SONNAR NIG LTD. & ANOR. V. PARTENREEDI MS NORWIND & ANOR.

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NIGERIAN SUPREME COURT CASES

[56-88] (MS)N.S.C.C.

SONNAR & ANOR. V. PARTENREEDRI M. S.

NORDWIND & ANOR.

SONNAR (NIG) LIMITED AND ANOR.

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APPELLANTS

V

PARTENREEDRI M.S. NORDWIND & ANOR.



RESPONDENTS

SUIT NO. SC 38/1986

SUPREME COURT OF NIGERIA

BELLO,

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J.S.C.

ESO,



J.S.C.

UWAIS,



J.S.C.

NNAMANI,



J.S.C.

KAWU,



J.S.C.

OPUTA,



J.S.C.

BELGORE,



J.S.C.

13th November, 1987

Contract - Parties - Agreements - Pacta Stint Servanda - Exceptions - Brandon Test -

Applicability.

Maritime Law -Bill of Lading - Exclusion Clause - Brandon Tests Applicability.

Practice and Procedure - Courts - Pdwers - Public Policy - Application - Parries intention -

Variation.

Conflict of Law - Foreign Law - Domestic Courts - Exclusion Clause - Choice of Law -

Forum competens - Construction:

Jurisdiction - Bill of Lading - Clause for fonun competens - Effect on court's jurisdiction.

Evidence - Parties - Unchallenged evidence - Effect - Weight to be Attached - S.57 Evidence

Act.

Administration of Justice - Exercise of Discretion - Lower Courts - New Facts - Appellate

Court - Lower Court's decision - Interference - Propriety.

ISSUES:

1.

What is the test to be applied by courts in the determination of intention of parties

to a contract evidenced by a Bill of Lading.

2.

Whether public policy should be considered by a court in arriving at it's decision.

3.

Under what circumstance would a court depart from the principle

Pacta Sunt

Servanda.

4.

Whether a domestic court is bound to give effect to a stipulation made by the

parties in their contract conferring jurisdiction on a foreign court and whether the

domestic court has a discretion in the matter

5.

What is the effect of an unchallenged evidence and what weight is to be attached

to it?

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SONNAR & ANOR. V. PARTENREEDRI M. S. NORDWIND & ANOR.

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6. Whether it is proper for an appellate court to consider new facts which came

before it after the exercise of a discretion by a lower court in determining whether

or not to interfere with the discretion as exercised by the lower court.

FACTS:

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The appellants were the plaintiffs n the trial court while the respondents were the

defendants respectively.

The plaintiffs claimed in the Federal High Court jointly and severally against the

defendants general and special damages for a breach of contract arising out of non-

delivery of a consignment of rice shipped to Lagos from Bangkok aboard a Ship

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M.S. Nordwind. The 1st defendant owns the hip M.S. Nordwind and has it's princi-

pal place of business in Germany. The 2nd defendant, a company registered in Libe-

ria issued the Bill of Lading, while the 3rd defendant were the sellers and suppliers

of the rice shipped.

Subsequent to the filing of the action, counsel for the first defendant brought an

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application for an order to stay the action in so far as it relates to the 1st defendant.

This application was based on a jurisdiction clause in the Bill of Lading which stipu-

lated that any dispute arising out of the transaction is to be governed by and decided

according to the law of the country in which the carrier has it's principal place of

business which in this case is Germany. The Bill of Lading governs the transaction,

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and the courts are bound by the agreement between the parties before it thus, courts

in Nigeria have no jurisdiction to entertain the action.

The plaintiff contended that the mere fact of the existence of the jurisdiction clause

in the Bill of Lading does not oblige the court to stay proceedings and order the par-

ties to go to another jurisdiction. The court has a discretion notwithstanding the

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clause as to whether it would try the action in Nigeria or stay proceedings. He then

listed some of the tests laid down

VI

"The Eleftheria"

by Brandon

J.

as instances

where a court in Nigeria would not stay proceedings. The plaintiffs also in support

of their case tendered in evidence a letter written by a firm of German Lawyers ad-

dressed to their instructing Solicitors in London on the state of law in Germany. In

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that letter, it was opined that the 1st defendant would not be considered as the car-

rier under German Law. Thus the plaintiff cannot claim against the 1st defendant

under German Law. The 1st defendant objected to the admissibility of this letter on

the grounds that it offends against the provisions of Section 57 of the Evidence Act

since the letter was not addressed directly to the plaintiff's lawyers in Nigeria.

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The trial judge after due consideration of the matter granted the stay as sought

by the 1st defendant and held

inter dila

that there was insufficient evidence of Ger-

man Law before the court and, thus the plaintiffs did not discharge the onus which

lay on them. Applying the Brandon tests, there was no suggestion that the plaintiff's

would be prejudiced by having to sue in the foreign court nor was there a risk of the

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plaintiff's not obtaining a fair trial in the foreign court.

The plaintiffs appealed to the Court of Appeal. There the issue turned mainly on

the contention that despite the jurisdiction clause, in the Bill of Lading, Nigerian

Courts still had the discretion on whether or not to entertain the action. The Court

of Appeal held that there were not et lough reasons canvassed by the appellants for

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the discretion to be exercised in their favour and their appeal was dismissed.

The appellants further appealed to the Supreme Court. There, it was vehement-

ly contended for the appellant that even though

Pacta Stint Servanda

is a trite prin-

ciple of law on which the entire law of contract rests, that Nigerian Courts are not

bound to stay proceedings in an action before them when the action is filed locally

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notwithstanding this principle of law. He relied heavily on

Eleftheria".

It was con-

tended further that the appellants assertion on German Law was not challenged in

the respondent's affidavits and thus the assertion stands and that the Court of Ap-

peal erred in holding that there was insufficient evidence of German Law when there

was such and that adequate weight ought to have been attached to it. It was further

contended for the plaintiff/appellant that under German Law, the appellants action