Here is a rejoinder to the critique: A Critique of the Nigerian Court of Appeal’s Recent Restatement of the Principles and Decisions on the Enforcement of Foreign Jurisdiction Clause in Nigeria
By Folabi Kuti, SAN
A recent decision of the Court of Appeal of Nigeria, sitting in Lagos Division considered the propriety of enforcing a foreign jurisdiction clause in a contract wholly entered into by some of the parties before the court against the backdrop of the parties sued, or named as parties to the court action being more than those bound by the contract. Unsurprisingly, the court upheld the lower court’s decision, inter alia, that on account of lack of privity extending to bind the non-parties to that contract, a foreign jurisdiction cannot be sustained to deprive the Nigerian court of jurisdiction.
That decision, rendered in the case of TOF Energy Co. Ltd & Ors v Worldpay LLC & Anor reported as (2022) LPELR-57462 (CA) has caught the intellectual lens and fine-tooth comb of a perceptive legal commentary published under the title, ‘The Enforcement of Foreign Jurisdiction Clauses in Nigeria: A critique of the Nigerian Court of Appeal’s recent restatement’ by Chukwuma Okoli, an Associate Professor of Law at the University of Birmingham. Dr. Okoli went to great lengths to critique the supposed gaps in the judgment, discernibly under four (4) heads. The reviewer’s insights, nay objections form the focus of this review, or, to catch the fancy of literati – ‘rejoinder’.
The facts
From a reading of the judgment, a precis of the background facts leading to the appeal to the Court of Appeal was masterly rendered on page 219 of the Review thus:
In this case, a US company (World Play LLC) sued four parties, namely a Nigerian bank (Polaris Bank Limited, which was previously Skye Bank Plc), another Nigerian Company (TOF Energy Limited), a US Company (TOF Energy Corporation), and Mr. Jyde Adelakun (both the chief executive officer of TOF Energy Corporation, and director and shareholder of TOF Energy Limited) in Lagos, Nigeria, for breach of an exclusive choice of court agreement in favour of US Courts. WorldPay LLC and TOF Energy Corporation, both US companies, had entered into a Bank Card Merchant Agreement with WorldPay LLC, as the processor, and TOF Energy Corporation, as the merchant. WorldPay LLC claimed that it was the victim of a sophisticated wire transfer fraud carried out by the TOF Energy Corporation under the direction of Mr. Jyde Adelakun.
The proceeds of the fraud – about $5 million – were allegedly traced from TOF Energy Corporation’s account at Standard Chartered Bank, New York, USA to TOF Energy Limited’s accounts domiciled with Polaris Bank Limited in Lagos, Nigeria. Hence, WorldPay LLC sued Lagos to recover the money from TOF Energy Co Ltd.’s accounts in Lagos. The trial court dismissed the defendants’ motion and assumed jurisdiction over the case. The defendants appealed. The Court of Appeal dismissed the appeal.
The decision
The appeal was decided on two main concerns. On the first issue, the court, returning the same verdict as the trial court, held that non-compliance by the 1st respondent with the Pre-action Protocol Form 01 was a mere irregularity that would not nullify the suit or render same incompetent.
The second issue, more of the decisive focal point of discussion in the legal commentary was on whether the learned trial Judge was right in holding that the choice of Ohio State Courts, United States of America as a venue for the resolution of disputes was 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 held that the trial Court has the jurisdiction to entertain this suit?
Here, the Court of Appeal reviewed the facts before the lower Court, pointedly noting 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),
p.37 of the Report
thus making it
‘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.
p. 38
Without doubt, the finding/keen observation of the court here is a controlling ratio from the decision upholding the lower court’s ruling. Underscoring the importance of restricting itself to the narrowed issues before the judex, the Court nonetheless did a thorough analysis, providing a guided tour through the sometimes-confused role, and/or extent of ‘interference’ (of Nigerian courts) with parties’ autonomy in the face of foreign jurisdiction clause. As shown anon, it is this latter part, that is, obiter statements thoughtfully clarifying the theoretical legal principle in this area that the commentator misapprehended in many parts as the ratio(s) wrongly stated.
