MOSHESHE GENERAL MERCHANT LTD (APPELLANT)

v.

NIGERIA STEEL PRODUCTIONS LTD (RESPONDENT)

(1987) All N.L.R. 309

Division: Supreme Court of Nigeria

Date of Judgment: 10th April, 1987

Case Number:

Before: Bello, Eso, Aniagolu, Uwais, Coker, JJ.S.C.

The Plaintiff (herein the respondent) claimed against the defendant (herein the appellant) the sum of N304,574.00 being the balance of payment in respect of goods sold and delivered by the respondent to the appellant in Warri, Bendel State between February 1976 and June 1977 on account of the appellant's request.

As matters stood after the hearing of 11th June, 1979 the appellant admitted owing N 208,174.00 out of N304,574.00 claimed, leaving a balance of N96,400.00. The trial court's order at the end of the hearing on 11th June, 1979 made it clear that evidence was to be heard in respect of the remaining "unresolved matters", that is to say matters relative to the N96,400.00 being the balance after the deduction of N208,174.00.

In the meantime the statement of claim had been filed and served The statement of claim which was ordered to be served within twenty-four hours on 8th February, 1979 did not contain the admission made more than two months after on 24th April, 1979 by counsel for the Appellant that they admitted the sum of N208,174.00 and have paid N8,000.00 in cheque and that there is disagreement in respect of N96,400.00.

The trial court on 13th September, 1979 heard evidence in the case. Only the Respondents witness gave evidence after which the respondents closed their case. Judgment was entered for the respondents in the sum of N296,409.00. The appellants moved the court to set aside the judgment and relist the case for hearing and to extend the time within which to file their statement of defence. The application was granted whereupon the appellants filed their statement of defence.

The statement of defence did not contain the admission made by the appellant and the tenor of the statement of defence was as if the entire sum claimed was being denied. At the conclusion of the trial, the trial court dismissed the respondents case in its entirety. The respondents appealed to the Court of appeal which reversed the High Court judgment and entered judgment for the respondents in the total sum of N304,574.00 claimed with costs. Dissatisfied with the judgment of the Court of Appeal, the appellant therefore appealed to the Supreme Court.

HELD:

(1)     Where as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant admits owing part of this sum, no difficulty should arise in the court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the court provided that the court on its own discretion, may, having regard to the circumstances of the case grant the application and enter judgment there and then, or order the Applicant to formally move the court. Yet the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff in the sum admitted, for the purpose of the remainder of the trial of that action.

(2)     I am clearly of the view that the Court of Appeal was right in entering judgment for the plaintiff. But the Court of Appeal did not have to give judgment for the total sum of N304,574.00 claimed in the face of the amount already paid by the defendants namely, N8,000.00. This was part of the admission made by the defendant, undenied by the plaintiff. Accordingly, the amount must be reduced by the said sum of N304,574.00 minus N8,000.00 leaving a balance of N296,574.00.

Appeal dismissed.

Chief F.R.A. Williams, SAN (with him Dr B.O. Babalakin) for the Appellant

Chief Webber George Egbe (with him Mrs Roli Graig) for the Respondent

Cases referred to:-

Bundell v. Rimmer (1971) 1 W.L.R. 123

Fox v. Luke (1925) 43 R.P.C. 37

Nwafor Elike v. Ihemereme Nwankwoalo & ors, (1984) 12S.C.301

Strauss v. Strauss (1860) L.R.I Q.B.379

Hallersteiner v. Moir (1974) 3 ALL ER 217, 228, 244

Statues referred to:-

Rules of the Supreme Court (England)

High Court (Case Procedure) Rules (Laws of the Bendel State of Nigeria 1976, chapter 65)

Aniagolu, JSC. The narrow issue in this appeal is as to the binding nature of a solemn admission made before pleadings were served, by Counsel, on behalf of his client.

The facts are clear and simple. The Respondent was the plaintiff in the High Court while the Appellant was the defendant. In the Warri High Court of the Bendel State Judiciary, the plaintiff took out a writ of summons against the defendant claiming as follows:

"The Plaintiffs claim is for the sum N304,574.00 of being the balance of payment in respect of goods sold and delivered by the plaintiff to the Defendant in Warri, Bendel State between February 1976 and June, 1977, on account at the

Defendant's request. The plaintiff also claims interest at the rate of 6% per annum to the date of judgment, and thereafter, at 5% until total debt and costs is liquidated. Dated at Warri this 3rd day of January, 1979."

