(COURT OF APPEAL) *
MISR PRINTING PRESS vs. KAMIL MOHAMED KAMIL AND
MAHIR HABIB GULTA
AC-Revision-27/28-58
Principles
Conflict of laws—Contract—Effect of clause subjecting contract to foreign law and to jurisdiction of foreign Courts
Where the parties to a contract agree that it shall be subject to the (impliedly exclusive) jurisdiction of foreign Courts, this provision cannot oust the jurisdiction of the Sudan Courts if they have jurisdiction on other grounds. Grounds on which Sudan Courts have jurisdiction in contract cases considered. These include (a) personal presence of the parties within the Sudan; (b) where a contract is to be wholly performed within the Sudan; (c) where to permit the ouster of jurisdiction would defeat the general policy of Sudan legislation. Considerations of public policy override the principle of freedom of the parties to choose the “proper law” of a contract. The Fehmarn [1958] 1 All E.R. 333 applied.
Revision
A contract provided that it was to be “subject to Egyptian labour laws” and gave the Cairo Courts jurisdiction over it. Defendants con -tended that the Sudan Courts had accordingly no jurisdiction to hear this case, which was for alleged breach of that contract.

Judgment
Advocate: E. M. Kronfli……………….. for applicants
5th May 1958. Babikir Awadalla J.: —I am of the opinion that this application must be summarily dismissed. The claim is founded on an alleged breach of contract entered into in Cairo some time in 1955 by which the respondent (plaintiff in the suit) was employed by the defendants (applicants) as a workman in their Khartoum Branch (the Misr Printing Press) at a daily wage of £S.1. The cause of action is damages for wrongful dismissal, etc.
* Court: M. A. Abu Rannat C.J., Babikir Awadalla J.

The defendants moved for a stay of proceedings on the ground that by virtue of clause 18 of the written agreement the Cairo Courts are given exclusive jurisdiction in the matter. Counsel for the defendant contended that clause 18 did not confer exclusive jurisdiction on the Cairo Courts but it simply granted them concurrent jurisdiction. There would certainly have been some justification for such an interpretation were it not for clause 17, which says that the “contract is subject to Egyptian labour laws “. In my view the sum total of these two provisions sufficiently indicates that at the time of making the contract the intention of the parties was that it was to be subject only to the jurisdiction of the Cairo Courts.
In refusing to stay proceedings, the Court found in favor of plaintiff that this clause cannot be interpreted in a manner ousting the Sudan Courts of their jurisdiction. In making its ruling the Court relied on the recent case of The Fehmarn [1958] 1 All E.R. 333. That was a claim under a bill of lading which provided that “all claims and disputes arising under and in connection with this bill of lading should be adjudicated in the U.S.S.R.”. In confirming the decision of the Judge (who refused to abide by this provision) Lord Denning said (at p. 335) “. . . but I do say that the English Courts are in charge of their own proceedings: and one of the rules they apply is that a stipulation that all disputes should be judged by the tribunals of a particular country is not absolutely binding. Such a stipulation is a matter to which the Courts of this country will pay much regard and to which they will normally give effect, but it is subject to the overriding principle that no one by his private stipulation can oust these Courts of their jurisdiction in a matter that properly belongs to them “.
Lord Denning then proceeded to consider why in his opinion the matter properly belonged to the English and not the Russian Courts. Among the reasons given, the facility with which the claim could be proved in England seems to have been the dominating factor.
I think that in this case there are several considerations in favor of rejecting defendants’ claim. The Trial Judge mentions one, viz., presence within the jurisdiction. I think there are two other more important ones, viz.: (a) the fact that the contract was wholly to be performed in the Sudan, and (b) the fact that if the Court gives up its jurisdiction (and thereby renders the plaintiff destitute of any remedy in the Sudan) then it would be committing an act which cuts across the general policy laid down by the legislature and governing the relations between employer and employed persons. These relations are regulated by the Employers and Employed Persons Ordinance and other allied Ordinances. Most of these Ordinances not only confer rights on employed persons, but impose obligations on employers, the infringement of which amounts in many cases to an offence. A disregard of these obligations by the clever device of providing for an ouster of jurisdiction will not only allow employers to act

with impunity by avoiding the laws of the country, but will be tantamount to licensing destitution in the working classes and disparity among employers, a thing which will surely be against public policy and order.
M. A. Abu Rannat C.J.: —Application is summarily dismissed.
(Application dismissed)