The review
- Issue suo motu?
Dr Okoli’s agrees with the thrust of the proposition that a stranger to a contract can not be bound by a foreign jurisdiction clause stipulation in the contractual document, even as he picks a bone with the appropriateness of this premise to the particulars of the case under review. In his words:
As far as Nigerian contract law is concerned, this principle is correct. This principle has also been applied previously by the Nigerian Court of Appeal in the context of privity of contract as it relates to a jurisdiction clause. This aspect of Affen JCA’s decision is however open to question because it was not one 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 argue their positions.
Prefatorily, it is significant to note here that the Court of Appeal sat as a 3-member panel and returned a unanimous decision in the appeal under reference. The Honourable Justice P. Affen who, it would appear from the repeated rendering of His Lordship’s name throughout the review – either sat as a single member panel or wrote a dissenting opinion- only wrote the leading opinion, that is, the judgment of the Court of Appeal. It would appear that the learned commentator treated the decision as that of a one-man panel, and deployed somewhat condescending expressions as well as made needless direct personal references to “Affen JCA” in lieu of the Court of Appeal, in a manner that did not do much credit to the critique.
More to the issue at hand, the keen observation that a Court cannot raise an issue suo motu and proceed to resolve it without inviting parties to address it on that issue is an indubitable statement of law [even though there are notable exceptions, such as where the issue relates to the court’s jurisdiction or the parties overlooked an applicable statute of which the court is bound to take judicial notice – Effiom v CRSIEC [2014] 14 NWLR (Pt. 1213) 106 at 133 – 134 (SC) and Omokuwajo v FRN [2013] 9 NWLR (Pt. 1359) 300 at 332 (SC)]. It is, however, difficult to understand the force of Dr. Okoli’s criticism when the fine point of law so effortlessly highlighted is analysed against the strands of fact in the appeal. Pages 16-17 of the Report contain an account of the submission of the 1st respondent at the hearing. For the present inquiry, the Court recorded thus:
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.
Underlining for emphasis
This passage above evidently confirms that the Court of Appeal, per Affen, JCA did not stray into the arena to raise what was not already part of the fought issue in litigation between the parties. The Court’s finding, or agreement with these arguments of the 1st respondent that the BCMA will not bind non-parties can thus, not be said to be an issue formulated without the involvement or participation of parties. This elementary law is almost without the need for citation but for emphasis, reference would be made to the reported case of Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C , where the Supreme Court, per Tobi, JSC (of blessed memory) held that “A Court can only be accused of raising an issue, matter of fact suo motu if the issue, matter of fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter of fact suo motu if the issue, matter of fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
II. Ouster Clause
Similarly, Dr Okoli’s commentary misapprehended the intent of the Court of Appeal’s decision. He appeared to have given a surface-level review without considering the facts of the case, which led to the Court’s finding. This evident lack of rigour in identifying the ratio or situating the context of usage soon became apparent in the shaky conclusions reached on the supposed flaws from the judgment.
On the ouster clause, it is apposite to mention that no conflict whatsoever arises from either the Court of Appeal’s decision or the application of what was termed obiter dictum of Oputa JSC in the oft-cited decision of the Supreme in Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR (Pt. 66) 520.
The conclusion of the Court of Appeal was clearly drawn from the issue as formulated for determination. The relevant issue for determination before the Court was whether the learned trial Judge was right to hold that the choice of the Ohio State Courts as per Clause 23 of the BCMA cannot oust the jurisdiction of the High Court of Lagos State and consequently hold that the Court lacks jurisdiction to entertain the suit. In determining this issue, the Court considered the facts and then applied judicial precedent, especially the case of Sonnar, which appeared to have been misapprehended by the writer.
