CORAM

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MOJEED ADEKUNLE OWOADE, JUSTICE COURT OF APPEAL

JAMES SHEHU ABIRIYI, JUSTICE COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JUSTICE COURT OF APPEAL

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PARTIES

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BUPA INSURANCE LTD

APPELLANTS 

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1. PROBIR CHAKRAVERTI

2. LILLER BROTHERS NIG. LTD

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL LAW AND PROCEDURE, CONTRACT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st  Respondent as 1st Claimant at the trial High Court of Cross River State instituted an action against the Appellant vide a Writ of Summons and Statement of Claim respectively filed on 17/11/2015 and sought among other reliefs a declaration that the insurance policy entered into between the 1st claimant(the Respondent)  and the defendant( the Appellant) was valid and subsisting at all material times to this action and that the 1st claimant/Respondent was entitled to the full plenitude of medical treatment and evacuation/repatriation abroad covered under the terms of the policy .

On being served with the originating processes, the Appellant instead of filing a defence, choose to file a motion of notice on 18/3/2016 for an order of stay of proceeding in the said suit on the ground that same arises from a contract which contains a clause stipulating that the contract is to be governed by English law and that any dispute should be dealt with by the Courts in England.

The trial Court dismissed the Appellant’s application and found that the Plaintiff (Respondent) rightly discharged the burden placed on him to show why the proceedings should continue in Nigeria inspite of the foreign jurisdiction clause. Dissatisfied and aggrieved with the ruling of the trial Court, the appellant has filed this appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether this suit ought to have been stayed in view of the foreign jurisdiction clause in the contract between the appellant and the 1st respondent.

 

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RATIONES DECIDENDI

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NOTICE OF PRELIMINARY OBJECTION – THE APPROPRIATE PROCEDURE TO ADOPT NOTICE OF PRELIMINARY OBJECTION

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“Order 10 Rule 1 of the Court of Appeal Rules 2016 clearly prescribes a preliminary objection against the hearing of an appeal and not against some grounds of appeal. This means that where only a few and not all the grounds of appeal are attacked as being defective and there exists, other grounds that can sustain the appeal, then a notice of preliminary objection is not the appropriate procedure to adopt.”- Per SHUAIBU, J.C.A.

“I have stated earlier that a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds which are not capable of disturbing the hearing of the appeal. Thus, a preliminary objection is only filed for the sole purpose of informing the Court that the appeal is incompetent or fundamentally defective, if it succeeds, the appeal should no longer be heard. See SHITTU V PEUGEOT AUTOMOBILE (NIG) LTD (2018) LPELR – 54377 (SC) .”- Per SHUAIBU, J.C.A.

 

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APPEAL- WHETHER A PARTY CAN ARGUE CONTRARY TO A DECISION HE DID NOT APPEAL AGAINST

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 “It is trite law that a party cannot argue contrary to a finding, holding or decision he has not appealed against. See AWOTE & ORS V OWODUNI & ANOR (1987)5 SC 1 and SPARKLING BREWERIES LTD & ORS V UBN LTD (2001) 7 SC (prt.11) 146 .”- Per SHUAIBU, J.C.A.

 

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STAY OF PROCEEDING- WHEN TO BE GRANTED

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“Stay of proceedings is a serious grave and generally fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case. Consequently, the general attitude of Courts is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not be allowed to continue. See FAWEHINMI V AKILU (1988) 4 NWLR (Pt.88) 367. In AKILU V FAWEHINMI (NO.2) (1989) LPELR – 339, the Supreme Court, per KARIBI WHYTE, JSC at pg 82 paras D said. A stay is not usually granted to a party who has not established a right of action and who cannot after all said and done establish any prima facie claim in law .”- Per SHUAIBU, J.C.A.

 

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CONTRACT- DUTY OF COURT TO GIVE EFFECT TO CONTRACT OF PARTIES

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“The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to. Thus, so long as an arbitration clause is retained in a contract that is valid and the dispute is within the contemplation of the clause, the Court ought to give due regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed by them. See OWNERS OF THE M.V. LUPEX v NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR – 3195 (SC).

