23/04/2021
HULL BLYTH (NIG.) LTD. vs. JETMOVE PUBLISHING LTD.(2018)LPELR-44115(CA)
ISSUE: BILL OF LADINIG-What is the position of the law regarding the enforcement or otherwise of a jurisdiction clause contained in a Bill of Lading
PRINCIPLE:
"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. GBN 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). 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 Aplin and Co. Ltd. (1972) 7 NSCC 262; Oduye v. Nigeria Airways Ltd. (1987) 2 NWLR (Pt.55) 126; Allied Trading Co. Ltd. v. GBN Line (1985) 2 NWLR (Pt.5) 74. Clause 25 of the Bill of Lading stated that - "Except as otherwise provided specifically herein, any claim or dispute arising under this Bill of Lading shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg Courts to the exclusion of the jurisdiction of the Court of any other place. In case the carrier intends to sue the Merchant the carrier has also the option to file a suit at the Merchant's place of business. In the event this clause is inapplicable under local law then jurisdiction and choice of law shall lie in either the Port of Loading or Port of Discharge at carrier's option". The preceding clause 24 thereof stated that - "In the event that anything herein contained is inconsistent with any applicable international convention or national law which cannot be departed from by private contract, the provision hereof shall to the extent of such inconsistence but not further be null and void. Unless otherwise specifically agreed on between the Merchant and the carrier, the Terms and conditions of this Bill of Lading supersede any prior agreements between Merchant and Carrier". 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, ex*****on, 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." The parties are not in doubt that the cause of action at the Court below is an admiralty matter within the jurisdiction of that Court. Therefore Section 20 of the Admiralty Act (supra) should ordinarily apply to. Significantly, Section 20 of the Admiralty Act (supra) was not considered in the case of Nika Fishing Co. Ltd. v. Lavina Corporation (supra). It was Section 7 of the Federal High Court Act that was considered in that case. Section 7 of the Federal High Court Act reads - "Original jurisdiction (1) The Court shall to the exclusion of any other Court have original jurisdiction to try civil causes and matters- (a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party; (b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation; (c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties; (d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank; (e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act; (f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards; (g) any admiralty jurisdiction, including shipping and navigation on the River Niger, Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by sea;" It can be gleaned from Section 7 of the Federal High Court Act (supra) that the said Section 7 is not on all fours with Section 20 of the Admiralty Act (supra). Therefore it is not appropriate to adopt its construction or interpretation in Nika Fishing Co. Ltd. v. Lavina Corporation (supra) for the present case. For clearness, the first page of the lead judgment in Nika Fishing Co. Ltd. (supra) in page 528 of the Law Report (NWLR) stated that the appellant asked for two specific reliefs, namely - ''1. An order dismissing the suit for want of jurisdiction. 2. An order staying proceedings in the suit". The lead judgment in Nika Fishing Co. Ltd. (supra) stated in pages 532-533 of the same Law Report thus- "However, what was really in contention between the parties was whether having regard to the jurisdiction clause agreed between the parties in the Bill of Lading, the contract document binding between them which provided the venue or forum and the applicable law for the settlement of any dispute arising from the agreement in Argentina, the trial Court exercised its discretion judicially and judiciously in refusing a stay of proceedings to give the parties the opportunity to be bound by their agreement executed outside Nigeria. This question relates to the second relief sought by the appellant in its application at the trial Court for stay of proceedings". The excerpts (supra) indicate that although jurisdiction clause was one of the prayers sought by the appellant in the application at the Court, the appeal turned essentially on the discussion of a stay of proceedings with respect to a jurisdiction clause in the Bill of Lading showing Nika Fishing Co. Ltd. v. Lavina Corporation (supra) is distinguishable from the present case on the aspect of foreign jurisdiction cause which was one of the prayers in the motion paper at the Court below but which did not form the fulcrum of the appeal in the said case. Accordingly, I most humbly apply our decision in Lignes Aerienness Gongolaises (I.A.C.) v. Air Atlantic Nig. Ltd. (A.A.N.) (2006) 2 NWLR (Pt.963) 49 per the illuminating lead