Case No.:

AC-APP-13-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Jurisdiction-_Effect of clause in contract requiring litigation in foreign court—Civil Justice Ordinance. s. 48—Stay of proceedings Conflict of Laws—Contract- Clause requiring litigation in foreign court—Motion to stay proceedings in Sudan

A promissory note was given by defendant to plaintiff as security for money due under a contract made in Egypt for sale of goods delivered at Port Sudan. The contract stated that the debt was to be paid in Egypt in Egyptian currency and sued upon only in Egypt. Plaintiff resides in Egypt; defendant carries on business in Port Sudan. Plaintiff brought suit on the note against the defendant in Port Sudan. Defendant asked for a stay of proceedings in the Sudan.
Held: Because the transaction between the parties is so connected to Egypt and because the parties agreed t themselves that dispute arising there from should be litigated in Egypt, although the Sudanese courts have jurisdiction to try the suit under Civil Justice Ordinance, s. 48, the stay of proceedings in the Sudan will be granted as a matter of judicial discretion,

Judgment

(COURT OF APPEAL) *

AMIN ABDEL MASEEH & SONS v. MANOLI CHADZOGHLOU & SON

AC-APP-13-1962

Advocates: Bakri Ahmed Abdel Hadi …………………….. for defendants

Abdulla Nagib    …………………………… for plaintiffs-respondents

B. Awadalla 1. April 29, 1963: —This is an appeal against the judgment of His Honour the Province Judge, Port Sudan, in CS-I Port Sudan.

The facts of the case are very simple. Plaintiffs-respondent are suing defendants-appellant for a sum of £S.915, 600 being value of promissory note payable on March to, 1960, plus .6oom/ms. protest fees.

Defendants-appellant admitted the promissory note but denied jurisdiction in the Sudan courts because of a provision in the note itself stating that it is to be paid and sued upon in Egypt

An issue as to jurisdiction was framed and the court found in favour of plaintiffs-respondent that the Sudan courts have jurisdiction because:

(a) a stipulation like the one relied upon is not binding because the question of jurisdiction is a matter to be defined by law and not by the parties, (b) the law of the Sudan has by Civil Justice Ordinance, s. 48, conferred jurisdiction on the Port Sudan court in the matter in question because Port Sudan is the place where defendants-appellant carry on business, and (C) the contract was wholly performed in the Sudan and the goods forming the subject-matter of the transaction for which the note was given is now in the possession of defendants-appellant at Port Sudan.

Against this decision, defendants-appellant appealed. They contend that His Honour the Province Judge is wrong in law relying on the Civil Justice Ordinance, s. 48, because this section is only operative in the absence of agreement between the parties. They also contend that the finding regarding the performance of the contract in the Sudan is incorrect. They also referred to the case relied upon by plaintiffs-respondent in their submission to the court below, Misr Printing Press v. Mohamed Kamil, (i S.L.J.R. 3. of which mention was made in the judgment. They seek to distinguish that case from the present one on the element of public policy prevalent in the Misr Printing Press case, which prevented the court in that case from conceding jurisdiction to the Egyptian courts.

The learned advocate for plaintiffs-respondent in his reply quoted the dictum of Lord Denning in The Fehmarn [1958] 1 All E.R. 333, that no one by his private stipulation can oust the courts of their jurisdiction in a matter which properly belongs to them, and contended that it is the rule enunciated in that statement that governs the present case, and that accordingly the stipulation in the promissory note in question should not be interpreted in a manner that would deprive the Sudan courts of their proper jurisdiction.

In my view the court below was wrong in relying on Civil Justice Ordinance, s. 48, in assuming jurisdiction in an issue of this type where the contention between the parties is whether or not the Sudan courts have jurisdiction. Civil Justice Ordinance, 5. 48, does not lay down any rule of private international law. It does not, in other words, give the courts any ready answer to a plea of absence of international competence as against municipal or local jurisdiction. For an answer to such a plea, we have to refer to the rules of private international law as recognized and applied in the Sudan. According to these rules, the Sudan courts, no doubt, have jurisdiction in this case in which the defendants-appellant are physic ally present in the country and the cause of action is one in personam. This is based on the theory of “effectiveness” recognized by all authoritative works on private international law.

We now come to the second and more difficult point in the case:

Whether a case for stay of proceedings has been made out by the defendants-appellant on the ground that the promissory note in question accords exclusive jurisdiction to the Egyptian courts. . In my view the question whether the proceedings should or should not be stayed in matters of this kind is one of pure discretion to the court trying the case, in deciding which, the court will give precedence to the legal system with which the contract is more closely connected. There was no doubt about the ratio decidendi in The Fehmarn [1958] 1All E.R. 333, which was followed by this court in the Misr Printing Press case.

It only remains for this court to consider whether the present dispute is more closely connected with Egypt or with the Sudan. In my view, it is more closely connected with Egypt than with the Sudan. The promissory note was given as security for money due under a contract made in Egypt. Further, it is expressed to be payable in Egypt in Egyptian currency to a payee (i.e., plaintiffs-respondent) resident in Egypt. With the Sudan the dispute has not the slightest connection save that the drawer is carrying on business therein.

In my view, therefore, a refusal of stay of execution in this case was improper.

This appeal is therefore allowed with costs and the decree of His Honour the Province Judge is hereby set aside.

M. A. Abu Rannat C.J. April 29, 1963: —l concur.

H. M. Abu! Gassim P.1. April 29, 1963: —l concur.

* Court: M. A. Abu Rannat C.J., B. Awadalla J.. and H. M. Abul Gassim P.J.