It is also apposite to highlight that case laws are unified as to the application of a foreign jurisdiction clause. The acceptable principle that runs across the cases is that the Nigerian Court undoubtedly has jurisdiction. However, where a party makes an application to enforce the foreign jurisdiction clause and thus territorially transfer the adjudication of the case, the Court has the discretion to weigh such an application. By the very nature of the Court’s power to weigh such an application, in order to exercise discretion, it is implicit that the clause simpliciter cannot oust the jurisdiction of the Nigerian Courts. This was the exposé of the Supreme Court, per Oputa JSC in Sonnar’s case from the portion reproduced by the learned commentator. Notably, the conclusion of Oputa JSC aligns with the findings of Eso JSC in the leading Judgment. Oputa JSC at pages 45 – 46 G – A of Sonnar’s case held thus:
“Where a domestic forum is asked to stay proceedings because parties in their contract chose a foreign Court and a foreign law to apply, 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 power 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.”
It was this same discretion that Eso JSC exercised when His Lordship refused to transfer the case on grounds that it was already statute-barred in Germany. In other words, both the leading judgment and the concurring judgment of Oputa JSC strike a common purpose. There is no disparity as to deploying “obiter dictum” as the commentator has posited. Yes, parties can contract to a foreign Court, but such submission is not automatic where there are strong reasons why the Court would not decline to exercise jurisdiction. A better way to construe the incisive contribution of Oputa JSC is to see that it has equal weight with the leading judgment. By our jurisprudence, a concurring judgment has equal weight with the lead and thus complements same. See Emeka Nwana V Federal Capital Development Authority (2004) 13 NWLR (Part 889) 128 at 140-141 per Tobi JSC.
It was this unified and unassailable principle that the Court of Appeal, per Affen, JCA, applied in the case under scrutiny. The Learned jurist stated that the point to note from the Sonnar case is that “contracting parties do not have untrammeled liberty to denude the Court of the jurisdiction conferred on it by the Constitution or statute by their private treaty, just as they cannot donate jurisdiction to a Court that lacks it.” [page 43 of the Report] Thereafter, His Lordship proceeded to state that it is a matter of judicial discretion rather than strict law, and further outlined some ‘strong cause’ which can influence the discretion of the Court, which includes a situation where third parties, not bound by the Agreement are necessary parties to the case. This exact reason featured in the case under reference, where there are other necessary parties sued as defendants, other than the 2nd appellant.
At page 51 of the Report, my Lord, Affen, JCA explained that the discretion to be exercised must be judicially and judiciously. Judicially depicts that the discretion must be in accordance with the law. The Learned jurist then proceeded to apply the privity of contract law which applies to exclude the non-parties to the contract from being bound by same. The Court also found that the funds fraudulently converted were traced to the bank accounts domiciled with the 2nd respondent in Lagos State. A combination of these factors led the Court to assume jurisdiction over the case.
It was on this score that the Court of Appeal, per Affen, JCA concluded that 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.
Two quick points must be made here – in response to the critique on same. The first is that the conclusion of the Court of Appeal, per Affen, JCA is not bare. It was merely answering the issue posed for determination, having considered the facts constituting the issue and evaluating the same. Thus, it is not to be extracted at face value without a whole reading of the judgment and facts in issue. The law is that a judgment must be read as a whole to achieve harmony among parts. See Mbani v Bosi (2006) 11 NWLR (Pt 991) 400 at 417 D (SC). Read together or harmoniously, it is not difficult to appreciate that it was not for the Court of Appeal to substitute its own views/preference of undisputed facts or narrowed issues for the views of the trial Court: Balogun v Agboola (1977) 10 SC (Reprint) 83 at 88. Secondly, the application (on appeal) before the Court appears to really insinuate that the trial court lacks complete jurisdiction over the case. In other words, the case should not have been filed at all in Nigeria.
