C.I.L.E.V. v. CHIAVELLI AND ANOTHER [1968] GLR 160

DIVISION: HIGH COURT, ACCRA

DATE: 15 FEBRUARY 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

RULING in an application for a review of a ruling that the action herein be struck out. The facts are sufficiently set out in the ruling of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

S. H. Annancy for the plaintiffs.

Djabanor (with him Lamptey) for the defendants.

JUDGMENT OF AMISSAH J.A.

On 27 November 1967 (see [1967] G.L.R. 651) 1 delivered a ruling in which I ordered that this action be struck out. It was my opinion that the parties should be kept to their arrangement to sue and be sued in Italy. An application has now been brought by the plaintiffs that I review that order so that the action may be heard in this country. Reliance has been placed for this purpose upon that part of Order 39, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which enables the court to review its orders for any sufficient reason shown. Mr. Annancy for the plaintiffs has said that the court erred in declining to hear the case because the court had come to the conclusion, quite wrongly, that only the court in Modena in Italy had jurisdiction to hear and determine the case. But that this was not so a jurisdiction in actions in personam could be exercised by the court within whose territorial jurisdiction the defendant was found, and in this case the defendants were here. He argued that the plaintiffs’ action against the first defendant was not in contract but in detinue and that this had been so held by this court. That the action against the second defendants was withdrawn as a notice of discontinuance had been filed two days before the ruling was read and as an announcement as to the withdrawal was made immediately before the ruling was read. And that if the court had taken that factor into account, the decision would have been different. It seems to me that this request for a review is based upon a misappreciation of my earlier ruling. In the first place, it was not my view that only the court at Modena was vested with jurisdiction in this matter. Secondly, had I in that ruling treated the defendant Chiavelli differently from the second defendant company, then the submissions now made on the withdrawal against the second defendants would have had some point. But I did not. Nowhere in my ruling did I say that only the action against the second defendant company was founded on contract and therefore must have its fate determined by the note on the invoice which opted for the Modena court as the forum for disputes, while the action against the defendant Chiavelli was an action in detinue and therefore presumably free from obeying any clauses or notes that may be found on a document which evidences a contract. I did mention that the plaintiffs claimed [p.163] of [1968] GLR 160 that their action against the defendant Chiavelli was in detinue. But it will be a sad day for the courts when it is held that the claim of a plaintiff automatically binds a court.

It is this attribution to the court of a ruling importing different causes of action against the two defendants which has resulted in such learning and energy being lavished by learned counsel for the plaintiffs on the right of a plaintiff to discontinue an action. My attention was drawn to Order 26, r. I of L.N. 140A which entitles a plaintiff to an action to discontinue the action against all or any of the defendants at any time before receipt of the defendants’ defence, or after the receipt thereof before taking any other proceedings in the action except an interlocutory application. On 23 November 1967, arguments were heard by this court on the question whether the action should not be taken before the courts at Modena. The ruling on the arguments was reserved until 27 November. On 25 November the plaintiffs filed a notice of discontinuance against the second defendant company. The ruling was read as arranged on 27 November when the action against the defendants was struck out, the court taking the view that the parties should litigate their contrary claims before the judicial authorities of Modena. The argument now presented by Mr. Annancy for the plaintiffs is that if the court had taken notice of this discontinuance, its ruling would have been different for the court had concluded that there was a contract between the plaintiffs and the second defendants which was affected by the note on the invoice of the goods shipped to the second defendants which made Modena the forum for disputes. But the defendant Chiavelli was not affected by this invoice. If therefore the second defendants had been taken out of the action as was warranted by the notice of discontinuance, then that invoice would also be taken out, leaving the action against the defendant Chiavelli alone and in terms what the plaintiffs had always said it was, namely, an action in detinue. In the course of this submission learned counsel for the plaintiffs urged that the plaintiffs were at this relevant stage entitled to withdraw against the second defendants without leave of the court as no defence had been filed by them. This argument was extremely technical because at the material time there was on the record a defence filed by Messrs. Djabanor & Co., solicitors, which purported to be a defence for all the defendants. Mr. Annancy tried to get round this fact by saying that when the action was started against the two defendants one Mr. Cann entered appearance for both defendants. When subsequently Mr. Cann declined to act for them, Messrs. Djabanor & Co. filed a notice of change of solicitors in respect of the defendant Chiavelli alone nothing being said by them about the second defendant company. Messrs. Djabanor & Co. were therefore [p.164] of [1968] GLR 160 not entitled to file a defence on behalf of the second defendant company.

