JOY MASKEW & ANOR v. TIDEX NIGERIA LIMITED
(2018)LCN/12152(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/1364/2016
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“I must say that it is regrettable that there is nothing in the record of appeal, evidencing the allegations of the breach of the appellants’ fundamental right to fair hearing, in this matter. Of course, the law is well settled to the effect and this is beyond reproach, that where a Court raised an issue, not contemplated nor raised and ventilated upon by the parties, it must invite counsel to the parties to address it, particularly on the said issue so raised, before coming to a decision on it, in order to satisfy the avowed and cherished requirement of the golden principle of fundamental right to fair hearing. Registered Trustees of the Apostolic Church v. Rahman Akindele (1967) 1 All NLR 110 @ 122;Ogiamien v. Ogiamien (1967) NMLR 245 @ 248; Cole v. Martins (1968) 1 All NLR 162; (1968) NMLR 217; Shittu Adeosun v. Lawani Babalola (1972) 1 All NLR ( pt.2) 120 @ 126; Adedayo v. Peoples’ Democratic Party & Ors (2013) All FWLR (pt.695) 203 @ 241; Jekins Gwede v. Independent National Electoral Commission & Ors (2014) LPELR – 23763 (SC); Ozonma (Barr.) Chidi Nobis – Elendu v. INEC (2015) LPELR – 25127 (SC).” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. JOY MASKEW
2. GABRIEL MOFUNAYA
(For themselves and on behalf of Ex-Employees of Zapata Marine Services Nigeria Ltd, Members of NUPENG and PENGASSAN Trade Union. Zapata Marine, Warri Branch) Appellant(s)
AND
TIDEX NIGERIA LTD Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the judgment of the National Industrial Court, holden at Lagos, which was delivered on 25 November, 2008. This matter was first brought before the High Court of Justice, Warri, Delta State vide the Suit No: W/313/94. At the end of the trial in that Court, it entered judgment for the appellants on 5th March, 1996 in the sum of US$56,000,000 (Fifty-Six Million U.S. Dollars or its Nigerian Naira equivalent. The respondent was dissatisfied with the judgment and consequently appealed against it, to the Court of Appeal, Benin Division, in Appeal NO: CA/B/131/1996.
On February 18th, 1998, this Court delivered its judgment and upheld the appeal holding that the High Court lacked the jurisdiction to entertain the matter, the proper Court with jurisdiction being the National Industrial Court. This Court, went on to hold that assuming the High Court had jurisdiction in the matter, the judgment of the Court awarding 56 Million US Dollars to the Appellants cannot stand as the 560 Million US Dollars profit upon which this Court awarded 10% (the 56 Million US Dollars) as due to the Appellants was not pleaded by the Appellants and so the trial judge erred in relying on same to enter judgment. The Appellants subsequently filed a fresh suit at the National Industrial Court.
The Appellants at the National Industrial Court, (the Court below) came by way of Motion and sued in a representative capacity for themselves and on behalf of the ex-employees of Zapata Marine Services Nigeria Limited and as members of the 3rd and 4th Appellants who were joined during the hearing of this matter by the order of the Court below. The reliefs sought by the Appellants is contained on pages 838 – 845 of the Records of Appeal.
The Appellants submitted to the honourable Court a number of documents listed on page 838 – 845 of the Record of Appeal, asking that Court to interpret same and come to the conclusion that they are entitled to the sum of US$56 Million that the High Court of Warri granted but was upturned by this Court in 1998.
On November 25, 2008, the Court delivered judgment in the substantive matter and held that the case of the Appellants lacked merit and dismissed same.
The appellants, piqued by the decision against them, approached this Court with a notice of appeal, predicated on four grounds namely:
Ground one
The Judgment of the trial Court is against the weight of evidence.
Ground two
The trial Court erred in law when it denied the Appellants their fundamental rights to fair hearing by refusing to take the evidence of a subpoenaed witness which would have positively impacted on the case of the Appellants.
Particulars of Error
The trial Court did not allow the witness subpoenaed at the instance of the Appellant to give evidence in favour of the Appellants’ case.
Ground three
The trial Court erred in law when it denied the Appellants’ their fundamental right to fair hearing by raising new issues suo motu particularly the inadmissibility of an expert report not countersigned by a senior Police officer and failing to call parties and/or their Counsel to address the Court on it before rejecting the Police Forensic report and dismissing the Appellants’ suit.
