TIDEX NIGERIA LIMITED V. JOY MASKEW & ANOR
(1998)LCN/0389(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of February, 1998
CA/B/131/96
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 2 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE )RULES
The provision of the rule relates to one of the preliminary steps to be taken in instituting an action. The effect of the provisions Order 2 rule 1, on the other hand, is that failure to comply with any provision of the rules dealing with preliminary steps to be taken in instituting an action may be treated as mere irregularity as a result of which such omission will not nullify the proceedings, judgment or any order subsequently made by the court in the suit. This flexible attitude is in line with the practice of the Courts in England to rules in pari materia with the afore-mentioned Order 11 rule 8. The practice in England is as set out in the Supreme Court Practice, 1985, Vol. 1, order 15/12/1 on page 203 which is stated thus:- “The rule as to representative proceedings should be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice and should be applied, not in any strict or rigorous sense, but according to its wide and permissible scope.” See also John v. Rees; Martin v. Davies, Rees v. John (1970) Ch. 345; (1969) 2 All E.R. 274 – per Megarry, J. and Anabaronye v. Nwadike (1997) 1 NWLR (Pt. 482) 374. PER AKINTAN, J.C.A.
APPEAL: EFFECT OF THE OMISSION OF THE PLANTIFF TO OBTAIN LEAVE OF THE COURT BEFORE COMMENCING THE ACTION
the omission of the plaintiffs to obtain leave of the lower court before commencing the action cannot now vitiate or have any adverse effect on the judgment of the lower court in the matter. Rather, it is merely an omission which is to be treated as a mere irregularity and which will not have any effect on the final result of the case. PER AKINTAN, J.C.A.
JUSTICES:
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
MAMMUD MOHAMMED Justice of The Court of Appeal of Nigeria
RAPHAEL OLUFEMI ROWLAND Justice of The Court of Appeal of Nigeria
Between
TIDEX NIGERIA LIMITED Appellant(s)
AND
- JOY MASKEW
2. GABRIEL MOFUNANYA
(For themselves and on behalf of ex-employees of Zapata Marine Services Nigeria Ltd., members of NUPENG and PENGASSAN Trade Unions, Zapata Marine, Warri Branch) Respondent(s)
AKINTAN, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Obi, J. delivered at Warri High Court in Delta State on 5th March, 1996 in suit no. W/313/94. The action was instituted by way of originating summons as a result of which the trial was to be conducted by means of affidavits and counter-affidavits filed by the parties. However, when the learned trial Judge found that there were conflicting averments in the affidavits filed by the parties, he ordered that pleadings should be filed. In compliance with that directive, the plaintiffs filed a 14-paragraph Statement of Claim on 26th June, 1995.
The plaintiffs’ claim, as set out in paragraph 13 of the Statement of Claim, is as follows:-
“Wherefore the plaintiffs claim as follows:-
(a) Declaration that from the totality of the relationship between the plaintiffs and defendants there exists a Workers Trust Fund.
(b) Order that the defendants do account to the plaintiffs for all moneys which have come into their possession/custody comprising 10% of annual profits after taxation of the business of Zapata from 1968 to 1992. Alternatively N2 billion naira in that the said funds were paid to Zapata home office in dollars. In the further alternative, any other sum as this Honourable court may so order.”
The respondent (now appellant), however, did not file any statement of defence despite the fact that it was granted 3 weeks extension of time within which to file it on 17th July 1995 upon an application for such extension of time to do so.
The plaintiffs pleaded, inter alia, in paragraph 2 of their statement of claim that:-
“Plaintiffs are also members of PENGASSEN and NUPENG Oil Workers Union depending upon whether they belong to the Senior or Junior cadre of the said unions. They pursue this action in the representative capacity shown above…”
The defendant (now appellant) did not file any statement of defence as at 6th October, 1995 when Joy Maskew, the first plaintiff and only plaintiff’s witness gave his evidence. The man told the court, inter alia, in the course of his evidence, that they brought the action “on behalf of ex-employee of Zapata Marine Services Nigeria Limited members of NUPENG and PENGASSEN Trade Unions, Zapata Marine Warri Branch. UNPENG is the junior cadre while PENGASSEN is the senior cadre. He said further that Tidex bought over Zapata on 15/1/92. Tidex then took over the conduct of their employment. The workers Union held several meetings with management of Tidex in the course of which they arrived at the following agreement:
“1. That Tidex was to take over the payment of salaries with effect from 15/1/92. This payment was made up till 1993 when we were declared redundant. Tidex then agreed to pay us our abrupt workstop, extra gratia, payment which we would have been entitled from Zapata.”
