By Chukwuma Samuel Adesina Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham)
- INTRODUCTION
Many international commercial parties usually provide for a choice of court agreement as a term of their contract. This is done to enhance predictability and certainty, neutrality, and commercial efficacy and reduce costs between the parties. Since a foreign choice of court agreement is a term of the contract, should a Nigerian court enforce such an agreement like any other contract between commercial parties?
On the contrary, should a foreign choice of court agreement be regarded as an ouster clause? Or does the Nigerian court retain the discretion to enforce such a clause? The issue of how to conceptualise a jurisdiction agreement has become a perennial dilemma among the decisions of Nigerian appellate court (Court of Appeal and Supreme Court) judges.
The Nigerian Court of Appeal has applied varied approaches to the enforcement of foreign choice of court agreements. Indeed, three inconsistent decisions of the Nigerian Court of Appeal in this area of the law were analysed as recently as 2020 elsewhere. On the one extreme hand, there is the contractual approach that strictly treats a choice of court agreement like any ordinary commercial contract.
This approach is good in that it promotes party autonomy, but the problem with this approach is that it ignores the procedural context of a choice of court agreement and might spell injustice due to its rigid approach. On the other extreme hand, there is the ouster clause approach that strictly refuses to enforce a foreign choice of court agreement. Though this approach might favour litigation in Nigeria, it dangerously undermines party autonomy, and international commercial actors are likely to lose confidence in a legal system that does not uphold party autonomy.
The other approach is the middle ground of the discretionary approach called the Brandon test, which upholds a choice of court agreement except strong reason is demonstrated to the contrary. This is the standard approach the Nigerian Supreme Court has applied.
This article critiques the recent decision of the Nigerian Court of Appeal on the concept of the foreign jurisdiction clause. This article is divided into four sections including the introduction and conclusion. Part B states the facts and decision of the case. Part C critiques the decision. Part D concludes.
- THE CASE
In this case, the 1st claimant and the 2nd defendant were United States of American (“USA”) companies. These USA companies entered into a Bank Card Merchant Agreement (“BCMA”) as processor and merchant respectively. Clause 23 of the BCMA provided for an exclusive choice of forum and law in favour of Ohio. The 3rd defendant-appellant was the Chief Executive Officer of the 2nd defendant-appellant (that is the merchant under the BCMA), as well as a shareholder and director of the 1st defendant-appellant Nigerian company, which holds and operates accounts domiciled with the 2nd claimant an entity duly licensed by the Central Bank of Nigeria to undertake the business of banking in Nigeria.
The 1st claimant alleged that it fell victim to “sophisticated wire transfer fraud” perpetrated by the 2nd defendant-appellant through the direction and at the instance of the 3rd defendant-appellant as transactions processed through the 2nd defendant-appellant’s account (as a merchant under the BCMA) were found to be fictitious, and that part of the proceeds of fraud was traced from the 2nd defendant-appellant’s accounts domiciled with the 2nd claimant in Lagos, Nigeria.
The 1st claimant instituted an action against the defendants and the second claimant claimed declaratory and monetary reliefs. The 2nd claimant filed a statement of defence whilst the defendants, inter alia, filed their statement of defence as well as motion on notice praying for an order dismissing or striking out the suit on grounds that the High Court of Lagos lacks jurisdiction to entertain the suit. The trial court dismissed the defendants’ motion and assumed jurisdiction over the case. The defendants appealed.
The Court of Appeal dismissed the appeal. On the topic of the foreign jurisdiction clause, Affen JCA in his leading judgment (which the other Justices unanimously agreed with) dismissed the case on four grounds: first, he applied the privity of contract doctrine. Second, he held that the exclusive jurisdiction in favour of Ohio was an ouster clause of the jurisdiction of the Lagos High Court, which the Court will not enforce. Third, the defendants have filed a statement of defence submitted to the jurisdiction of the Lagos High Court. This was irrespective of the fact that the defendants specifically stated that the Lagos State High Court had no jurisdiction over the case. Fourth, the claimants had shown strong cause why the foreign jurisdiction clause in favour of Ohio should not be enforced.
