TOF ENERGY CO LTD & ORS v. WORLDPAY LLC & ANOR (2022)

TOF ENERGY CO LTD & ORS v. WORLDPAY LLC & ANOR

(2022)LCN/16490(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, April 29, 2022

CA/LAG/CV/1187/2019

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. TOF ENERGY COMPANY LIMITED 2. TOF ENERGY CORPORATION 3. JYDE ADELAKUN APPELANT(S)

And

1. WORLDPAY LLC 2. POLARIS BANK LIMITED (FORMERLY SKYE BANK PLC) RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The pre-eminent status or stature of jurisdiction in the scheme of legal proceedings is well ingrained in our jurisprudence. It is therefore merely restating the obvious that jurisdiction is the first test in the legal authority of a Court or Tribunal and its absence disqualifies the Court or Tribunal from determining the substantive issues submitted to it for adjudication. This is so because jurisdiction is the very lifeline of judicial power [and judicialism] without which the entire proceedings constitute a nullity however brilliantly they may otherwise have been conducted. Indeed, jurisdiction is everything: without it, a Court has no power to take one step in the proceedings beyond merely declaring that it lacks jurisdiction; there would be no basis for the continuation of proceedings pending and the Court downs its tools in respect of the matter before it the moment it holds the opinion that it is bereft of jurisdiction. Jurisdiction is a radical and crucial question of competence and any defect in the competence of the Court is fatal and snuffs out the life of adjudication from the Court; such defect is extrinsic to the adjudication on the merit and the proceedings however well-conducted and decided they otherwise may be a nullity. See MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587 at 595, ROSSEK v ACB LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 and 487, MATARI v DANGALADIMA [1993] 3 NWLR (PT. 281) 266; OLOBA v AKEREJA[1988] 3 NWLR (PT. 84) 508 and OKE v OKE [2006] 17 NWLR (PT. 108) 224 amongst a host of other cases. Owing to its fundamental and intrinsic nature and effect in judicial administration, it is neither too early nor too late in the day to raise the issue of jurisdiction, nor is the Court finicky or fussy about the manner in which it may be raised. It can be raised viva voce [see PETROJESSICA ENTERPRISES LIMITED v LEVENTIS TRADING COMPANY LIMITED [1992] 5 NWLR (PT. 244) 675 at 678 and NDIC v CBN [2002] 7 NWLR (PT. 766) 272], or for the first time on appeal without any restraints as to leave or otherwise. See WESTERN STEEL WORKS LTD & ANOR v IRON STEEL WORKERS LTD [1987] 2 NWLR (PT. 179) 188, MAGAJI v MATARI [2000] 8 NWLR (PT 670) 722 at 735, ADERIBIGBE v ABIDOYE [2009] 10 NWLR (PT. 1150) 592, 615, AKEGBE v ATAGA [1998] 1 NWLR (PT 534) 459 at 465, STATE v ONAGORUWA (1992) 2 SCNJ 1 and ATTORNEY-GENERAL, LAGOS v DOSUNMU[1989] 3 NWLR (PT. 111) 552. Jurisdiction can also be raised by the Court suo motu once sufficient facts or materials are available without any charge of bias by any of the parties insofar as the parties are afforded the opportunity to address the Court on the issue so raised. See SAMSON OWIE v SOLOMON IGHIWI[2005] 3 MJSC 82 at 112 –per Niki Tobi, JSC, OLORIODE v OYEBI (1984) 1 SCNLR 390, OBIKOYA v THE REGISTRAR OF COMPANIES (1975) 4 SC 31, 35, NNPC v ORHIOWASELE & ORS(2013) LPELR–20341 (SC); NDAEYO v OGBONNAYA (1977) 1 SC 11 and ELABANJO V DAWODU (2006) 15 NWLR (PT. 1001) 76. PER AFFEN, J.C.A.

WHETHER OR NOT IT IS A PLAINTIFF’S CLAIM THAT DETERMINES THE JURSIDCTION OF A COURT TO ENTERTAIN A SUIT

In civil jurisprudence, where the issue arises as to whether or not a Court can entertain a suit, it is to the plaintiff’s claim that reference must be made in order to find an answer. See ADEYEMI v OPEYORI (1976) 9-10 SC 31 at 49, NZEKWE v NNADOZIE (1952) 14 WACA 361,TUKUR v GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517 at 549 and METTERADONA v AHU [1995] 8 NWLR (PT. 412) 225. Jurisdiction is determined by the claimant’s demand and not the defendant’s answer which merely disputes the existence of the claim but does not alter or affect its nature. Put differently, it is the statement of claim and not the statement of defence that is to be looked at in order to determine jurisdiction. See C.G.G. (NIG) LTD v OGU [2005] 8 NWLR (PT 927) 366, ABIA STATE TRANSPORT CORP. v QUORUM CONSORTIUM LTD[2004] 1 NWLR (PT 855) 601 at 621, ATTORNEY-GENERAL, KWARA STATE v WARAH [1995] 7 NWLR (PT. 405) 120, ANIGBORO v SEA TRUCKS (NIG) LTD. [1995] 6 NWLR (PT. 399) 35 and ONUORAH v OKEKE [2005] 10 NWLR (PT. 932) 40. But even though jurisdiction is donated by the claim before the Court, ‘the jurisdiction of a Court or Tribunal is not something you employ a searchlight to discover: it must be plain for all to see’. See OBI v INEC [2007] 11 NWLR (PT. 1046) 565 at 669 E –per Oguntade, JSC. PER AFFEN, J.C.A.

THE INTENTION OF PARTIES TO A WRITTEN CONTRACT

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
Choice of law/jurisdiction clauses designating particular laws/Courts (including that of a foreign country) as the preferred legal regime and/or forum for resolving disputes are not uncommon in commercial contractual agreements. But as is often the case, one party initiates legal proceedings elsewhere in defiance of their agreement, and the other party seeks the Court’s intervention to hold the erring party to his bargain. That is the typical scenario in the instant appeal. The 1st Respondent [WorldPay LLC] and the 2nd Appellant [TOF Energy Corporation] are companies incorporated under the laws of, and carrying on business in, the United States of America (“USA”). Sometime in August 2018, these two American companies entered into a Bank Card Merchant Agreement (“BCMA”) as “processor” and “merchant” respectively. Clause 23 thereof (which deals with “Choice of Law: Jurisdiction. Venue”) designates “the State and Federal Courts in Cincinnati Ohio or Hamilton County, Ohio and select such Courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement and/or pertaining in any way to the relationship between Merchant and Processor”. The 3rd Appellant [Jyde Adelakun] is the Chief Executive Officer of the 2nd Appellant (i.e. the “merchant” under the BCMA), as well as a shareholder/director of the 1st Appellant [TOF Energy Company Limited]: a private limited liability company incorporated and organised under the Laws of Nigeria, which holds/operates Account Nos. 1771453359 and 1771335693 domiciled with the 2nd Respondent [Polaris Bank Limited]: an entity duly licenced by the Central Bank of Nigeria to undertake the business of banking in Nigeria.