In the Charparral (1968) 2 Lloyds Rep. 158 at 164 Dip Lock U observed that:

Where parties have agreed to submit all their disputes under a contract to the exclusive jurisdiction of a foreign Court, I myself should require very strong reason to induce me to permit one of them to go back on his word.”- Per SHUAIBU, J.C.A.

 

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STAY OF PROCEEDING- FACTORS TO CONSIDER IN GRANTING STAY OF PROCEEDING IN A CASE FILED IN BREACH OF AN AGREEMENT TO REFER DISPUTES TO A FOREIGN COUNTRY

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“In exercising its discretion to grant a stay of proceedings in a case filed in breach of an agreement to refer disputes to a foreign country, the Court would take into consideration a situation where the granting would spell injustice to the plaintiff as where the action is already time barred in the foreign country and the grant of stay would amount to permanently denying the plaintiff any redress. See SONNAR (NIG) LTD V NORDWIND also reported in (1987) 4 NWLR (prt.66) 520.

In the case of NIKA FISHING CO LTD V LAVINA CORP (Supra) cited and relied by both counsel, the SupremeCourt accepted the decision in the case of THE ELEFITHRIA (1969)1 LLOYDS LR 237 as the law regarding the enforcement of a jurisdiction clause contained in a bill of lading where the principles were laid down as follows:-

(a) Where the plaintiff sues in England in breach of an agreement to refer disputes to a foreign Court, and the defendant applies for stay, the English (local) Court assuming the claim to be otherwise within the jurisdiction, it is not bound to grant a stay but has a discretion whether to do so or not.

(b) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.

(c) The burden of proving such strong cause is on the plaintiff.

(d) In exercising its discretions, the Court should take into account all the circumstances of the particular case.

(e) In particular, but without prejudice to (d) the following matters, where they arise may be properly regarded:

(i) In what country the evidence on the issues of fact is situated or more really available, and the effect of that on the relative convenience and expense of trial as between English and foreign Courts.

(ii) Whether the law of the foreign Court applies and if so, whether it differs from English (local) laws in any material respects;

(iii) With what country either party is connected, and how closely;

(iv) Whether the defendant genuinely desires trial in the foreign country, or is only seeking procedural advantages;

(v) Whether the plaintiff would be prejudiced by having to sue in the foreign country because he would:

(1) be deprived of security for that claim;

(2) be unable to enforce any judgment,

(3) be traced with time bar not applicable in England, or

(4) For political, racial religious or other reasons be unlikely to get a fair trial.

The above is what is referred to as the Brandon Test, named after Brandon, J who delivered the judgment in the Eleftheria.

It is imperative to state here that the Brandon Test is basically a guideline to judges in exercising their discretionary power to order a stay of proceedings where as in the present case, there is a foreign jurisdiction clause in the contract. It is to be noted however that like every discretion, the judge must exercise it judicially and judiciously based on or guided by law and discretion according to sound and well considered reason.”- Per SHUAIBU, J.C.A.

 

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EXERCISE OF DISCRETION- INSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH EXERCISE OF DISCRETION BY A TRIAL COURT

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“It is trite that an appellate Court is always reluctant to interfere with the way a trial judge exercise his discretion but would be compelled to do so if:

(a) The discretion was wrongly exercised,

(b) The exercise of discretion was tainted with some illegality or substantial irregularity,

(c) There is miscarriage of justice, or

(d) It is in the interest of justice to interfere.

See DAVID V C.O.P (2019) 2 NWLR (prt.1655) 178.

In the absence of any evidence showing that the discretion of the lower Court was tainted by irrelevant considerations, arbitrariness or illegality, I have no justifiable reason to interfere .” – Per SHUAIBU, J.C.A.

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1. Court of Appeal Rules 2016

2. High Court Law of Cross-River State

 

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