Indigenous Investments Ltd Claimant v Bankers Insurance Company of Trinidad and Tobago Defendant [ECSC]

• Jurisdiction: Grenada
• Judge: Mohammed, J.
• Judgment Date: 29 May 2014
• Judgment citation (vLex): [2014] ECSC J0529-2
• Court: High Court (Grenada)
• Date: 29 May 2014
• Docket Number: CLAIM NO. GDAHCV 2013/0423

[2014] ECSC J0529-2

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CLAIM NO. GDAHCV 2013/0423

Between:

Indigenous Investments Limited

Claimant

and

Bankers Insurance Company of Trinidad and Tobago

Defendant

Appearances:

Ms. Thandiwe Lyle for the Claimant

Ms. Katisha Williams holding for Mr. Asaf Hosein for the Defendant

REASONS IN ORAL RULING

Mohammed, J.

1 By notice of application filed on 7 ^th January 2014 ("the application"), Bankers Insurance Company of Trinidad and Tobago, the Defendant in this matter ("Bankers"), applied for a stay of the proceedings in the substantive matter pending the hearing of the application, for an order that the Court has no jurisdiction to try the claim with an alternative relief that it be granted an extension of time by 42 days from the determination of the application to file its defence.

2 Bankers relies on five grounds for the application, namely: it does not agree to submit or submits to the jurisdiction of the Court; the proper jurisdiction for the determination of the issues in the substantive matter is Trinidad and Tobago; the Performance Security and Advance Payment security documents were drafted, executed and issued in Trinidad and Tobago and as such is governed by the laws of Trinidad and Tobago; Bankers is entitled to bring proceedings against a defaulting party, Millenium Holdings Ltd ("Millenium"), which is a company recognized by the Claimant in the substantive matter ("Indigenous") as being registered in Trinidad and Tobago, and even if Indigenous is successful in its action it would still be required to re-file proceedings in Trinidad and Tobago because Bankers is not agreeing to submit to this Court's jurisdiction. In support of the application is an affidavit of Kean Gandalal ("the Gandalal affidavit"), the legal adviser to Bankers, which essentially repeats the grounds sets out in the application.

3 Indigenous opposes the application for the following reasons:

• (a) The applicable law in the contract documents expressly state the Laws of Grenada; this was clear to Bankers since it had received such legal advice and it acquiesced to the Laws of Grenada being the applicable law;

• (b) The contract documents were executed in Grenada and the performance of the contract was to take place in Grenada, and Grenada is the natural forum for the trial since it is the place where the action has the most real and substantial connection.

It has filed two affidavits in opposition, namely an affidavit of Timothy Bubb, the consulting engineer in the project, and Anslem La Touche, its Chairman of the Board of Directors.

4 The applicable principles which the Court is guided by in determining the application are found in Spiliada Maritime Corporation v Cansulex Limited1 and more recently in Commercial Marine Piling Ltd. v Pierse Contracting Ltd.2 They are:

• (a) An expressed provision in the contract which sets out the applicable law, which is the applicable law of the Court that has assumed jurisdiction, will weigh in favour of the Claimant.

• (b) The party who has already established jurisdiction carries an advantage since a court that has jurisdiction will not give it up lightly.

• (c) The Court will also look for connecting factors in determining jurisdiction, which include convenience, expense, governing law of the relevant transaction and the place where the parties reside and carry on business.

• (d) A stay of the proceedings will only be granted on the ground of forum non convenient where the Court is satisfied that there is some forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, that is, in which the case may be tried more suitably for the interest of all parties and the ends of justice.

• (e) The burden of proof is on the person applying for the stay.

5 I dismiss the application for the following reasons:

• (a) The contract documents expressly state that the Law of Grenada is the applicable law. The documents which are exhibited to the affidavit of Timothy Bubb (TB1) form the bundle of documents underlying the...