- CRITIQUE
Affen JCA rightly observed that a foreign jurisdiction clause provides certainty and neutrality between international commercial parties. However, it is submitted that Affen JCA’s decision is wrong on the privity of contract doctrine, ouster clause principle, the Brandon test and discretionary approach, and submission (or waiver) to the jurisdiction of the Lagos State High Court. The principles stated by Affen JCA and his decision merit further critical analysis.
- Privity of Contract
Affen JCA gave general endorsement to the principle of party autonomy, which is part of Nigerian contract law and private international law. He stated that parties generally have the freedom of contract and are bound by the terms of their agreement, and the Court will not rewrite the terms of the parties’ contract. The consequence of this was that where the conditions for the formation of a contract are fulfilled the court will give effect to it.
Having based his decision on this contractual approach, he held that the contract cannot be enforced based on the doctrine of privity of contract. This part of the judgment is worth quoting:
However, it cannot escape notice that non-parties to the BCMA are sued along with the 2nd Appellant and reliefs are 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.
Whilst there is some force in the Appellant’s 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 the light of alleged improprieties and reliefs sought especially against non-parties to the BCMA.
As far as Nigerian contract law is concerned this principle is correct. This principle has also been previously applied by the Nigerian Court of Appeal in the context of the privity of contract as it relates to a jurisdiction clause.
However, this aspect of Affen JCA’s decision is open to question because it did not form part of the issues before the Court of Appeal. It is trite in common law procedural adjudication that a Court cannot make a case for any of the parties. The parties in the case did not specifically raise this issue, so Affen JCA was wrong to have raised it without inviting the parties to pronounce on it.
- Ouster Clause
Affen JCA regarded the exclusive choice of court agreement in favour of Ohio as an ouster clause. In his words:
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 above 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.
This decision of the Court of Appeal in the case under consideration (Affen JCA) is consistent with its previous decision in the recent case of A.B.U. v VTLS, where it refused to enforce a choice of Court agreement in favour of the Commonwealth of Virginia based on the ouster clause principle. The Court of Appeal (Hussaini JCA) was of the view that although the choice of court agreement in favour of the Commonwealth of Virginia (in the USA) was clear and unambiguous and did not have any vitiating circumstances surrounding it (such as fraud), it unanimously held that it would not apply the principle of pacta sunt servanda (agreements between parties should be respected). Hussaini JCA held as follows:
By reason of Section 6(1)(2)(6)(b) of the Constitution of FRN, 1999 (as amended) the judicial powers vested in the Courts “extend to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. Consequently, no person or group of persons by their own private treaty or arrangements can agree to oust the jurisdiction and provisions vested in the Courts by the Constitution. Even where such clauses are put in place in or as a contract with international flavour to rob the Courts of the land of the jurisdiction in favour of another foreign forum, the Courts of the land are obliged to apply the blue pencil rule to severe those clauses from the contract or ignore same by virtue of the Constitutional provision which confers on the Court, the jurisdiction and power to entertain those cases.
Talking about the jurisdiction of the Courts, the Court below, by virtue of Section 272 of the Constitution of Federal Republic of Nigeria 1999 (as amended) has jurisdiction to entertain cases such as the recovery of debts, as in the instant case on appeal. It is for this reason that clauses in the likes of Articles 12 and 13 in the Articles of the Agreement should be ignored when determining the rights and liabilities between the parties herein in matters such as this and the trial Court took the right approach when it discountenanced same to reach the conclusion that it did.
