CC 424/2007    2007   T   NO. 14

IN THE HIGH COURT OF SIERRA LEONE

(CIVIC JURISDICTION)

BETWEEN:

TECNOSCAVI                                                           - PLAINTIFF

AND

CIVIL ENGINEERING COMPANY                          - FIRST DEFENDANT

DOMINICO GITTO                                                   - SECOND DEFENDANT

A.F. SERRY-KAMAL FOR THE                               DEFENDANT/APPLICANT

K. KAMARA & O. JALLOH FOR THE                    PLAINTIFF/RESPONDENT

RULING DELIVERED BY E.E. ROBERTS, J.A. ON THE 20th DAY OF NOVEMBER 2007

By Notice of Motion dated 8th June 2007, the 1st Defendant is seeking an order that "all proceedings in this matter be stayed on the grounds that there is a more convenient forum in Italy for the determination of the matter in dispute between the parties to this action".

In support of this application the 1st Defendant relies on the affidavit of Abdul Franklyn Serry Kamal sworn to on the 8th day of

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June 2007 and leave was granted by this Court to the 1st Defendant to also use and rely on the affidavit of Silvano Angaran sworn to on the 13th June, 2007.

Counsel for the 1st Defendant in substance argued that Italy and not Sierra Leone is the appropriate forum for the settlement of the issues in controversy between the Plaintiff and the Defendants. He submitted that the relationship between the parties leading to the dispute has a country of origin and that the contract between them out of which the disputes have arisen has an applicable law clause and an exclusive jurisdiction clause. In effect Counsel is contending that by Article 12 of the said contract which is exhibited as Exhibit SA2 1-6 in the affidavit of Silvano Angaran, the parties had agreed that the forum for settlement of disputes arising shall be Italy. Counsel for the applicant also submitted that the contract had real and substantial connections with the Courts in Italy, that all the assets of the Defendants were in Italy and that the witnesses in this matter are in Italy. Counsel urged the Court to apply the test laid down in the SPILIADA case. (I shall come back to this case in this ruling). Counsel also relied on the case of ELAMRIA 1981 2 Lloyds 123.

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Counsel for the plaintiff in opposing the application submitted that Sierra Leone was the appropriate and more convenient forum for the trial of this action. Counsel further submitted that notwithstanding clause 12 of the Agreement between the parties, the Court is not bound to grant this application but that the Court has a discretion having regard to among other things the advantages and disadvantages in trying the matter in one forum or the other. Counsel submitted that the equipment the subject matter of the agreement were to be and were in fact used in Sierra Leone. They were handed over to the Plaintiff in Sierra Leone. Further that the evidence to be adduced in the trial was readily available in Sierra Leone and the witnesses are all here in Sierra Leone.

The brief background of this case is as follows; - The Plaintiffs, a company registered in Italy are owners of several machinery, equipment and vehicles. The First Defendant is a company incorporated in Sierra Leone, or in any event as admitted by them, registered to operate in Sierra Leone under the Companies Act Cap. 249 of the Laws of Sierra Leone. The second Defendant who is apparently the Managing Director of the 1st Defendant and acting on their behalf entered into an agreement with the Plaintiff

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culminating in the signing of an Agreement between the Plaintiff and the 1st Defendant which is exhibited as SA1 (1-7)) which is in Italian and exhibit SA 2(1-6) that is the English version, attached to the affidavit of Silvano Angaran sworn in support of this application.

By this Hire Agreement the plaintiff's hired the several equipment (as listed in the Writ of Summons in this action) to the 1st Defendant for use in the performance of a Construction Contract which was for the construction of the Highway linking Sierra Leone and the Republic of Guinea. Disputes have now arisen in respect of the said Agreement, with the plaintiff's claiming among other things payment of hire rentals of which the 1st Defendant were in arrears for almost eight months, as well as damages arising out of \ . the alleged negligent use of the equipment by the 1st Defendant. It was in this regard that the Plaintiff has brought this action against the Defendants.

In considering the Defendant's application for a stay, I must remind myself of the position of the law in this regard:

Firstly, I rnust state that Counsel on either side agree that the Court is not bound to grant a stay of this action and that it has

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discretion as to whether to grant the application or refuse it as the ease may be.

I note that Counsel for the Defendant has made heavy weather of clauses 12 & 13 of the agreement which provide as follows:-

Article 12- Dispute "Any dispute that may arise during the Execution of this contract the arbitration will proceed exclusively internal and will be settled by the competent place of jurisdiction of TERAMO, in Italy."

Article Final Disposition Both parties agree and convey that they understand all the Articles of civil code 1, 2,3,4,5,6,7,8,9,10,11,12,13.