The 1st Respondent alleged that it fell victim of “sophisticated wire transfer fraud” perpetrated by the 2nd Appellant through the direction and at the instance of the 3rd Appellant as transactions processed through the 2nd Appellant’s account (as ‘merchant’ under the BCMA) were found to be fictitious; and that part of the proceeds of fraud were traced from the 2nd Appellant’s account at Standard Chartered Bank, New York, USA to the 1st Appellant’s two accounts domiciled with the 2nd Respondent in Lagos, Nigeria. The 1st Respondent herein (as claimant) consequently initiated Suit No. LD/3881CMW/2018: World Pay LLC v Polaris Bank LLC & 3 Ors against the Appellants and the 2nd Respondent (as defendants) vide a writ of summons (and accompanying statement of claim) issued out of the Registry of the High Court of Lagos State on 29/10/18, claiming declaratory and monetary reliefs as follows:
(a) A declaration that the 2nd and 3rd Defendants fraudulently converted the sum of US$4,920,500 (Four Million, Nine Hundred and Twenty Thousand, Five Hundred United States Dollars) belonging to the Claimant, as part of other sums for which the 2nd and 3rd Defendants defrauded the Claimant.
(b) A declaration that the Claimant is entitled to the refund of the sum of US$4,920,500 from the 2nd, 3rd, 4th and 5th Defendants jointly and severally.
(c) An order compelling the 2nd, 3rd, 4th and 5th Defendants jointly and severally to pay over to the Claimant immediately the sum US$4,920,500 in the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 1st Defendant and held by the 2nd Defendant and/or the 4th Defendants.
(d) An order directing the 1st Defendant to remit immediately to the Claimant’s Account No. 7024699980) held with Fifth Third Bank, Swift Address: FTBCUS3C the sum of US$4,920,500 in the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 1st Defendant and held by the 2nd Defendant.
(e) In the event that the amount in the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 1st Defendant and held by the 2nd Defendant is less than the US$4,920,500 paid into those accounts by the 3rd Defendant, an order compelling the 2nd, 3rd, 4th and 5th Defendants, jointly and severally, to pay to the Claimant immediately, the sum of US$4,920,500 being the amount fraudulently and unlawfully paid by the 3rd Defendant and received by the 2nd Defendant into the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 1st Defendant.
(f) In the event that the amount in the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 1st Defendant and held by the 2nd Defendant is less than the US$4,920,500 an order directing the 1st Defendant to remit immediately to the Claimant’s Account (7024699980) held with Fifth Third Bank, Swift Address: FTBCUS3C the sum of US$4,920,500 from any account or combination of accounts which the 2nd Defendant, 4th and 5th Defendants operate with the 1st Defendant.
(g) AN AWARD OF EXEMPLARY DAMAGES of in the sum of US$2,450,000 (Two Million Four Hundred and Fifty Thousand United States Dollars only) to the Claimant for the unconscionable, despicable and hurtful manner in which the Defendants have conducted themselves in their dealing with the Claimants.
(h) COSTS of this action on a full indemnity basis, including but not limited, to counsel’s fees and expenses.
(i) INTEREST on the sum of US$4,920,500 at the rate of 21% per annum from the date the money was fraudulently taken out of the account of the Claimant until judgment; thereafter interest at the rate of 10% per annum until payment.

It is averred that upon becoming aware that $4,920,500 was transferred into the 1st Appellant’s accounts domiciled in Nigeria, the 1st Respondent contacted the 2nd Respondent and furnished details of the [alleged] fraudulent conversion and tracing of funds into the 1st Appellant’s accounts and urged the 2nd Respondent not to disburse the funds or deal with the accounts until further notice as the 1st Respondent intended to initiate appropriate legal proceedings in respect thereof (see paras. 28, 31, 32, 33 and 34 of the statement of claim at pp. 13-25 in Vol. 1 of the records). Along with the writ of summons and accompanying processes, the 1st Respondent filed an affidavit of urgency, motion ex parte for interim injunction and motion on notice for interlocutory injunction (see pp. 219–627 in Vol. 1 of the records). The 1st Respondent’s Global Head of Transaction Monitoring, Ian Bell deposed in paragraphs 40 and 41 of the affidavit of urgency (at p. 221 of the records) that:
40. I am aware that the 2nd and 3rd Defendants in concert with the 4th and 5th Defendants have begun transferring the funds out of the bank accounts with account numbers 1771453359 and 1771335693 domiciled with the 1st Defendant.
41. I verily believe that there is an extreme urgency in this case as the 2nd and 3rd Defendant could deplete the bank accounts domiciled with the 1st Defendant. This is because as stated in the paragraphs above, the 2nd, 3rd and 4th and/or 5th Respondents have demonstrated the propensity for moving funds in and out of various jurisdictions.

The 2nd Respondent [qua 1st Defendant] filed a statement of defence on 17/12/18, whilst the Appellants (qua 2nd, 3rd and 4th Defendants) filed on 25/2/19 their statement of defence as well as a motion on notice dated 21/2/19 praying for an order dismissing or striking out the suit on the following grounds:
(i) that the High Court of Lagos State lacks the jurisdiction to entertain the suit
(ii) that the suit is incompetent for non-compliance with Pre-action Protocol
(iii) that the Statement of Claim discloses no reasonable cause of action against the Appellants
(iv) that the 1st Respondent lacks the locus standi to institute this suit and
(v) that this suit constitutes an abuse of Court process.
See pp. 663–796 in Vol. 2 of the records.

In a considered ruling delivered on 10/7/19 (which lies at pp. 1015–1025 in Vol. 2 of the records), the lower Court (coram: K. O. Dawodu, J.) dismissed the Appellants’ motion and assumed jurisdiction to entertain and determine the suit. This present appeal, initiated vide a Notice of Appeal dated 23/7/19 which lies at pp. 1026–1031 in Vol. 2 of the records, is an expression of the Appellants’ discontent with the said ruling. In keeping with the procedure for prosecuting and resisting appeals in this Court, the parties filed and exchanged briefs of arguments. The Appellants’ Brief filed on 2/7/21 was deemed properly filed and served on 5/7/21; the 1st Respondent’s Brief was filed on 3/8/21; the 2nd Respondent’s Brief filed on 1/11/21 was deemed properly filed and served on 7/2/22; whilst the Appellants’ separate Reply Briefs to the 1st and 2nd Respondent’s Briefs filed on 3/2/22 were deemed properly filed and served on 7/2/22 when this appeal was heard.

Issues for determination
From the two grounds of appeal raised in the notice of appeal, the Appellants distilled the following two issues for determination:
(i) Whether the learned trial Judge was right in holding that the choice of Ohio State Courts, United States of America as venue for the resolution of disputes as stipulated in Clause 23 of the Bank Card Merchant Agreement cannot oust the jurisdiction of the High Court of Lagos State to entertain the suit and consequently holding that the trial Court has the jurisdiction to entertain this suit? (Ground II of the Appellants’ Notice of Appeal)
(ii) Whether the learned trial Judge was right in holding that non-compliance by the 1st Respondent with the Pre-action Protocol Form 01 is a mere irregularity which does not nullify the suit herein or render same incompetent? (Ground II of the Appellants’ Notice of Appeal).

The 1st Respondent equally identified two issues for determination as follows:
a. Whether Ground 1 of this appeal is academic given that the Appellant did not appeal against the substantive decision of the lower Court? (Distilled from Ground 1 of the Appellants’ Notice of Appeal).
b. Whether the learned trial judge was right in holding that the non-compliance of the Pre-action Protocol Form 01 of the High Court of Lagos State (Civil Procedure) Rules 2012 is a mere irregularity which does not nullify or render the suit incompetent (Distilled from Ground 2 of the Appellants’ Notice of Appeal).

The 2nd Respondent, on its part, adopted the two issues distilled by the Appellants without saying so expressly. A careful and insightful appraisal of the issues identified by the parties reveals that the Appellants’ second issue and the 1st Respondent’s second issue are practically the same. But the 1st Respondent’s first issue (which is, essentially, an attack on the Appellant’s first issue for allegedly being academic) seems to me problematic on two fronts. First, the question of whether or not Ground 1 is academic cannot be said to arise from the two grounds of appeal raised by the Appellants. Having not filed a respondent’s notice or a substantive cross-appeal, the 1st Respondent is certainly not at liberty to formulate an issue for determination that veers outside the grounds of appeal. See CARLEN v UNIVERSITY OF JOS & ANOR (1994) 1 SCNJ 72 and AGWUNEDU v ONWUMERE (1994) SCNJ 106.

In appellate practice and procedure, any issue for determination that does not take its bearing from grounds of appeal or veers outside the grounds of appeal is incompetent and liable to be struck out or discountenanced. See UNITED BANK FOR AFRICA v UDJOR [2001] 10 NWLR (PT. 722) 589 and AGBAI v OKOGBUE [1991] 7 NWLR (PT. 204) 392 at 421.

Second, a ground of appeal cannot be challenged by formulating an issue for determination against it.

