Sonnar (Nig.) Ltd & Anor. V. Partenreedri M. S. Nordwind Owners Of The Ship M. V. Nordwind & Anor. (1987)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

The facts of this case are not in dispute. Before stating the application which was brought by the Defendants before the Federal High Court Lagos, Coram S. A. Sowemimo J., which is now the subject matter of this appeal, I will state those facts, only as they are relevant to this appeal.

The Plaintiffs, Sonnar Nigeria Ltd. and Pubico Impex Traders, claimed general and special damages amounting to N417,524.00 against the Defendants for breach of contract, which they claimed had arisen out of non-delivery of 25,322 bags of parboiled long grain rice, which were shipped from Bangkok, Thailand to Lagos, on board a vessel, M. V. Nordwind, which belonged to the Defendants.

Now, the first Defendants, Partenreedri M.S. Nordwind, are ship-owners and they are based in Germany. The second Defendants, Banbridge Shipping Company, are based in Liberia. The latter were the Issuing Agents of the Bills of Lading which were relevant to this case. The third Defendants, Chaiyapon Rice Company, are based in Thailand, from where the rice in question was shipped. They were the suppliers of the rice which is the subject matter of this case.

Both the Plaintiffs and the Defendants entered into an agreement which is evidenced by the Bill of Lading. Clause 3 of the Bill is relevant to this case. It provides –

“Any dispute arising under this Bill of Lading shall be decided in the country where the “carrier” has his principal place of business and the law of such country shall apply except as provided elsewhere herein.”

This then is the agreement between the parties and the country applicable herein is Western Germany.

As I said, the goods, which were shipped from Thailand, were not delivered and the Plaintiffs claimed, jointly and severally, against the Defendants, general and special damages as I had earlier indicated. The writ was served on the Defendants in Germany, Liberia and Thailand respectively. After service, Mr. Oduba of learned counsel, was briefed to represent the three Defendants while Mr. P.N. Mbanefo, of learned counsel, has been representing the Plaintiffs all along. It was he that filed the writ of summons.

On 23rd April, 1980, Mr. Oduba filed an application on behalf of the first Respondents to stay the action against him on the grounds that the cause of action arose out of a contract of carriage of goods, which is subject to a foreign jurisdiction. Learned counsel relied upon the agreement which is evidenced by the Bill of Lading which I earlier referred to. Mr. Mbanefo’s reaction was to file a counter-affidavit, which states, inter-alia-

“4. That the allegation therein contained in paragraph 5 that there is only one Bill of Lading relevant to this Suit is incorrect and that there are in fact twenty relevant Bills of Lading.

5. That the jurisdiction clause quoted in paragraph 5 aforesaid is correct, and that by Clause 17 of the said Bills of Lading the 1st defendant/applicant (a German Company carrying on business in Germany) is the Carrier.
6. That I am informed by Messrs Holman Fenwick & Willan (our instructing Solicitors in London) and verily believe that under German Law the owner of the M. V. “Nordwind” cannot be considered as the Carrier.
7. That there is exhibited hereto and marked Exhibit “PMM 1” a copy of letter from German lawyers Dres. Lebuhn & Puchta addressed to Messrs Holman Fenwick & Willan aforesaid and dated 30th July, 1971.
8. That there is annexed hereto and marked Exhibit “PMM 1″ a copy of the Charterparty relevant to this suit.”

Then Mr. Oduba brought a further affidavit, but as the pertinent paragraphs of this further affidavit were struck out by the Court, as offending section 86 of the Evidence Act, on the application of Mr. Mbanefo, I need not set out that affidavit in this judgment for it is no longer relevant.

On 7th May, 1981, the Federal High Court took arguments on the motion. The applicants’ that is, the 1st Defendants’ main contention was that the parties entered into a contract as per the Bill of Lading, they were bound by the terms and conditions of the contract and the forum for litigation in respect of the action would be Western Germany and not Nigeria. Learned counsel, Mr. Oduba relied on the case of The Berkshire 1974 1 Lloyd’s Rep. 185 and Eleftheria v. Eleftheria (Owners) (1969-70) Law Report 94.

For his part, Mr. Mbanefo conceded that the Bill of Lading required that the principal place of business of the carrier shall have jurisdiction but contended that the mere fact of the existence of such clause does not oblige the Court to stay proceedings and order the parties to go to another jurisdiction. The Court has a discretion, notwithstanding the clause, as to whether it would try the action in this country or stay proceedings. He listed the instances where a Court in Nigeria would not stay proceedings as-

(i) when the evidence in the case is in this country;