The appellants (as defendants) did not seek for a stay of proceedings as in the Sonnar case. Rather, their application was for the Court to decline jurisdiction outrightly in favor of the Ohio Court. Thus, the distinguishable factors that even support the face-value excerpt of the Court of Appeal, per Affen, JCA’s decision are that:
- The appellants’ application was not for a stay of proceedings but an outright challenge to the jurisdiction of the Court. From Sonnar’s case the Supreme Court settled the point that no clause can oust the jurisdiction of the Court. It must be first recognized that the Nigerian Court has jurisdiction. However, the Court has discretion in considering a stay of proceedings to decide if such exercisable jurisdiction should be donated to the foreign Court (considering strong reasons). The application before the court did not ask for a stay. Put differently, it was a frontal challenge that the court had no discretion to exercise with respect to the same- but to ‘recuse itself completely’.
2. There were other parties sued by the 1st respondent who were not privy to the Contract.
3. The fraudulently converted funds were said to be traced to bank accounts domiciled with the 2nd respondent in Lagos, Nigeria within the jurisdiction. The funds were also said to have been converted by the 2nd Appellant who is a director and major shareholder of the 2nd Appellant in Nigeria. Therefore, by the facts, or the application of the ‘close connection test’, the Nigerian court is well positioned to assume jurisdiction and adjudicate over the dispute. This point was also made in the judgment.
Suffice (it) to say that it was upon these peculiar facts that the Court of Appeal took the decision under review. Accordingly, there is no conflict whatsoever on the finding on the ouster clause as posited by the writer. The case was not also decided on wrong principles as stated but on established principles of the law. The fundamental flaw of the commentator (with respect) is that there appears to have been a loose interpretation and application of the facts in both Sonnar’s case and the instant case. The facts of a case must be married to the ratio of the Court. Oputa JSC observed a worrisome trend in Adegoke Motors Ltd. v. Adesanya [1989] 13 NWLR (Pt.109) 250 thus:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts…Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.”
III The Brandon Test
Here, the commentator’s contention stemmed from the ouster clause. He applauded the court’s acknowledgment of discretion but depicted that the view conflicts with its application of the ouster clause. The view under this head is also misconceived in that:
(1) There was no misapplication of the principle of the ouster clause by the Learned Judge. The conclusion of the Judge does not mirror the facts as already evaluated by the Judge. Rather, it seeks to resolve an issue for determination as formulated. Indeed, the Court applied the principle of discretion and found strong reasons why the case should not be transferred.
(2) Even if the Court’s conclusion is held to its face value, it appears that the decision is solid. This is because the defendants did not acknowledge the jurisdiction of the Court and consequently pray for a stay of proceedings. Rather, their application was for outright decline of jurisdiction. This is against the relevant laws on the point and thus, the Court would be right to have held that no party can oust its jurisdiction. This fundamental error of the defendants which also supports the Court’s conclusion was highlighted by the Learned Judge when he held as follows:
“In Sonnar… 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 undisputed 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 Nordwind supra and dismissing the objection without further ado.”
(3) In other words, the appellant’s application indeed sought to completely shut out the jurisdiction of the Nigerian Courts over the dispute. Thus, the Court of Appeal’s conclusion is also on a strong footing on this score.
(4) It has been shown ibid that the Brandon Test was indeed applied. The Court applied discretion and considered strong reasons why the application should be refused. Contrary to the learned commentator’s view, it has also been shown that the privity of contract was not imported by the Court of Appeal, per Affen JCA, but same can be gleaned from the reliefs sought in the claim against the non-parties to the contract.