A Respondent who wishes to challenge the competence of a ground of appeal (but not the appeal itself because there are other grounds that would sustain the appeal) is required to file a motion on notice praying the Court to strike out the said ground and/or any issue formulated therefrom. See ADEJUMO v OLAWAIYE [2014] 12 NWLR (PT. 1421) 252 at 279. I will accordingly discountenance the 1st Respondent’s first issue, and proceed presently to determine this appeal on the basis of the two issues distilled by the Appellants and adopted by the 2nd Respondent.

Appellants’ submission
The Appellants called in aid the cases of MADUKOLU v NKEMDILIM (1962) 1 All NLR 581 (1990 Edition), UMANAH v ATTAH [2006] 17 NWLR (PT. 1009) 503 and ALAO v AFRICAN CONTINENTAL BANK LTD (2000) 6 SC (PT. 1) 27 on the conditions that must co-exist in order for a Court to exercise jurisdiction and submitted that territorial jurisdiction “cannot be conferred by agreement or consent of the parties in the suit”. Reference is made to the cases of INT’L NIGERBUILD CONSTRUCTION COMPANY LIMITED v GIWA [2003] 13 NWLR (PT. 836) 69 at 98–99, ANON LODGE HOTELS LTD & ANOR v MERCANTILE BANK [1993] 3 NWLR (PT. 284) 721 at 731–732 and JACOB NDAEYO v GODWIN OGUNAYA(1977) S. C. 11 at 25 as well as Order 2 Rule 3, High Court of Lagos State (Civil Procedure) Rules 2012 [in pari materia with Order 4 Rule 1 (3) of the High Court of Lagos State (Civil Procedure) Rules 2019]. The Appellants maintained that a fundamental issue of territorial jurisdiction that must first be resolved is implicated when the venue in which a cause or matter may be tried is raised, insisting that the proceedings are null and void and of no effect when a cause or matter which falls within the jurisdiction of one State is heard and determined in another State vide ONYEMA v OPUTA [1987] 3 NWLR (PT. 60) 259 at 293.

They contended that paragraphs 9-23 of the Statement of Claim (at pp. 15-18 of the records) reveal that the suit herein is premised on the BCMA between the 1st Respondent and the 2nd Appellant and the alleged claim of fraudulent conversion cannot be established without placing reliance on the BCMA which is said to be the source of funds purportedly converted fraudulently, insisting that the 1st Respondent and 2nd Appellant are companies registered and carrying on business in the US whilst the 1st Appellant is a Nigerian company as pleaded in paragraphs 1, 3 and 4 of the statement of claim (at pp. 13-14 of the records); that neither the 1st and 3rd Appellants nor the 2nd Respondent are parties to the BCMA which is to be performed in the US; that by Clause 23 of the BCMA, it is the State and Federal Courts of Ohio, USA (but not the High Court of Lagos State) that have territorial jurisdiction over disputes ensuing from the BCMA which was neither entered into or expected to be performed in Nigeria, nor do the parties thereto (2nd Appellant and 1st Respondent) have their registered offices in Nigeria or carry on business in Nigeria, insisting that the High Court of Lagos State lacks capability and competence to construe or enforce the BCMA in accordance with the laws of the State of Ohio, USA.

The Appellants’ further contention is that parties are bound by contracts freely entered into and the Court is not at liberty to re-write same for them vide GWANI v EBULE [1990] 5 NWLR (PT. 149) 201 at 205; that the lower Court was not bound to follow SONNAR v NORDWIND supra as the facts are dissimilar from the matter at hand, citing C. N. EKWUOGOR INVESTMENT (NIG) LTD v ASCO INVESTMENT LTD supra; and that the institution of proceedings in Nigeria by an American company (such as the 1st Respondent) in respect of a dispute which has its origins in the US constitutes forum shopping. The Appellants referred to the 1st Respondent’s letter of 20/9/18 (copied at pp. 196-197 in Vol. 1 of the records) alleging fraud by the 2nd Appellant [TOF Energy Corporation] which is a party to the BCMA, and submitted that whereas the 1st Respondent could lodge a criminal complaint with relevant law enforcing authorities in Nigeria which may initiate criminal prosecution in respect of alleged proceeds of fraud traced to bank accounts domiciled in Nigeria, the High Court of Lagos State lacks jurisdiction to entertain the civil claim herein.

On Issue No. 2, the Appellants contended that the Pre-action Protocol Form 01 set out in the Schedule to the High Court of Lagos State (Civil Procedure) Rules 2012 imposes an obligation on a claimant to state and attach evidence of attempts made to settle the dispute amicably, and the effect of the 1st Respondent’s non-compliance is to nullify the suit. They referred to the preamble, Order 3 Rule 2 and Order 5 Rule 1 of the 2012 Rules (in force at the time the action was commenced in 2018) and maintained that the Pre-action Protocol Form 01 filed by the 1st Respondent bespeaks non-compliance with the prescribed Form 01. The Appellants pointed out that the learned trial Judge found as a fact (at p. 1023 in Vol. 2 of the records) that there was no “substantial compliance with the Pre-action Protocol Form 01 requirement” and the suit ought to be struck out for being a nullity. They faulted the lower Court’s reliance on SPOG PETROCHEMICAL LIMITED & ANOR v PAN PENNINSULA LOGISTICS LIMITED (2017) LPELR-41853 (CA), [2018] 1 NWLR (PT. 1600) 321which, in their estimation, dealt with facts that are markedly dissimilar and distinguishable, insisting that whereas the claimant in the SPOG PETROCHEMICALS case took steps to resolve the dispute amicably before filing action in Court, the 1st Respondent stated unequivocally that the suit is incapable of being settled amicably. They finally submitted that non-compliance with pre-action protocols is not a mere irregularity, but one that renders the suit incompetent and liable to be struck out. The Court was urged to allow the appeal and set aside the ruling of the lower Court.

1st Respondent’s Submission
The 1st Respondent contended that the jurisdiction of the lower Court was not ousted or impaired by the BCMA between it and the 2nd Appellant, citing SONNAR v NORDWIND supra on the proposition that choice of jurisdiction or forum selection does not derogate from the jurisdiction of the Courts of this country; that, in any event, specific reliefs are sought against all the Defendants, including the 1st and 3rd Appellants as well as the 2nd Respondent which are not parties to the BCMA and cannot be bound by its terms and conditions, including the forum selection clause thereof; and that the funds, subject matter of the suit, are within the territorial jurisdiction of the High Court of Lagos State, which is the proper forum for the resolution of all issues in controversy between all the parties. The 1st Respondent cited ADESOLA V. ABIDOYE [1999] 14 NWLR (PT. 637) 28 and pointed out that the Appellants have not provided any contrary authority on the question of whether parties can by their contract remove the jurisdiction vested by the Constitution in our Courts.

In respect of Issue No. 2, the 1st Respondent noted that the applicable rules are the High Court of Lagos State (Civil Procedure) Rules, 2012 since the case was filed at least three months before the 2019 Rules came into effect, and the lower Court was right in treating any perceived non-compliance with the content of the Pre-action Protocol Form 01 as a mere irregularity that does not render the suit incompetent. Calling in aid the decision of this Court in SPOG PETROCHEMICALS LIMITED & ANOR v PAN PENINSULA LOGISTICS LIMITED supra, the 1st Respondent maintained that the lower Court rightly held that the effect of any non-compliance in regard to Pre-action Protocol Form 01 does not operate to invalidate the Claimant’s originating processes because, by Order 3 Rule 2(2) of the 2012 Rules, the consequence of non-compliance with Order 3 Rule 2(1) is that the originating processes would not be accepted for filing at the Registry. The 1st Respondent posited that the Courts are not slaves to their rules, and would readily detract or move away from them if strict compliance will occasion miscarriage of justice, citing SOSANYA v ONADEKO [2005] 8 NWLR (PT. 926) AT 226-227 and OLORUNTOBA-OJU v ABDUL-RAHEEM [2009] 13 NWLR (PT. 1157) 83 at 122. The 1st Respondent contended that the Appellants’ contention that amicable settlement was not explored before filing the action is a disguised attempt to use the machinery of the Court to inflict injustice, insisting that the Appellants would simply have dissipated the res (i.e. funds) before any action could have been filed. The Court’s attention was drawn to para. 10 of the 2nd Respondent’s statement of defence as well as the account statement of the 1st and 3rd Appellants (copied at pp. 664 and 674-698 respectively in Vol. 1 of the records) showing that about US$2,100,000 (Two Million, One Hundred Thousand United States Dollars) had already been withdrawn by the Appellants. The Court was urged to dismiss the appeal.