Particulars of Error
i. The trial Court ought to have called or invited the Appellants Counsel to address it on the new issues raised suo motu before dismissing the suit.
ii. The Appellants’ right to fair hearing as provided under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 7 of the African Charter on Human and People?s Rights (Ratification and Enforcement) Act, Laws of the Federal of Nigeria, 2004 was violated by the trial Court in reaching its decision.
iii. The trial Court did not consider the fact that there cannot be a fair trial without a fair hearing and consequently the decision of the trial Court did not consider the interest of the Appellant.
iv. The trial Court dabbled into the arena of conflict and made out a case in favour of the Respondent to the prejudice of the Appellants without having regard to the facts presented by the parties.
Ground four
The trial Court erred in law when it denied the Appellants their fundamental rights to fair hearing by rejecting the Police Forensic report signed by a Police officer on the ground that it was not countersigned by a Superior Police Officer and that it was doubtful because there was inordinate delay before presenting it before the Court.
Particulars of Error
i. The trial Court did not consider the fact that the Expert Witness who testified in support of the Police Forensic Report gave his profile and experience in the area of hand writing and signature analysis and also produce his identity card upon request by the presiding Judge to show that he is a serving Inspector of Police attached to the Nigerian Police Force headquarters Forensic Department, Alagbon Close, Lagos.
ii. The trial Court did not consider the fact that the Police Forensic Report was produced from the lawful custody and that an Expert Report emanating from the Police need not be countersigned by a Superior Police Officer to make it admissible in law.
iii. The trial Court considered and relied on extraneous issues in rejecting the documentary evidence and the oral testimony of the Expert Witness.
iv. The trial Court did not avert its mind to the fact that the Expert Witness was called pursuant to the subsisting order of the trial Court in connection with the Police Forensic Report already attached to the Applicants’ affidavit.
v. The trial Court did not consider the fact that the Police Forensic Report is a public document and was certified by the Court before it was tendered by the witness while trying to resolve the conflict in the depositions of the Applicants and the Respondent.
In order to activate the prosecution of the appeal, the appellants’ brief of argument, dated and filed on 7th May, 2018, was deemed by this Court as properly filed and served on 20th June, 2018. In it, three issues were nominated for the determination of the appeal. They are, to wit:
1. Whether by raising the issue of the admissibility of the expert witness report suo motu and not calling parties or their counsel to address the Court on the issue, the trial Court did not thereby deny the appellants their fundamental right to fair hearing. (Distilled from ground three of the grounds of appeal).
2. Whether the trial Court was right when it denied the appellants their fundamental right to fair hearing by rejecting the police forensic report signed by a police officer on the ground that it was not countersigned by a superior police officer and that it was doubtful because there was inordinate delay before presenting it before the Court. (Distilled from ground two and four of the grounds of Appeal).
3. Whether the judgment of the lower Court is against the weight of evidence. (Distilled from ground one of the grounds of appeal).
The respondent did not file a brief of argument and it was not represented at the hearing of the appeal on 16th October, 2018, albeit that respondent’s learned counsel, was duly served with the hearing for 16/10/18. The appeal was heard and is to be determined on the appellants’ brief of argument, only. Nevertheless, the failure of the respondent to file a brief of argument, does not automatically, translate to the success of the appeal which will largely depend upon the strength of the appellants’ contentions against the decision of the Court below against them. Cameroon Airlines v. Otutuizu (2011) 4 N.W.L.R. ( pt. 1238) 512; (2011) LPELR – 827 ( SC); Skye Bank & Anor v. Akinpelu (2010) LPELR – 3073 (SC), John Holt Ltd. v. Oputa (1996) 9 NWLR (pt. 470) 101, Sofolahan v. Folakan (1999) 10 NWLR (pt. 621) 86.
The gravamen of the appellants’ contentions is that the Court below denied them their fundamental right to fair hearing when it suo motu, raised the issue of the admissibility into evidence, of an expert report which was not countersigned by a senior police officer. Furthermore, the appellants contended that the Court below, failed to call on the parties in the action before it, to address the Court before it rejected the Police Forensic Report. They also contended to the effect that the Court below failed to act on the evidence of the appellants’ witness and it thereby led to a miscarriage of justice to them.
I shall consider and determine the three issues together.
Resolution:
The appellants being the applicants at the Court below, in support of their application, particularly in the alternative relief thereof, prayed for :
” An order compelling the respondent to pay the applicants the sum of $56 Million US Dollars being 10% of $560 Million US Dollars (profit after tax) realized and/or declared by Zapata Marine Services Nig Ltd in 1991.”