On 5th February 1979, the case came before Akpata, J. (as he was then) who ordered pleadings in these words: Court:

Pleadings ordered: Plaintiffs to file their statement of claim within twenty-four hours. The Defendants are to file their statement of Defence 30 days on being served with the statement of claim.

Case adjourned to 28/3/79 for hearing.

(Sgd. (E.I. Akpata

JUDGE, 5/2/79."

On 28 April 1979 to which date the case was adjourned, the parties and their Counsel were present. It was on this day that admission was made by the defendants through their Counsel. For its importance, I reproduce the proceedings of that day as recorded in the record of proceedings:

"BEFORE THE HONOURABLE JUSTICE E.I. AKPATA,

JUDGE: AT WARRI.

ON TUESDAY THE 24TH DAY OF APRIL, 1979.

                                                  SUIT NO. W/5/79:

Parties Present: Chief A.O. Yesufu for Plaintiff:

B.A. Jessa for Defendant.

Jessa:

Plaintiff and Defendant met to reconcile their positions. This was on 11/4/79. There were disagreements in respect of certain items. We have admitted the sum of N208,174. We have paid N8,000 in cheque. There is disagreement in respect of N96,400. We arranged to meet yesterday by 4.00 p.m. My learned friend did not turn up.

Yesufu:

Their Accountant failed to meet our Accountant. They promised to make certain documents available which they did not do.

Court:

Case is adjourned to 11/6/79 for hearing or settlement.

(Sgd.) E.I. Akpata,

JUDGE, 24/4/79."

Be it noted that the Statement of Claim had not been served on the defendant when the above admission was made and part payment of N8,000.00 paid.

On 11th June 1979, the case again came before Akpata, J., whose record of proceedings for that day reads:

"BEFORE THE HONOURABLE JUSTICE E.I. AKPATA,

JUDGE, AT WARRI.

ON MONDAY THE 11TH DAY OF JUNE, 1979.

                                                    SUIT NO. W/5/79:

Parties Present:

J.J.O. Okpoko for Defendant.

Court:

At the request of Mr Okpoko case is adjourned to 2/10/79 for mention.

At this stage, Chief Yesufu comes in. Prays that the case be reopened. The Defendants have admitted owing N 208,174 leaving a balance of N96, 400. They gave us a debit note on 23/4/79 for N96,400 with no document to check up their claim.

Okpoko:

I shall take it upon myself to present the necessary documents. I must admit that there are certain items in respect of which documents may not be available. I have to look into that.

Court:

Before the next adjourned date parties are to sort out points of disagreement in respect of the debit note. Unresolved matters will be determined by evidence adduced in Court. Case is adjourned to 13/9/79 for hearing.

(Sgd.) E.I. Akpata,

JUDGE, 11/6/79"

(Italics are mine).

As matters, therefore, stood after the hearing of 11th June 1979, the defendant had admitted owing N208,174 out of the N304,574.000 claimed, leaving a balance of N96,400.00. It was in respect of that N96,400.00 which the defendant was contesting and for which the defendant had raised a debit note dated 24th April 1979. The Court's order at the end of the hearing on 11th June 1979 made it clear

(i) that evidence was to be heard in respect of the remaining "unresolved matters", that is to say, matters relative to the N96,400.00 being the balance after the deduction of N208,174 admitted,

(ii) that the sorting out of points of disagreement by the parties was to be in respect of the debit note. This debit note concerned only N96,400.00.

In the meantime the Statement of claim had been filed and served. The statement of claim which, as has shown earlier, was ordered to be served within twenty-four hours on 5th February 1979 did not contain, and could not have contained, the admission made than two months, after, on 24th April 1979, by Jessa, of Counsel, for the defence that:

"We have admitted the sum of N208.174. We have paid N8.000 in cheque. There is disagreement in respect of N96,400."

The High Court (Akpata, J.), on 13th September 1979 heard evidence in the case. Only the plaintiffs' witness gave evidence after which the plaintiffs closed their case. The defendants had not filed their statement of defence. Judgment was entered for the plaintiffs in the sum of N296.409.00.

The defendants moved the Court to set aside the judgment and relist the case for hearing and to extend the time within which to field their statement of defence. The application was granted whereupon the defendants filed their statement of defence. The statement of defence reads:

"SAVE as herein after expressly admitted, the Defendant denies each and every allegation of fact contained in the Statement of Claim as if same were set out seriatim and specifically traversed.

