Swiss Air Transport Co. Ltd Vs The African Continental Bank Ltd. (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In suit LD/43/65 the plaintiffs’ writ read:

“The plaintiffs claim against the defendants is for the sum of 312,772.10s (Twelve thousand, seven hundred and seventy-two pounds, ten shillings) being damages suffered by the plaintiffs for the loss of Sudanese bank notes valued at 13,100 Sudanese pounds which were delivered by the plaintiffs to the defendants as carriers for hire and received by the defendants as such carriers on or about 25th January, 1963 to be by the defendants taken care of and safely carried from Geneva to Kano Nigeria and there delivered to the plaintiffs within a reasonable time in that behalf for reward to the said defendants.

The defendants did not take care of the said bank notes and did not safely carry and deliver same to the plaintiffs as aforesaid whereby the said bank notes were lost to the plaintiffs. The defendants have failed and/or neglected to pay in spite of repeated demands.”

Pleadings were ordered and filed and in paragraph 7 of the further amended statement of defence it was pleaded:

“The defendants contend that the provisions of the Warsaw Convention thereafter applied to the carriage of the said package and deny that there was any irregularity or omission rendering the said air consignment note invalid.”

When the action came on for hearing, however, Mr. Impey for the defendants took a preliminary objection to the jurisdiction of the court. This objection was based on the provisions of Article 28 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, otherwise known as the 1929 Warsaw Convention, (set out at page 621 et seq in Vol. XI Laws of the Federation of Nigeria and Lagos 1958) to which Nigeria became a high contracting party by virtue of the provisions of the Carriage by Air (Parties to Convention) Order 1958 (page 635 et seq Vol. XI of Laws of the Fed. of Nig. and Lagos 1958) .

Article 28 of that convention reads:

“(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High contracting parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.

(2) Questions of procedure shall be governed by the law of the court seised of the case.”

It was Mr. Impey’s submission to the court that the contract of carriage for the bank notes in this particular case was from Geneva to Kano and that as the defendants’ principal place of business was Zurich in Switzerland where the defendants were ordinarily resident the only other place where the action could be brought according to the terms of article 28(1) was “at the place of destination” which in his submission was Kano and that therefore the action could not be brought as it had been in Lagos.

In his ruling Adefarasin J., on the 26th of February, 1968 said inter alia;

“Since the plaintiff company does not have its principal place of business in Nigeria and is not ordinarily resident here I must turn to the issue whether this court is one that has jurisdiction in the place of destination. It was contended on behalf of the defendants that it is the Kano High Court that has jurisdiction as it is the court in the place of destination. I do not agree with this proposition. The evidence of the only witness on behalf of the defendants leaves me in no doubt that in the whole of Nigeria, Lagos is the only place where the defendant company land and take off; that in Nigeria the defendant company’s registered office is Lagos and it is their principal place of business; that the entire staff of the defendant company in Nigeria are located in Lagos; that all flights out of Nigeria northwards to Europe are controlled from Lagos; and that the defendant company has no branch office in Kano. I do not agree that because Kano happens to be the place in Nigeria to which the cargo was consigned that this court has no jurisdiction. The mischief requiring to be remedied by the adoption of the international code i.e. the Warsaw Convention, was the possibility of the questions arising between the parties as to the law applicable to the contract (See Greine v. Imperial Airways Ltd. (1936) 2 A.E.R. p. 1259 and in particular p. 1283). The law in Lagos as in Kano, is the same. … In my view the question of jurisdiction is one for the court in the circumstances of this case in which Nigeria law, being the law of the place of destination of the consignment applies. I am also of the view that it is too late for the defendants to raise the matter of jurisdiction. The defendants appeared without any protest at the commencement of these proceedings. An order for them to file pleadings was made and they filed a statement of defence, an amended statement of defence and lastly a further amended statement of defence in which they raised the issue of jurisdiction. They brought several interlocutory applications by way of motion and even delivered interrogatories.

The matter was with their consent set out for hearing before Lambo J., on 5th and 6th of June, 1966 and again on 19th and 20th October, 1966. The defendants have by their conduct submitted to the jurisdiction of the court.”