2nd Respondent’s submission
The 2nd Respondent underscored the primacy of jurisdiction and its effect in the scheme of judicial adjudication, citing SAMBA PETROLEUM LTD & ANOR v UNITED BANK FOR AFRICA PLC & 3 ORS (2010) 5-7 SC (PT. II) 22, OLORUNTOBA-OJU & ORS v ABDUL RAHEEEM & ORS (2009) 5-6 SC (PT. II) 57, SKENCONSULT & ANOR v UKEY (1981) 1 SC 4 and ELELU-HABEEB & ANOR v ATTORNEY-GENERAL, FEDERATION & 2 ORS (2012) 2 SC (PT. 1) 145; and contended that contrary to the Appellants’ submissions, the Supreme Court held in ARJAY LIMITED & ORS v AIRLINE MANAGEMENT SUPPORT LTD (2003) 5 SCM 17 that the territorial jurisdiction of a Court can be determined by where the contract in question was made or where the contract is to be performed or where the Defendant resides, which is in sync with Order 2 Rule 3, High Court of Lagos State (Civil Procedure) Rules 2012; that the 3rd Appellant (who is the alter ego of the 1st and 2nd Appellants) resides at Mulliner Towers, 39, Alfred Rewane Road, Ikoyi, Lagos, Nigeria, which suffices for the sake of territorial jurisdiction if one of the Defendants resides within the jurisdiction of the Court vide IBEZUE v A.C.B LTD (1972) E.C.S.L.R 381 at 384; and that the Court has inherent power to pierce the veil of incorporation if it is a device or sham mask by the director to avoid recognition in the eyes of equity, citing PUBLIC FINANCE SECURITIES LIMITED & ANOR v HARRISON JEFIA [1998] 3 NWLR (PT. 52) 602, VIBELKO NIGERIA LIMITED & ANOR v NIGERIA DEPOSIT INSURANCE CORPORATION[2006] 12 NWLR (PT. 994) 280, SEBASTINE MEZU v COOPERATIVE & COMMERCE BANK & ANOR [2012] ALL FWLR (PT. 655) 262,PRINCE LANRE ADEYEMI v LAN AND BAKER (NIG.) LIMITED & ANOR [2000] 7 NWLR (PT. 633) 33 and ALADE v ALIC (NIGERIA) LIMITED & ANOR [2011] ALL FWLR (PT. 563) 1849. The 2nd Respondent maintained that parties cannot through clauses in a contract divest the Court of its jurisdiction, citing A.B.U. v VTLS (2020) LPELR-52142 (CA) at 15–18; that notwithstanding that the maxim “pacta sunt servanda” is recognized in Nigeria, this agreement is sullied by fraud, misrepresentation and illegality and there is no consensus ad idem between the parties, calling in aid the cases of CAPTAIN TONY NSO v SEACOR MARINE (BAHAMAS) INC (2008) LPELR-8320 (CA) 12-13 and BEAUMONT RESOURCES LTD v DWC DRILLING LTD (2017) LPELR- 42814(CA).

The 2nd Respondent faulted the Appellants’ attempt at distinguishing the instant appeal from SONNAR v NORDWIND supra and insisted that the 1st Respondent fulfilled the requirement of showing strong cause why the matter should proceed in the lower Court – and in particular that: the factual issues are situated and more readily available in Nigeria, the Appellants are connected to Nigeria by virtue of the 3rd Appellant’s residence and citizenship, the Appellants are merely seeking procedural advantages and failed to show genuine desire for trial in the US, the 1st Respondent would be deprived of security for the claim (i.e. the sum of $4,920,50 part of which is in the custody of the 2nd Respondent in Nigeria). On Issue No. 2, the 1st Respondent cited MEDVIN PHARMACEUTICALS NIG LTD & ORS v FIDSON HEALTHCARE PLC (2020) LPELR-51395 (CA) in urging this Court to hold that non-compliance with the Pre-Action Protocol under the 2012 Rules neither invalidated the writ of summons nor rendered the suit incompetent.

Resolution of appeal
The pre-eminent status or stature of jurisdiction in the scheme of legal proceedings is well ingrained in our jurisprudence. It is therefore merely restating the obvious that jurisdiction is the first test in the legal authority of a Court or Tribunal and its absence disqualifies the Court or Tribunal from determining the substantive issues submitted to it for adjudication. This is so because jurisdiction is the very lifeline of judicial power [and judicialism] without which the entire proceedings constitute a nullity however brilliantly they may otherwise have been conducted. Indeed, jurisdiction is everything: without it, a Court has no power to take one step in the proceedings beyond merely declaring that it lacks jurisdiction; there would be no basis for the continuation of proceedings pending and the Court downs its tools in respect of the matter before it the moment it holds the opinion that it is bereft of jurisdiction. Jurisdiction is a radical and crucial question of competence and any defect in the competence of the Court is fatal and snuffs out the life of adjudication from the Court; such defect is extrinsic to the adjudication on the merit and the proceedings however well-conducted and decided they otherwise may be a nullity. See MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587 at 595, ROSSEK v ACB LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 and 487, MATARI v DANGALADIMA [1993] 3 NWLR (PT. 281) 266; OLOBA v AKEREJA[1988] 3 NWLR (PT. 84) 508 and OKE v OKE [2006] 17 NWLR (PT. 108) 224 amongst a host of other cases. Owing to its fundamental and intrinsic nature and effect in judicial administration, it is neither too early nor too late in the day to raise the issue of jurisdiction, nor is the Court finicky or fussy about the manner in which it may be raised. It can be raised viva voce [see PETROJESSICA ENTERPRISES LIMITED v LEVENTIS TRADING COMPANY LIMITED [1992] 5 NWLR (PT. 244) 675 at 678 and NDIC v CBN [2002] 7 NWLR (PT. 766) 272], or for the first time on appeal without any restraints as to leave or otherwise. See WESTERN STEEL WORKS LTD & ANOR v IRON STEEL WORKERS LTD [1987] 2 NWLR (PT. 179) 188, MAGAJI v MATARI [2000] 8 NWLR (PT 670) 722 at 735, ADERIBIGBE v ABIDOYE [2009] 10 NWLR (PT. 1150) 592, 615, AKEGBE v ATAGA [1998] 1 NWLR (PT 534) 459 at 465, STATE v ONAGORUWA (1992) 2 SCNJ 1 and ATTORNEY-GENERAL, LAGOS v DOSUNMU[1989] 3 NWLR (PT. 111) 552. Jurisdiction can also be raised by the Court suo motu once sufficient facts or materials are available without any charge of bias by any of the parties insofar as the parties are afforded the opportunity to address the Court on the issue so raised. See SAMSON OWIE v SOLOMON IGHIWI[2005] 3 MJSC 82 at 112 –per Niki Tobi, JSC, OLORIODE v OYEBI (1984) 1 SCNLR 390, OBIKOYA v THE REGISTRAR OF COMPANIES (1975) 4 SC 31, 35, NNPC v ORHIOWASELE & ORS(2013) LPELR–20341 (SC); NDAEYO v OGBONNAYA (1977) 1 SC 11 and ELABANJO V DAWODU (2006) 15 NWLR (PT. 1001) 76.

