Elias J. Moubarak V. Holland West Afrika LIJN (1953)
LawGlobal Hub Judgment Report – West African Court of Appeal
Jurisdiction—Supreme Court—Contract with clause ousting jurisdiction—
Effect of clause—Arbitration Ordinance (Cap. 16): section 5; section 22; Schedule 2.
Practice and Procedure—Foreign law to be pleaded.
Evidence—Foreign law to be proved—Presumption.
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 proceediugs 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. The plaintiff appealed.
The Gold Coast has an Arbitration Ordinance (Cap. 16), which provides in
section 5 (text in the judgment infra) 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.
The Ordinance has also a Schedule 2 founded on the Arbitration Clauses (Protocol) Act, 1924; if the case comes within the Schedule, in view of section 22 of the Ordinance an application to stay proceedings ought still to be made before the date fixed for hearing.
Held
The parties’ agreement on another forum was to be treated as a submission to arbitration within the meaning of the Arbitration Ordinance of the Gold Coast, and section 5 thereof applied, with this effect, namely, that the defendants ought to have moved for a stay of the proceedings before the date fixed for hearing, which in the context was the return date. Instead of doing so, they submitted to the order for pleadings and took a step in the proceedings by filing a defence, thereby waiving any objection to the jurisdiction of the Court.
Obiter: In view of section 22 of the Arbitration Ordinance the position would have been the same if it had been established that the relevant clause 2 in the contract was a submission recognised by virtue of the protocol on arbitration clauses set out in Schedule 2 of the Ordinance.
Per curiam: There is a presumption that foreign law is similar to the law of the Gold Coast and a party relying on foreign law as showing a difference must plead and prove the same.
Appeal allowed: case remitted for trial.