judgment prepared by his Lordship Garba, JCA, (concurred in by Akaahs and Ogunbiyi JJCA (now JSC) where Section 20 of the Admiralty Act (supra) was specifically considered vis-a-vis foreign jurisdiction cause in a Bill of Lading or written contract entered by the parties who sought by the agreement as in clause 25 of the Bill of Lading (supra) in this case to oust the jurisdiction of Nigerian Courts in favour of a foreign Court or venue/forum; but the Court (Lagos Division) held unanimously in Lignes (supra) that Courts should not as a matter of public policy be too ready to divest themselves of jurisdiction conferred on them by the Constitution and other laws simply because parties in their private contracts chose a foreign forum and a foreign law to govern the transaction or dispute; and that when it is said that parties make their own contracts and that the Courts will only give effect to their intentions as expressed in and by their contract, that should generally be understood to mean and imply a contract which does not rob the Court of its jurisdiction in favour of another foreign Court or forum following the Supreme Court case of Sonnar (Nig.) Ltd. and Anor. v. Partenreedri M. S. Nordwind, Owners of the Ship M. v. Nordwind and Anor. (1987) 4 NWLR (Pt.66) 620 at 526 per Oputa, JSC, and the English case of The Fehmarn (1958) 1 ALL ER 333 at 335 per Lord Denning, MR. Of importance is the presence of Clause 24 of the Bill of Lading (supra) which read harmoniously with clause 25 thereof gives supremacy and priority to jurisdiction or law of the domestic Courts over the foreign jurisdiction Clause 25 in the Bill of Lading. Consequently, the Court below was right in holding that Clause 25 of the Bill of Lading did not oust its jurisdiction in the peculiar circumstances of the case. Paragraphs 6, 7, 8, 9, 15, 16 and 17 of the respondent's Counter-Affidavit in opposition to a stay of proceedings at the Court below which is in pages 89, 90 and 91 of the record of appear (the record) deposed thus - "(6) That both parties in this suit are in Nigeria. (7) That the goods involved in this suit were to be delivered in Nigeria (8 ) That the damage to the goods was as a result of severe water in-pout through the container and the damage did occur in Lagos while in custody of the Defendant/Applicant. (9) That it will serve no purpose whatsoever to go and institute this suit in Hamburg Court in Germany. (15) That contrary to averment in paragraph 6 of the Affidavit in support, there are sufficient Nigeria statutes and case laws regulating carriage of goods by sea and parties herein need not invoke German Law before the dispute can be determined and resolved by this Honourable Court. (16) That contrary to the averment in paragraph 10 and 13 of the Affidavit in support, the Plaintiff/Respondent will be greatly prejudiced if this application is granted as the Plaintiff has just one (1) year after delivery of the goods within which to issue a valid writ by virtue of Clause 6 of the Bill of Lading as delivery had been taken by the Plaintiff since 26th of October, 2011 indicating that the Plaintiff is already outside the limitation period within which to issue a valid writ. (17) That if this application is granted, it will forclose the Plaintiff's right to institute another suit in any other Court (either in Nigeria or in Germany) as the right to institute a fresh suit is already statute barred." These pieces of affidavit evidence (sworn evidence which were absent in Nika (supra)) discharged the burden of proof on the respondent to forestall the exercise of the discretionary powers of the Court below to grant a stay of proceedings in the case following the Brandon, J., test (supra). 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(SC) at 567-568 where Eso, JSC, in the lead judgment said - "It is true that in the 'The Eleftheria (1996) 1 Lloyds LR 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. I 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 plaintiff 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) It is common ground between the parties that the action is already time-barred at the Hamburg Courts in Germany, so it will work procedural hardship and injustice to the respondent if proceedings are stayed in the case at the Court below to enforce the foreign jurisdiction clause in the Bill of Lading. This recognised prominent factor, accordingly, militated against the discretionary power of the Court below to grant a stay of proceedings to implement the jurisdiction clause in the Bill of Lading. 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. The respondent herein showed strong cause against a grant of the application for a stay of proceedings. Accordingly, the Court below properly exercised its discretion by refusing to grant a stay of proceedings in the case; and I find no valid basis to disturb the exercise of the discretion in the matter by the Court below vide Enekebe v. Enekebe (1964) NMLR 42." Per IKYEGH, JCA.(Pp.8-25,Paras.B-A).
