KATE ENTERPRISES LTD. V. DAEWOO NIG. LTD

• Pages: 942-958

942

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NIGERIAN SUPREME COURT CASES

[1985] 2 N.S.C.C.

COKER,

J.S.C.:

I have had the privilege of reading in advance, the draft of the

leading judgment just delivered by my learned brother, Oputa, J.S.C., I agree with

him for his reasons and adopt them as mine and there is nothing which I could

usefully add.



The appeal is dismissed and the judgment of the Court of Appeal is affirmed.

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There will be no order for costs for reason given in the leading judgment of my

learned brother, Oputa, J.S.C.

KARIBI-WHYTE, J.S.C.:

I have already read in its draft form the judgment just



read by my learned brother Oputa, J.S.C. I agree with the reasoning and

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conclusion that the grounds of appeal fail, and that the appeal ought to be

dismissed. I accordingly will dismiss the appeal, and for the same reason will

make no order as to costs.

Appeal dismissed.

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KATE ENTERPRISES LTD. V. DAEWOO NIG. LTD.

20

KATE ENTERPRISES LIMITED

V

DAEWOO NIGERIA LIMITED

SUPREME COURT OF NIGERIA

BELLO,



J.S.C.

OBASEKI,



J.S.C.

NNAMAN I,



J.S.C.

UWAIS,



J.S.C.

COKER,



J.S.C.

4th July, 1985

APPELLANTS

RESPONDENTS

SUIT NO. SC 205/1984

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Commercial Law - Companies - Corporate personality of - Alter-ego of companies

- Officials of companies - Place of Marketing Manager - Whether alter-ego.

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Evidence - Onus of proof - Pleadings - Averments in pleadings not proved by

evidence - Effect - Evidence of facts within personal knowledge of person

adducing - Admissibility of - Evidence of sole witness - When not contradicted

- Effect.

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Practice and Procedure -Raising on appeal, points neither raised nor canvassed in

courts below - When Supreme Court

may allow - Failure of trial court to

evaluate evidence - Effect.

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ISSUES:

1.

What is the effect where a party makes averments in the pleadings but leads no

evidence in proof of those averments?

2.

Whether an employee of a company is a competent witness as regards matters

within his personal knowledge even though they relate to transactions of the

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company in which he had no direct involvement.

3.

Whether party can raise on appeal, issues neither raised nor canvassed in

courts below and when and in what circumstances will the Supreme Court

exercise its discretion granting such additions.

KATE ENTERPRISES LTD. V. DAEWOO MG.

LTD.

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943

FACTS:

The plaintiff company claimed for the price of goods sold and delivered to the

defendants. The plaintiff company stated in its pleadings that the goods in ques-

tion were cleared on arrival by the defendants themselves to whom they were con-

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signed by the plaintiffs' principals and to whom the original shipping documents

were handed over by the plaintiffs for that purpose. The defendants denied re-

ceipt and averred that the goods were inspected by them in the plaintiffs' ware-

house immediately after arrival and rejected for non-compliance with samples.

The plaintiffs' case was established on their oral and documentary evidence but

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the defendant led no evidence in support of their averments. The trial judge dis-

missed the plaintiffs' claim on the ground that the plaintiffs' failed to prove delivery

to and receipt of the goods by the defendants and because the evidence of their

sole witness, their sales manager was inadmissible since he had no direct deal-

ings with the defendants.

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On appeal, the Federal Court of Appeal entered judgment for the plaintiffs. The

defendants then appealed to the Supreme Court.

HELD:

1.

The burden of proof in civil cases must be related to issues raised in the

pleadings and the strength of the totality of evidence adduced by the contesting

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parties at the trial. The plaintiffs' having established their case in oral and

documentry evidence, the onus shifted on to the defendants to prove their

averments but no evidence in support was led by them. The plaintiffs were

therefore entitled to judgment on the totality of the evidence.

2.

Any company employee with personal knowledge of relevant facts is competent

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to give evidence of the company's transactions by virtue of his employment

notwithstanding the absence of direct dealings between him and the other party

to the transaction. The evidence of the plaintiffs employee on the existence of

the contract between the plaintiff and the defendants was therefore relevant and

admissible and wrongly rejected by the trial judge. It was evidence based on

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this personal knowledge which he acquired in the course of his employment.

3.

That the new grounds of appeal sought to be added by the appellant, raising

issues neither raised in the trial or Appeal Court, will, if permitted, unnecessarily

complicate the case by introducing entirely new legal character to the basis on

which the case was bought at the trial and ultimately result in a miscarriage of

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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. The 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 Court.

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Editorial Note.

The Supreme Court here again stressed and applied the principle

that an appellate court ought to draw appropriate inferences from facts found by

the trial court where it is seen that the trial court did not utilize its priviledged position

to evaluate facts properly thereby occasioning a miscarriage of justice.

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See further

Obodo v. Ogba

1987 2 N.W.L.R.

1

Ntiaro v. Akpan

3 N.L.R. 9 at 10

Lawal v. Dawodu

[1972] 1 All N.L.R. (Pt.2) 270 at 286

Okafor v. Idigo

(1984) 6 S.C. 1 at 36.]

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CASES REFERRED

TO

IN JUDGMENT:

1.

Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi,

(1978) 2 S.C. 79

2.

Mogaji

&

Ors v. Odofin,

(1978) 4 S.C. 91

3.

Fadiora & Anor v. F. Gbadebo,

(1978) 3 S.C. 219

4.

Enang & Ors v. Fidelis Thor Adu,

(1981) 11 S.C. 25