1.      The Defendant admits paragraphs 1 and 2 of the Statement of Claim.

2.      The Defendant admits paragraph 3 of the Statement of Claim to the extent that it is a credit customer of the plaintiff but denies that as at 6th of June, 1977, it owed the Plaintiff the sum of N304.574.00 (three hundred and four thousand, five hundred and seventy-four Naira) as claimed.

3.      In further answer to the said paragraph 3 of the Statement of Claim, the Defendant avers that the Statement of Account referred to by the Plaintiff are in general in respect of:

(a)     Jobs which the plaintiff did not carry out and goods which it did not supply as agreed and or jobs which were improperly carried out or not completed and for which the Defendant is not liable to make payments;

(b)     Some Accounts which have already been settled by cash payment made to plaintiff through his representatives and in particular one Mr Otaru and for which Defendant is no longer liable AND

(c)     Some of the accounts for some materials which the Defendant at its own cost supplied to the plaintiff in execution of some of the jobs which the plaintiff did not carry out or did not complete and for which said materials and or jobs the plaintiff is not entitled to payments.

"At the trial of this action, the Defendant will rely on the necessary documents including

(a)     Correspondence between the parties in respect of the jobs entrusted to the plaintiff particularly Defendant's letters dated 21st February, 1977, plaintiff's reply dated 22nd February, 1977, plaintiff's letters dated 1st March, 1977 and 28th March 1977 and Defendant's reply dated 30th March, 1977; plaintiff's letters dated 12th April, 1977, 2nd May, 1977 and 6th October, 1977 and defendant's letters dated 16th May 1977 and 5th October 1977 and relevant invoices.

(b)     the Petty Cash Vouchers for payments made to plaintiff's representatives at plaintiff's request and

(c)     all the necessary documents of protests to the plaintiff about the way it was carrying out some of the jobs.

4.      The Defendant denies paragraph 4 of the Statement of Claim and states that it has always made its position known to the plaintiff, namely, that the plaintiff was in breach of its contract in not carrying out the jobs as agreed and for which it sent these bills and that the material for which the plaintiff was claiming was not supplied by the plaintiff. The Defendant will insist on strict proof of every item of the plaintiff's claim in its various Statement of Accounts and Invoices.

Dated at Warri this 6th day of November, 1979."

As can be seen, this statement of defence did not contain the admission made by the defendant and the tenor of the statement of defence was as if the entire sum claimed was now being denied. This tenor went against the order of the Court of 11th June, 1979.

It is, in my view, appropriate, at this stage, to comment that it was the duty of plaintiff's Counsel to point out to Court the failure of the defendant to limit his statement of defence to the amount still in dispute, namely, N96,400.00 and also that it was the duty of the trial Judge to limit the remainder of trial only to that amount still in contest and for which he made the 11th June 1979 Order. Indeed, he should have entered judgment for the amount already admitted before continuing the trial.

As it turned out, the trial went on as if no admission has been made, based obviously, on the nature of the statement of defence allowed to be filed. In fairness to plaintiff's Counsel (Chief A.O. Yesufu) he cross examined Chief Mosheshe the Chairman and Managing Director of defendant-company on the admission made on 24th April 1979. The record shows that the Chief gave the following answers:

"On 24/4/79 my Company did not agree owing the sum of N208,174. It is true I issued a cheque for N8,174. There was no balance of N208,000 to be paid.

I sent a debit note dated 20/4/79 to the Plaintiff for the sum of N96,400. If N96,400 is deducted from N304,574 there will be a balance of N208,174. In the debit note some of the items I have mentioned which were not supplied or badly done are contained therein."

At the conclusion of trial the trial Court, dismissed the plaintiffs' case in its entirety. The plaintiffs appealed to the Court of Appeal which reversed the High Court judgment and entered judgment for the plaintiffs in the total sum of

N304,574 claimed, with costs.

The trial Judge reasoned expansively before dismissing the action. He argued that on the state of the pleadings and evidence adduced it could not be said that the plaintiffs had established that the defendant was indebted to the plaintiffs in the amount claimed or any amount. He said that on the evidence adduced the plaintiffs had not "adduced a scintilla of evidence of liability against the defendant." The learned trial Judge held the statement of Account prepared by the plaintiffs as not reflecting a true statement of the Account between the parties and discountenanced it.