In civil jurisprudence, where the issue arises as to whether or not a Court can entertain a suit, it is to the plaintiff’s claim that reference must be made in order to find an answer. See ADEYEMI v OPEYORI (1976) 9-10 SC 31 at 49, NZEKWE v NNADOZIE (1952) 14 WACA 361,TUKUR v GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517 at 549 and METTERADONA v AHU [1995] 8 NWLR (PT. 412) 225. Jurisdiction is determined by the claimant’s demand and not the defendant’s answer which merely disputes the existence of the claim but does not alter or affect its nature. Put differently, it is the statement of claim and not the statement of defence that is to be looked at in order to determine jurisdiction. See C.G.G. (NIG) LTD v OGU [2005] 8 NWLR (PT 927) 366, ABIA STATE TRANSPORT CORP. v QUORUM CONSORTIUM LTD[2004] 1 NWLR (PT 855) 601 at 621, ATTORNEY-GENERAL, KWARA STATE v WARAH [1995] 7 NWLR (PT. 405) 120, ANIGBORO v SEA TRUCKS (NIG) LTD. [1995] 6 NWLR (PT. 399) 35 and ONUORAH v OKEKE [2005] 10 NWLR (PT. 932) 40. But even though jurisdiction is donated by the claim before the Court, ‘the jurisdiction of a Court or Tribunal is not something you employ a searchlight to discover: it must be plain for all to see’. See OBI v INEC [2007] 11 NWLR (PT. 1046) 565 at 669 E –per Oguntade, JSC.

In the peculiar scheme of legal proceedings, a Court is vested with jurisdiction to entertain and determine the application by which its jurisdiction is challenged. See BARCLAYS BANK OF NIG LIMITED v CENTRAL BANK OF NIGERIA (1976) 6 SC 175 at 188 -189, IWUAGOLU v AZYKA [2007] 5 NWLR (PT. 1028) 613 at 630 and WILKINSON v BANKING CORPORATION (1948) 1 KB 721 at 724.

Although the Appellants and the 2nd Respondent were sued jointly as co-defendants in the Court below, it is obvious from the arguments put forward in the respective briefs of arguments that the 2nd Respondent is not on the same page with the Appellants in the instant appeal. For purposes of convenience rather than hierarchical reordering, I propose to grapple first with Issue No. 2 as to ‘whether the learned trial Judge was right in holding that non-compliance by the 1st Respondent with the Pre-action Protocol Form 01 is a mere irregularity which does not nullify the suit herein or render same incompetent’. It is common ground that the High Court of Lagos State (Civil Procedure) Rules 2012 (“the 2012 Rules”) were in force at the time the action that generated the instant appeal was filed. Order 3 Rule 2(1)(e) of the 2012 Rules provides that all civil proceedings commenced by writ of summons shall be accompanied inter alia by a Pre-action Protocol Form 01, whilst Order 3 Rule 2(2) thereof is to the effect that: “Where a claimant fails to comply with Rule 2(1) above, the originating processes shall not be accepted for filing by the Registry”. In the Pre-action Protocol Form 01 filed by the 1st Respondent along with the writ of summons, it is stated that: “However, as a legal practitioner, I know that the claim of the Claimant in this proceeding is for fraudulent conversion, hence it does not fall within the purview of cases which can be settled amicably or through alternative dispute resolution”. The lower Court found as a fact that there was no “substantial compliance with the Pre-action Protocol Form 01 requirement” but relied on SPOG PETROCHEMICALS LIMITED & ANOR v PAN PENNISULA LOGISTICS LIMITED supra in holding that the “non-compliance with the prescribed Form 01 is a mere irregularity that does not nullify this suit or render it incompetent” (see p. 1023 in Vol. 2 of the records).
In SPOG PETROCHEMICALS LIMITED & ANOR v PAN PENNISULA LOGISTICS LIMITED supra, this Court (per Garba, JCA, as he then was, now JSC) construed the effect of non-compliance with the requirement of filing Pre-action Protocol Form 01 under the 2012 Rules thusly:
“Form 01 is not alone a condition precedent for the commencement of an action by writ of summons but as stipulated in the sub-rule to accompany the writ. In any case, Sub-rule (2) of Order 3 provides for the consequence of failure to comply with the provision of Sub-rule (2) by saying that: ‘Where a claimant fails to comply with rule 2(1) above, the originating process shall not be accepted for filing by the registry’.
The above provision did not say that failure to accompany a writ of summons with any one of the processes listed in Sub-rule (1)would render an otherwise valid writ incompetent. In unambiguous terms, the provisions only provide that where writ was not accompanied by all the processes listed therein, it shall not be accepted for filing by the Registry. However, once accepted and assessed by Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of any non-compliance with the provisions cannot go to affect the validity and competence of the writ.
… The Form 01 has nothing to do with the validity or competence of a writ of summons, which it is to accompany, or the suit commenced thereby. It is not, alone, a condition precedent for the commencement of an action by writ of summons but, as stipulated in Order 3 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules, to accompany the writ.”
It is forcefully agitated on behalf of the Appellants that the facts of SPOG PETROCHEMICALS LIMITED & ANOR v PAN PENNISULA LOGISTICS LIMITED supra are different and distinguishable because there was evidence that the claimant wrote letters and took steps to resolve the dispute amicably before initiating the action in Court, but the 1st Respondent herein stated unequivocally in the Pre-Action Protocol Form 01 that the suit is incapable of being settled amicably. Attractive as that contention may seem at first blush, I am not seduced by it. The parallel the Appellants seek to draw between the SPOG case and the present one seems to me a distinction without difference. The Pre-action Protocol Form 01 filed along with the originating processes in the SPOG case was deposed by an artificial person, which is not capable of making a deposition. Thus, there was no Pre-action Protocol Form 01 in the eyes of the law in the SPOG case, which is not markedly dissimilar from the scenario in the case at hand wherein the trial Court found that there was no “substantial compliance with the Pre-action Protocol Form 01 requirement”. The common denominator in the two cases is that there was non-compliance with the requirement of the 2012 Rules relating to filing of Pre-action Protocol Form 01. But this Court held in the SPOG case that Order 3 Rule 2(2) of the 2012 Rules only provides “in unambiguous terms” that “where the writ is not accompanied by all the processes listed therein, it shall not be accepted for filing by the Registry. However, once accepted and assessed by the Registry of the Court and the requisite fees paid, the consequence of any non-compliance with the provisions cannot go to affect the validity and competence of the writ”. The Appellants’ contention, as I understand it, is not that the SPOG case was wrongly decided, nor have they urged this Court to overrule it for being per incuriam. The decision in the SPOG case therefore remains good law as far as the construction of the Pre-action Protocol Form 01 requirement in the 2012 Rules applicable to this case are concerned, and the lower Court cannot be faulted for doing obeisance and kowtowing to it as being forcefully binding under the inflexible principles of stare decisis.
As stated hereinbefore, the 1st Respondent filed an affidavit of urgency wherein it is deposed that the 2nd and 3rd Defendants [1st and 2nd Appellants] acting in concert with the 3rd defendant [3rd Appellant] had begun transferring the funds from account numbers 1771453359 and 1771335693 domiciled with the 2nd Respondent [1st Defendant], and that there was extreme urgency in this case as the Appellants who “have demonstrated the propensity for moving funds in and out of various jurisdictions” could deplete the bank accounts domiciled with the 2nd Respondent. Given this scenario, the 1st Respondent could not have waited to explore settlement before filing the action.
Whilst it is correct that rules of Court are meant to be obeyed and not treated with levity [see OGUNPEHIN v NUCLEUS VENTURES (2019) LPELR-48772 (SC)], we must never lose sight of the fact that rules of Court are not masters but handmaidens in the quest for doing substantial justice. See MMUODILI v ONWUBA (2020) LPELR-55917(SC). Rules of Court are designed for ensuring that justice is obtained by the parties in the citadel of justice. See MAINSTREET BANK REGISTRARS LIMITED v ELDER DAVID ALABI OGUNDIMU(2022) LPELR-57273(CA) 1 at 16-17 per Sirajo, JCA. Since rules of Court are meant to lubricate and facilitate the attainment of justice, the Court will not hesitate to extricate itself from the clutches or rigour of strict observance where they clog the access to justice as in the instant case. As Lord Atkin famously intoned in UNITED AUSTRALIA v BARCLAYS BANK (1941) A. C. 1 at 29: “When these ghosts of the past stand in the path of justice clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred”. I remind myself that the “chains” confronting us here are not mediaeval: they are quite modern and contemporary. However, the Judge’s attitude towards mediaeval or modern chains is the same. Access to justice is a constitutional right that cannot be lightly esteemed. It ought not to be defeated by provisions in the rules of Court on mandatory recourse to settlement in a case such as the present where it is alleged that the funds subject matter of the proceedings were already being frittered away or transferred out of the jurisdiction. I entertain no reluctance in resolving Issue No. 2 against the Appellants.

