Intercontinental Bank Plc Vs Olam (Nigeria) Ltd (2013)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This application was filed on 12/8/2011 by the Appellant/Applicant pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999; Order 2 Rule 31(1) and Order 6 Rule 5(1) of the Supreme Court Rules and under the inherent jurisdiction of this Court. The Applicant prays for the following reliefs, viz:-

1. An order granting leave to the Appellant/Applicant to raise and argue new points arising from grounds 2, 5 and 9 of the Amended Notice of Appeal dated 22nd day of February, 2010 and filed on the 24th of February, 2010 which are issues not raised in either the High Court or Court of Appeal.
2. An order extending the time within which the Appellant/Applicant may file and serve its Appellant’s Brief of Argument in this Appeal.
3. An order deeming the Appellant’s Brief of argument which has already been filed and served on the Respondent as properly filed and served.
4. Such further order or other orders (sic) as this Court may deem fit to make in the circumstances.

The grounds upon which this application is predicated are set out hereunder as follows:-

1. The Appellant/Applicant, being dissatisfied with the judgment of the Court of Appeal, Lagos, in Appeal No. CA/L/497/2005: OLAM (NIGERIA) LTD V. INTERCONTINENTAL BANK LTD, delivered on the 6th day of July, 2009, filed a Notice of Appeal dated 27th day of July, 2009 against the said judgment.
2. On the 22nd of February, 2010, the Appellant was granted leave by this Honourable Court to file additional Grounds of Appeal as stated in Grounds 5, 6, 7, 8, 9 and 10 of the Amended Notice of Appeal dated the 22nd day of February, 2010 and filed on the 24th day of February, 2010.
3. The Appellant/Applicant intends to raise new points as set out and underlined in Ground 2, 5, and 9 of the Amended Notice of Appeal dated 22nd day of February 2010 and filed on the 24th day of February, 2010, which are reproduced in the Schedule to this application.
4. The new points sought to be raised in this Honourable Court in respect of the said Grounds 2, 5 and 9 of the Amended Notice of Appeal dated 22nd of February, 2010 and filed on the 24th of February, 2010, were not raised by the Appellant/Applicant in either the High Court or the Court of Appeal.
5. The new points sought to be raised by the appellant/Applicant as aforesaid, are fundamental, substantial and arguable.
6. All the evidence that would be required to resolve the new points sought to be raised by the Appellant/Applicant already forms part of the Record of Appeal before this Honourable Court.
7. No fresh evidence would be required to resolve the new points sought to be raised by the Appellant/Applicant.
8. The time within which the Appellant/Applicant ought to file its Appellant’s Brief of Argument has also elapsed.
9. The Appellant/Applicant requires the leave of this Honourable Court to raise and argue the new points sought to be raised in Honourable Court for the first time and file its Brief of Argument out of time.

By an 18 paragraph supporting affidavit the Applicant had deposed on its behalf by ABAYOMI ADENIRAN of counsel and the relevant portions of the affidavit are to be seen at paragraphs 8 – 11 as follows:

8. The appellant/applicant intends to raise new points not raised in either the High Court or the Court of Appeal in the course of arguing Grounds 2, 5 and 9 of the Amended Notice of Appeal.
9. The new points sought to be raised by the Appellant/Applicant as highlighted in the underlined portions of Grounds 2, 5 and 9, which are reproduced in the schedule to the Notice of Motion are to the effect that:-

(i) The Respondent is a separate and distinct legal entity from “Olam International Limited”.

(ii) The Respondent did not sue for and on behalf of Olam International Limited.

(iii) The Respondent was not the ultimate beneficiary of the relevant cheques which were the subject matter of the suit between the Respondent and the Appellant.

10. The relevant submissions relating to the issues highlighted in paragraph 9 above, have been adduced by the Appellant under issues 2 and 6 of the Appellant’s Brief of argument, particularly, paragraphs 5.25 – 5.27 and 9.13 at pages 19-20 and 35.
11. While deliberating with Chief F. O. Fagbohungbe, SAN on the facts of this Appeal in his office at 23A Marina, Lagos at about 12.30p.m. on 8/8/2011, I was informed by the learned senior counsel and I verily believe him that:-

(i) The new points sought to be raised by the Appellant/Applicant as highlighted in the schedule to this application are fundamental, substantial and arguable.

(ii) No fresh evidence would be required to resolve the new points sought to be raised for the first time in this Honourable Court.

(iii) All the evidence that would be required to resolve the new points sought to be raised by the Appellant already forms part of the Record of Appeal; to wit:

– Respondent’s further further further Amended statement of claim at pages 53-57 of the record and

– Exhibits ‘L1’, ‘M’ and ‘M1’ at pages 180A14, 180A15 and 180A16 of the record.

The Respondent LATEEF OWOLABI of counsel, countered with a five (5) paragraph counter affidavit filed on 23/9/2011 and the gravamen of the averments are that respondent would suffer grave injury if the application is granted as respondent would not have the opportunity of confronting the new issues to be raised adequately.

In moving the motion on the 20/10/12, learned counsel for the Appellant/Applicant contended that in making this application for the leave of Court to raise fresh issues at this stage, they are strengthened by the case of Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251 at 266-267. That the question of locus standi which is at the root of this prayer in the application is substantial since it affects the jurisdiction of the Court of first instance and the Appellant would not need to adduce new evidence. That the Respondent would not be prejudiced as they would have the opportunity to react.