In any case, is it for the recovery of the sum of $18,103 (USD) only claimed by the Respondents, that parties herein are required, by that contract or agreement to submit themselves to a foreign forum in Virginia, USA for adjudication of their case, without consideration of the concomitant procedural difficulties attendant thereto, as for instance, of having to return the case to Nigeria, the place where the contract was concluded initially, to register the judgment obtained at that foreign forum, in Virginia, USA, to be enforced in Nigeria? I think the Courts in Nigeria, fully seized of the case, will in the exercise of its discretion refuse the request to refer the case to a foreign forum for adjudication. It is for all the reasons already expressed in this discourse that I hold the firm view that the trial Court was competent or is competent when it entertained and adjudicated over the recovery suit or action filed by the Respondent against the Appellant.
An ouster clause is used to rob a court of its jurisdiction. Ouster clauses were popular during the Nigerian military regime to deprive the Nigerian court of the existence of its jurisdiction in certain cases where the military government was so determined. Many Nigerian judges construed such ouster clauses very narrowly by assuming jurisdiction.
In Sonnar (Nig) Ltd v Partenreedri MS Norwind, Oputa JSC opined that as a matter of public policy the Nigerian Courts
…should not be too eager to divest themselves of the jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum … Courts guard rather jealously their jurisdiction and even where there is an ouster clause of that jurisdiction by Statute it should be by clear and unequivocal words. If that is so, as is indeed it is, how much less can party 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.
Recently, Nweze JSC interpreted the concept of an ouster clause to the effect “that our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or were, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts”.
A jurisdiction agreement has both negative and positive aspects. It imposes a positive obligation to sue in the chosen forum and a negative obligation not to sue anywhere else.
The classification of a foreign choice of court agreement without more as an ouster clause fundamentally fails to appreciate the distinction between the existence of jurisdiction and the exercise of jurisdiction – a point that Affen JCA explicitly claimed to appreciate in his judgment. A Nigerian court may have jurisdiction as prescribed by the Constitution or enabling statute, but a foreign choice of court agreement gives the court jurisdiction to decide whether or not to stay proceedings in favour of a foreign forum. The fact that such proceedings are stayed and not dismissed means that a Nigerian court’s jurisdiction is not ousted. This is a point Affen JCA concedes to in the latter part of his judgment, which contradicts the ouster clause principle he applied in the case under consideration.
Affen JCA cited Supreme Court Justice, Oputa JSC as a basis for his ouster clause approach. However, the position taken by Oputa JSC, and Nweze JSC at the Nigerian Supreme Court are obiter dicta as they do not constitute the ratio decidendi of the Supreme Court. In other words, it is not the position of the Nigerian Supreme Court that foreign choice of court agreements are ouster clauses. It should be stressed that Oputa JSC’s obiter dictum is not binding on lower courts according to the Nigerian common law doctrine of stare decisis. In addition, Oputa JSC’s obiter dictum was a concurring judgment. Indeed, the Supreme Court in Sonnar had unanimously given preference to the enforcement of a foreign jurisdiction clause except where the strong cause is advanced to the contrary.
The majority of the Supreme Court did not treat it as an ouster clause. It is incongruous to hold, on the one hand, that the Nigerian court would hold parties to their bargain in enforcing a foreign jurisdiction clause except where the strong cause is shown to the contrary, and on the other hand, to treat a foreign jurisdiction clause as if it were an ouster clause. In Sonnar, the choice of court agreement was not enforced because the strong cause was shown to the contrary – the proceedings would be time-barred in a foreign forum, and the claimant would not have access to justice. In addition, Tobi JSC – a Nigerian Supreme Court Justice – in analysing the concept of ouster clauses, further (and rightly) held that Section 6 of the 1999 Constitution, which confers jurisdictional competence on various Nigerian courts, should not be interpreted as ousting the jurisdiction of foreign courts in appropriate cases such as the enforcement of jurisdiction clauses.
So, it is submitted that the Court of Appeal’s (Affen JCA) decision on the ouster clause in the case under consideration was wrongly decided on the principles.
