By Dele Sobowale

The agreement shall be governed by the laws of England and, subject to clause 26 above, the parties hereby submit to the exclusive jurisdiction of the English Courts.”

Section 28 of the agreement between ECOBANK TI and its top Directors and Executives.

The ordinary meaning of that clause would appear to have excluded the jurisdiction of any courts in any other country other than England. Why an African bank, with global stakeholders should select England for the resolution of disputes, controversies and claims between it and others need not delay us here.

But, one can speculate that the integrity of British Courts must be one of the reasons. Indeed, the fact that an African Court, in any country on the continent, would entertain a case in which its jurisdiction had been specifically ousted should be an indication of the low regard disputants and litigants have for our Courts in Africa.

Fortunately, the lower court in Togo does not have the last say on this matter. But, its judgment has already had one crippling consequence for all the other stakeholders of ETI. The bank cannot pay dividends until this matter is resolved finally. And that might take quite a while. Even if the Court of Appeal in Togo reverses the lower court’s judgment, Mr Tanoh might still exercise his option to proceed to the country’s Supreme Court thereby delaying dividend payments for much longer.

Once again, it needs to be stated why everybody, especially in Africa, should be interested in this case. Briefly, they include, but are not limited to the following: avoidance of bad precedent, upholding the sanctity of agreements in their entirety, protecting Africa’s access to international finance, upholding reasonable ethical standards in Business transactions and promoting African political/economic integration. Permit me to summarise how the Togo court’s decision threatens all of these.

A substantial portion of laws, in any country, rests on precedents, defined as, creating an example which might be used as justification for other cases. If the judgment in Togo is allowed to stand, then any multi-national company which has such a clause regarding arbitration of disputes will henceforth be subjected to the expenses, and uncertainties of facing a court which had no jurisdiction in the first instance. Today, it is ECOBANK, tomorrow it might be DANGOTE, MTN or STANBIC.

Sanctity of agreements has always been the bedrock of commerce among stakeholders who value their integrity. Presumed, of course, is that each party to the agreement understands his/her obligations at all times. Those lacking legal training are enjoined to seek legal advice. Even some lawyers still engage other lawyers because as the saying goes, “A lawyer who has himself for a lawyer, has a fool for a lawyer”. We are not sure the principle of sanctity of agreements had been upheld here. Africa badly needs influx of foreign capital. Let us tell ourselves the honest truth.

No country on this continent can grow rapidly without foreign direct investment. The almost 5 per cent annual growth credited to us had been possible largely on account of large quantum of FDI. But, capital takes flight the minute it is threatened. Nothing can do it faster than uncertain justice or brazen injustice. In crying out against the injustice to ECOBANK, we are merely affirming the belief that it is in our collective interest to play by the rules – at all times.

Businesses are not always governed by the precepts promoted by religions. At the same time they are, or should not, be devoid of ethical standards to which all those engaged in business universally will aspire and subscribe. All African nations and people should enroll in promoting those standards because it is in our self-interest to do so.

Finally, African political/economic integration lags behind those of other continents and this had contributed its own quota to our under-development by comparison with others. There is a huge gap to close; but, it cannot be done with each nation operating as if it an island sufficient unto itself. More cooperation is required; which can only be achieved by improving confidence anchored in the belief that any country in Africa is home to every individual or corporate citizen.

That, in turn can only come about when an Egyptian can expect the same fairness in Namibia, or a Zambian in Gambia, as he would expect in his own country. When that is achieved we will become a continent on the move – instead of several weal economies struggling to survive.

LAST LINE. This series of interventions had deliberately avoided the issues for determination in the case. On no account do we want to intervene in the substantive issues at stake. But, court cases occur within broader social settings and they sometimes produce consequences for others far removed from the parties themselves. It is for the case of those others that this had been written.