CORAM

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PARTIES

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HULL BLYTH NIG. LIMITED APPELLANTS

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JETMOVE PUBLISHING LIMITED RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent sued the Appellant at the Federal High Court sitting in Lagos, claiming damages of N9, 110,400.00 being the value of the loss sustained by the Respondent from consignment of Bibles in a container shipped from Minsk in Belarus en route to Nigeria, which were said to have been soaked with water and damaged on arrival at Lagos, Nigeria. The Appellant challenged the action in limine by motion on notice requesting the court below to strike out the action for want of jurisdiction and/or for an order staying further proceedings in the action and referring the dispute to Hamburg courts in Germany for resolution as agreed by the parties in the relevant bill of lading. The parties at the court below argued the application, which was dismissed on the merit. Not satisfied with the decision of the court below the Appellant filed a notice of appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the learned trial Judge was right in refusing to grant a stay of further proceedings before him in favour of a foreign jurisdiction clause contained in the bill of lading providing that any dispute thereunder should be governed by the law of Federal Republic of Germany and determined In the Hamburg Courts to the exclusion of the jurisdiction of the courts of any other place and referring the dispute to the forum as expressly agreed by the parties? Whether the learned trial Judge was right in holding that provision of Clause 25 of the relevant bill of lading on Foreign Jurisdiction Clause is inconsistent with Section 20 of the Admiralty Jurisdiction Act and refusing a stay of proceedings in the matter?

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RATIONES DECIDENDI

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BILL OF LADING –DEFINITION OF A BILL OF LADING – WHO CAN SUE ON IT?

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‘The definition of a bill of lading and who can sue on it may be found in the case of Pacers Multi-Dynamics Ltd. v. The M.V. Dancing Sister and Anor. (2012) 4 NWLR (pt.1289) 169 at 187 – 188, 190 – 191, 200, 204, 206 where the Supreme Court held inter alia that a bill of lading is a written contract between the ship owners/carriers, the shippers/endorsee on the one part and the consignee/endorsee on the other part for delivery of goods and is binding between the parties with the attendant obligation of receipt of the goods and delivery thereof to a designated port in the bill of lading and to sue on it one must be a party to the contract either as consignee or endorsee and the shipper as well as the person who was the owner of the goods at the time when damage occurred.
In other words, a bill of lading, as it relates to shipping business, is the written evidence of contract between a person engaged in the transporting or forwarding of goods by sea and a carrier or shipper or its agent containing an undertaking by the shipper for the carriage and delivery of the cargo or freight to the order or assigns of specified person at a specified place. See Basinco Motors Ltd. v. Woermann-Line and Anor. (2009) 13 NWLR (pt.1157) 149, Awolaja and Ors. v. Seatrade Groningen B.V. (2002) 4 NWLR (pt.758) 520.
When goods are damaged during a voyage at sea the dejure consignee can sue, as property in the goods is still in the dejure consignee. In a case where the ship or carrier berths and shipping documents are handed over to the owners legal ownership to the goods now resides with the owner of the goods and if the goods were damaged during discharge operations the owner of the goods would have a cause of action in negligence. See Adesanya v. Leigh Hoegh and Co. A/S (1968) SCNLR 426, Seatrade Owners of MV Joint Frost v. Fiogiet Ltd. (1987 – 1990) 2 NSC 453, Allied Trading Co. Ltd. v. G.B.N. Line (1985) 2 NWLR (pt.5) 74 which were cited with approval in Pacers Multi-Dynamics Ltd. v. The “M.V. Dancing Sisters” and Anor. (supra).” –

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BILL OF LADING – WHETHER COURTS ARE EMPOWERED TO REWRITE THE CONTRACT ENTERED BY PARTIES

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“Being a contract with clear wordings the bill of lading in this case would receive ordinary or literal construction and should normally be binding on the parties divesting the court of the adventure to look for its meaning elsewhere or to venture into the forbidden terrain of rewriting the contract for the parties vide Pacers Multi-Dynamics Ltd. v. The M.V. “Dancing Sisters” and Anor. (supra) at 197 and the cases cited (supra) on the point by the appellant as well as the cases of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt.1329) 209, BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (pt.1332) 209, Northern Assurance Co. Ltd. v. Wuraola (1969) NSCC 22, Union Bank of Nigeria v. Ozigi (1991) 12 NWLR (pt.176) 677, Aouad v. Kessrawai (1956) NSCC 33, Amadi v. Thomas Alpin and Co. Ltd. (1972) 7 NSCC 262, Oduye v. Nigeria Airways Ltd. (1987) 2 NWLR (pt.55) 126, Allied Trading Co. Ltd. v. G.B.N. Line (1985) 2 NWLR (pt.5) 74”.