- Bradon Test and Judicial Discretion
Affen JCA in the latter part of his judgment held that in Nigeria where there is the enforcement of a foreign jurisdiction clause, there is tension on whether to treat it as an ouster clause or enforce it strictly as a contract. He then held that the better approach is to treat the enforcement of a foreign jurisdiction clause as one that is not an automatic right, but one where the Nigerian court retains a discretion to do so. I am in full agreement with this analysis. Unlike Arbitration clauses which are governed by statute in Nigeria (Arbitration and Conciliation Act), foreign jurisdiction clauses are governed by common law. In the former case, there is no discretion, while in the latter discretion is a requirement. Discretion has always been an element of common law enforcement of choice of court agreements. In fact, the enforcement of choice of court agreement is like the equitable doctrine of specific performance, where a common law judge retains discretion based on principles, though they should not be confused as the same.
However, this aspect of his principle of discretion contradicts his decision on the ouster clause approach. In other words, the discretionary approach, on principle, is not consistent with the ouster clause approach. If a court retains the discretion to enforce a choice of court agreement it contradicts the idea that a choice of court agreement is an ouster clause.
The fulcrum of the discretionary approach is the Brandon test. The Brandon test is a balanced one. It places the burden on the claimant to demonstrate strong cause as to why the choice of the court should not be enforced.
This Brandon test was applied in the ratio decidendi of the Nigerian Supreme Court in the enforcement of foreign choice of court agreements. The Brandon test is an offshoot of the decision of an English judge called Brandon. Brandon J, in The Eleftheria, delivered a brilliant decision on this subject. The decision provided comprehensive guidelines that the English court should consider in deciding whether to give effect to a foreign jurisdiction clause. This is often referred to as “the Brandon test” in Nigerian jurisprudence. Nigerian courts have regularly referred to the Brandon test and utilised it with approval in decided cases. The test is stated hereunder as follows (as it has been referred to and applied) in the Nigerian context:
1. Where claimants sue in Nigeria in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the Nigerian 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 a strong cause for not doing it is shown.
3. The burden of proving such a strong cause is on the claimants.
4. In exercising its discretion the court should take account of 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 between the Nigerian and foreign courts?
(b) Whether the law of the foreign court applies and, if so, whether it differs from Nigerian 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 claimants would be prejudiced by having to sue in the foreign country 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 Nigeria; or (iv) for political, racial, religious, or other reasons be unlikely to get a fair trial (v) the grant of a stay would amount to permanently denying the claimant any redress.
In Nigeria, the only reported cases where the claimants have successfully relied on the Brandon test is where their claim is statute-barred in the forum chosen by the parties. Indeed, the burden is on the claimant to show strong cause as to why Nigerian proceedings should not stay in favour of the foreign choice of court agreement; where such a strong cause is not shown, Nigerian courts will give effect to the choice of court agreement. As previously stated, this is the approach favoured by the Supreme Court in Nigeria in at least two decided cases.
Affen JCA in this case approved the Brandon tests. He also observed that cases, where third parties are not privy to the jurisdiction clause (privity of contract), the exclusive jurisdiction of a non-chosen forum court, protection of weaker parties, and global lockdown, will also satisfy the strong cause test. The Court of Appeal (Affen JCA) held that a strong cause was established in this case.
Although Affen JCA was right on to state that the discretion in applying the strong cause test must be exercised in a principled manner, it is submitted that he failed to apply this discretion properly in favour of the claimants. The factors pleaded by the claimants on strong cause were that the dispute had a close connection with Nigeria, some of the parties were resident in Nigeria and had Nigerian citizenship, the evidence was more readily available in Nigeria, and the defendants were seeking procedural advantages. Affen JCA did not consider any of these factors raised by the claimants. These factors as stated by the claimants do not constitute a strong cause; they were merely procedural advantages. However, the examples given by Affen JCA such as protection of weaker parties, privity of contract, global lockdown and exclusive or mandatory jurisdiction of a non-chosen forum satisfy the strong cause test, but they were not present in this case. Moreover, as stated earlier the claimants did not explicitly raise the point of privity of the contract, so it wasn’t material in the case.