On the issue of the admission made by defendant's Counsel on 24th April 1979, the learned trial Judge said he gave much thought to it and had come to the conclusion that he could not give judgment on it because:

(i)    the plaintiff did not apply for judgment by summons and the defendant did not make any admission by filing an affidavit to that effect;

(ii)   the plaintiff or its Counsel did not make even oral application for judgment before the defendant joined issues with the plaintiff by filing of the statement of defence joining issues with the plaintiff.

The learned trial Judge, on the issue of the admission of 24/4/79 rounded off his argument with the following passage of his judgment:

"In my view, Mr Jessa could only be regarded as an agent of the Defendant if there had been written terms of settlement or a written admission filed in Court with Mr Jessa signing for and on behalf of the Defendant. Where, however, a counsel or a defendant informs the Court, as in this case, of the stage the negotiation for settlement had reached and asks for adjournment to enable the parties have an opportunity to look further into the area of disagreement, and the defendant subsequently files a statement of Defence in which he fails to make any admission, the Court is bound to decide the matter on the state of the pleadings and the evidence adduced in support."

He, therefore, held that:

"The Court of Appeal in its judgment held that the trial Judge ought to have given due weight to the admission of Mr Jessa, Counsel for the defendant and that on the strength of that admission, the plaintiff should have been entitled to judgment against the defendant for the sum of N208,174.00 as urged by Chief Yesufu."

The Court of Appeal in its judgment held that the trial Judge ought to have given due weight to the admission of Mr Jessa, Counsel for the defendant and that on the strength of that admission, the plaintiff should have been entitled to judgment against the defendant for the sum of N208,174.00 at least.

The starting point, in the resolution of the issue posed by this appeal must necessarily be an appreciation of the legal position of Counsel conducting a civil case, in relation to his client, and the binding effect of the acts of such Counsel, in the course of the conduct of such a civil case, upon his client.

This Court had lately to decide upon the binding nature, on the client, of the decision of Counsel to close his case when the only witness he had called, at the stage, had messed up his land case, by giving evidence at variance with his pleadings. It was the case of Nwafor Elik v. Elike v. Ihemereme Nwankwoala and Others (1984) 12 S.C.301 in which the powers and responsibilities of Counsel conducting a civil case, in relation to his client, were exhaustively dealt with.

It was a land case in which the plaintiffs had closed their case. Defendants' Counsel called his first witness-one of the defendants. His evidence was very unsatisfactory to defence counsel as it contradicted his pleadings. He decided to close his case; indeed closed the case, and stated he would not address the court. Plaintiffs' counsel submitted that plaintiffs' case had been proved. The case was adjourned for judgment. On the judgment day, the learned trial Judge entered judgment for the plaintiffs. The defendants appealed to the Court of Appeal which, after castigating defence counsel, allowed the appeal on the ground that the defendants were not given a fair trial by reason of the conduct of defence counsel.

On appeal to the Supreme Court, this Court held that defence Counsel was completely in control of his case and there was no question of unfairness of trial since the trial Judge, in his position as an umpire, could not go beyond Counsel and conduct the case of either party. It was for counsel to decide on what move to make in the conduct of his case; it was his duty to know when to close his case, and the number of witnesses he had to call.

As far back as 1866, it was decided in Strauss v. Strauss (1866) L.R.1 Q.B.379 that counsel retained to conduct a case had general authority to decide, in his discretion, on how to conduct the case. Having retained Counsel, the client is bound by his conduct of his case subject to this that the client can repudiate his Counsel and withdraw brief from him, if he does not approve of Counsel's conduct of the case.

It was argued by Appellants' Counsel, in his Brief, that it was within the power of the trial court to give judgment on the admission of a party by reason of the provisions of the English Order 27, rule 3 made applicable to Bendel State by virtue of Order 35, rule 10 of the High Court (Civil Procedure) Rules Cap. 65 Vol. 111 Laws of Bendel State of Nigeria, 1976, provided, he submitted, that there was a proper application before the court. What Counsel considers "a proper application" was not stated.

Order 27, rule 3 of the English R.S.C. Rules 1965 states:

"3.     Where admissions of fact are made by a party to a cause or matter either by his pleading or otherwise, any other party to the cause or matter may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may give such judgment, or make such order, on the application as it thinks just."

What the above says is that the other party

"may apply to the courts."

