the Swiss Air Transport Co. Ltd. v the African Continental Bank Ltd. (177 of 1968)  NGSC 8 (29 January 1971);
THE SWISS AIR TRANSPORT CO. LTD. (DEFENDANTS/APPELLANTS)
THE AFRICAN CONTINENTAL BANK LTD. (PLAINTIFFS/RESPONDENTS)
(1971) All N.L.R. 39
Division: Federal Supreme Court
Date of Judgment: 29th January, 1971
Case Number: SUIT NO. 177/1968.
Before: Lewis, Madarikan, Udoma, JJ.S.C.
Appeal from the High Court (Lagos).
(1) In this case, it was not the agreement of the parties but the law itself, as the convention applies to Nigeria, that requires in Article 28(1) that the action be brought only in certain specified places, and Courts of the High contracting parties only have jurisdiction accordingly. Unless therefore it was so brought the court had no jurisdiction and in the opinion of the Supreme Court Counsel for the defendants/appellants was entitled at any time to bring the objection, though it might certainly have been better to have done so earlier. The trial Judge was therefore in error in thinking that on a matter of jurisdiction of the court it was too late for the defendants/appellant's Counsel to take the objection when he did.
(2) The trial Judge thought that "The law in Lagos as in Kano is the same" but whether it in fact was, it was not necessarily so and under Article 28(2) questions of Procedure are governed by the court seised of the case. Generally the law of evidence and procedure are governed by the lex fori and these are matters which individual States in Nigeria have the power to make their own legislation so it by no means follows that the law applicable would be uniform throughout Nigeria. Of course in territories with uniform jurisdiction no problem arises but in Federal territories as for example in Nigeria or the United States of America this is an important factor. In the opinion of the Supreme Court the place of destination was Kano and it was only there in Nigeria that the action should have been brought under the provisions of Article 28(1) so that the trial Judge was wrong to overrule the objection of Counsel for the defendants/appellants.
(3) As to the argument by Counsel for the plaintiffs/respondents that sections 368 and 369 of the Companies Decree 1968 (No. 51 of 1868) had the effect of deeming that the defendants/appellants were incorporated now in Nigeria, since the Companies Decree 1968 did not deal specifically with existing actions and apply the changes for them and as it was not couched in language clearly showing an intention that the Statute should operate retrospectively and as it was not procedural the presumption against it having retrospective effect must apply. The Companies Decree 1968 came into force on the 1st of October, 1968, so it was not in force on the 26th of February, 1968 when Adefarasin J., gave his ruling so that it could not apply in respect of this present appeal.
Appeal allowed: Ruling of High Court set aside: Suit LD/43/65 struck out.
Cases referred to:
British Wagon Company v. Gray, (1896) 1 Q.B. 35.
Kidston v. Deutsche Lufthansa Aktien-Gesellschaft C.A, 38 Lloyds L.R.I.
Adedipe v. Amodu S.C., 673/1966.
Greine v. Imperial Airways Ltd., (1936) 1 All E. R. 1258.
Rotterdamsche Bank v. B.O.A.C. (1935) 1 All E.R. 675
Okafor v. Ibeziako, (1965) 1 All N.L.R. 407.
Ademolekun v. Council of the University of Ibadan, (1968) N.M.L.R. 253.
Acts referred to:
Companies Decree, 1968 (No 51 of 1968) Sections 368, 369.
Convention for the Unification of Certain Rules Relating to International carriage by Air Article 28.
Warsaw Convention, 1929 (Laws of the Federation of Nigeria and Lagos, 1958, Vol. XI, p. 621).
Carriage by Air (Parties to Convention) Order 1958 (Laws of the Federation of Nigeria and Lagos, 1958, Vol. X, p. 635), Article 28(1)(2).
APPEAL from the High Court (Lagos).
SUIT NO. 177/1968.
Impey for the Defendants/Appellants.
Sofola for the Plaintiffs/Respondents.