They had attached to their application, amongst other documents, an Exhibit “A1”, titled Memorandum of Agreement with respect to the Workers Trust Fund which was said to have been created in 1969.
The essence of the said Memorandum of Agreement was to the effect that any worker/employee of Zapata Marine Services, Nig. Ltd, who served the company for 30 years or more shall benefit from the Workers Trust Fund, but that in the event that the company folds up and ceases to exist before the expiration of 30 years, then the workers/employees still in employment and/or pay roll of the company shall benefit from the Workers Trust Fund. At the annual end of year meeting/end of year party held at Palm Grove Motel, Warri, in 1991, the appellants were informed by the former management of Zapata Marine Services, Nig. Ltd, of the fact that the company made a profit of $560 Million US Dollars, from its Nigeria operations alone. The appellants then demanded their entitlement to 10% of the said $560 Million Dollars. Further to their demand, the appellants, claimed that the company had 405 employees on the pay roll sometimes in 1992 wherein, the entire funds in the Workers Trust Fund was handed over to the respondent which acknowledged receipt of same and promised to pay over the same to the appellants/workers at that time, which it failed to do. That was what led to the action at the Court below.
The respondent, at the trial, doubted the authenticity of the Memorandum of Agreement – Exhibit “A1″, which had been sent to the Forensic Department of the Nigeria Police, Alagbon Close, Ikoyi, Lagos for examination. The doubt created with respect to the authenticity of Exhibit ” A1″ arose from a notarized affidavit by one Kenneth Waldorf, a director of Zapata Marine Services, Nig., Ltd, to the effect that he did not sign nor execute any document relating to the establishment of the Workers Trust Fund and that his signature on the said Exhibit “A1”, must have been forged. However, Mr. Raphael Onwuzuligbo, a police inspector and document examiner attached to the Forensic Science Laboratory, Force CID, Alagbon Close, Ikoyi, Lagos, who conducted the forensic examination on Exhibit “A1” and filed a report on it, was subpoenaed and he gave evidence at the instance of the appellants, to the effect that one of the signatures on Exhibit “A1”, was that of Kenneth Waldorf. But that notwithstanding, there was no certification on the said document by Mr. Raphael Onwuzuligbo, the maker thereof. Both learned counsel to the parties at the Court below, ventilated their respective positions on the said Exhibit “A1”, which was already admitted into evidence at the appellants’ instance, without objection by the respondent at pages 802 & 803 of the record of appeal. It was then marked as Exhibit A.
In its judgment, the Court below, at pages 851-853 of the record of appeal, had reasoned and resolved, thus:
“The applicants approached this Court under Section 15 of the TDA 1990. In other words, the applicants simply activated the interpretation jurisdiction of this Court. We cannot, therefore, go beyond the task of interpretation given that we have severally maintained that the interpretation jurisdiction of this Court should not be used to adjudicate substantive trial issues (Hotel and Personal Services Senior Staff Association v. Tourist Company of Nigeria Plc, unreported Suit No. NIC/14/2002 delivered on October 27, 2004 and Aodo v. Chevron Texaco Nigeria (2005) 2 NLLR (Pt.5) 200 at 222 ? 223). In this wise, the only issues that this Court can determine in this case must necessarily relate to the interpretation of the collective agreement in issue.
In this regard, the applicants have submitted to this Court a number of documents listed earlier on this judgment and are asking this Court to interpret same and come to this conclusion that they are entitled to the sum if US$56 million. It must be pointed out that this same US$56 million that the High Court granted to them but which the Court of Appeal held was erroneously granted to them as it was not pleaded at the High Court. By activating the interpretation jurisdiction of this Court, the applicants are praying this Court to now grant them the said amount.
To be able to interpret the said documents, we must first resolve the issue of the authenticity of the Memorandum of Agreement of 5th May, 1969, which is the key agreement said to create the Workers Trust Fund and hence entitle the applicants to the US$56 million prayed for. As indicated earlier, when the applicants first filed this action, this document was not exhibited. It surfaced only years latter. The respondent naturally doubted its authenticity. To prove that the document is authentic, the applicants called Mr. Raphael Onwuzuligbo, a police inspector and a document examiner attached to the Forensic Science Laboratory, Force CID, Alagbon Close, Ikoyi, Lagos, who had examine the said documents and others to testify and tender his report in that regard. Mr. Onwuzuligbo had, on cross examination, confirmed that the documents sent to him to examine were photocopies although he disagreed that there will be a margin of error when one examines the photocopy of a document as opposed to the original.
