C.I.L.E. vs. BLACK STAR LINE AND ANOTHER [1967]DLHC1490

Date	1967-12-18
Suit No.
Citation No.	[1967]DLHC1490

AMISSAH J.A.

S. H. ANNANCY FOR THE PLAINTIFF.

MENSAH FOR THE DEFENDANTS.

LAMPTEY (FOR DJABANOR) FOR THE CO-DEFENDANTS.

[1967]DLHC1490
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													<main id="main" class="content" style="min-height: 60rem" >C.I.L.E. <o:p></o:p>vs. <o:p></o:p>BLACK STAR LINE AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 744<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 DECEMBER
1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. H. ANNANCY FOR THE PLAINTIFF.<o:p></o:p>

LAMPTEY (FOR DJABANOR) FOR THE CO-DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Counsel
on behalf of the defendants has challenged the competence of this court to deal
with this case. In sum his submission is that the action arises under or is
connected with bills of lading in which the parties have expressly agreed that the
contract shall be governed by English law and that all disputes shall be
adjudicated upon by the court of England. As the parties have themselves chosen
their own forum which is not in Ghana, a Ghanaian court has no jurisdiction to
try the case.<o:p></o:p><o:p>&nbsp;</o:p>In the
case of C.I.L.E.V. v. Chiavelli [1967] GLR 652 (ruling delivered on 27 November
1967) where there was a similar agreement that disputes must be submitted to an
Italian court, this court held that the parties must be kept to their original
bargain to sue and be sued in Italy. The question is, why should not that
result automatically follow in the present case? It will be remembered that
there I stated that the courts in this country have jurisdiction to entertain
actions relating to contracts, wherever made, in all cases where the parties
are effectively before the court, as where personal or substituted service of
the writ has been effected on the defendants here, or leave has been given to
serve the writ or notice of it out of the jurisdiction, or where the parties
have voluntarily submitted to the jurisdiction. Nevertheless jurisdiction in
that case was declined for one basic reason, namely, that in the circumstances
of that particular case it did not seem to the court that justice would be done
if the dispute were tried here. The agreement was made by Italians in Italy,
the language used was Italian. Fresh and sometimes quite contradictory facts
were being presented to the court from time to time as the preliminary
proceedings progressed. Therefore, on the whole, the court thought it just that
the dispute in question should be disposed of by the chosen forum in Italy.<o:p></o:p><o:p>&nbsp;</o:p>Do the
circumstances in this case justify the court in taking the same course? The
defendants in this case are a Ghanaian company. In fact they are the national
shipping line of Ghana. The dispute before the court arises out of an alleged
improper detention of goods in Ghana by the defendants; goods which are said to
be collecting vast rents for the Government of Ghana for every day that they
continue to be detained. To ask the parties to seek their remedy now in England
is in effect to tell the plaintiff to forgo his rights because by the time that
action is disposed of, the rent due on the goods may be far in excess of their
value. After several adjournments and the calling of some evidence, the
defendants have remembered for the first time that by a provision in their own
common form printed bill of lading, the jurisdiction of this court is ousted,
the English courts being the sole authorities to sit on disputes connected with
their bills. The circumstances seem to me to be quite different from the
earlier case.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Mensah for the defendants has urged upon me a passage from the judgment of
Collins M.R. in Royal Exchange Assurance Corporation v. Sjoforsakrings
Aktiebolaget Vega [1902] 2 K.B 384 at p. 394, C.A. as demonstrating that where
the parties to a contract have elected that their disputes shall be submitted
to a particular tribunal then no other tribunal has jurisdiction to adjudicate
upon such a dispute. That passage is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I think
it is clear that in this case the parties did not intend to contract with
reference to the Swedish law. They adopted a form of policy which is English,
and it is expressly therein provided that, in case of any dispute under the
policy, the Vega Company agree to be bound in all things by the jurisdiction
and decision of the English Law Courts. I think, applying the principle laid
down in Hamlyn v. Talisker Distillery [1894] A.C 202), that having regard to
the terms of the contract and the circumstances, the inference is clear that
the parties intended that their rights under the contract should be governed by
English law.”<o:p></o:p><o:p>&nbsp;</o:p>