The witness further told the court that the Management of Zapata had told the staff of Zapata that there was a message from Houston, Texas (the headquarters of the company, Zapata) that a decision had been taken to create a Workers Trust Fund for the benefit of the workers into which 10% of the annual net profit would be paid.
And that member of staff who served the company for up to 30 years would be entitled to benefit from the workers Trust Fund. But in the event of the company folding up before the expiration of the 30 years, the money accruing in the trust fund would be shared equally to workers then still working with the company at the time.
The trust agreement is said to be in Houston, Texas in U.S.A. The above information was said to have been given to the workers during an annual end of year party where the annual profit of the company was usually disclosed to the workers. The witness further said that the last annual end of year meeting was held in 1991 at Palm Grove Motel, Warri. He gave his account of what the workers were told at the meeting and what led to the institution of the action as follows:-
“That year they disclosed S560 million U.S. dollars profit from Nigeria operations. In 1992 when Tidex took over, we demanded payment from the Workers Trust Fund. The Management of Tidex told us that all the documents in connection therewith have been handed over to them intact. They promised to pay us. It was when we were declared redundant that we asked for our Trust Fund but surprisingly they refused to pay…”
Based on the contents of the plaintiffs’ pleading and the evidence tendered before the court, the learned trial Judge found as a fact, inter alia, that the crucial averments in support of the reliefs claimed are contained in paragraphs 5 to 10 of the statement of claim. The said paragraphs 5 to 10 read thus:-
“5. In or about 1992 in Warri within the jurisdiction of this court Zapata folded up. The first defendant took over all arrangements regarding the future conduct of Zapata’s entire work force. As a first step the workers of the said Zapata were transferred to a success or Logo “T” Company – which successor Company as aforesaid is the 1st defendant, thereafter the 1st defendant made arrangements regarding the future of the plaintiffs some of which arrangements areas setout in a document dated 10/7/92 in the possession of the defendants. Photostat copies of which were later distributed to the plaintiffs present at the meeting where these arrangement were made.
6. Those who carried out these arrangements on the part of the defendants included one Carl Annessa who was reputed to have come to Nigeria from Tidex Water in Louisiana U.S.A. and the second defendant; they covered the transitional period or change of Zapata’s workforce to the point of its elimination making it possible for the 1st defendant to assume ownership of Zapata’s properties.
7. Between 1992 and 1993 when these arrangements were carried out the plaintiffs demanded payment to them of their entitlements under workers Trust Fund created for their benefit as from the date of the establishment of Zapata since 1968. This Trust Fund was made up of 10% of the annual profits of Zapata after taxation. To this fund was paid the quantum of the said profits from year to year until the events giving rise to this action in 1992 and an equal share of the said fund was to be paid to each of the plaintiffs after he had put in 30 years of service to the company or on the occasion of the folding up of the company whichever was earlier.
8. From time to time Zapata held meetings with the plaintiffs concerning the progress of the said Workers Trust Fund. Zapata told the plaintiffs that its responsibility to them was strictly fiduciary, and that all what was needed was for the affected worker to show his credentials at the date of his retirement if he had served 30 years or in the event of the company folding up and he would be paid his share of the said Workers Trust Fund.
9. During the period of these arrangements that is between 1992 and 1993 the said Carl Annesa and the second defendant who also claimed to have come from Tidex Water Louisiana confirmed to the plaintiffs in one of the several meetings they had with them that Tidex Nigeria Limited 1st defendant had firm custody of the said Workers Trust Fund but that they were not in a position to pay these moneys as they were busy with other arrangements concerning the liquidation of Zapata, payoffs of several other entitlements of plaintiffs and the payments to white collar employees of a similar Trust Fund and that on completion of these exercises the defendant would address the demands of the plaintiffs. The Photostat record of one of these meetings distributed to the plaintiffs after one of the said meetings dated 17/6/93 was handed over to the plaintiffs. It will be relied upon during trial.
10. When after several repeated demands made upon them to honour their obligations the defendants refused to pay over to the plaintiffs the said Workers Trust Fund, plaintiffs employed the services of their solicitors to renew these demands whereupon the defendants handed over certain documents to plaintiffs solicitor claiming that the entitlement of plaintiffs were included in an Employees Trust Fund. This was the first occasion that a majority of the plaintiffs knew of such a Trust Fund.”