The rule did not prescribe that the mode by which the application was to be made should be by motion and affidavit. It simply states that the party may apply to the court.

On 31st January 1980, plaintiffs' Counsel in this case on appeal, Mr Yesufu, made an oral application to court for judgment to be entered for the plaintiffs in the admitted sum of N208,174.00 but the court ruled as follows:

"COURT: This Court will not give judgment by instalment in the absence of a formal application."

It is difficult to understand why the court had taken the view that a formal application (which I take to mean by motion and affidavit) should be made before an oral admission made in the court of the proceedings, during the progress of trial and recorded by court, is made the subject of a judgment on the admission. It all depends on the nature of the case on trial and what the admission entails. For example, a case for personal injuries for damages to be assessed was refused notwithstanding an admission of negligence: Blundell v. Rimmer (1971) 1 W.L.R. 123.

Where, as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant, admits owing part of this sum, no difficulty will, or should, arise in the court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the court provided that the court, in its own discretion, may, having regard to the circumstances of the case, grant the application and enter judgment there and then, or order the applicant to formally move the Court. Yet, the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff, in the sum admitted, for the purpose of the remainder of the trial of that action. As has been said in Fox v. Luke (1925) 43 R.P.C.37-a case of passing off-there is no hard and fast rule on the procedure to be followed.

The learned trial Judge, in the instant case on appeal, relied on Order 16 Rule 5 of the Bendel State High Court Rules, which states that

"If any defendant shall in like manner as in the preceding rule mentioned sign a statement admitting the claim, or any part thereof, the Court may receive such statement in evidence as an admission without further proof," to disregard the admission of the defendant on the ground, as he held, that "Neither of the Defendant nor its Counsel signed any statement of admission"

But the learned trial Judge appeared to have overlooked Rule 1 of the same Order which provides that:

"Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the summons, statement of claim, defence or other statement of any party." (The Italics are mine).

By that Rule 1, a party is required to notify the other party

"by his own statement or otherwise."

He does not have necessarily to file a motion for the admission. He need only have to make a statement in open Court in the course of trial. The words "or otherwise" in the Rule immediately after the word "statement" give the party the leeway of making the admission by some other mode than by a statement, which appears to tally with the decision in Fox v. Luke (supra) that there is no hard and fast rule on it. The obvious reason for this is to save time and expense.

I am clearly of the view, upon the foregoing reasons, that the Court of Appeal, Benin City, was right in entering judgment for the plaintiff.

But the Court of Appeal did not have to give judgment for the total sum of N304,574.00 claimed, in the face of the amount already paid by the defendant namely, N8,000.00. This was part of the admission made by the defendant, undenied by the plaintiff. Accordingly, that amount must be reduced by the said sum of N8,000.00. In the result, the amount due to the plaintiff must be N304,574.00 minus N8,000.00 leaving a balance of N296,574.00.

The judgment of the Court of Appeal is, therefore, hereby affirmed but with the amendment that the amount adjudged to the plaintiff must be N296,574.00 and not N304,574.00 as granted by the Court of Appeal. Subject to this, this appeal of the defendant is hereby dismissed with N300.00 costs to the plaintiff/Respondent.

Bello, C.J.N. I have had the opportunity of reading in draft the judgment just delivered by my learned brother Aniagolu, J.S.C. I agree the appeal should be, and is hereby dismissed. Judgment shall be entered for the plaintiff in the sum of N296,574.00 and N300.00 costs.

Eso, J.S.C. In this appeal, what was in issue was the effect of an admission made by a counsel in a case on behalf of his client before pleadings were served.

The facts have been well stated in the lead judgment which has just been delivered by my learned brother Aniagolu J.S.C. Indeed, I am in complete agreement with this reasoning and conclusion. I do not intend to repeat herein the details of the admission which have been fully set out in the lead judgment. All I intend to add is the nature of the general authority of counsel in the conduct of a case.

A counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct a case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster. If he considers it necessary for the conduct of his case, but subject to caution by the Court.

The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.

Subject to the above statement I adopt the reasoning of my learned brother Aniagolu J.S.C. and would dismiss the appeal with N300.00 Costs with the sum adjudged being amended to read N296,574 and not N304,574.00.

Uwais, JSC. I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. For the reasons contained therein I too would dismiss the appeal with the variation of the decision of the Court of Appeal as contained in the said judgment. N300.00 costs are hereby awarded in favour of the respondent.

