Facts:

Ologbonyo & Sons Enterprises, a business owned by the late Chief Ukana operated account number 6017 with the respondent, a banking institution. Ologbonyo & Sons obtained credit facilities from the respondent bank to finance the purchase of cocoa for export. Chief Ukana opened another account with number 6213 with the respondent. Account number 6213 was in the name of Lamboyo Limited, the appellant company which Chief Ukana incorporated for the purpose of exporting the cocoa purchased as only limited liability companies were permitted by law to export cocoa. The financing of the entire transaction was however carried out under account number 6017. The proceeds of the exportation when received by the respondent were paid into account number 6017.

The appellant (as plaintiff) instituted a suit against the respondent at the High Court claiming the sum of US$87,000.00 (Eighty Seven Thousand United States Dollars) as unpaid proceeds for exporting cocoa as well as 25% interest. The trial court found in favour of the respondent and dismissed the suit. Dissatisfied with the decision the appellant appealed. At the court of appeal, the appellant sought to raise a fresh issue without leave, the responded raised a preliminary objection which was sustained by the court.