With respect, these provisions cannot be regarded as decisive in determining whether or not Sierra Leone or indeed Italy is the appropriate place (or law) for the determination of disputes arising out of the said Agreement, In the fehmarn reported in 1957 1 W.LR. 158, Lord Denning had to consider a similar application as the present one in which similar provisions as articles 12 and 13 above were relied on.

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This was what Lord Denning had to say at page 162 of his Judgment:-

"The next question is whether the action ought to be stayed because of the provisions in the bill of lading that all disputes are to be judged by the Russian Courts. I do not regard this provision as equal to an arbitration clause, 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. It 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..... I do not regard the choice of law in the contract as decisive. I prefer to look to see with what country is the dispute most closely connected."

In determining the Defendant's application therefore I would have to be guid8d by the principles so authoritatively and comprehensively stated by the House of Lords in the case of SPILIADA MARITIME CORP -v- CONSULEX LTD 1986 3 All ER 843 H.Q.L

In an application such as the present one, the House of Lords stated the guidelines to be followed which are summarised as follows;-

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(a) the court will choose the forum in which the case can be tried more suitably in the interest of all the parties and for the ends of justice.

(b) In an application for stay in these circumstances the burden of proof lies on the defendant who is seeking a stay of the proceedings. He must not only show that the present forum is not the appropriate one, he must also show that the other forum is clearly more appropriate.

(c) In considering whether there is another forum which is more appropriate, the Court will look for that forum with which the action has the most real and substantial connection e.g. in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the place where the parties reside or carry oil business.

Bearing in mind the guidelines provided by the Spiliada I have had to deal with the issues raised, though not necessarily seriatim, in relation to the application before me;

I have carefully read the affidavits for and against the application. Counsel for the Defendant contends that the contract was made in

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Italy, in Italian and was to apply Italian law. He went further to state that the parties are all Italian and that the witnesses are all in Italy. All these submission were in an attempt to discharge the burden of proof which lay upon him in order to persuade this court to grant the orders prayed for.

I must here state that I am more persuaded by the submissions of Counsel for the Plaintiff and I do not think that the 1st Defendant has convinced me that Italy is a more appropriate forum than Sierra Leone for the trial of this action.

In coming to this conclusion I have had to review the entire evidence before me as contained in the several affidavits filed. The Writ of summons in this action reveals that the action arose from a contract for hire of certain equipment in Italy to be used for construction work in Sierra Leone. The Agreement Exhibit SA2 (1-6) also confirms that the contract was primarily for use of the hired equipment to construct a highway in Sierra Leone. This to me is clear evidence establishing a substantial link to Sierra Leone. Furthermore I am inclined to believe that having regard to the claims in the Writ of Summons in this action a good number of the witnesses may be found in Sierra Leone as alleged by the Plaintiffs, And if this is so then it would be considerably cheaper to

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have the matter tried here than in Italy. The claims in the Writ include an allegation of negligent use of the machinery, proof of which, as was submitted by Counsel for the Plaintiff, would require the testimony of drivers, operators of the machines as well as persons who conducted an assessment of damages, all of whom were in Sierra Leone. I found paragraphs 5 to 11 and 18 to 21 of the affidavit of Abdulai Jabbie in opposition to this application to be very helpful in assessing the relative convenience and availability of witnesses between Italy and Sierra Leone. Again as admitted in paragraph 5 of the affidavit of Abdul Franklyn Serry kamal, the Defendant is registered to do business in Sierra Leone and they indeed carry on business in Sierra Leone among which is road construction.

All of these leave me with the clear impression that Sierra Leone is the appropriate forum in which the trial of this action may be held.

. The case of the Splliada was among others applied in the local case of A. P. Moller v Hadson Taylor & Co. Civ.App 10./88 unreported and I found the Judgment of Thompson-Davies, J.A. in that case very useful in dealing with the present application.

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Having reviewed the entire evidence before me as contained in the affidavits filed and having applied the guidelines regarding the applicable law in respect of this application I have come to the following conclusions;-

a) That it will be relatively cheaper to try this action in Sierra Leone than in Italy.

b) That the action appears to be more substantially connected with Sierra Leone than with Italy.

c) That it will be more convenient in terms of availability of witnesses and evidence to try this action in Sierra Leone.

d) On the whole and in the interest of justice it will be more appropriate to have this action tried in Sierra Leone.

As Lord GOFF said in his judgment in the SPILIADA case (above) at page 854 thereof:

"The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action he. in which the case

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may be tried more suitably for the interests of all the parties and the ends of justice."

This Court has competent jurisdiction to try this case and it is the more appropriate forum to do so.

In the light of the above, I will not grant the Defendant's application I therefore order as follows;

a)  That the 1st Defendant's application for stay of this action is refused.

b)  The cost of this application assessed at Le. 1,000,000,00 be borne by the 1st Defendant.

E, E, ROBERTS, J.A.