Kate Enterprises Ltd V. Daewoo Nigeria Ltd (1985) LLJR-SC

Kate Enterprises Ltd V. Daewoo Nigeria Ltd (1985)

LawGlobal-Hub Lead Judgment Report


This straight forward case of claim for balance of price of goods sold and delivered has been complicated by the inept manner in which it was conducted in the High Court of Lagos State, and the unfortunate misdirection of the learned trial judge on the vexed subject of onus of proof in a civil proceedings, which is concerned with the relative strength of evidence adduced by each of the parties to the case. See Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79; Mogaji and Ors. v. Odofin (1978) 4 S. C. 91 P. 93.

The burden of proof of the case must be related to issues raised in the pleadings and the strength of the totality of evidence adduced by the contesting parties at the trial. There is no absolute standard. The degree of probability depends on the subject matter and varies from case to case, and the burden of the issues is divided, each party having one or more cast upon him and is fixed neither on the substantive law nor on the pleadings.

The facts of this are simple. The claim originally was for the sum of N668, 212.67, being balance of the price of steel pipes, roofing nails, plywood, ceiling boards, and asbestos sheets sold and delivered by the Plaintiff to the Defendant. According to the Plaintiffs pleadings, the contract was made between March and December, 1978 as stated in various proforma invoices and delivery notes dated 31st August, 1978, 1st September, 1978, 28th September, 1978, 19th October, 1978, 18th December, 1978 and 22nd December, 1978. The Plaintiff, pursuant to the contract, requested its principals, Daewoo Industrial Co. Ltd. in Seoul, Korea, to ship the goods direct to the defendant in Nigeria, which it accordingly shipped as requested. On arrival of the goods between May and September 1969, the original shipping documents were delivered by the Plaintiff to the Defendant for clearing the goods and which the Defendant in fact did. After clearance, the Defendant returned only 1,000 cases of roofing nails to the Plaintiff which, according to the Plaintiff, the Defendant was unable to sell because of “dull market”, but which on the other hand, the Defendant alleged did not comply with the sample.

At the time of placing the order, the Defendant made a deposit of N45, 000 towards the purchase price which, together with the sum of N 54,124.00, the costs of the 1,000 cases of roofing nails returned to the Plaintiff, amounting to N99, 127.00 were credited to the account of the Defendant. In other words, a total sum of N99, 127.00 was deducted from N713, 212.67, the total costs of all the goods, leaving a debit balance of N614, 085.00. It was this sum which the Plaintiff finally claimed from the Defendant.

The Plaintiff pleaded and led evidence that it unsuccessfully demanded the balance in writing. The receipt of the letter was not denied. The Defendant failed to pay or even reply to the letter. The defence admitted in the Statement of Defence that its Managing Director saw samples of the goods in Plaintiff’s warehouse before entering into the contract to buy the goods.

It was averred that the Plaintiff ordered the goods and that the agreement between them was that the goods would be made available at the Plaintiff’s warehouse on arrival in Nigeria. In accordance with the contract which was oral, the Defendant deposited with the Plaintiff 80 per cent of the total costs of the goods in two installments. When the goods arrived, the defendant was invited to the Plaintiff’s warehouse to view them and on examination; the Defendant there and then rejected them-on the ground that “they were not of the quality as the samples”.

Having rejected the goods immediately on arrival, the Defendant demanded its deposits from the Plaintiff and pleaded that it would be relying on the said letters and replied thereto at the trial of the action. None of these letters or replies was in fact produced at the trial and no oral evidence whatsoever was adduced in support of any of these averments. Further, no counter-claim was made for the refund of said deposits.

The defence further averred that the sum of N45, 000.00 deposited with the Plaintiff was in respect to a totally different transaction. Similarly, no evidence was adduced in support of this averment, nor was the nature of that transaction given in evidence. Finally, it denied signing the delivery notes pleaded by the Plaintiff in the Statement of Claim, yet copies of the originals were received in evidence without objection. In Its subsequent pleading in reply to that of the Plaintiff, defendant mentioned only the 1,000 cases of roofing nails and said nothing about the other goods, which were the principal subject of the claim. The material paragraphs of this “Further Defence” read:

“2. By an oral agreement it was agreed between the Plaintiff and the Defendant that the Plaintiff should sell and deliver to the Defendant consignment of roofing nails according to samples shown to the Defendant by the Plaintiff. The Plaintiff is a seller of the goods in the course of business.