This argument, however, overlooks the fact that when the plaintiffs commenced their action, it was against “Timber Imports and Exports of Takoradi” as second defendants. There was in fact no legal person known by that name. When Mr. Cann therefore entered appearance for the defendants, whatever he purported to have done, he did not enter appearance for the second defendants who are “Timber Import-Export S.p.a. (Ghana) Ltd.,” a limited liability company. This point must have been brought home to the plaintiffs because they sought by application at a later stage to have the name corrected to describe the second defendants properly. At the time that Messrs. Djabanor & Co. filed their notice of change of solicitors in respect of the defendant Chiavelli, however, the second defendant company was still “Timber Imports and Exports of Takoradi,” the unknown person. I think the new solicitors were entirely within their rights not to have included the second defendant company as described after the amendment in their notice even if they were in fact representing them because as far as the solicitors knew, they had not been sued. When the amendment brought the second defendant company in, the solicitors quite properly filed papers on their behalf without filing a notice of change of solicitors. There had been no previous solicitors for “Timber Import-Export S.p.a. (Ghana) Ltd.” to change. This adventure into the realms of technicality, however, is quite unnecessary. The plaintiffs could nevertheless discontinue against the second defendants, without leave of the court, even after the delivery of the defence at any time before they had taken any formal proceedings with the view to continuing the litigation: see Spincer v. Watts (1889) 23 Q.B.D. 350, C.A.; Mundy v. Butterley Co., Ltd. [1932] 2 Ch. 227; Barclay Davit Co., Ltd. v. Samuel Taylor & Sons Ltd. (1946) 175 L.T. 38. Such a step would for example be a delivery of an amended statement of claim (see Vickers, Son & Maxim Ltd. v. Coventry Ordnance Works Ltd. [1908] W.N. 12) or a reply (Robertson v. Purdey [1906] 2 Ch. 615). But it was not clear whether the plaintiffs had done so in this case and the proposition was not argued. There was for example a notice of amendment of the writ. Whether it was taken before or after the defence was filed and if so what effect it had was not the subject of any submissions and I should not therefore feel it proper to rule on it. I am of the opinion that the argument made by counsel on the point was quite barren because in any event if the notice of discontinuance against the second defendant company had been accepted by the court the result would have been striking [p.165] of [1968] GLR 160 out the action against that defendant company as indeed did happen in consequence of the ruling.

Would the discontinuance of the action against the second defendant company if recognised before the ruling was delivered have resulted in the court deciding to hear the action against the defendant Chiavelli? As I said earlier the argument in favour of this view proceeds on the premise that the court accepted that there were two distinct causes of action against the defendants: one arising out of contract against the second defendant company and the other in detinue against the defendant Chiavelli. And that if the case in contract were removed from the purview of the court, by, for example, a discontinuance against the second defendant company, then there would be no question of any court in Modena being the forum for the adjudication of disputes between the parties. But this view does not accord with the court’s conclusion. No such distinction was drawn by this court between the cases against the defendants. In fact the allegations against each of them were so intricately woven with those against the other that it would have been impossible if not unjust to do so. No discontinuance against the second defendant company would have made any material difference to the averments in the plaintiffs’ statement of claim that the defendant Chiavelli was a businessman and the managing director and shareholder of the second defendant company. That the plaintiffs shipped the goods, the subject-matter of the dispute to the second defendant company because they, the plaintiffs, had requested the defendant Chiavelli as the plaintiffs’ representative in Ghana to secure import licences for the goods and consequently issued the invoices in the name of the second defendant company. That the plaintiffs said that invoices were issued in the name of the second defendant company because at the time of shipment the defendant Chiavelli who was a shareholder of the plaintiffs and their representative in Ghana requested it so, as the second defendant company were already registered in Ghana. I take these assertions from paragraphs (2), (7) and (9) of the plaintiffs’ statement of claim. If the second defendant company were not defendants in the case the only difference which that fact would have made to these statements, and in this respect the difference would have been a mere matter of convenience in description, is that instead of describing the second defendant company as such, they would have been named specifically. This would in no way have changed the, plaintiffs’ story as to how the goods they claim to be theirs came to be shipped to Ghana and to the address they were shipped to. That story is the foundation of their claim to certain goods now in Ghana whether their case be against the defendant Chiavelli alone or against him and somebody else. Nor [p.166] of [1968] GLR 160 would a discontinuance against the second defendant company alter the nature of the contrary assertion in the defence, as found in paragraph (9), except of course again on the point of nomenclature, that the defendants entered into an agreement with the plaintiffs for the sale on credit to the defendants of the goods described. These were the goods which as indicated by the passages of the statement of claim quoted above were invoiced to the second defendant company in Ghana. Thus far from the discontinuance against the second defendant company sweeping the invoice under the carpet, that invoice is left still as one of the central documents of the case. One cannot ignore it in coming to a decision even in the case against the defendant Chiavelli alone. And it is in that invoice that the note is made that, “For every dispute only the Forum of the Judicial Authority in Modena is competent.” In my earlier ruling , (reported in [1967] G.L.R. 651 at p. 655) 1 said of this:

“The note does not say that disputes arising from the sale should be submitted to the judicial authority in Modena, it speaks of ‘every dispute’. To my mind this means all disputes arising out of the subject-matter of the invoice. This should include disputes over the nature of the transaction itself which is covered by the invoice. Whatever the transaction, I am of the opinion that the parties to it contracted to submit disputes arising therefrom to the judicial authority at Modena.”

