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.”