Lewis, J.S.C. (delivering the judgment of the court):-In suit LD/43/65 the plaintiffs' writ read:-
"The plaintiffs' claim against the defendants is for the sum of £12,772-10s-0d (Twelve thousand Seven hundred and Seventy two pounds Ten shillings) being damages suffered by the plaintiffs for the loss of Sudanese bank notes valued at 13,100 Sudanese pounds which were delivered by the plaintiffs to the defendants as carriers for hire and received by the defendants as such carriers on or about 25th January, 1963 to be by the defendants taken care of and safely carried from Geneva to Kano Nigeria and there delivered to the plaintiffs within a reasonable time in that behalf for reward to the said defendants.
The defendants did not take care of the said bank notes and did not safely carry and deliver same to the plaintiffs as aforesaid whereby the said bank notes were lost to the plaintiffs.
The defendants have failed and/or neglected to pay in spite of repeated demands."
Pleadings were ordered and filed and in paragraph 7 of the further amended statement of defence it was pleaded:-
"The defendants contend that the provisions of the Warsaw Convention thereafter applied to the carriage of the said package and deny that there was any irregularity or omission rendering the said air consignment note invalid."
When the action came on for hearing, however, Mr Impey for the defendants took a preliminary objection to the jurisdiction of the court. This objection was based on the provisions of Article 28 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, otherwise known as the 1929 Warsaw Convention, (set out at page 621 et seq in Vol. XI Laws of the Federation of Nigeria and Lagos 1958) to which Nigeria became a High Contracting Party by virtue of the provisions of the Carriage by Air (Parties to Convention) Order 1958 (page 635 et seq Vol. XI of Laws of the Federation of Nigeria and Lagos 1958). Article 28 of that Convention reads:-
"(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.
(2) Questions of procedure shall be governed by the law of the court seised of the case."
It was Mr Impey's submission to the court that the contract of carriage for the bank notes in this particular case was from Geneva to Kano and that as the defendants' principal place of business was Zurich in Switzerland where the defendants were ordinarily resident the only other place where the action could be brought according to the terms of Article 28(1) was "at the place of destination" which in his submission was Kano and that therefore the action could not be brought as it had been in Lagos. In his ruling Adefarasin J., on the 26th of February, 1968 said inter alia;
"Since the plaintiff company does not have its principal place of business in Nigeria and is not ordinarily resident here I must turn to the issue whether this Court is one that has jurisdiction in the place of destination. It was contended on behalf of the defendants that it is the Kano High Court that has jurisdiction as it is the court in the place of destination. I do not agree with this proposition. The evidence of the only witness on behalf of the defendants leaves me in no doubt that in the whole of Nigeria, Lagos is the only place where the defendant company land and take off; that in Nigeria the defendant company's registered office is Lagos and it is their principal place of business; that the entire staff of the defendant company in Nigeria are located in Lagos; that all flights out of Nigeria northwards to Europe are controlled from Lagos; and that the defendant company has no branch office in Kano. I do not agree that because Kano happens to be the place in Nigeria to which the cargo was consigned that this Court has no jurisdiction. The mischief requiring to be remedied by the adoption of the international code i.e. the Warsaw Convention, was the possibility of the questions arising between the parties as to the law applicable to the contract (See Greine v. Imperial Airways Ltd. (1936) 2 A.E.R. p. 1259 and in particular p. 1283). The law in Lagos as in Kano, is the same... In my view the question of jurisdiction is one for the court in the circumstances of this case in which Nigeria law, being the law of the place of destination of the consignment applies. I am also of the view that it is too late for the defendants to raise the matter of jurisdiction. The defendants appeared without any protest at the commencement of these proceedings. An order for them to file pleadings was made and they filed a statement of a defence, an amended statement of defence and lastly a further amended statement of defence in which they raised the issue of jurisdiction. They brought several interlocutory applications by way of motion and even delivered interrogatories.
The matter was with their consent set out for hearing before Lambo J., on 5th and 6th of June, 1966 and again on 19th and 20th October, 1966. The defendants have by their conduct submitted to the jurisdiction of the court."
He accordingly overruled the submission and ordered the hearing to commence but on leave to appeal against his ruling being sought and granted Adefarasin J., stayed further proceedings pending the determination of the appeal by this Court.