Nothing has been said by learned counsel for the plaintiffs on this application for review to persuade me to alter that view. Mr. Annancy pressed upon me the definition of “invoice” as found in Jowitts’ Dictionary of English Law (1st ed.) (Second Impression) at p. 1006. That says that an invoice is “a written account of the particulars of goods sent or shipped to a purchaser, factor etc. with the value, or prices, or charges annexed.” I do not think that it advances his case at all. Because in order to have a shipment or conveyance to a purchaser or factor there must be a contract of sale or agency with the purchaser or factor which is what the plaintiffs here deny.

It has been said that a ruling I gave in the case of C.I.L.E.V. v. Black Starline on 18 December 1967 (reported in [1967] G.L.R. 744) makes it clear that this court ought not to decline jurisdiction in the present case. But surely that need not follow. In the case against Black Star Line there were considerations which made it imperative that even though the parties had chosen their own forum, this court should nevertheless exercise its undoubted jurisdiction to determine the case. The forum chosen was England a country with which the contract otherwise had no connection whatsoever. The defendants were a Ghanaian company holding goods of which the plaintiffs [p.167] of [1968] GLR 160 therein claimed they were entitled to possession. With every day which passed vast rents were being accumulated against the person who was eventually to take possession of the goods and in favour of the Government of Ghana. There was no issue which the English courts could try more conveniently than the Ghanaian courts. The hearing of the action bad been started and some evidence had been heard. Then the defendants raised the question of the jurisdiction as agreed to by the parties. In a case in which this court has jurisdiction by virtue of the fact that the parties are effectively before the court, I think the court ought not to decline to exercise its jurisdiction unless there is some sufficient reason. That is what one finds in this case. There is an arrangement closely connected with Italy. The plaintiffs are an Italian company. The defendant Chiavelli is both a shareholder and administrator of the plaintiff-company and a shareholder and managing director of a second company originally incorporated in Italy and only registered in Ghana. The arrangement was made in Italy. All documents connected with it are in Italian. The capacity in which the defendant Chiavelli entered into the arrangement is a matter of dispute. Ghana only comes into the picture because the goods, the subject-matter of the arrangement, have been invoiced and shipped to the company of which the defendant Chiavelli is managing director at its address in Ghana. At one stage the plaintiffs told the court how the defendant Chiavelli dashed from the office of the company of which he is managing director in Italy, an office which happened to be in the same building, to the office of the plaintiffs to induce a certain course of action. At the next stage the plaintiffs claimed that the company of which the defendant Chiavelli is managing director had been liquidated in Italy for years and that they have documents in Italian to prove this. On the invoice of the goods is a note obviously inserted by the plaintiffs that disputes arising out of the invoice should be adjudicated upon by a court in Italy. Can it be said that the circumstances of this case are the same as those in the Black Star Line case ? I think not. In fact a look at the pleadings would lead and did lead this court to the conclusion that the full story of the arrangement between the parties had not been told and that if the action were allowed to continue here it would never be told. The conduct of the plaintiffs confirmed the court in the view that the best forum to do justice in the case would be the court in Italy. I am still of that opinion. It is not impossible, nor is it even unusual, for a court with undoubted jurisdiction in a case to decline to exercise it in deference to a court of a foreign country also with jurisdiction in the case: see In re Norton’s Settlement; Norton v. Norton [1908] 1 Ch. 471, C.A.;

[p.168] of [1968] GLR 160

Kirchner & Co. v. Gruban [1909]1 Ch. 413 and The Cap Blanco (1913) 29 T.L.R. 557, C.A.

In my earlier ruling, I struck out the plaintiffs’ action. In these review proceedings I invited argument from counsel on whether this was the proper order or whether it should rather have been one staying the action. Both learned counsel agree on this that the proper order, if the court was of the opinion that the parties should take their chance before the Italian court, should have been one staying the action. A number of authorities supports this view: see for example Kirchner & Co. v. Gruban and The Cap Blanco (supra). In respect of the defendant Chiavelli therefore, I should have stayed the proceedings pending the action in the courts in Italy. I. therefore vary my order in the following terms: the action against the first defendant is hereby stayed, but the action against the second defendants is struck out.

DECISION

Application for review dismissed.

Previous order striking out suit varied; suit stayed.

S. K. T.