Biocon Agrochemicals (Nigeria) Ltd. & Ors V. Kudu Holding (Pty) Ltd. And Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C

The main question raised in this appeal is whether the court below was right to have refused to grant the prayers made to that court by the appellants. For ease of reference, the reliefs sought from the court below be set out hereunder :-

“1 An order granting extension of time within which the applicants and the applicant intervener may apply for leave to appeal against the ruling of Honourable Justice Dolapo Akinsanya delivered in this suit on the 2nd December, 1994.

2. An order granting leave to the applicant and applicants/intervener to appeal against the said ruling in terms of the proposed notice and grounds of appeal attached to this application as “Exhibit RA2″
3. An order enlarging the time within which the applicants and applicants/intervener may appeal against the said ruling.
4. An order staying further proceedings whatsoever and howsoever in this suit at the court of trial pending the hearing and final determination of the appeal herein sought to be entered save power to adjourn the same from time to time in the court of trial unto time until the conclusion of the appeal.
5. Leave to the applicants and applicant/intervener to depart from the rules of court by personally compiling the records of proceedings in the court of trial for the purpose of the appeal herein sought to be entered.
6. An order deeming the records of proceedings already compiled duly certified and filed along with this application as Exhibit RA3 as the proper and sufficient records for the purpose of the appeal”

At the hearing of application before the court below, the learned counsel for the appellants withdrew the first prayer, and it was accordingly struck out. The court below also ordered that prayers 4, 5 and 6 be stood over to await the determination of prayers 2 and 3.

After hearing arguments by learned counsel appearing for the parties, their Lordships of the court below who heard the appeal unanimously refused the said prayers 2 &3 sought for by the applicants. In the course of the lead ruling delivered by Ayoola JCA, as he then was, his Lordship, with regard to the proposed grounds of appeal the appellants, observed thus, and I quote:-

“The grounds of appeal proposed by the defendants and intervener show clearly that they have misunderstood what the claim was about and the nature of payment by letter of credit and rights accruing therefrom. Akinsanya J., had a proper understanding of the issues when she stated thus”

” … whatever right accrues to this applicant (i.e. the intervener) from the plaintiffs, it must await its turn as a separate contract and not be interposed over and above the contract between the plaintiffs and the defendants”.

His Lordship Ayoola, JCA therefore continued thus:

” … it is not necessary to enter into a discourse of the legal points concerning letters of credit which counsel on behalf of the defendants and intervener dwelt on at length in his oral address. It suffices to say that they have no decisive bearing on the question whether or not the intervener has a right to intervene in a claim for unpaid balance of debt. There should be no misconception of the scope of 0.13 & 19 of the High Court of Lagos State (Civil Procedure) Rules, which only permit jointer of persons as defendants, who ought to have been joined or whose presence before the court is necessary to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the cause or matter”.

As the applicants were not satisfied with the ruling of the court below, they have appealed to this court. Pursuant thereto, they filed two grounds of appeal.

Having regard to what I may have to say in this judgment with regard to the complaints made by the respondents in respect of the issues identified for the determination of this appeal in the appellant’s brief, I deem it necessary to set down the appellant’s grounds of appeal. They read thus:-

“1. The learned Justices erred on the facts when they unanimously held. Per Ayoola JCA thus:-

“The plaintiff’s action being for the balance remaining unpaid after payment effected by the letter of credit has been taken into account in favour of the 1st defendant raises only issues concerning the unpaid balance in which the intervener has not claimed any interest” and thus dismissed the application for leave to appeal.

Particulars of error of fact