SOCIETE MISR DE NAVIGATION MARITIME OF CAIRO AND KHARTOUM, Plaintiffs v. ABDEL LATIF ABOU REGEILA AND OTHERS, Defendants
lurlsdiction=-Agreement to submit contract dispute [0 Egyptian courts-
Whether jurisdiction of Sudan courts ousted=Effect all related tori claim
A contract between. the plaintiffs and defendants included a clause
whereby the parties agreed to submit "all disputes arising out of the con-
tract" to the Egyptian native tribunals. Defendants took objection to the
jurisdiction of the Sudan High Court.
Held: (i) An agreement to exclude the jurisdiction of the Sudan
courts was implied in the clause.
(ii) In the absence of the clause the Egyptian courts would have had
jurisdiction, though not exclusive jurisdiction.
(iii) The parties were bound to carry out their agreement, and there-
fore the Sudan court would not adjudicate upon the issues arising out of
contract, as to which proceedings must be stayed.
• Court: Flaxman 1.
(iv) The clause however did not apply to the part of the claim based
upon tort, for the breaches alleged were in respect of acts independent of
the contract and not arising out of failure to perform the same.
Preliminary objection to jurisdiction
Upon an action brought in the Khartoum High Court, Abdel Latif
Abou Regeila and others took a preliminary objection to the jurisdiction of
the court.
In their petition dated lanuary II, 1939, the plaintiffs claimed a total
of £E.8,989.071 mlms due to themselves under a written contract dated
November 19, 1937, containing an agreement by the parties to submit "all
disputes arising under the contract" to the Egyptian native tribunals, and
also the sum of £ E.8,923.895 mlms as damages for tort.
March 27, 1939. Flaxman J.: In this suit an objection to this
court's jurisdiction has been raised and put in issue. It was originally
submitted by the defendants that there was a pending claim in the
Egyptian courts in respect of the claim now made by plaintiffs; but
tbis objection is now withdrawn, the defendants relying upon tbeir
remaining objection that by reason of a clause in the agreement out
of whicb tbis claim arises, under which the parties agreed to submit
all disputes arising out of the contract to the Egyptian native tribunals,
the jurisdiction of the Sudan courts is ousted.
In answer it is claimed tbat this court has jurisdiction over the
whole claim, part of which is framed in contract and part in tort. The
agreement to.submit to the jurisdiction of the Egyptian native tribunals
is not denied, tut it is submitted in the course of argument that it was
not within the power of tbe parties to exclude this court's jurisdiction,
and that an agreement to submit a particular dispute to a particular
court does not by itself oust the jurisdiction of the court ordinarily
competent to hear the case. Or tbat in any case tbe part of plaintiff's
claim arising in tort does not arise out of the agreement, and is not
within the terms of the agreement as to jurisdiction.
In spite of argument advanced to the contrary, I think it is
abundantly clear that the parties intended by their agreement to refer
any disputes arising thereunder to the Egyptian courts, and that they
selected those courts as tbeir forum, and that, although it is not specifi-
cally stated in the agreemtnt, an implied intention to exclude this
court's jurisdiction is, in the absence of evidence to the contrary, the
reasonable and natural interpretation to set upon the clause. And
further that, where there is an express agreement to submit to the
jurisdiction of a court which properly has jurisdiction in a dispute, that
the persons who have so contracted should be bound by their own
agreement. It is one of the duties of a court to compel parties to
fulfil their engagements, and, where they have entered into a binding
and valid agreement, the court should not interfere with it, but should
give effect to it as far as possible.
. It is admitted here that even in the absence of the clause there
would have been an Egyptian tribunal with jurisdiction to hear disputes
arising out of this contract. It is not a matter in which the Sudan
courts would ordinarily have exclusive jurisdiction, or where in the
absence of agreement the court agreed upon by the parties would not
hear them.
It is an agreement prima facie binding upon the parties, and one
upon which in my opinion the court should act unless for some good
cause, and none is shown here, the matter ought to be determined
otherwise than by the Egyptian native tribunal. The parties have
apparently agreed that their contract be construed according to Egyp-
tian law. I am by no means sure that the parties by their agreement
are able to oust the jurisdiction of this court, but that is a matter which
I see no reason to deal with here, because it appears that the just and
equitable step to be taken here is to order a stay of proceedings in so
far as that part of the claim which arises out of the contract is con-
cerned. The parties wiII thus have an opportunity to carry their dispute
/to their chosen forum.
The further point remaining for consideration is whether the
whole claim as now before this court is a "dispute which arises by
reason of this contract" and for that reason would be stayed. It seems
Clear that part of the claim arises in tort. The items do not appear
to relate to breaches of duty arising out of any failure to perform the
contract; they are in respect of acts which may fairly be considered
as independant of the contract. For this reason it seems that this part
of the claim does not relate to a "dispute which arises by reason of
this contract," and there are no grounds for this court to order a stay
of proceedings in respect of these items.
The result of the above is that I make an order staying proceed-
ings in this court, in so far as the items of claim relating to the contract
are concerned, and hold that this court has jurisdiction to hear that
part of the claim based upon tort.
Order accordingly