In summation, the Brandon test and discretionary approach did not support Affen JCA’s refusal to decline jurisdiction in this case.
- Waiver and Submission
Affen JCA rightly held that there was a difference between the existence and exercise of jurisdiction. The right way to challenge the enforcement of a foreign jurisdiction clause is to ask for a stay, which a Nigerian court has the discretion to grant. The implication of this is that it is not right for the defendant to say the Nigerian court does not have jurisdiction, because this will deny the existence of the Nigerian court’s jurisdiction under the Nigerian Constitution and Statutes. This is correct. It is a preferred principle to some other Nigerian appellate Judges that have instead of declining jurisdiction held that the Nigerian court lacked jurisdiction. Indeed, a stay means that if the chosen foreign court is or becomes inaccessible, the Nigerian Court can assume jurisdiction.
It is also correct to state in Nigerian law that where a defendant files an unconditional statement of defence and argues the merits of the case, such a defendant is deemed to have submitted to the jurisdiction of the Nigerian court. This is a widely accepted principle of private international law.
However, Affen JCA stretched the law to a wrong conclusion when he held that the defendant has filed a statement of defence, despite the original plea that the Lagos State High Court did not have jurisdiction, which meant that the defendant had waived or submitted to the jurisdiction of the Court. The rationale for this decision was that the defendant adopted a wrong approach by stating that the Lagos High Court lacked jurisdiction instead of asking for a stay.
This is fundamentally flawed in reasoning. Under Nigerian law, an express challenge to the jurisdiction of the Court, including conditional appearance (as in this case), cannot constitute waiver or submission. Affen JCA’s approach was unduly technical. The words used by the defendant may not have been precise or appropriate, but that was not a good reason for holding that they had not properly challenged the jurisdiction of the Lagos High Court.
- CONCLUSION
The concept of enforcement of foreign jurisdiction clauses in Nigeria continues to assume critical importance in Nigerian private international law. It is important that Nigerian judges get the law right to bring certainty and predictability to litigants.
Affen JCA in the case under consideration did not accurately enunciate and apply the concept of the foreign jurisdiction clause, though he appreciated some of its principles. The author urges Nigerian lawyers and judges to pay more attention to the concept of the foreign jurisdiction clause so that the law can be clearer and more predictable. From 2020 till date, there have been four Court of Appeal decisions on the foreign jurisdiction clause. At least one of these cases is currently on appeal to the Supreme Court, and more may come before the Supreme Court.
The Supreme Court must get the law right and restore predictability to this aspect of Nigerian law.
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*This article is forthcoming in Yearbook of Private International Law.
See generally CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292 – 305; CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart Publishing, Oxford, 2020) 106-127. See also Olawoyin AA, “Forum Selection Disputes under Bills of Lading in Nigeria: A Historical and Contemporary Perspective” (2005) 29 Tulane Maritime Law Journal 255.
2. CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292 – 305.
3.Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA). See also Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC), 500-501 (Okoro JSC), 502 (Eko JSC).
4.A.B.U. v VTLS (2020) LPELR-52142 (CA). See also Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC); Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520, 544-5 (Oputa JSC); LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was); Ventujol v Compagnie Française De L’Afrique Occidentale (1949) 19 NLR 32; Allied Trading Company Ltd v China Ocean Shipping Line (1980) (1) ALR Comm 146.
5.Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.
6.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA).
7.The claimant was the respondent at the Court of Appeal.
8. The defendant was the appellant at the Court of Appeal.
9.Ibid 41.
10.Ibid 33-35
11.Ibid 37-38.
12.Ikpeazu v African Continental Bank Ltd (1965) NMLR 376.
13. Unipetrol Nigeria Ltd v Prima Alfa Enterprises (Nig) Ltd 1986) 5 NWLR 532.
14.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA) 38-41.