To counter the applicants, the respondent presented statements on oath of Mr. Kenneth Waldolf and Mr. Ade Williams showing that Mr. Waldorf was not a Director of Zapata Nigeria when the said Memorandum of Agreement was executed in 1969. After a due consideration of the processes filed in this matter, the report and testimony of Mr. Onwuzuligbo, we agree with the respondent that the authenticity of the Memorandum of Agreement of 5th May, 1969 is doubtful.
We had asked the applicant the capacity in which Mr. Wardorf signed the Memorandum of Agreement as Director i.e. whether as an Executive Director with authority to bind the company or nominal Director. We were not given a satisfactory answer. All the applicants did was to exhibit the particulars of directors from the Corporate Affairs Commission showing Mr. Waldorf as a Director of the company.
This does not in any way resolve the question we posed. Because the Memorandum of Agreement is doubtful, we cannot rely on it as a valid collective agreement for purposes of this action.
But assuming the said Memorandum of Agreement is valid, the issue still remains that Section 15 of the TDA 1990, which grants this Court the power to interpret collective agreements and under which the applicants have come to this Court, stipulates that only parties to the collective agreement or the Minister of Labour can apply to this Court to have the collective agreement interpreted. The respondent had argued that it is not a party to the Memorandum of Agreement and other documents in issue and so cannot be sued on the said documents.
The applicants’ response is that the respondents had taken over Zapata Nigeria and so must be held to bear obligations of the latter. The merger shown to this Court was between two foreign companies in the United States of America (USA). No where was it shown to us that the respondent as a Nigerian company merged with Zapata Nigeria. We agree with the respondent that a subsidiary company is separate and distinct with the parent company and so must be held accountable for its acts. The respondent has not been shown to have merged with Zapata Nigeria and so cannot be said to be a party to the collective agreement in issue; and because it is not a party to the collective, it cannot be sued under the interpretation jurisdiction of the Court as provided for under Section 15 of the TDA.
Even assuming we are again wrong on this score, the issue remains whether from the totality of the documents exhibited, the applicants are entitled to US$56 million being 10% of US$560 million profit after tax of Zapata Nigeria. Once again we have our doubts as to the authenticity of these figures. The only document evidencing the sum of US$560 million as profit after tax of Zapata Nigeria is the letter from Mr. J.S. Lalwani dated 27th December, 1991. Although we agree with the submission of the applicants that the audited accounts of a company is not the only way to ascertain the financial status of a company, we do not see how reliance is to be placed on the letter of Mr. Lalwani for that purpose. In the first place, given the memorandum of the same Mr. Lalwani dated 11th May, 1992,
Mr. Lalwani appears an interested party and so cannot be objective enough in his assertion that Zapata Nigeria made US$560 million profit in 1991. Secondly, we wonder why a Nigerian company should draw up its profit after tax in US Dollars and not the Naira. Thirdly, as argued by the respondent, it is a wonder too why a company that made US$560 million profit after tax in 1991 will cease to operate in the country so soon thereafter. Lastly, but for the sum of US$560 million, nowhere was this Court presented with any other after tax profit of Zapata Nigeria between 1969 and 1990. All of these combine to raise further doubt as to the claims of the applicants.
For all these reasons, therefore, we cannot rule in favour of the applicants.”
My Lords, it is as clear as crystals, to me that the question of admissibility of the report produced by the Forensic Expert-Mr. Raphael Onwuzuligbo, who testified for the appellants, was not an issue at the trial, because it is apparent, ex facie, at pages 802 and 803 of the record of appeal, that the expert witness’s report was admitted into evidence, without any objection by the respondent.
Furthermore, it follows and glaringly clear that since the said document had been admitted into evidence, by the Court below and marked Exhibit A, it cannot by any stretch of imagination and reasoning, be alleged that the same document, was rejected by the Court below. I had laboured in vain and painstakingly perused the record of appeal, especially from pages 802 to page 853 again and again to see the alleged infraction of breach of the appellants’ fundamental right to fair hearing, with respect to the admissibility into evidence of the Forensic Expert witness’s report which was allegedly raised suo motu by the Court below and the rejection of the same, by the said Court, without calling on the parties’ counsel, to address it on the issue.
