⦿ CASE SUMMARY OF:
Lignes Aeriennes Congolaises (L. A. C.) v. Air Atlantic Nigeria Limited (A. A. N.) (2006) – CA
– Oust of Jurisdiction;
Lignes Aeriennes Congolaises (L.A.C.)
Air Atlantic Nigeria Limited (A.A.N.)
(2006) 2 NWLR (Pt.963) 49;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This is against the ruling of the Federal High Court, Lagos in suit No. FHC/L/CS/1155/98 delivered on the 20th September, 1999 which, dismissed the appellant’s application for striking out the suit on ground of lack of jurisdiction on the part of that court to entertain it.
The appellant is an Airline and the national carrier of Congo with its head office at No. 4 Avenue du Port Kinshasa/Gombe, Democratic Republic of Congo and an operational office in Lagos. The respondent as the name shows is a Nigerian Company with its head office at 4B Mobolaji Bank Anthony Way, Ikeja, and Lagos Nigeria. As plaintiff in the lower court, the respondent claimed inter alia, the sum of U$169,794 (One hundred and Sixty-Nine Thousand, Seven hundred and Ninety-four United States Dollars), being consideration for the lease of Cargo Aircrafts to the defendant/appellant. The civil summons as well as all other processes in the suit were addressed and served at the Murtala Mohammed International Airport, Ikeja, Lagos, the operational office of the appellant.
In response to the processes served on it in Lagos, the appellant filed a preliminary objection to the claims by respondent on the ground that by their lease agreement, the parties had chosen the Congolese law to apply to their relationship and so the lower court lacked jurisdiction to entertain the suit.
1. Whether the lower court had jurisdiction to entertain the claims of the respondent against the appellant?
⦿ ARGUMENTS OF PARTIES
*FOR THE APPELLANT
After setting out the provisions of section 20 of the Admiralty Jurisdiction Decree (hereinafter referred to as A JD) 1991, relied on by the lower court in its ruling, learned Counsel for the appellant said the section contemplates an agreement between parties to a case in court with a view to divesting the court of jurisdiction mid-stream and investing another tribunal or court with jurisdiction. Learned Counsel made reference to the definitions of the words “cause”, “action” and “matter” and argued that for an agreement to be null and void under section 20 of A JD, it has to relate to (a) any admiralty matter falling under this Decree and (b) it falls into categories (a) to (h) of Section 20 of AJD.
In the reply brief filed on 3rd December, 2004, the learned appellant Counsel repeated his understanding and interpretation of section 20 of A JD, maintaining that it did not confer jurisdiction on the lower court since the lease agreement between the parties contain an arbitration clause and did not oust the jurisdiction of any country’s court for it to be void.
*FOR THE RESPONDENT
According to counsel for the respondent, articles 7 and 8 of the lease agreement by the parties cannot oust the jurisdiction of the lower court in the face of Section 20 of the AJD.
It was further argued for the respondent that the court can disregard the jurisdiction clause in an agreement once one of the parties resides in Nigeria under Section 20 of AJD.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N7,000 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The lease agreement between the parties is in respect of an aircraft and so falls squarely within these provisions. Furthermore, the suit also on the face, falls into categories (a), (b) and (f) of section 20 since the aircraft was delivered in Nigeria, the respondent resides in Nigeria and financial consideration received in Nigeria by respondent, respectively. Accordingly, the respondent’s suit has undoubtedly fallen under and satisfied the two limbs of section 20 as contended by the appellant’s counsel. The only area of disagreement about the application of section 20 between counsel is as to their respective understanding and interpretation of the meaning of opening words of the section. These words are “Any agreement by any person or party to any cause, matter or action …”
ii. But assuming that the arbitration clause in the agreement between the parties in this appeal seeks to oust the jurisdiction of the court, then it further supports the ruling of the lower court that the lease agreement comes within the purview of Section 20 and therefore null and void.
iii. Though the appellant had made heavy weather about the arbitration clause contain in the lease agreement between the parties in his brief of argument, the lower court did not make any finding or pronouncement on it. In any event, the arbitration clause did not seek to oust the jurisdiction of the court as all it did was to allow parties avenue and possibilities of setting disputes amicably out of court. The position of the law is that an arbitration clause in agreements generally does not oust the jurisdiction of court or prevent the parties form having recourse to the court in respect of dispute arising thereform. A party to an agreement with an arbitration clause has the option to either submit to arbitration or to have the dispute decided by the court. The choice of arbitration does not bar resort to the Court to obtain security for any eventual award.
iv. The real intention and combined effect of Articles 7 and 8 of the aircraft lease agreement entered by the parties to this appeal was and remains to oust the jurisdiction of the lower court in respect of disputes arising from the said agreement. These article were the grounds upon which the appellant objected to the jurisdiction of the lower court to entertain the suit in its preliminary objection; thus, clearly manifesting that intention and effect. To that extent, I agree the decision of the lower court that the agreement comes within the contemplation of provision of section 20 of the Admiralty Jurisdiction Decree, 1991, which renders it null and void.
⦿ SOME PROVISIONS
Section 20 of the Admiralty Jurisdiction Decree provides thus: “Any agreement by any person or party to any cause, matter or action which seeks to oust the jurisdiction of the court shall be null and void, if it relates to any admiralty matter falling under this Decree, and if – (a) the place of performance, execution, 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 Military Government or the Government of a state of the Federation is involved and the government or 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; (h) in the opinion of the court, the cause, matter or action should be adjudicated upon in Nigeria.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Generally, the now known position of the law on the issue is that a ground of appeal must relate, derive or arise from the decision appealed against. Since the foundation or reason for dissatisfaction with any decision of court is the basis upon which a party may exercise the right of an appeal, the grounds in support of such an appeal must of necessity, derive from the decision such a party was dissatisfied with. – Garba, JCA. Congolaises v. Atlantic (2006)
The position of the law is that an arbitration clause in agreements generally does not oust the jurisdiction of court or prevent the parties form having recourse to the court in respect of dispute arising thereform. A party to an agreement with an arbitration clause has the option to either submit to arbitration or to have the dispute decided by the court. The choice of arbitration does not bar resort to the Court to obtain security for any eventual award. – Garba, JCA. Congolaises v. Atlantic (2006)
It needs to be pointed out here that the main aim of statement of claim is to convey the claim and the accompanying case of the plaintiff concisely to the defendant so that he can file a statement of defence, if need be, and not be taken by surprise. – Garba, JCA. Congolaises v. Atlantic (2006)