15.Ibid 40-41.
16.(2020) LPELR-52142 (CA)
17. A.B.U. v VTLS (2020) LPELR-52142 (CA) 15-18. For earlier cases on the subject see Ventujol v Compagnie Française De L’Afrique Occidentale (1949) 19 NLR 32; Allied Trading Company Ltd v China Ocean Shipping Line (1980) (1) ALR Comm 146.
18. See generally Abacha v Fawehinmi (2000) 6 NWLR (Pt. 660) 228.
19. (1987) 4 NWLR 520.
20.(1987) 4 NWLR 520, 544-5. See also LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was).
21.Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489.
22.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA) 45-46.
23.Even Oputa JSC held thus: ‘Where a domestic forum is asked to stay proceedings because parties in their contract chose a foreign Court … it should be very clearly understood by our courts that the power to stay proceedings on that score is not mandatory. Rather it is discretionary which in the ordinary way, and in the absence of strong reasons to the contrary will be exercised both judiciously and judicially bearing in mind each parties right to justice’ – Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520, 545.
24. Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509, 546.
25.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA) 41-43.
26.Cap A18 LFN 2004. On 10 May 2022, the Nigerian Senate passed the Arbitration and Mediation Bill 2022, which repealed the Arbitration and Conciliation Act 2004. No new information has been provided on Nigerian President given his required assent to the law.
27.Obembe v Wemabod Estates (1977) 5 SC 115, 131 (Fatayi-Willams JSC).
28.Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.
29.The Owners of Cargo Lately Laden on Board the Ship or Vessel ‘Elftheria’ v ‘The Elftheria’ (Owners), ‘The Elftheria’ [1969] 1 Lloyd’s Rep. 237.
30. See generally GBN Line v Allied Trading Limited (1985) 2 NWLR (Pt. 5) 74; Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509; Captain Tony Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-8320 (CA); Beaumont Resources Ltd v DWC Drilling Ltd (2017) LPELR-42814 (CA).
31,Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Hull Blyth (Nig) Ltd v Jetmove Publishing Ltd (2018) LPELR-44115 (CA); Bupa Insurance Ltd v. Chakraverti & Anor (2021) LPELR-55940(CA).
32. Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.
33.Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.
34.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA) 49-55.
35.Citing Akai PTY Ltd v People’s Insurance Company Ltd [1998] 1 Lloyd’s Rep 90; Continental Bank NA v Aeakoscompania Naviera SA & Ors [1994] 1 WLR 588; RDC Holdings Ltd v Game (International) Australia Ltd (2020) QSC 318; A Yekini “The Practicality of Enforcement of Jurisdiction Agreements in Nigeria” published on 17 December 2020 on www.afronomicslaw.org. Affen JCA’s dictum on the concept of protection of weaker parties (citing Yekini) in the Brandon test is a significant and welcome development because the Court of Appeal in Bupa Insurance Ltd v. Chakraverti & Anor (2021) LPELR-55940(CA) missed the opportunity to pronounce on it in a related case.
36.TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA) 52
37.Ibid 45-49.
38.Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA).
39.Barzasi v Visinoni (1973) NCLR 373, 380. See also Odua Investment Co Ltd v Talabi (1997) 10 NWLR (Pt. 523) 1; Ezomo v Oyakhire (1985) 1 NWLR (Pt. 2) 195; Adegoke Motors Ltd v Adesanya 1989) 3 NWLR (Pt. 107) 250.
40.Holman Bros (Nig) Ltd v Kigo Brothers (Nig) Ltd (1980) 8-11 SC 44.
41.Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA); A.B.U. v VTLS (2020) LPELR-52142 (CA); Bupa Insurance Ltd v. Chakraverti & Anor (2021) LPELR-55940(CA); TOF Energy Co Ltd & Ors v. Worldpay LLC & Anor (2022) LPELR-57462(CA).
42.Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90.
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