Facts:

This is an appeal against the ruling of the High Court of Lagos State (lower court) delivered by his Lordship K. O. Dawodu, J., wherein the Appellants’ (Defendant in the lower court) motion was dismissed in favour of the Respondents (Claimant in the lower court).

At the lower court, the 1st Respondent had via a Writ of Summons and Statement of Claim, instituted an action against the Appellants and the 2nd Respondent for the following declaratory and monetary reliefs:

(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 of US$4,920,500 in the two accounts (Account Nos. 1771453359 and 1771335693) domiciled with the 15t 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 15t 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 15t 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 in the sum of US$ 2,450,000 (Two Million Four Hundred and Fifty 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.
(ii)
Sometime in August 2018, two American companies – 1st Respondent [WorldPay LLC] and 2nd Appellant [TOF Energy Corporation] entered into a Bank Card Merchant Agreement (“BCMA”) as “processor” and “merchant” respectively, with Clause 23 of the agreement (which deals with “Choice of Law: Jurisdiction. Venue”) designating “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 Respondent The 1st Respondent alleged that it fell victim to 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 was 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. Upon becoming aware that $4,920,500 US 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. Sequel to this, the Respondent filed an affidavit of urgency, motion ex parte for interim injunction and motion on notice for interlocutory injunction.

In response to this, the Appellants and 2nd Respondent filed their Statement of Defence. The Appellant further filed a motion 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.

Urging the lower Court to dismiss the 1st Respondent suit on the above grounds. In a considered ruling, the lower Court dismissed the Appellants’ motion and assumed jurisdiction to entertain and determine the suit.
Dissatisfied by the decision of the lower Court, the Appellant appealed to the Court of Appeal.