The teamed trial Judge said further as follows in his reserved judgment delivered on 5th March, 1996:-
“It is clear enough that the only reason why the defendant is being sued is on account of the confirmation made on its behalf that the moneys lodged in the said Workers Trust Fund is in its custody having been handed over to it by Zapata upon its folding up and more importantly, because the defendant promised to pay over this moneys to the plaintiffs but later on reneged on its promise…”
The learned trial Judge then reviewed the evidence given by the 1st plaintiff and made the following findings of facts:-
“His (1st plaintiff) evidence goes to show that Zapata kept to its own part of the bargain until it folded up sometime in 1992 when the entire fund in the Trust Fund was handed over to defendant which not only acknowledged receipt of same but promised to pay over same to the plaintiffs at due time, but failed to do so.
The witness could not be sure about the total amount of money involved but he is categorical that Zapata at the end or every year, used to hold meetings with them at Palm Grove Motel, Warri to tell them the progress and profit made by the company and in this respect in 1991 the management told them that the profit for the year 1991 was the sum of $560 million U.S. Dollars. I believe and accept this piece of evidence. It is therefore reasonable to infer and I so infer, that 10% of this amount forms part of the moneys lodged in the said Trust Fund handed over to the defendant in the circumstances pleaded and given in evidence by the plaintiffs. I am satisfied at the very least, that the defendant is liable to the plaintiffs in this sum of its naira equivalent.”
Based on the above findings of fact, the learned trial Judge came to the conclusion that the plaintiff’s action succeeded. Judgment was accordingly entered in their favour as follows:-
“Accordingly, plaintiffs’ action succeeded. I enter judgment in their favour in terms of the declaration sought in relief (a) of paragraph 13 of their statement of claim. Judgment is also entered in their favour in the sum of S56 million U.S. Dollars or its Naira equivalent. Costs in their favour assessed at N1,000.00.”
The defendant (now appellant) was dissatisfied with the judgment and has appealed against it to this court. The parties filed their briefs of argument in this court. The following issues were formulated in the appellant’s brief.
“(i) Whether the commencement of the action herein is prohibited by law.
In the alternative.
(ii) Whether the two individuals who sued as plaintiffs in this action properly or validly represented the persons whom they claimed or purported to represent in the action herein.
(iii) In the light of the answer to question (ii), whether the court below ought to have entertained the action herein.
(iv) Whether the testimony of PW1 (which the learned trial Judge accepted) to the effect that the management of Zapata Marine Services Co. Limited told the plaintiffs that the profits for the year 1991 was U.S. 5560 million is admissible.
(v) Whether the court below ought to have granted a declaration that there exists a Workers Trust Fund in an action to which the persons who were said to be trustees of the said fund were not parties.
(vi) Whether the award of U.S. S56 million Dollars ought to have been made by the court below in favour of the plaintiffs having regard to the Statement of Claim and the evidence herein.”
On the other hand, 5 issues were formulated in the respondents brief. As I consider the 6 issues formulated in the appellant’s brief adequately embrace the 5 issues formulated in the respondents’ brief.
Chief William SAN, learned leading Senior Counsel for the appellant submitted in respect of the first issue both in his oral presentation and in the appellant’s brief, that the subject-matter of the action is a dispute or controversy between an employer and workers and which is connected with the employment of the terms of employment of such workers. He therefore argued that a dispute of that nature comes within the definition of “trade dispute” in schedule 47 of the Trade Disputes Act (Cap. 432, Laws of the Federation 1990). Reference was made to the provisions of Section IA of the Trade Disputes Act as amended by the Trade Disputes (Amended) Decree 1992 (No.4 7 of 1992). It was then submitted that the trial court lacked jurisdiction to try the case.
The question raised in issues 2 and 3 relate to the capacity in which the respondents instituted the action and whether the court ought to have entertained the action. It was argued that since the respondents instituted the action in a representative capacity in that they described themselves as claiming for themselves and on behalf of ex-employees of Zapata Marine Services Nigeria Limited, members of NUPENG and PENGASSEN Trade Unions, Zapata Marine, Warri Branch”, the provisions of Order 11 rule 8 of the High Court (Civil Procedure) Rules 1988 of the former Bendel State, now applicable in Delta State, would be applicable. Since there was no evidence to show that there was compliance with the provisions of the said rule, the plaintiffs were said to be not properly before the court and the court ought to have held that the action before it was not properly constituted.
Chief Debo Akande, S.A.N., learned Senior Counsel for the respondents, conceded that no leave of the lower court was in fact sought and obtained before the action was filed as required in Order 11 rule 8 of the afore-mentioned High Court (Civil Procedure) Rules 1988. But he argued that the present position of the law is that such omission is usually treated as a mere irregularity that is curable under Order 2 rule 1 of the same High Court (Civil Procedure) Rules 1988, particularly when the objection was raised too late.