  1. The said contract was a contract for sale by sample and accordingly there was an implied condition that the bulk should correspond with the sample shown to the Defendant by the Plaintiff.
  2. In breach of the said implied condition the bulk shown to the Defendant in pretended performance of the oral agreement for sale did not correspondent (sic) with the sample and were in fact inferior in quality.
  3. As soon as the Defendant had an opportunity of inspecting the consignment of roofing nails, the Defendant rejected and refused as it was entitled to do, to receive or accept the same and the Plaintiff was immediately notified of such rejection. The Delivery Note will be relied upon at the trial of this action.
  4. The Defendant rejected the goods on the ground that they were different and very inferior in description and quality to the said samples.
  5. By reason of the aforesaid breach of contract the consideration for the payment of deposit wholly failed. .
  6. Further the Defendant has lost the profit it would have made and was put to expense in and about inspecting the said goods and endeavouring to procure performance by the Plaintiff of the said contract.”

The Further Defence was filed in answer to the Plaintiff’s Reply the relevant paragraphs of which read:

“5. That upon receiving the Defendants’ Order or instruction as aforesaid the Plaintiff asked their principals in Seoul Korea, namely Daewoo Industrial Co. Ltd., to send the said goods, namely steel pipes, roofing nails, plywood, ceiling boards, and asbestos sheets, to the Defendants.

  1. In further reply to paragraph 8 the Plaintiff also avers that it was the Defendant that cleared the goods themselves which came in 10 Consignments and the Plaintiff will at the trial rely on the receipt issued by the Defendant to the Plaintiff having after taken over the original shipping documents like the Bill of Lading for the purpose of clearing the said goods.
  2. In further reply to paragraph 8 of the said Defendants’ Statement of Defence the Plaintiff admits that upon a written agreement duly executed by the Defendant and which will be relied upon by the Plaintiff at the trial the Plaintiff took delivery of 1,000 cases of roofing nails, amounting to N 54,125.00 from the Defendant.
  3. The Plaintiff avers that the initial deposit of N45,000.00 as averred in paragraph 6 of the Plaintiffs Statement of Claim together with the N54,125.00 which is the value of the roofing nails taken over from the Defendant as aforesaid in paragraph 7 above both amounting to N99,127.00. If he said N99, 127.00 is deducted from the total initial cost of the goods namely N713, 212.67 will leave outstanding balance of N614, 085.00 now claimed by the plaintiff.

In reply to paragraph 12 the Plaintiff reiterate its averment in paragraph 6 above namely that the Defendant did the clearing of the goods themselves after receiving the original shipping documents from the Plaintiff for the purpose of clearing the goods as aforesaid and have since disposed of the goods.”

It is pertinent to note that in the “Further Defence (Rejoinder)” of the Defendant the Defendant failed to plead specifically regarding the clearing of goods, besides the 1 ,000 cases of nails pleaded in paragraphs 5, 6, 7, 8 and 10 of the above quoted Reply.

P.W.1, the only witness called by the Plaintiff, testified that the Defendant placed the orders for the goods which were admitted in the Statement of Defence. He gave the names of the products as “roofing ceiling boards, steel pipes, roofing nails and plywood”. This fact was also not disputed. He tendered copies of two Proforma Invoices and the bills of lading which were admitted in evidence without objection after testifying that the original of each was handed over to the defendant for cleaning the goods. Each of them (Exhibits C, C1, C2 and C3) stated:

The description of the goods was also stated in the documents Exhibits B3 relates to the roofing nails and bears the name of “Daewoo Industrial Co. Ltd., Seoul Korea” to “Kate Enterprises Ltd., 22 Idumagbo Avenue” and at the bottom was written “Buyer: Kate Enterprises Ltd.” with a signature over each column. In this connection, I recall that the Defendant pleaded in paragraph 12 of the Statement of Defence as follows:

“12. The defendant avers that both the invoice and bill of lading in respect of the goods said to have been ordered by the defendant were never made in its name and will therefore at the trial of this action put Plaintiff to the strict proof that the said shipping documents were made in Defendant’s name.”

The defence led no evidence to establish this averment. Besides Exhibits B-B2 it was not suggested that any other document exists or that they were not authentic copies of the originals. Similarly, copies of the four Bills of Lading (Exhibit C-C3) were tendered and received in evidence, and again, without objection. The Plaintiff’s witness testified that their originals were handed over to the Defendant and before then Notice to produce was served on the Defendant.