Let us shift attention presently to Issue No. 1: “Whether the learned trial Judge was right in holding that the choice of Ohio State Courts, United States of America as venue for the resolution of disputes as stipulated in Clause 23 of the Bank Card Merchant Agreement cannot oust the jurisdiction of the High Court of Lagos State to entertain the suit and consequently holding that the trial Court has the jurisdiction to entertain this suit”. Parties generally have the freedom of contract (or, more appropriately, privilege of contract) and are bound by the terms of their agreement: they must be held to their bargain. Pacta sunt servanda. See A-G, NASARAWA STATE v A-G, PLATEAU STATE (2012) LPELR-9730(SC), E. N. NWAWKA v SPDC [2003] 3 MJSC 136 at 146-147 and JADESIMI v EGBE [2003] 36 WRN 79 at 102. But as parties are only allowed to regulate their rights and liabilities within the confines of law, a better and more incisive maxim is: ‘Agreements that are neither contrary to the law, nor fraudulently entered into should be adhered to in every manner and in every detail’ (which I will spare myself the trouble of rendering in Latin). See SONNAR (NIG) LTD v PARTENREEDRI M. S. NORDWIND (OWNERS OF THE N. V. NORWIND) [1987] 4 NWLR (PT 66) 520, (1987) LPELR-3494(SC) at 42-43 –per Oputa JSC. It is not the preoccupation of the Court to make a contract for the parties or rewrite the one they have made. See AFROTECH v MIA & SONS LTD. (2000) 12 SC (PT. II) 1 and OWONIBOYS TECHNICAL SERVICES LTD v UNION BANK OF NIGERIA LTD [2003] 15 NWLR (PT. 844) 545. Where the conditions for the formation of a contract are fulfilled by the parties thereto, they will generally be bound by it. See BABA v NIG. CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT. 192) 388; OYENUGA v PROVISIONAL COUNCIL OF UNIVERSITY OF IFE (1965) NMLR 9; KOIKI v MAGNUSSON [1999] 8 NWLR (PT. 615) 492 and UNION BANK OF NIGERIA LIMITED v SAX NIGERIA LIMITED [1994] 8 NWLR (PT. 361) 124 at 165. A party cannot ordinarily resile from a contract merely because he later found that the conditions of the contract are unfavourable to him. See ARJAY LIMITED v AIRLINE MANAGEMENT SUPPORT LIMITED(2003) 2-3 SC 1.

The intention of the parties to a written contract is always garnered from the document itself and the Court is not at liberty to go outside it in search of other documents or facts not forming part of the intention of the parties. See DALEK (NIG.) LTD v OMPADEC [2007] 7 NWLR (PT. 1033) 402 and NNEJI v ZAKHEM CONST. (NIG) LTD [2006] 12 NWLR (PT. 994) 297. The Court is merely obligated to construe the words used by the parties in the agreement [see DANTATA v DANTATA [2002] 4 NWLR (PT. 756) 144]; and in doing so, it is the entire agreement that is to be construed: clauses or paragraphs in a written instrument or agreement are not to be construed in isolation from other clauses or paragraphs but as part of a greater whole in other to garner the true intention of the parties. See ARTRA NIGERIA LTD v NBCL [1998] 4 NWLR (PT. 546) 357 at 379 and JAMES ORUBU v NEC & ORS [1988] 5 NWLR (PT. 94) 323.

But the clause that falls for consideration in the case at hand is not an ordinary one: it is an exclusive choice of law and jurisdiction clause. The correct judicial attitude towards jurisdiction clauses in contractual agreements has agitated, and has been agitated in Nigerian Courts up to the Supreme Court in quite a few cases including, notably, SONNAR v NORWIND supra NIKA FISHING CO. LTD v LAVINA CORPORATION [2008] 16 NWLR (PT. 1114) 509 and CONOIL v VITOL OIL SA [2018] 9 NWLR (PT. 1625) 463. At pp. 33-45 in Vol. 1 of the records lies the BCMA between the 1st Respondent and 2nd Appellant, which provides in Clause 23 thereof thusly:
“Choice of Law: Jurisdiction. Venue
This Agreement shall be governed by and construed and enforced in accordance with, the laws of the State of Ohio without regard to conflicts of law provisions. The parties hereby consent and submit to service of process, personal jurisdiction and venue in the State and Federal Courts in Cincinnati Ohio or Hamilton County, Ohio and select such Courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement and/or pertaining in any way to the relationship between Merchant and Processor. MERCHANT AND PROCESSOR HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED THEREBY.”

The above clause seems to me clear as crystal and admits of no ambiguity: the parties opted for the jurisdiction of “the State and Federal Courts in Cincinnati Ohio or Hamilton County, Ohio” in the United States of America and ex ipso facto exclude all other Courts (including the High Court of Lagos State) from taking cognisance of such disputes. It would seem that the words “with respect to any action or proceeding arising out of or in any way relating to this Agreement and/or pertaining in any way to the relationship between Merchant and Processor” in Clause 23 of the BCMA are wide enough to encompass all disputes arising out of or in connection with the BCMA, including claims founded on the tort of fraudulent conversion arising from the performance of the BCMA. However, it cannot escape notice that non-parties to the BCMA are sued along with the 2nd Appellant and reliefs sought against the Appellants and 2nd Respondent (jointly or severally). Under elementary principles of privity of contract, the 1st and 3rd Appellants and the 2nd Respondent can neither enforce the BCMA to which they are not parties nor be held liable under it. See ALFOTRIN LTD v A-G. FEDERATION & ANOR [1996] NWLR (PT. 475) 634.

Whilst there is some force in the Appellants’ contention that it is impossible to establish the alleged fraudulent conversion without placing reliance on the terms and conditions of the BCMA, it is difficult in the extreme to think through the extent to which effect can be given to the exclusive foreign jurisdiction clause therein without doing violence to the principle of privity of contract in light of alleged improprieties and reliefs sought especially against non-parties to the BCMA.

