ELIAS J. MOUBARAK & SEKONDI V.HOLLAND WEST AFRIKA LIJN & TAKORADI

JELR 80590 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
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Other Citations
1952 14 WACA 262-264
CORAM
FOSTER-SUTTON, P., COUSSEY, J.A., AND KORSAH, J.
Core Terms Beta
court
submission
proceedings
section
arbitration
party
schedule
arbitration clauses
arbitration ordinance
order
return date
clause
contract
defence
pleadings
jurisdiction of the court
opinion
page
parties
protocol
actions
bill of lading
carrier appeals
divisional court
gold coast
meaning of the arbitration ordinance of the gold coast
plaintiff's writ
preliminary plea
present contract
stay of the proceedings
such action
view of section
virtue of the protocol
application of the law of the netherlands
court of this country
decision of the divisional court
evidence-foreign law
following judgment
inter alia
judgment infra
jurisdiction-effect of clause-arbitration ordinance
jurisdiction-supreme court-contract
legal proceedings
meeting of the assembly of the league
parties agreement
procedure-foreign law
relevant clause
similar clause
supreme court
united kingdom

*Page 262

Jurisdiction-Supreme Court-Contract with clause ousting jurisdiction-Effect of clause-Arbitration Ordinance (Cap. 16): section 5; section 22; Schedule 2.

Practice and Procedure-Foreign law to be pleaded. Evidence-Foreign law to be proved-Presumption.

In the contract between the parties one clause provided for the application of the law of the Netherlands and another read as follows:- “Jurisdiction-all actions under the present contract shall be brought before the Court at Amsterdam and no other Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto.”

The plaintiff's writ of summons against the Holland Line specified a return date. The defendants did not move for a stay of the proceedings but, pursuant to an order for pleadings, put in, after that date, a defence, in which, inter alia, they pleaded that the Court had no jurisdiction. This was argued as a preliminary plea, and the Judge dismissed the action. The plaintiff appealed.

The Gold Coast has an Arbitration Ordinance (Cap. 16), which provides in section 5 (text in the judgment infra) that a party to a submission may, if sued, apply, after service of the writ and before the date fixed for hearing, for the proceedings to be stayed. The Ordinance has also a Schedule 2 founded on the Arbitration Clauses (Protocol) Act, 1924; if the case comes within the Schedule in view of section 22 of the Ordinance an application to stay proceedings ought still to be made before the date fixed for hearing.

Held: The parties agreement on another forum was to be treated as a submission to arbitration within the meaning of the Arbitration Ordinance of the Gold Coast, and section 5 thereof applied, with this effect, namely, that the defendants ought to have moved for a stay of the proceedings before the date fixed for hearing, which in the context was the return date. Instead of doing so, they submitted to the order for pleadings and took a step in the proceedings by filing a defence, thereby waiving any objection to the jurisdiction of the Court.

Obiter: In view of section 22 of the Arbitration Ordinance the position would have been the same if it had been established that the relevant clause 2 in the contract was a submission recognised by virtue of the protocol on arbitration clauses set out in Schedule 2 of the Ordinance.

Per curiam: There is a presumption that foreign law is similar to the law of the Gold Coast and a party relying on foreign law as showing a difference must plead and prove the same.

Cases cited:- (1) Law v. Garrett, 8 Ch. Div. 26. (2) Kirchner v. Gruban, 1909, 1 Ch. 413. (3) The Cap Blanco, 1913, P.D., 130. (4) Scott v: Avery, 5 H.L.C. 811.

Appeal by the plaintiff: No. 23/52.*Page 263E. Akufo Addo for Appellant. Blount for the Respondents.

The following judgment was delivered: Coussey, J.A. The plaintiff appeals from a decision of the Divisional Court, Benson, Ag. J., dismissing his action on the ground that no proceedings could be maintained in the Court owing to clauses 21 and 22 of a Bill of Lading which constitutes the contract between the parties.

Clause 22 provides;-

“Jurisdiction-all actions under the present contract shall be brought before the Court at Amsterdam and no other Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto.”

The parties having, by their agreement, chosen another forum instead of having resort to the Court of this country, the agreement is to be treated as a submission to arbitration within the meaning of the Arbitration Ordinance of the Gold Coast (Cap. 16) in the same manner as a similar clause was held in such cases as Law v. Garrett (l), Kirchner v. Gruban (2), and The Cap Blanco (3), to be an agreement to refer under the Common Law Procedure Act, 1854, or the Arbitration Act, 1889. If the clause cannot be regarded as a submission to arbitration then it would be bad because it is a principle of law that parties cannot by contract oust the Courts of their jurisdiction absolutely-Scott v. Avery (4). By holding, however, that it is a reference to arbitration this principle is not offended, for the jurisdiction of the Court to entertain matters arising out of the arbitration, in certain circumstances, is not affected.

But section 5 of the Arbitration Ordinance (Cap. 16), the provisions of which, in my opinion, apply to this agreement provides:-

“If any party to a submission or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after service of the writ of summons and before the date fixed for hearing apply to that Court to stay the proceeding, and that Court or a Judge thereof may make an order staying the proceedings.

In the context the date fixed for hearing is the return date stated in the writ of summons.

The position would be the same if it were established that Glause 22 were a submission recognised by virtue of the protocol on arbitration clauses set out in schedule 2 of the Arbitration Ordinance (Cap. 16) and it were proved that the Netherlands and the United Kingdom were both contracting States, for section 22 of Cap. 16 provides that in such circumstances application to stay proceedings commenced in the Supreme Court must still be made before the date fixed for hearing.

Schedule 2 of the Arbitration Ordinance above referred to is similar to and founded on the Arbitration Clauses (Protocol) Act, 1924, which, according to Dicey’s Conflict of Laws, 6th Edition, p. 323 was passed in order to permit the carrying out of the Protocol in Arbitration Clauses signed at the meeting of the Assembly of the League of Nations on September 24th, 1923, and duly ratified by a large number of States, for the submission to arbitration of differences which may arise with reference to commercial contracts or any other matter capable of settlement by arbitration, even if the arbitration is to take place in a country to whose jurisdiction none of the parties are subject.”

The plaintiff's writ of summons was issued in the Divisional Court on the 21st September, 1949; the return date was the 29th October, 1949.*Page 264The defendants, if they intended to enforce the agreement to submit the dispute to the Court in Amsterdam, should have moved before the return date to stay the proceedings under section 5 or 22 of Cap. 16. Instead of taking that course, they filed a statement of defence on the 25th November, 1949. Although by paragraph 2 of the Defence it was pleaded that the Court had no jurisdiction, they had at that stage submitted to an order for pleadings and taken a step in the proceedings; they had failed to observe the procedure laid down by section 5 or 22 of Cap. 16 and they had thereby waived any objection to the jurisdiction of the Court. The Court therefore should not, in my opinion, have dismissed the plaintiff's action on the preliminary plea argued on the 4th December, 1951.

I would therefore set aside the order of dismissal and remit the action to the Divisional Court for trial on the pleadings, but excluding from the defence filed that part of paragraph 2 which raises the question of jurisdiction.

As regards clause 21 of the Bill of Lading, in the absence of evidence to the contrary, there is a presumption that the law of a foreign country is similar to that applicable in the Gold Coast. The party desiring to avail himself of the law of the Netherlands as showing a difference must plead and prove it, otherwise the Court will assume that there is no difference.

In my opinion the plaintiff is entitled to the costs of this appeal and the costs ? of the day’s hearing on 4th December, 1951, in the Court below in any event.

Foster-Sutton, P. I concur. Korsah, J. I concur.

Appeal allowed: case remitted for trial.