P.W.1 who was the Sales Manager of the Plaintiff testified that only the roofing nails were returned to the Plaintiff by the Respondent for which the Plaintiff gave a credit of a sum of N54,000.00 to the Defendant. He further tendered a copy of a letter (Exhibit D) written by Plaintiff’s Solicitor demanding from the Defendant the balance of a sum of money due to the Plaintiff’s Company, (particulars of which were attached to the letter). All the goods, P.W.1 testified, arrived in 1979, and that was at a time when he P. W.1, was undisputedly in the employment of the Plaintiff in the capacity of the Sales Manager. His evidence was that the goods were cleared by Kate Enterprises and was unshaken under cross-examination. He testified further that:

As against the Plaintiff’s defence, the defence called D.W.1, Tijani Ayodele Iyanda. He described himself as a “businessman” and Sales/ Purchasing Manager of the Defendant’s Company. In his evidence in chief, he stated inter alia:

“The original of the bill of lading came directly to us and we handed it (sic) to the Defendant. Defendant Company did not reject all the goods; they rejected only 1,000 cases of nails.

I went to Plaintiff in early 1979. We rejected the nails we agreed on samples. I did not order anything from the Plaintiff. I made contract with Mr. Lee the General Manager of Plaintiffs Company. I agreed to buy nails, Formica, galvanized pipes. We agreed on certain specification……. The agreement was oral. My Company took no bill of lading from the Plaintiff’s Company. The only goods we took from the Plaintiff were nail delivered by their transport. We took no delivery of any other goods because they did not conform to the samples shown to us in their showroom. I got a letter from the company in return for the nails…… We told the General Manager Mr Lee when the goods were rejected. We had nothing to do with the 1st Plaintiff witness……”The underlining mine cross-examined by Awala:

“We dealt with the Plaintiff in cash basis”

The witness did not give any evidence whatsoever in support of the deposit of the sum of N45, 000.00 nor the alleged 80 per cent deposit made in two installments. No evidence was given that when the goods arrived the defendant inspected them at Plaintiff’s warehouse, nor was any evidence given as to the circumstances under which the cases of nails initially get into the hands of the Defendant bearing in mind paragraphs 10, 11, 12 of the Statement of Defence which read

“10. When the goods arrived in Nigeria the Defendant was invited to the Plaintiff’s warehouse to view them. On examination the Defendant there and then rejected the goods on the ground that they were not of the same quality as the samples shown to the defendant at the time decision was taken to buy them.

  1. Having rejected the goods immediately on arrival the Defendant demanded the deposit from the Plaintiff. The demand letters and replies thereto will be relied upon at the trial of this action.
  2. The defendant avers that both the invoice and bill of lading in respect of the goods said to have been ordered by the Defendant were never made in its name and will therefore at the trial of this action put the Plaintiff to the strict proof that the shipping documents were made in the Defendant’s name”.

Apart from the evidence of D.W.1 as quoted above, the defence led no evidence to prove any of the facts pleaded in the foregoing paragraphs of its defence including the alleged letters of demand for the refund of the deposits or the replies allegedly written by the plaintiff.

In dismissing the Plaintiff’s case, the learned trial judge, without considering the evidence as a whole or weighing the totality of the evidence, stated inter alia as follows

“From this simple fact, (sic) it appears to the Court obvious that to sustain the claim of the Plaintiff, there must be proof not only of the order of the goods claimed but also of their delivery to the Defendant. I am afraid I cannot find evidence of such proof. Exhibits C-C4 to support delivery to the Defendant merely show on their faces the endorsement that they were presented to a Mr. T. Ayodele of Kate. There is no evidence in proof of who wrote the endorsement or any to show receipt of the said goods by the Defendant. I consider it elementary that if in a claim as this, there is no proof of receipt of the goods by the Defendant, it could not be called upon to make payment therefore. In other words, proof of the receipt of the goods would have been the basis of or condition precedent to a claim by the plaintiff for the value of the said goods.”

With due respect to the learned trial judge, that is the simplistic manner in which the learned trial judge dealt with the case. He ignored the issues posed in the pleadings and rejected the material and admissible evidence given by P.W.1 including the totality of the evidence adduced before him. Earlier in the judgment, he stated

“It is pertinent to note that the only witness for the Plaintiff admitted that the Defendant had no direct dealing with him on the relevant transaction. The person whoever he is with whom the Defendant had direct dealing and who should have personal knowledge was not called.”

And finally, he stated:

“Since therefore the proofs required are non-existent in this case, the Plaintiff has failed to discharge the onus placed on it to entitle it to judgment on its claim.”

