C.I.L.E. v. BLACK STAR LINE AND ANOTHER

JUDGMENT OF AMISSAH J.A.

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.

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 [p.746] 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.

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