Kate Enterprises Ltd V. Daewoo Nigeria Ltd (1985)

LawGlobal-Hub Lead Judgment Report

D. O. COKER, J.S.C 

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.

3. 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.
4. 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.
5. 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.
6. The Defendant rejected the goods on the ground that they were different and very inferior in description and quality to the said samples.
7. By reason of the aforesaid breach of contract the consideration for the payment of deposit wholly failed. .
8. 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.

6. 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.
7. 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.
8. 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.