He did not even consider the evidence of the defence in relation to the nature of defence pleaded. On appeal to the Court of Appeal, the judgment was set aside. Nnaemeka-Agu, J.C.A., in the leading judgment, held that if the trial judge had borne in mind the facts adduced in evidence, both oral and documentary, and given due weight to them, he would not have held that the Plaintiff failed to prove its claim. He particularly considered the evidence of P.W.1 who, although was employed in 1979 and did not deal directly with the Defendant, did not say he had no personal knowledge of the transaction in the normal course of his duty or that at the time of the contract he had not been employed. The learned justice of appeal further observed that his evidence was that the goods arrived (admitted by D.W.1, the only defence witness) as indicated on Exhibits C-C4, between 12-1-79 and 10-5-79, a period when the witness was clearly in the service of the Plaintiff. In coming to his decision the learned justice of appeal observed that the witness testified that he processed the Form M for the transaction, and finally the fact that the 1st P. W. did not deal with the Defendant is not to imply that he had no knowledge of the transaction. He was of the view, that “any Manager or Official of the Company well placed to have personal knowledge of any particular transaction in which the Company is engaged can give evidence of such transaction;” and that P. W.1 was in a position to know enough about the transaction as to be able to testify on behalf of the Appellants. In the result, the appeal was allowed and judgment was entered in favour of the Plaintiff for the sum of N614, 000.00 with interest and costs.

The Defendant then appealed with leave to this Court on several grounds, numbered A to I in the Notice of Appeal.

Grounds A, B, C, D and E raised fresh points of law, which were never canvassed at the trial or in the Court below. In the exercise of its discretion the Court, guided by well established principles, struck out these five grounds. See Daniel Fadina and Anor. v. F. Gbadebo (1978) 3 S. C. 219 pp. 248-9 and Ete Etowa Enang and Ors. v. Fidelis Ihor Adu (1981) 11 S. C. 25,K. Akpene v. Barclay’s Bank of Nigeria Ltd.(1977) 1 S.C.47. In refusing them, I am particularly mindful that the new grounds, if allowed, will unnecessarily complicate the case by introducing entirely different legal character to the basis on which the case was fought at the trial and ultimately result in grave miscarriage of justice. The discretion of the court to allow a new point of law on appeal, although unfettered, must be exercised with caution; it will always be guided by the principle of justice. Further, this court will not, except in special circumstances, readily be disposed to exercise its discretion if it has not had the benefit of the views of the judges of the lower courts. See United Marketing Co. Ltd v. Kura (1963) 1 W.L.R. 523.

The remaining five grounds were argued together by Mr. Sogbesan, S.A.N., learned Counsel for the Appellant. He argued that it was wrong for the Court below to hold that the evidence of P.W.1 is relevant and admissible on the principle of corporate personality, even though at the trial, no objection was taken to his evidence oral and documentary. He contended that P.W.1 was not a servant or director of Daewoo Industrial Company Ltd., Seoul, with which the Defendant had no business, and furthermore, P.W.1 admitted that he had no direct dealing with the Defendant. He argued that P.W.1 had not been employed by the Nigerian Company between August and September 1978, and that in any event, a Sales Manager cannot be regarded as the moving mind of the Plaintiff/Company.

I will dismiss this argument summarily. First, on the evidence, this argument is misconceived. Nowhere on the record did P. W.1 say he was not in the employment of the Plaintiff when the contract was made in 1978. His evidence simply was that he was employed in 1978 and he did not deal directly with the Defendant. Equally, the documents tendered by him were admitted without objection and no objection can now be taken about their admissibility. See Salau Olukade v. Alade. (1976) 1 All N.L.R. 67. The Defendant failed to tender the bills of lading which it pleaded were in the name of the Plaintiff and not the Defendant.

The Court of Appeal in my view is quite justified in holding that the trial judge misdirected himself in holding that the evidence of P.W.1 was hearsay simply because the witness said he did not deal directly with the Defendant in the transaction. Similarly, it makes no difference whether P.W.1 was a servant of Daewoo Industrial Co. Ltd., Seoul, or Daewoo Nigeria Ltd. having regard to the pleadings and the only defence witness admitted it had contract with the Plaintiff, his employer. The point was not an issue at the trial. It was for the defence counsel at the trial to discredit the evidence of this witness under cross-examination. Alternatively, the defence should have produced the bills of lading which were in the name of the Plaintiff. No evidence was given by the defence to contradict the evidence of the P. W.1 or Exhibits CThe Plaintiff’s case was that it requested its principals, Daewoo Industrial Co. Ltd. to ship the goods direct to the Defendant. The bills of lading were all in the name of the Defendant.