The said Order 11 rule 8 provides as follows:-
“Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.”
Order 2 rule 1 of the same High Court (Civil Procedure) Rules, on the other hand provides that:-
“Where in the beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
The position in the instant case is that the plaintiffs failed to obtain the authorisation of the lower court before commencing me present action. That omission therefore constituted a breach of the afore-mentioned Order 11 rule 8 which prescribes, inter alia, that one or more persons in the group of people “may with the approval of the court, be authorised” by the other members in the group to sue. The provision of the rule relates to one of the preliminary steps to be taken in instituting an action. The effect of the provisions Order 2 rule 1, on the other hand, is that failure to comply with any provision of the rules dealing with preliminary steps to be taken in instituting an action may be treated as mere irregularity as a result of which such omission will not nullify the proceedings, judgment or any order subsequently made by the court in the suit.
This flexible attitude is in line with the practice of the Courts in England to rules in pari materia with the afore-mentioned Order 11 rule 8.
The practice in England is as set out in the Supreme Court Practice, 1985, Vol. 1, order 15/12/1 on page 203 which is stated thus:-
“The rule as to representative proceedings should be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice and should be applied, not in any strict or rigorous sense, but according to its wide and permissible scope.”
See also John v. Rees; Martin v. Davies, Rees v. John (1970) Ch. 345; (1969) 2 All E.R. 274 – per Megarry, J. and Anabaronye v. Nwadike (1997) 1 NWLR (Pt. 482) 374.Applying the law as declared above to the facts of this case, it is clear from the facts of this case that the appellant did not raise any objection as to the noncompliance with the requirement by the plaintiffs to obtain the consent of the lower court before they commence their action throughout the trial at the High Court level. The matter is now being raised for the first time at the appellate court level and by the appellant who was the defendant and not by any member of the group on behalf of whom the action was instituted. The purpose of doing so now is to set aside the judgment of the lower court in the case. Such an awkward situation, in my view, is that Order 2 rule 1 of the afore-mentioned High Court {Civil Procedure} Rules 1988 is aimed at preventing. I therefore hold that the omission of the plaintiffs to obtain leave of the lower court before commencing the action cannot now vitiate or have any adverse effect on the judgment of the lower court in the matter. Rather, it is merely an omission which is to be treated as a mere irregularity and which will not have any effect on the final result of the case. The appeal as relates to Issues 2 and 3 therefore lacks any merit and I accordingly dismiss the appeal as it relates to those issues.
On the effect of the provisions of Section 1A of the Trade Dispute Act, as amended by Trade Dispute (Amendment) Decree No. 47 of 1992, the section provides as follows:-
“Subject to the provisions of subsection 3 of section 20 of this Act, no person shall commence an action, the subject-matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void.”
The term “trade dispute” is defined in section 47(1) of the same Trade Disputes Act as follows:-
“Trade dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non employment, or the terms of employment and physical conditions of any person.”As already stated above, it has been argued on behalf of the appellant that the trial court lacked jurisdiction to entertain the respondents’ claim before the court because the court’s jurisdiction had been ousted by the provisions of the aforementioned Section 1A of the Trade Disputes Act. It is, however, submitted both in the respondents’ brief and in the oral presentation of the case by Chief Debo Akande, S.A.N. that it is not every dispute between employees and workers that is a trade dispute. The claim before the court is said to be simply one for a declaration and for recovery of moneys passed on to the defendant by plaintiffs’ former employer. It is further submitted that a claim by an employee from his employer for recovery of unpaid or under paid wages or other benefits or for wrongful dismissal and the like cannot by any stretch of imagination be regarded as trade dispute as to bring it to the exclusive ambit of the National Industrial Court. A decision of the House of Lords in Conway v. Wade (1909) A.C. 506 at 520 and a recent one by this court in Sea Trucks Nigeria Limited v. Ayo Payne (1996) 6 NWLR (Pt. 400) 166 were cited in support of this submission.
There is no doubt that the purpose of section 1A of the Trade Disputes Act is to oust the jurisdiction of the ordinary courts in certain matters set out in the section. These are (a) the subject-matter of a trade dispute; or (b) any inter or intra union dispute. And according to the definition of the term “trade dispute” already set out above, the disputes covered are (1) disputes between employers and workers; or (2) between workers and workers, which are connected with the employment or non-employment, or the terms of employment and physical conditions of work.
The claim in the instant case was instituted by the two Plaintiffs “for themselves and on behalf of ex-employees of NUPENG and PENGASSEN Trade Unions, Zapata Marine Warri Branch”. It is against the appellant company, the plaintiffs’ former employer. The claim, as already set out above, has “three legs.