Mr Impey for the appellants first argued a ground of appeal that read:-
"That the learned trial Judge erred in holding that the defendants were precluded from raising the preliminary objection to the jurisdiction by reason of their having entered an appearance without objection and subsequently pleaded and made various applications when Article 28 of the Warsaw Convention to which Nigeria is a high contracting party applied to the dispute."
It was his submission that as the matter went to jurisdiction he was entitled to take the point at any time and he relied on British Wagon Company v. Gray (1896) 1 Q.B. 35 where Lord Esher MP, at page 36 said:-
"The question whether such an order can be made is a question of jurisdiction, and therefore, by the very terms of the rule, the court has no jurisdiction in such a case as this. Then it is said that the defendant has contracted that the court may order service of the writ upon him in Scotland. It is not alleged on behalf of the plaintiffs that they can themselves serve the writ in Scotland; but it is said that the court may order that this shall be done. It seems to me that there are two answers to this contention. One is that the contract does not bear the construction put upon it; but I do not proceed on that, but on the ground taken by the learned judge, that even if the contract were so construed the court can take no notice of such an agreement, and can only order service of the writ in the manner allowed by the rules, and not in any other manner upon which the parties may agree... The court is forbidden to exercise the jurisdiction which it is now asked to exercise, and cannot regard the contract of the parties as to the extent of its jurisdiction."
Mr Sofola for the plaintiffs/respondents in regard to this point relied on Kidston v. Deutsche Lufthansa Aktien-Gesellschaft (C.A.) 38 Lloyds L.R. 1 where the note of the case in the Digest of the Lloyd's List Law Reports reads:-
"K, a passenger in a German aeroplane which crashed in this country, brought an action in the English Courts for loss of luggage. Originally he had intended to travel by Dutch aeroplane but exchanged his ticket at Croydon for one in the German aeroplane. On the face of the ticket was printed: 'Conditions of transport See over'. The conditions were printed in German and it was stated that 'The above conditions are in addition to the general transport conditions to passenger air services which are exhibited at the agencies and aerodromes.' The general conditions agreed by the International Association of Airship Services which were so exhibited contained the words: 'The competent Court for decision of all law suits in connection with passenger air services shall be that of the country in which the head office of the air transport company concerned is situated.' Swift J., reversed the order of the Master which had stayed an action by K against the German aeroplane company. Held by C.A. (affirming Swift, J.) that: (1) a clause of the description contained in this contract was an arbitration clause; (2) the King's Courts do not allow their jurisdiction over matters happening in England in regard to contracts made in England to be ousted by agreement between the parties but reserve a discretion in the whole matter as to whether they will or will not stay an action having regard to the questions to be tried, the evidence which will be given and all relevant matters; (3) having regard to these considerations this was not a case in which the court would stay the action."
We think the decision relied upon by Mr Sofola is clearly distinguishable as there by an agreement the parties sought to oust the jurisdiction of the courts in England which otherwise existed and it was held they could not do so. Here it is not the agreement of the parties but the law itself, as the Convention applied to Nigeria, that requires in Article 28(1) that the action be brought only in certain specified places, and courts of the High Contracting Parties only have jurisdiction accordingly. Unless therefore it is so brought the court has no jurisdiction and we think Mr Impey was entitled at any time to bring the objection, though it might certainly have been better to have done so earlier, as we indicated in Adetipe v. Amodu S.C. 673/66 (unreported) delivered on the 28th of February, 1969 when we said:-
"Mr Adeyefa for the plaintiffs/respondents submitted that notwithstanding that it was the plaintiffs who brought the action in Suite 40/50 they were entitled to object that the court was without jurisdiction, and so far as that point is concerned we have no doubt, however unmeritorious the conduct, that the plaintiffs are entitled to take the point as to the jurisdiction of the Land of Court of Ife."
We accordingly think the learned trial Judge was in error in thinking that on a matter of the jurisdiction of the court it was too late for Mr Impey to take the objection when he did.
Mr Impey then argued together two grounds of appeal that read:-
"(1) That the learned trial Judge erred in holding that the High Court of Lagos has jurisdiction to hear this suit when the place of destination of the consignment was Kano and not Lagos.