The next point taken by learned counsel is that the Court of Appeal was in error in holding that it is a matter of common knowledge in commercial practice that goods are normally delivered to an endorsee who accepts the bill of lading. The contention although correct, is irrelevant to the issue before the court. There is no endorsement on any of the Exhibits C-C3 (bills of lading). Each of the documents states that the Defendant was the consignee and not an endorsee. So that whether they were endorsed or not is irrelevant. The evidence of P.W.1 (together with Exhibits C-C4) is in line with the pleading (Reply paragraph 5). It reads:

“the Plaintiff asked their principals in Seoul, Korea, Daewoo Industrial Co. Ltd. to send the said goods, namely, steel pipes, roofing nails, plywood, ceiling boards and asbestos sheets to the Defendants”.

Nowhere in his evidence did the witness say the Plaintiff endorsed the bill of lading to the Defendant. The essence of the Plaintiff’s case is that the Defendant itself cleared the goods on arrival. This is consistent with the pleading. The consignee of the goods as stated on Exhibits C-C3 is the Defendant and not the Plaintiff.

On Ground H, Mr. Sogbesan argued that the Court of Appeal was inconsistent in holding that D. W.1, as Sales Purchasing Manager of the Defendant was not its alter ego while it has earlier held that P. W.1 who held a similar managerial position was the alter ego of the Plaintiff. I agree with this contention; what he said was mere obiter. The important point however, is that this final decision is right. The learned justice later stated, rightly in my view

“placing the evidences called by the appellants on one side of an imaginary balance and that called by the respondents on the other, it is obvious that the balance is in favour of the appellants” (that is, the Plaintiff).

The point raised in this ground of appeal, to my mind is crucial and decisive of this appeal. In my view, the learned justice of appeal is correct in his conclusion.

The learned trial judge dismissed the Plaintiff’s case simply by treating the evidence of P.W.1 as inadmissible when it is not. He considered it pertinent “to note that P.W.1 the only witness called by the Plaintiff was not the person who had direct dealing with the Defendant, that the person whoever he is with whom the Defendant had direct dealing and who should have personal knowledge, was not called.” From that, he deduced that “there is no proof of receipt of the goods by the Defendant”. The trial judge in effect considered the entire evidence given by this witness inadmissible and accordingly rejected it. He was clearly in error. His evidence is admissible but the question of its weight is a different matter. That D.W.1 had direct dealing with Mr. Lee the General Manager of Plaintiff’s Company does not necessarily mean that he was the only person who could testify on its behalf. Any other employee of the Plaintiff conversant with the facts of the case was competent to testify. The evidence given by P.W.l with the documents received in evidence was sufficient evidence to prove its case. It was for the defence to lead such credible evidence in line with the pleadings to tilt the scale in its favour if it was to avert judgment against it. See Section 138 of the Evidence Act. The test to be applied has long been established by a long line of decisions. In Abrath v. North Eastern Railway Co. (1883) XI Q.B.D. 440, Bewen, L.J., at p. 456 stated:

“The test…….., it is not a burden that goes on forever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win rests. It is not a rule to enable the jury to decide on the value of conflicting vehicle. So soon as a conflict of evidence arises, it ceases to be a question of onus of proof.”

See also Babafunke Johnson & Anor. v. A. Maja & Ors. (1951) 13 W.A.C.A. 290, and Nigerian Maritime Services v. Alhaji Bello Afolabi (1978) 2 S. C. 79. Defendant returned 1,000 cases of nails but failed to adduce any evidence of how this part of the consignments which it averred was at one time rejected came to be accepted afterwards by it before they were returned to the plaintiff. That left a lacuna in evidence of the defence.

It is my view the onus shifted on the defence to adduce evidence as it pleaded, how these 1,000 cases of roofing nails, out of all other goods came into its possession.