IV Waiver and Submission
Yet another missed – far wide off the mark- shot of the learned commentator is the criticism that the Court did not appreciate enough some small point about waiver and submission in the context of (procedural) jurisdiction. Here, the learned commentator, in seeming to appreciate the distinction made in the Court of Appeal decision under reference regarding existence of jurisdiction on the one hand, and the exercise of same, on the other hand again unduly accused the Court, per Affen JCA, of being unduly technical in its approach, or application as it relates to the case. The passage is lengthy but worthy of reproduction to fully appreciate the pith of the supposed pitfall. In his words:
Affen JCA rightly held that there was a difference between 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. 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 having filed a statement of defence, despite the original plea that the Lagos State High Court did not have jurisdiction, meant that the defendant had waived the right to rely on a choice of court clause, or submitted to the jurisdiction of the Court.
The rationale for this decision was that the defendant adopted an incorrect approach by stating that the Lagos High Court lacked jurisdiction instead of asking for a stay. This reasoning is fundamentally flawed. 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.
One noticeable flaw in Dr. Okoli’s emphatic standpoint here is the failure to appreciate the trite position of the law that an objector to the jurisdiction of the court to hear or proceed on a matter can, in certain circumstances, or depending on the nature of the jurisdictional challenge raised, still be said to have waived the right to complain of the defect complained of even after he has filed a conditional appearance competence of the court to hear the matter. There is considerable force and clarity in the thought of the Court of Appeal, per Affen JCA, on this point. Rather, the learned commentator, proceeding on a very faulty premise, assumed the latitude given to an objector to jurisdiction as being limited to merely entering a conditional appearance. The writer also depicted that filing a statement of defence would not amount to a waiver since the defendants ultimately challenged jurisdiction. Discernibly, the critique from the quoted passage is flawed for the following reasons:
- The underlying facts must be married with the law to appreciate what is being reviewed, analyzed or critiqued. The learned commentator’s reference to conditional appearance not constituting a waiver appears to be a blanket statement without unification of the facts of the case. It is not disputable that mere appearance, whether conditional or not cannot constitute waiver. However, the commentator seems to have omitted the underlying fact, that the conditional appearance was accompanied by a statement of defence. It was in that context that my Lord, Affen JCA rightly held that the defendants having filed a statement of defence, despite the original plea that the Lagos State High Court did not have jurisdiction, had waived the right to rely on a choice of court clause. That is, had submitted to the jurisdiction of the Court. This finding is unassailable on all fronts. It is in accord with the binding force of judicial precedents on the point that a statement of defence constitutes a waiver as the defendant is adjudged to have taken a step in the proceedings. Put simply, a jurisdictional challenge hinged on choice of court clause is a procedural jurisdictional challenge that must be raised timeously, and without any additional/further step on the part of the objector. It does not belong in the league of jurisdictional challenges that can be raised at any time. It is akin to a challenge, for example, to a jurisdictional challenge hinged on the presence of an arbitration clause in parties’ contractual document, or a challenge to service of court process (outside jurisdiction) without compliance with the provisions of Sections 97 and/or 99 of the Sheriffs and Civil Court Process Act. There is a legion of case law citations on these.
- At the risk of repetition but for emphasis, it bears restating the point that the Court did not constitute conditional appearance as a waiver but rather construed the joinder of issues by the statement of defence as the waiver itself. As a corollary, the foreign jurisdiction clause is a provision of parties’ Agreement manifestly beneficial to the defendants. The law is that even statutory provisions which confer private rights can be waived, where the party takes certain steps in the proceedings. Such steps have been held to include entering an appearance and filing pleadings. Thus, by our legal system, an appearance coupled with a statement of defence is deemed a waiver. A party should take no step other than its challenge. In Odu’a Investment Co. Limited V Talabi (1997) LPELR-2232 @ page 88 E – G, the Supreme Court per Ogundare JSC @ held thus:“It follows, therefore, that where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect.” Also, as noted above, a foreign jurisdiction clause can be likened to an arbitration clause in an Agreement. This is because, while the Court primarily has jurisdiction in both cases, it can exercise discretion to shed its jurisdiction for substantial reasons. Again, in a settled line of case laws, it has been held that filing a defence as the defendants had done in this case amounts to taking a step in the proceedings. In Obembe v Wemabod Estates Limited (1977) 11 NSCC 264, the Supreme Court held thus:“In order to get a stay, a party to a submission must have taken no step in the proceedings. A party who makes any application whatsoever to the Court, even though it be merely an application for an extension of time, takes a step in the proceedings. Delivery of a statement of defence is also a step in the proceedings.