Coker, J.S.C. I agree that this appeal fails and should be dismissed and the judgment of the court below affirmed.

The facts and issues have been well and fully stated in the lead judgment of my learned brother Aniagolu, J.S.C., the draft of which I have had the advantage of reading.

Counsel for the appellant in his brief stated that the two issues in this appeal are:

"1.     Whether the Court of Appeal was correct in reversing the findings of the Court to the effect that the plaintiff has failed to prove that the defendant is indebted to the plaintiff in the sum claimed or in any other sum.

2.      Whether the Court of Appeal was correct in upholding the plaintiffs contention that he was entitled to judgment for N208,714."

But it seems to me however that the real question is: what was the amount in dispute which went for trial at the hearing? Was it the whole amount claimed by the plaintiff or the sum of N96,400.00 (less the sum of N8,000.00) over which the parties disagreed.

The first question is concerned with the weight of the evidence adduced by the parties. It is my view that this question must be considered in the light of the entire record of the proceedings including the statements of counsel and of the trial Judge.

If, when a case comes up for hearing, in the presence of the parties, counsel informs the court that he admits liability of either the entire sum or part of the amount claimed by the plaintiff, the court is competent to enter judgment of the amount admitted, even if on the pleadings, the admitted amount was denied.

On the 11th June 1979, the unresolved matters were for N96,400 (Ninety Six Thousand Four Hundred Naira). As at that date, the defendant had been served with the Statement of Claim with the attachments, that is, the Statement of Account showing a debit balance of N304,574.00 in favour of the plaintiffs and as stated in the demand letter addressed to the defendants, (Exhibit B).

The claim of the Plaintiffs as pleaded in paragraphs 3 and 4 read

"3.     As at the 6th June, 1977 the Defendant who was a credit customer of the plaintiff was indebted to the said Plaintiff in the sum of N304,574.00 being the balance of payment in respect of various steel materials sold and delivered to the Defendant by the Plaintiff at the Defendant's request. (Copy of Comprehensive Statement of Account attached).

The Plaintiff avers that inspite of repeated demand the defendant has refused, failed and/or neglected to pay the said sum of N304,574.00 or any part thereof. (photo-copy of letter of demand attached.)"

Before the Statement of Defence was filed and indeed, in paragraph 16 of the affidavit sworn to by Thompson Joseph Anomigbo Okpoko, learned Counsel for the defendant, in support of the application to set aside the judgment for N296,409.00 in favour of plaintiff, deposed as follows:

"The amount for which chief Yesufu obtained judgment for his Client includes the amount which its Client has received from the Defendant through its Representative, Mr Otaru and I verily believe that if chief Yesufu had disclosed this fact to court, he would not have obtained the judgment which he did."

In support of the said application of the defendant, one, john Donatus Boregberue Bajere an accounting clerk of the defendant company also swore

"11. The money which plaintiff claimed and for which it obtained judgment in the absence of the Defendant and or in default of the Defendant filing a defence include the various sums already paid to the plaintiff through Mr M.D. Otaru at its request."

Nowhere in the affidavit of the two witnesses, was it deposed that the defendant was not indebted to the plaintiffs. It is in the light of this fact that the defence must be considered in relation to the plaintiffs' case.

Indeed the trial Judge in its Ruling to set aside the default judgment stated:

"It was also not denied by learned Counsel for the Respondent in his address that he had been shown four petty Cash Vouchers evidencing payments made to the Respondent through one Mr Otaru the Respondent's representative amounting to N3,200.00. Indeed, in his address; Mr Yesufu said that they were prepared to forgo this amount. In effect, this is a clear admission that the plaintiff was not entitled to judgment for the entire sum of N296,409.00. In my view, it is injustice for a Plaintiff to obtain to obtain judgment for more than he deserves where the plaintiff deliberately keeps from the court the fact that the Defendant had paid certain amount out of the amount claimed. Obviously, this Court cannot allow the judgment to stand merely by deducting the said N3,200.00. This is so because the court cannot correct its own judgment when it is not a slip or omission."

And later in the said Ruling, the trial Judge stated "This court was misled, perhaps not deliberately, not only to permit the plaintiff to prove its case, but also to enter judgment for the plaintiff for an amount more than it was entitled to..."

It is in the light of the foregoing circumstance that the defence should be considered, when it pleaded in paragraphs 2,