At page 1021–1022 in Vol. 2 of the records, the lower Court held thusly:
“By Clause 23, the Claimant [1st Respondent] and 3rd Defendant [2nd Appellant] have agreed that in case of any dispute between them the parties shall go to Court in Ohio.
However, the question is, can the parties remove jurisdiction vested by the Constitution in the Courts?
The Supreme Court in Sonnar (Nig) Ltd vs. M.S. Nordwind (Owners of the N. V. Norwind (1987) 4 NWLR (PT 66) 520 at 543) per Oputa J.S.C. said:
“The rather vital and radical question is – Can parties by their private act remove the jurisdiction vested by our Constitution in our Courts? Lord Denning, M.R. answered the above question admirably in The Fehmarn (1958) 1 All E.R. 333 at p.335:
“The next question is whether the action ought to be stayed because of the provision in the bill of lading that all disputes are to be judged by the Russian Court. I do not regard this provision as equal to an arbitration clause, but I do say that English Courts are in charge of their own proceedings and one of the rules which they apply is that a stipulation that all disputes should be judged by a tribunal of a particular country is not absolutely binding. Such a stipulation 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 would ask myself therefore: is this dispute a matter which properly belongs to the Courts of this country?”
I will adopt in their entirety Lord Denning’s reasoning above and say that as a matter of public policy, our Courts should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws, simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard, rather jealously, their jurisdiction and even where there is an ouster of that jurisdiction by Statute it should be by clear and unequivocal words. If that is so, as indeed it is, how much less can parties by their private acts remove the jurisdiction properly and legally vested in our Courts? Our Courts should be in charge of their own proceedings. When it is said that parties make their own contracts and that the Courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply a contract which does not rob the Court of its jurisdiction in favour of another foreign forum.”
Based on the above Supreme Court decision, I agree with the submission of learned counsel to the Claimant/Respondent that the choice of Ohio Court in Clause 23 of the Agreement cannot oust the jurisdiction of this Honourable Court.
In view of the above, I find and hold that this Court has jurisdiction to entertain this suit.”
Generally, a foreign jurisdiction clause (or forum selection agreement), which is often but not invariably found in international commercial agreements involving contractual parties of different nationalities, ensures neutrality and as well as achieves relative certainty as the parties know beforehand where they may sue or be sued under the contract. Two crucial legal principles are implicated whenever a suit is initiated in a Court other than the one agreed upon in defiance of a foreign jurisdiction clause in a contractual agreement that is otherwise binding on the parties. The first principle is that Courts guard their jurisdiction jealously and will not suffer anyone to oust their jurisdiction by his private stipulation in a matter that properly belongs to them. See THE FEHMARN(1957) 2 All ER 707 at 710 –per Lord Denning and SONNAR v NORDWIND supra at 543 –per Oputa JSC. The second principle is that Courts owe a bounden duty to give effect to the parties’ freedom of contract by holding them to their bargain, including an agreement to submit all their disputes to the exclusive jurisdiction of a foreign Court. See OWNERS OF THE MV LUPEX v NIGERIAN OVERSEAS CHARTERING & SHIPPING LIMITED [2003] 15 NWLR (PT. 844) 469 at 487 wherein the Supreme Court referred approvingly to Lord Diplock’s dictum in THE CHAPARRAL (1968) 2 LLYOD’S L. R. 158 at 164. It has been held that S. 6(6)(b) and the entirety of S. 6 of the 1999 Constitution does not oust the jurisdiction of foreign Courts in appropriate cases [see NIKA FISHING CO. LTD v LAVINA CORPORATION supra at 546]; but the stance taken by Nigerian Courts is that such foreign jurisdiction clauses are not absolute but amenable to the ‘discretion’ of the Court having regard to all the surrounding circumstances of the case.
The object of an exclusive choice of forum clause (such as Clause 23 of the BCMA) is that the parties have opted to derogate from the jurisdiction of other Courts in which the dispute could otherwise have been taken cognisance of. The usual context of the plea of foreign jurisdiction is that whereas the defendant contends that the jurisdiction before which he is being sued has been chosen against, the claimant insists on invoking the jurisdiction of the Court whose jurisdiction is said to have been derogated from. In principle, the question whether a Court has jurisdiction to adjudicate is a matter of public law. A fortiori, the question whether a Court has jurisdiction to adjudicate in circumstances in which parties have chosen the forum for resolving their disputes is likewise a matter of public law. The point to underscore however is that contracting parties do not have untrammelled liberty to denude the Court of jurisdiction conferred on it by the Constitution or statute by their private treaty [see SONNAR v NORDWIND supra], just as they cannot donate jurisdiction to a Court that lacks it. An agreement on jurisdiction is therefore not a sufficient basis for derogation from the jurisdiction of the Court in which an action has been commenced in defiance of the agreement of parties.

But a Court which ﬁnds that the parties have made an agreement, to derogate from the jurisdiction it otherwise has will, as a matter of judicial discretion rather than strict law, give effect to that agreement unless there is strong cause to the contrary. It would seem that such ‘strong cause’ will include a situation where third parties not bound by the agreement are necessary parties in the suit, or where the claim falls within the exclusive jurisdiction of the non-chosen forum [see AKAI PTY LTD v PEOPLE’S INSURANCE CO LTD[1998] 1 LLOYD’S REP 90 and CONTINENTAL BANK NA v AEAKOSCOMPANIA NAVIERA SA & ORS [1994] 1 WLR 588], or where there is inability to sue in the chosen forum for reasons beyond parties’ control such as the recent global lockdown [see RCD HOLDINGS LTD v LT GAME INTERNATIONAL (AUSTRALIA) LTD [2020] QSC 318], or where there is need to protect the weaker party in the bargain, such as employees and consumers. See Abubakri Yekini, The Practicality of the Enforcement of Jurisdiction Agreements in Nigeria [available at: https://www.afronomicslaw.org/2020/12/17/the-practicality-of-the-enforcement-of-jurisdiction-agreements-in-nigeria – as accessed on 20/4/22].

It is forcefully agitated on behalf of the Appellants that the lower Court was not bound to follow SONNAR v NORDWIND supra as the facts are markedly dissimilar from the matter at hand, citing C. N. EKWUOGOR INVESTMENT (NIG) LTD v ASCO INVESTMENT LTD supra. But whilst it is correct that SONNAR v NORDWIND supra dealt with a bill of lading which the Supreme Court interpreted as a contract between the shipowner (a Liberian Company) and the shipper (a Nigerian Company), and the contract in the instant case is a Bank Card Merchant Agreement between two companies registered and carrying on business in the US, the relevant enquiry in SONNAR v NORDWIND supra as in the instant case remains whether contracting parties can, by their private act of choosing a foreign jurisdiction, remove the jurisdiction vested in our Courts by our Constitution. The answer is an emphatic negative; and it is of no moment whatsoever that the contract is a charter-party, bill of lading, franchise, distributorship, sales representative agreements, bank card merchant agreement (as in this case) or any other species of contractual agreement for that matter. The point to underscore is that there is a crucial distinction between existence of jurisdiction on the one hand, and the exercise of jurisdiction on the other hand. An application to enforce a  foreign jurisdiction clause implicates the latter, and is scarcely a challenge to the  undoubted substantive and territorial jurisdiction of the Court conferred by the Constitution or statute (or both). Rather,  it is a plea that having regard to the agreement of the parties, the Court  should refrain from exercising its undoubted jurisdiction on the basis of  pacta sunt servanda. Thus, ARJAY v AIRLINE MANAGEMENT SERVICES LTD supra and kindred decisions espousing the three-way test for determining the appropriate venue for ventilating a claim founded on breach of contract as provided in various Rules of Court (which is characterised as “the three alternatives of territorial jurisdiction” in para. 3.04 of the Appellants’ Brief) are patently irrelevant when the Court is grappling with a plea of foreign jurisdiction. But more fundamentally, the plea ought to be embodied in an application for stay of  proceedings (in a manner akin to an application for stay of proceedings pending arbitration) rather than being projected as an objection to the Court’s undoubted jurisdiction. In SONNAR v NORDWIND supra as in NIKA FISHING CO. LTD v LAVINA CORPORATION supra, the party seeking to enforce the foreign jurisdiction clause in the respective bills of lading filed an application for stay of proceedings, but not an objection to the Court’s jurisdiction. Presenting a plea of foreign jurisdiction by way of an objection to the undoubted jurisdiction of the Court (as the Appellants did in the case at hand) is a fatal defect that would torpedo an otherwise gallant attempt at enforcing a forum selection agreement. It being so, the Appellant’s plea (projected as an objection to jurisdiction) was dead on arrival, and the lower Court cannot be faulted for protecting and asserting its undoubted jurisdiction on the strength of SONNAR v NORWIND supra and dismissing the objection without further ado.