- The learned commentator failed to harmonize the facts, that the conditional appearance was accompanied by a statement of defence. If there had been a proper review of the facts, it would have been clear that the doctrine of stare decisis applies, to bar an intermediate Court from departing from same. Fundamentally, the reference to conditional appearance in the commentator’s analysis appears irrelevant as it does not ground the basis of the Court’s decision on the point. For clarity the Court held as follows:
“What is more, it cannot escape notice that the Appellants filed their statement of defence contemporaneously with the objection to jurisdiction…What this implies is that the Appellants have joined issues with the 1st Respondent on the merits of the case”
- The learned commentator’s reference that ‘the words used by the defendant may not have been precise’ does not represent the Nigerian jurisprudence on seeking relief from the Court. The Court is not a knight errant looking for skirmishes over the place. Also, it is settled that a Court is not a father Christmas and therefore cannot properly grant a relief the party has not sought in an application or consequentially under confined grounds. Accordingly, the application as filed by the defendant’s challenging jurisdiction outrightly, cannot be converted or treated as an application for a stay of proceedings, merely because there was a wrong choice of words as the learned commentator projects. See Commissioner for Works, Benue State v Devcom Devt Society Ltd [1988] 3 NWLR (PT 83) 407 at 420 (SC) and Olatunji v Owena Bank [2002] 15 NWLR (Pt. 790) 272 at 291. *
Conclusion
It is acknowledged that informed critiques and commentaries serve to strengthen our jurisprudence by spotlighting several areas of the law decided on constituted facts. By a thorough review and critical analysis of a judgment, the reading public is afforded an opportunity of a second look at the court’s grasp of the case, and the judgment handed down in resolving the dispute submitted to it for adjudication. Undoubtedly, this healthy practice makes way for better and well-articulated judgment going forward, thereby strengthening the law, whilst shaping/re-directing judicial thinking on identified flaws. Lord Burrows of the U. K’s Supreme Court identifying the correspondingly large influence of ‘practical legal scholarship’ (that is, academic writings or critiques) on the work of appellate judges, cited an example thus:
“A high profile and major academic triumph came in the mid-1980s when, following stinging criticism by Glanville Williams of the House of Lords’ decision in Anderton v Ryan, on attempting the impossible in criminal law, the House of Lords quickly reversed that decision in R v Shivpuri relying on that article by Williams despite what Lord Bridge referred to as “language … that is not conspicuous for its moderation.”
The Law Lord also referenced the House of Lords’ decision in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 2 where Lord Goff explained how useful he had found the work of academics in deciding that case (which was about forum non conveniens in private international law). On page 488 of the decision, Lord Goff appreciated the complementary work of academics and judges thus: “For jurists are pilgrims with us on the endless road to unattainable perfection; and we have it on the excellent authority of Geoffrey Chaucer that conversations among pilgrims can be most rewarding.”
On this score, the learned commentator deserves commendation for critiquing the Judgment of the Court of Appeal in TOF Energy Co. Ltd & Ors v Worldpay LLC & Anor (2022) LPELR-57462 (CA) under reference. However, in light of identified flaws in his critique (now embodied in the present rejoinder), the jury is out. I invite legal and non-legal pilgrims/wayfarers alike to read the Judgment (which I consider as tightly reasoned) in ultimately deciding the side of the spectrum to pitch a tent.
Folabi Kuti SAN can be reached at folabikuti@perchstoneandgraeys.com
2. “Judges and Academics, and the Endless Road to Unattainable Perfection”, The Lionel Cohen Lecture 2021.