I must say that it is regrettable that there is nothing in the record of appeal, evidencing the allegations of the breach of the appellants’ fundamental right to fair hearing, in this matter. Of course, the law is well settled to the effect and this is beyond reproach, that where a Court raised an issue, not contemplated nor raised and ventilated upon by the parties, it must invite counsel to the parties to address it, particularly on the said issue so raised, before coming to a decision on it, in order to satisfy the avowed and cherished requirement of the golden principle of fundamental right to fair hearing. Registered Trustees of the Apostolic Church v. Rahman Akindele (1967) 1 All NLR 110 @ 122;Ogiamien v. Ogiamien (1967) NMLR 245 @ 248; Cole v. Martins (1968) 1 All NLR 162; (1968) NMLR 217; Shittu Adeosun v. Lawani Babalola (1972) 1 All NLR ( pt.2) 120 @ 126; Adedayo v. Peoples’ Democratic Party & Ors (2013) All FWLR (pt.695) 203 @ 241; Jekins Gwede v. Independent National Electoral Commission & Ors (2014) LPELR – 23763 (SC); Ozonma (Barr.) Chidi Nobis – Elendu v. INEC (2015) LPELR – 25127 (SC).
The above notwithstanding, I have shown earlier in this judgment, that I failed to see any infraction by the Court below, of the appellants’ fundamental right to fair hearing on the facts and circumstances of the instant matter. It appears to me that the complaint of the appellants against the judgment of the Court below has more to do with reasons proffered by that Court for not acting on the evidence of the report- Exhibit A, of the Forensic Expert witness of the appellant.
And the main reason for not giving probative value to the said document, according to the Court below is that it was not authenticated. Indisputably, it was the photocopies and not the original of the document that was examined by the Forensic Expert witness. Unarguably, the vexed document (Exhibit A), is a public document which by virtue of Sections 102 & 104 of the Evidence Act, 2011 ought to have been certified by the appellants? witness ? Mr. Raphael Onwuzuligbo. And the law is well settled to the effect that it is only certified true copies of secondary evidence of public documents that are admissible in evidence. Senator Nkechi Justina Nwaogu v. Hon. Emeka Atuma & Ors (2013) 11 NWLR (pt. 1364) 117 @ 147; S.A.Adeyefa & Ors v. Bello Gbamgboye (2013) LPELR – 19891 (SC); Patrick Aririguzo KSM v. Amaechi (2014) LPELR – 22829 (CA). Hence, I have no difficulty in agreeing with the Court below “that the authenticity of the Memorandum of Agreement of 5th May, 1969 is doubtful.” And since Exhibit A is of doubtful origin, it could not have been accorded any probative value.
A fortiori, with the uselessness/valuelessness of Exhibit A, the substratum and anchor of the appellants’ claim, had collapsed irredeemably.
Let me draw the curtain on this appeal, by recounting the judicial words on marble, of his Lordship, Niki Tobi, JSC., God bless his soul, when in circumstances not too dissimilar to the instant case, where parties just latch onto the principle of fair hearing, willy-nilly, as a talisman, a cure – for all deficiencies in an action in trial Courts. In Orugbo & Anor v. Una & Ors (2002) 9-10 S.C. 61; (2002) LPELR – 2778 (SC) @ 36-37, the learned Law Lord, stated that:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. The fair hearing Constitutional provision is designed for both parties in litigation, in the interest of fair play and justice. The Courts must not be given a burden to the provision which it can not carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which the parties can, in abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
Further see: Magaji v. Nigerian Army (2008) 8 NWLR (pt. 1089) 338; (2008) 34 NSCQR (pt.1) 108; (2008) LPELR – 1814 (SC) @ 40. I have no doubt in my mind that the allegation of denial of fundamental right to fair hearing by the appellants in this matter is not available to them. They only succeeded in flogging and forcing the principle of fair hearing, which is dead, on the facts and circumstances of the instant matter. And it is a truism that he who flogs a dead horse, embarks on a fruitless exercise of dissipating his energy needlessly. With that, I am done. The three issues in the appeal are resolved against the appellants.
In effect, the judgment of the National Industrial Court, holden at Lagos, on 25th November, 2008, delivered in re – Suit NO: NIC/IM/98, is hereby affirmed.
Each side shall bear their own costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TOM SHAIBU YAKUBU,.J.C.A just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA in this appeal. I agree that the appeal lacks merit and it is accordingly dismissed.
In effect, the judgment of the lower Court is hereby affirmed.
Appearances:
N. I. Quakers, SAN with him, O. Okonkwo, Esq. & S. Fashanu, Esq. For Appellant(s)
For Respondent(s)