What is more, it cannot escape notice that the Appellants filed their statement of defence contemporaneously with the objection to jurisdiction at 12:16 pm on 25/02/19 (see pp. 725 and 759 in Vol. 2 of the records). What this implies is that the Appellants had joined issues with the 1st Respondent on the merits of the case long before their objection was heard on 13/5/19 and ruling delivered on 10/7/19. Thus, notwithstanding that notice was given in paragraph 33 of the statement of defence that “the 2nd, 3rd and 4th Defendants shall contend that this suit constitutes an abuse of Court process in view of the exclusive jurisdiction conferred on the State and Federal Courts of Ohio, United States of America with regards to disputes arising from or connected with the Bank Card Merchant Agreement between the Claimant and the 3rd Defendant”, it would seem that by filing a statement of defence joining issues on the merits of the case, the Appellants had already submitted to the jurisdiction of the High Court of Lagos State and were no longer at liberty to raise any ‘objection’ to jurisdiction on the basis of the foreign jurisdiction clause in the BCMA between the 1st Respondent and the 2nd Appellant. The point has already been made that parties cannot oust the jurisdiction donated to a Court by the Constitution or statute by their private treaty, and a plea of foreign jurisdiction merely implicates the exercise (but not the existence) of the Court’s undoubted jurisdiction. With great respect, the Appellants assumed (I must add, erroneously) that the foreign jurisdiction clause in the BCMA is imbued with potency to dispossess the High Court of Lagos State of jurisdiction (both substantive and territorial) in relation to the claim before it, such that the plea could be raised even after joining issues on the merit by filing a defence. But alas, a plea of foreign jurisdiction does not belong in the league of jurisdictional challenges that goes to the roots of the competence of the action which can be raised at any stage of the proceedings, or even for the first time on appeal. The filing of a statement of defence by the Appellants defeats their plea of foreign jurisdiction as they must be taken to have thereby submitted to the jurisdiction of the Court in which the action has been commenced in breach of the BCMA.

In SONNAR v NORDWIND supra upon which the lower Court relied in dismissing the Appellants’ objection and assuming jurisdiction, the Supreme Court (per Kayode Eso, JSC) adopted the yardstick enunciated by Brandon, J. in the English case of ‘THE ELEFTHERIA’(1969) 1 LLOYDS L. R 237 at p. 242 as guiding principles in the exercise of the Court’s discretion as to whether or not to give effect to a foreign jurisdiction clause as follows:
“The tests set out by Brandon, J. in “The Eleftheria” are as follows:
(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.
(2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.
(3) The burden of proving such strong cause is on the plaintiffs.
(4) In exercising its discretion, the Court should take into account all the circumstances of the particular case.
(5) In particular, but without prejudice to (4), the following matters, where they arise, may be properly regarded:
(a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts.
(b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects.
(c) With what country either party is connected, and how closely.
(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.
(e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would
(i) be deprived of security for that claim;
(ii) be unable to enforce any judgment obtained;
(iii) be faced with a time-bar not applicable in England; or
(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.’’
To these, I would add, with all respect –
“Where the granting of a stay would spell injustice to the plaintiff as – Where the action is already time-barred in the foreign Court and the grant of stay would amount to permanently denying the plaintiffs any redress.“
It would seem that even without the addition introduced in the Nordwind case, time-bar applicable in a foreign Court chosen by the parties [but not in England] is a matter that may properly be taken into consideration in the exercise of the Court’s discretion under Test 5(e)(iii) of the Brandon Tests. But that is merely by the way. It hardly bears mention that, as is the case with all instances of judicial discretion, the Court’s discretion as to whether or not to cede jurisdiction in favour of the foreign Court chosen by the parties must satisfy the concurrent requirements of what is ‘judicial’ and ‘judicious’. ‘Judicial’ implies that the discretion must be exercised in accordance with law, whilst ‘judicious’ imports that the exercise must be in accordance with reason and be replete with intellectual candour and tenacity of mind and purpose. The Court’s discretion is never to be exercised whimsically or erratically or based on mere sentiments. “Discretion, according to settled authorities, is not an indulgence of a judicial whim [but] the exercise of judicial judgment based on facts and guided by the law and equitable decisions. It is the Court’s epistemological tool for winnowing solid truth from windy falsehood; for dichotomising between shadow and substance; and distilling equity from colourable glosses and pretences. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies and affections”: UDOTIM v IDIONG (2013) LPELR 22132 (CA) at pp. 13 – 14 –per Nweze, JCA (now JSC).
The Brandon Tests enjoin the Court to uphold a foreign jurisdiction clause unless strong cause for not doing so is shown by the claimant, and to take into account all the circumstances of the particular case in exercising its discretion. But it seems to me that this can only be done if, and only if, a proper application for stay of proceedings is presented before the Court, but not when the contention (as in the instant case) is that the Court lacks jurisdiction which it undoubtedly has. It goes without saying that only a Court imbued with jurisdiction can exercise discretion to stay its proceedings in favour of a foreign Court chosen by the parties. Each case is treated on its own merit. Thus, notwithstanding that the contracts in both SONNAR v NORWIND supra and NIKA FISHING CO. LTD v LAVINA CORPORATION supra were bills of lading, the application of the Brandon Tests yielded different outcomes. Stay was refused in the Nordwind’s casebecause strong cause was shown in that the right of action was already statute barred in the foreign jurisdiction and granting stay would have had the undesirable effect of permanently denying the claimant legal redress, whilst stay was granted in favour of the foreign forum chosen by the parties in NIKA FISHING CO. LTD v LAVINA CORPORATION supra because the plaintiff/respondent [who had the burden of showing strong cause] did not file any counter-affidavit disclosing why the forum stipulated in the bill of lading was inconvenient, unjust or otherwise unsatisfactory in the circumstances of that case, and there was consequently no evidence or material upon which the exercise of discretion by the trial Court in favour of the Respondent (which was affirmed by the Court of Appeal) was based. See p. 235 of the Law Report. In law, context is everything: REGINA v SECRETARY OF STATE FOR HOME DEPT., EX PARTE DALY [2001] 3 ALL ER 433, [2001] 1 AC 532 –per Lord Steyn. I think I have said enough. I will stop here.

My Lords, it is hardly necessary to state that it is part of the common law (which is a prominent source of Nigerian Law) that a foreign corporation duly incorporated and organised in accordance with the laws of a foreign country recognised by Nigeria (such as the 1st Respondent herein) has a right to sue in Nigeria for the enforcement of contracts or other rights, and a Nigerian Court has the requisite jurisdiction to entertain such claims made by a foreign corporation: SAEBY JERNSTOBERI MASKINFABRIC A/S v OLAOGUN ENTERPRISES LTD(1999) 14 NWLR (PT 637) 128 (SC), NIGERIAN BANK FOR COMMERCE & INDUSTRY LTD v EUROPA TRADERS (UK) LTD [1990] 6 NWLR (PT 154) 36, WATANMAL (SINGAPORE) PTE LIMITED v LIZ OLOFIN & CO PLC (1998) 1 NWLR (PT 533) 311, NU METRO RETAIL (NIG) LTD v TRADEX S.I.L. (2017) LPELR-42329(SC) and CITEC INTERNATIONAL ESTATES LTD v EDICOMISA INTERNATIONAL INC & ASSOCIATES (2018) 3 NWLR (PT 1606) 332. The undoubted jurisdiction of the High Court of Lagos State to entertain and determine the suit that generated the present appeal is not (nay, cannot be) ousted by the choice of a foreign forum in Clause 23 of the BCMA between the 1st Respondent and the 2nd Appellant. Especially is this so as the 2nd Respondent and the 1st and Appellants (sued as 1st, 2nd and 4th Defendants respectively at lower Court) are effectively subject to the jurisdiction of the High Court of Lagos State, and the alleged fraudulently converted funds are said to have been traced to bank accounts domiciled with the 2nd Respondent in Lagos, Nigeria within the jurisdiction. Issue No. 1 is accordingly resolved against the Appellants in favour of the Respondents.

Conclusion
The resolution of both issues for determination against the Appellants signposts the failure of this appeal, and I will and do hereby record an order dismissing it for being destitute of merit. The ruling of the High Court of Lagos State delivered on 10/7/19 in Suit No. LD/3881CMW/2018 is affirmed. The costs of this appeal are assessed at N500,000.00 (Five Hundred Thousand Naira) only in favour of each of the Respondents against the Appellants.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother PETER OYINKENIMIEMI AFFEN, JCA and I agree with his reasoning and conclusions in the said

judgment. I have nothing useful to add.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I agree with the lead judgment prepared by my learned brother, PETER OYINKENIMIEMI AFFEN, JCA, with nothing useful to add. I equally dismiss the appeal and affirm the ruling of the lower Court.

Appearances:

Rotimi Seriki, SAN with him Toyin Abidoye, Esq. For Appellant(s)

Abimbola Atitebi, Esq. with him Olufemi Oyewole, Esq. For Respondent(s)