(2) That the learned trial Judge erred in holding that by reason of the defendants' principal office in Nigeria being situated in Lagos and that the defendant company's flights being made from Lagos this conferred jurisdiction on the High Court of Lagos, when Article 28 Warsaw Convention which he held applied to the carriage provided for action to be brought only at the court having jurisdiction at the place of destination which was Kano."
It was his submission that the place of destination of the consignment was Kano and not in effect Nigeria as was found by Adefarasin J.
If one looks at the way bill (exhibit 3) one sees that it is there stated:-
"Destination (Airport of) KANO
CITY AND COUNTRY KANO NIGERIA"
In Grein v. Imperial Airways Ltd. (1936) 2 All E.R. 1258 Greene L.J. (as he then was) said at page 1281:-
"For the purpose therefore of ascertaining what are the place of departure and the place of destination carriage by motor car or train from the city to the aerodrome is to be disregarded-one aerodrome is the place of departure and the other aerodrome is the place of destination."
This in our view clearly emphasises that the place of destination as well as the place of departure are the respective airports. It moreover seems clear to us that the place of destination is quite distinct from the country or territory in which it is situated and that Article 28 must be construed strictly as was indicated by Pilcher J., in Rotterdamsche Bank v. B.O.A.C. (1953) 1 All E.R. 675 when at page 681 he said:-
"Article 32 of the convention, which I have set out earlier, provides in terms that any clause in the contract of carriage which purports to infringe the rules laid down by the Convention, whether by deciding the law to be applied or by altering the rules as to jurisdiction, shall be null and void. This article appears to reinforce the view that art. 28(1) of the Convention, which deals with jurisdiction, was intended to be applied strictly, and I accordingly, conclude that the effect of art. 28(1) is to oust the jurisdiction of the courts of this country to entertain a claim by the plaintiffs against the second defendants."
We think moreover that confirmation that the place of destination is the place of destination in the country or territory of a High Contracting Party that is contemplated is shown from the provisions of other articles of the Convention such as, in particular, Article 1(2), 3(2), 4(3) and 8.
The learned trial Judge thought that "The law in Lagos as in Kano is the same" but with respect whether it in fact is, it is not necessarily so and under Article 28(2) questions of procedure are governed by the law of the court seised of the case. Generally the law of evidence and procedure are governed by the lex fori (See Dicey's Conflict of Laws 8th Edition p. 1089) and these are matters in which individual states in Nigeria have the power to make their own legislation so it by no means follows that the law applicable would be uniform throughout Nigeria. (This only emphasises the necessity to ensure that the action is brought in the correct place.) Of course in territories with uniform jurisdiction no problem arises but in Federal territories as for example in Nigeria or the United States of America this is an important factor. It follows that in our view the place of destination was Kano and it was only there in Nigeria that the action should have been brought under the provisions of Article 28(1) so that the learned trial Judge was wrong to overrule Mr Impey's objection.
We would only add that Mr Sofola sought to argue that sections 368 and 369 of the Companies Decree, 1968 (No. 51 of 1968) had the effect of deeming that the appellants were incorporated now in Nigeria. Mr Sofola had given no notice of any wish to uphold the judgment on other grounds though Mr Impey did not take any objection, but in any case as the Companies Decree 1968 did not deal specifically with existing actions and apply the changes to them, and as it was not couched in language clearly showing an intention that the statute should operate retrospectively and as it was not procedural the presumption against it having retrospective effect must apply. (See Halsbury's Laws of England 3rd Edition Vol. 36 paragraph 644, Okafor v. Ibeziako (1965) 1 All N.L.R. 407 and Adamolekun v. Council of the University of Ibadan (1968) N.M.L.R. 253). The Companies Decree, 1968 Came into force on the 1st of October, 1968 so it was not in force on the 26th of February, 1968 when Adefarasin J., gave his ruling so that it cannot apply in respect of this present appeal.
The appeal is accordingly allowed and the ruling of Adefarasin J., on the 26th of February, 1968 is set aside. It is ordered that suit LD/43/65 be struck out. The appellants are entitled to their costs in the High Court which we assess at 25 guineas and to their costs of the appeal in this Court which we assess at 70 guineas.
Appeal allowed: Ruling of High Court set aside: Suit LD/43/65/Struck out.