It was the Defendant which pleaded the fact to prove how Plaintiff affected the delivery in its vehicle. But the defence led no evidence when or how the Plaintiff’s vehicle initially delivered them to its premises and the circumstance which led to the acceptance after initially rejecting them. If they did not conform to samples and were all rejected why and when did the Defendant accept them The only reasonable and legitimate inference is that the Plaintiff’s version is more probable and that the 1,000 cases of nails were part of the entire consignment of goods cleared by the Defendant from the ships on arrival in Nigeria. There are other facts pleaded by the Defendant but on which it led no evidence. For instance, the Defendant pleaded that it deposited 80 per cent of the total cost of the goods (vide para. 10 of the Statement of Defence) yet it failed to give any evidence, oral or documentary, in support. It pleaded also that after the goods were rejected it demanded the ‘refund of the deposits by letters and to which the Plaintiff gave replies, yet no letters ore replies were produced. There was even no oral evidence to support the averment. Yet still, it pleaded in paragraph 12 of the Defence that it will rely on the invoices and bills of lading which were made in the Plaintiff’s name. Yet it produced no evidence to contradict Exhibit Cwhich was in fact made in Defendant’s name. Further still, it pleaded that the N45, 000 deposit was for a different transaction. It led no evidence to show what that transaction was. These are matters from which the trial judge could have legitimately inferred that the defence of no-delivery was bogus. And why was the “Further Defence” completely silent about the other goods, except the roofing nails in spite of the fact that the Reply specifically pleaded them as part and parcel of goods received by the Defendant

The Court of Appeal was therefore justified in drawing the right inference from the totality of evidence and the circumstances of the case. See Chief Victor Woluchem and Ors. v. Chief Simeon Gudi & Ors. (1981) 5 S.C. 291,309.

I am therefore in complete agreement with the conclusion reached by the lower Court, Nnaemeka-Agu, J.C.A., stated:

“I am satisfied that if the learned Judge had taken a proper view of the oral evidence of P.W.1. and used Exhibits A, B-B3 and C-C4, as he should have done, as hangers from which to evaluate oral testimonies, he would have easily come to the conclusion that the appellants proved their case and were entitled to judgment. I am reinforced in this view by the letter of demand, Exhibit D, written since 27th July, 1979, and to which there was no reply before the matter went to court in April, 1980, and till now. They were expected to have replied to such a business letter claiming such a huge amount, if they thought (sic) the claim was false. I am of the view that they cleared the rest of the goods themselves and did not return them, as they did return the roofing nails.”

In conclusion it is my view that the trial judge failed to apply the correct approach on the issue of burden of proof on the pleadings and failed to consider the totality of evidence before him in order to determine which evidence of the parties that has weight and which has no weight at all.

The Court of Appeal is therefore justified in reversing the decision of the trial court and entitled to arrive at its decision on the evidence. See Tonazzi v. Brunetti (1953) 14 W.A. C.A. 403, Lion’s Building Ltd. v. M. N. Shadipe (1976) 12 S.C. 135, 162 ; Chief Frank Ebba v. Chief Warri Odogo and Ors.(1984) 4 S.C. 84, 90. The decision of the Court below is a fair appraisal of the whole evidence. See A. R. Mogaji and Ors. v Madam Rabiatu Odofin (1978) 4 S.C. 91, 93.

Before concluding this judgment, I wish to recall my earlier comment that this case could have been better conducted in the trial court. There were a number of procedural irregularities. But significant was the title of the Plaintiff. It states that the Plaintiff sued “By Attorney of Daewoo Industrial Company Ltd., Seoul, Korea”. Neither the pleadings nor the evidence was helpful. Evidence of the contract of sale was that it was between Daewoo Nigeria Limited and Kate Enterprises Limited. The purported power of attorney from Daewoo Industrial Company Limited is in fact a letter dated 3rd August, 1979 “authorising Plaintiff to collect the outstanding bills in Nigeria…….on behalf of Daewoo Industrial Co. Ltd, Seoul, Korea”. The case of the Defendant was that it contracted to buy the goods from the Plaintiff and not the Seoul Company. Whatever might have been the true relationship between the (Nigeria and Seoul) Companies is not clear, but is immaterial. It was a point which was not taken at the trial or the court below.

It might be that the Plaintiff was the marketing Company in Nigeria for merchandise supplied by the Seoul Company. The justice for the case, notwithstanding the error, demand that the court should exercise its power to amend the title of the case, to show the correct plaintiff or at least what appears to be more probable since the Defendant admitted that it had contract with the Plaintiff.

Therefore the words in bracket, that is, “By Attorney of Daewoo Industrial Co. Ltd., Seoul, Korea” immediately appearing after “Daewoo Nigeria Limited.” are hereby deleted. See Arase v. Arase (1981) 5 S. C. 33; Joseph Afolabi and Ors. v. Adekunle (1983) 8 S. C. 98.

I will dismiss the appeal and affirm the judgment of the Court of Appeal with N300 costs to the Plaintiff/Respondent.

Other Citation: (1985) LCN/2249(SC)

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