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OUSTER OF JURISDICTION BY AGREEMENT -STATUTORY PROVISION ON THE OUSTER OF JURISDICTION BY AGREEMENT

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Section 20 of the Admiralty Act provides thus –
“’20. Ouster of jurisdiction by agreement void
Any agreement by any person or party to any cause, matter or action which seek to oust the jurisdiction of the Court shall be null and void, if it relates to any admiralty matter falling under this Act and if –
(a)the place of performance, execution, delivery, act or default is or takes place in Nigeria; or
(b)any of the parties resides or has resided in Nigeria; or
(c)the payment under the agreement (implied or express) is made or is to be made in Nigeria; or
(d)in any admiralty action or in the case of a maritime lien, the plaintiff submits to the jurisdiction of the Court and makes a declaration to that effect or the rem is within Nigerian jurisdiction; or
(e)it is a case in which the Federal Government or the Government of a State of the Federation is involved and the Federal Government or Government of the State submits to the jurisdiction of the Court; or
(f)there is a financial consideration accruing in, derived from, brought into or received in Nigeria in respect of any matter under the admiralty jurisdiction of the Court; or
(g)under any convention, for the time being in force to which Nigeria is a party, the national court of a contracting State is either mandated or has a discretion to assume jurisdiction; or
(h)in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.” –

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STAY OF PROCEEDING -PRINCIPLES GUIDING A STAY OF PROCEEDINGS TO ENFORCE JURISDICTION CLAUSE IN A BILL OF LADING

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“The principles guiding a stay of proceedings in order to enforce jurisdiction clause in a bill of lading were stated by the Supreme Court in the case of Nika Fishing Co. Ltd. v. Lavina Corporation (supra) in pages 33 – 34 thus –
“The position of the law in this country regarding the enforcement or otherwise of a jurisdiction clause contained in a bill of lading as in the present case, was extensively discussed in the decision of this court in Sonnar (Nig.) (1987) 4 NWLR (pt.68) 520 also reported in (1987) All NLR 54898(?) at 567 – 568 where Eso J.S.C. in the lead judgment said –
“It is true that in the ‘The Eleftheria (1996) 1 Lloyds L.R. 237, Brandon J. in his powerful judgment emphasised the essentiality of giving full weight to the prima facie desirability of holding the plaintiffs to their agreement. He also enjoined upon the courts to be careful not just to pay lip service to the principle involved and then fail to give effect to it because of a mere balance of convenience. l think, with respect, what we have in this case transcends mere balance of convenience. It is a total loss of action by the plaintiffs, if effects is given herein to the principle of Pacta Servanda Sunt, having regard to the peculiar circumstances of this case. As it was observed in the course of the argument of this case by this court, justice could not be served in this case by holding the appellants to their part of having the action taken only in the German Court.
The tests set out by Brandon J. in ‘The Eleftheria’ are as follows:
“(1)Where the plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and defendants apply for stay, the English court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.
(2)The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.
(3)The burden of proving such strong cause is on the plaintiffs.
(4)In the exercise of its discretion, the court should take into account all the circumstances of the particular case.
(5)In particular, but without prejudice to (4). the following matters, where they arise, may be properly regarded:
(a)In what country the evidence on the issue 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
(b)Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respect.
(c)With what country either party is connected, and how closely
(d)Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.
(e)Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would
(i)be deprived of security for that claim:
(ii)be unable to enforce any judgment obtained;
(iii)be faced with a time-bar not applicable in England; or
(iv)for political, racial, religious or other reasons be unlikely to get a fair trial.”
To these, I would add with all respect-
“Where the granting of a stay would spell injustice to the plaintiff as-
Where the action is already time-barred in the foreign court and the grant of stay would amount to permanently denying the plaintiffs an redress.” (Italics mine) –

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STAY OF PROCEEDINGS – INGREDIENTS THE COURT WOULD TAKE INTO ACCOUNT IN EXERCISING ITS DISCRETION IN GRANTING A STAY OF PROCEEDINGS IN AN ACTION FILED IN BREACH OF AN AGREEMENT TO REFER DISPUTES TO A FOREIGN COUNTRY

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“In other words, in exercising the discretion to grant a stay in a case filed in breach of an agreement to refer disputes to a foreign country, the court would take into account a situation where the granting of a stay would cause injustice to the plaintiff as where the action is already time-barred in the foreign country and the grant of a stay would permanently deny the plaintiff any redress vide Sonnar (Nig) Ltd (supra) and Nika Fishing Co. Ltd. v. Lavina Corporation (supra).
A stay of proceedings to invoke jurisdiction clause in a bill of lading calls for the exercise of the discretion of the court invited to invoke the jurisdiction clause. Like all discretions it must be exercised fairly, reasonably or judicially and judiciously having regard to the facts of the case and taking into account only relevant matters placed before the court and discarding and/or not taking into account irrelevant matters. The burden of showing strong cause for not invoking the foreign jurisdiction clause for a stay of proceedings lies on the respondent”. –

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STAY OF PROCEEDINGS – WHETHER AN APPLICATION FOR THE GRANT OF STAY OF PROCEEDINGS IS AUTOMATIC

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“An application for a grant of stay of proceedings is not automatic but based on the discretion of the court. It involves a consideration of all the circumstances surrounding the case and the court must be satisfied that injustice will not be meted out by the grant of such application. In this case, parties had agreed in the bill of lading that any dispute arising from the transaction would be determined by a court in Germany. However, the Respondent has been able to show that it will be prejudiced by the grant of this application because by the time the action is taken to Germany, the action will be time barred. Besides, there is nothing preventing the matter from being heard here in Nigeria considering the fact that the parties are in Nigeria, and the damage was caused here in Nigeria. In the case of M.V.Lupex V N.O.C &S Ltd (2003)15 NWLR (PY 844) 469, the apex Court held as follows:
“ it does also seem that the court may refuse to order a stay of proceedings where the defendant establishes that he would suffer injustice if the case is stayed or that he cannot obtain justice from the arbitration tribunal or that the agreement between the parties is null and void, inoperative or incapable of being performed” Per IGUH, J.S.C
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Admiralty Act Cap A5 Laws of the Federation 2004|

Constitution of the Federal Republic of Nigeria 1999|

Federal High Court Act|

 

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