant disclosed compelling circumstances to justify a departure by the lower court from the fora chosen by the parties themselves. The simple answer to that question is to join the learned trial Judge to say No. In fact, the reliefs exhibited in the writ of summons and statement of claim of the Plaintiff/Appellant which has been earlier reproduced in this judgment do not in any way show any compelling circumstances for the learned trial Judge to grant a departure from the fora convenience of the parties to this case.
To the contrary, by stating the salaries and other financial entitlements of the Appellant in denominations of the United States Dollars, the Appellant’s relief and claims in the writ of summons and statement of claim lean more in favour of the Respondents case that the Appellant was indeed an expatriate employee.
The above findings of fact would have been sufficient to answer the Appellant’s question for determination in the negative and resolve the sole issue in favour of the Respondents. However, it is pertinent to observe that as a general rule in the relationship between national law and international Agreements, freely negotiated private international agreement, unsullied by fraud, undue influence or overwhelming bargaining power would be given full effect. This means that, where such contract provides for a choice of forum, such clause would be upheld unless upholding it would be contrary to statute or public policy of the forum in which the suit is brought. For example, in Mis Bremen vs. Zapata Off-Shore Co 92 S. Ct 1907 (1972) the agreement was between an American Corporation and a German Company to tow Zapatas’ drilling rig from Louisiana to Italy. The forum clause in the Agreement was that:
“Any dispute arising must be treated before the London Court of Justice.”
The Supreme Court of America (per Chief Justice Warren Burger) held that “the choice of forum was made in an arm’s length negotiation by experienced and sophisticated businessmen and in the absence of some compelling and countervailing reasons it should be honoured by the parties and enforced by the courts.”
Such compelling reasons do not include the type of argument offered by the learned Counsel for the Appellant in the instant case that such clauses tend to oust the court’s jurisdiction. In fact, such an argument was rejected in the Bremen’s case (supra) and termed “a vestigial legal fiction.”
Unreasonableness of such choice of forum is a compelling factor. Therefore to be enforceable, the selected jurisdiction must be “suitable” “available” and able to accomplish substantial justice.”
It was this “unavailability” consideration that informed the decision of the Supreme Court of Nigeria in the case of Sonnar Nig. Ltd. vs. Nordwind (supra) to avoid the rigidity of the principle of Pacta Sunt Servanda where holding the parties to their bargain will spell injustice to the Plaintiff.
In Sonnar’s case (supra) the parties by their bill of lading agreed that all the disputes be referred to a foreign country – Germany. However, if that was done, the Plaintiffs cause of action would be caught up by time bar in the contractual choice of forum, consequently the contractual choice of forum was discharged.
In Sonnar’s case the Supreme Court adopted the Brandon Test set out by Brandon J. in “The Eleftheria’s 1969) Llyods L. R. 237 to wit:
- Where Plaintiffs are in England in breach of an agreement to refer dispute to a foreign court, and the Defendants apply for a stay, the English court, assuming the claim to be otherwise within jurisdiction, is not bound to grant a stay but has a discretion whether to do or not.
- The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.
- The burden of proving such cause is on the Plaintiffs.
- In exercising its discretion the court should take into account all the circumstances of the particular case.
- In particular, but without prejudice to (4) above, the following matters where they arise may be properly regarded.
– In what country the evidence on the issues of fact is situated or more readily available and the effect of that on the relative convenience and expense of trial as between the English and foreign courts.
– Whether the law of the foreign court applies, and if so whether it differs from English law in any material respect.
– Whether what country either party is connected, and how closely.
– Whether the Defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.
– Whether the Plaintiffs would be prejudiced by having to sue in the foreign court because they would:-
– Be deprived of security for that claim.
– Be unable to enforce any judgment obtained.
– Be faced with a time-bar not applicable in England.
– For political, racial, religious or other reasons be unlikely to get a fair trial.
To these, the Supreme Court added:
“Where the granting of a stay would spell injustice to the Plaintiff as where the action is already time-bared in the foreign court and the grant of stay would amount to permanently denying the Plaintiff any redress.” (Per Eso at page 539).
In the instant case, unlike the previous Nigerian cases of Nika Fishing Co. Ltd vs. Lavina Corp (supra), Lignes Aeriennes Congolaises vs. Air Atlantic Nig. Ltd (supra) and Sonnar Nig Ltd. vs. Nordwind (supra), clause 23.1 of Exhibit ‘A’ the agreement between the parties have subjected the contract to English law and English courts and thereby ousted the jurisdiction of the Nigerian courts ab initio. In these circumstances, it became incumbent on the Appellant to demonstrate circumstances under the exceptions to the Brandon Test by which the court could order a departure from the fora convenience and assume jurisdiction to try the case.
The Plaintiff/Appellant failed woefully to discharge this burden. The learned trial Judge was thus right to have declined jurisdiction.
The sole issue for determination is resolved as against the Appellant. This appeal lacks merit and it is accordingly dismissed.
The parties are to bear their respective costs.
Other Citations: (2008)LCN/2957(CA)