These are for a declaration; order for account and claim for payment of plaintiffs’ entitlement under a workers trust fund. It is clear from the plaintiffs’ pleadings that the dispute arose over whether there was in existence or not a workers trust fund and failure of the appellant to pay the workers, represented by the respondents, upon their retrenchment in accordance with the terms of their employment with Zapata Nigeria Limited, their former employer before the present appellant took over the workers of Zapata Nigeria Limited. It is not a claim between individual workers for damages for wrongful termination of employment or for arrears of wages due to the workers. I therefore have no doubt in holding that the dispute in the present case is one between an employer (the appellant) and workers (that is, workers making up the members of the two unions on behalf of whom the respondents instituted the action); and the dispute is connected with an aspect of the workers’ terms of employment, viz: that the workers are entitled to a share of the funds set aside as workers trust fund. I therefore hold that the claim comes within one which section 1A of the Trade Disputes Act, as amended, removed from being entertained by the ordinary courts. In the result, the appeal as it relates to that issue succeeds in that the lower court had no jurisdiction to entertain the action. The case should have been struck out for want of jurisdiction. I accordingly make an order striking out the claim.
This conclusion would have determined the entire appeal but for the fact that this court, not being a final court, is required to pronounce on all issues raised in the case before it so as to avoid an awkward situation … in the event of its decision on a particular issue upon which a decision is based, being reversed by the Supreme Court See Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126; (1991) 22 NSCC 736 at 752 per Akpata JSC. It is therefore mandatory on me to consider the other issues raised in the appeal.
The evidence led in support of the plaintiffs’ claim is said to be insufficient to support the claim. In this respect, it was submitted that the evidence led in support of the amount of profit earned by Zapata in 1991 is wholly inadmissible because no facts relating thereto were pleaded in the statement of claim and that as the said evidence relates to the contents of a written document, to wit: the Profit and Loss Account of Zapata which by law the said company must be presumed to have prepared as part of its annual accounts pursuant to the mandatory requirements of Sections 334(2)(c) and 335(8) of the Companies and Allied Matters Act, oral evidence of the contents of such existing document ought not to have been admitted.
It has also been submitted that since the evidence led was to the effect that the trustees of the Workers Trust Fund are in Houston, Texas, there is no way in which the funds or money under the control of the said trustees who are not made parties to the action can lawfully find its way into the appellant’s custody unless the plaintiffs can show that the said money had in fact been transferred to the appellant by the said trustees. Such was not pleaded and as such the appellant ought not be made liable for the fund which has not been proved to be in the appellant’s custody.
It was submitted in the respondents’ brief that the evidence relied on in support of the existence and terms of the Workers Trust Fund is based on the information given to the workers by members of the management staff of Zapata and that such evidence is admissible. The fact that the balance sheet of Zapma for the period in question was not produced is also said not to make the information inadmissible by virtue of Section 131(2) of the Evidence Act.
It is very clear from the judgment of the lower court that the learned trial Judge found as a fact that there was in existence a Workers Trust Fund created by Zapata and later transferred to the appellant company when the former company folded up. There was sufficient evidence admissible in support of that finding of fact and I have no doubt in holding that what a member of the management staff of Zapata told the workers of the same company at a meeting of the workers and management is admissible in evidence even though such information is not in written form. Similarly, I believe that oral evidence of the annual profit of Zapata is admissible even though the relevant annual balance sheet of the company is not produced and is not tendered. Such evidence, in my view, is admissible under Section 131(2) of the Evidence Act which provides as follows:-
“(2) Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.”
See also Nsirim v. Omuma Construction Co. Ltd. (1994) 1 NWLR (Pt. 318) 1. But the most important requirement is that such fact must be pleaded. In the instant case, although the fact that the terms of the Workers Trust Fund included the payment of 10% of the annual profit into the Trust Fund and the workers would be entitled to benefit out of the fund so paid into the Fund after serving for 30 years or upon the folding up of the company, and that such was duly pleaded, no where in the Statement of Claim was it pleaded that the annual profit of Zapata was S560 million in 1991. It follows therefore that evidence given by the 1st plaintiff to that effect and upon which the learned trial Judge based his S56 million U.S. Dollars award which represents 10% of the 1991 profit of $560 million, ought to have been ignored by the learned Judge.
I am satisfied, therefore, that the award of $56 million U.S. Dollars is wrong in that it was based on evidence which was not pleaded. The appeal on that point is accordingly allowed.
It is pertinent to mention that an objection was raised in the respondents’ brief to the competency of the appellants’ entire appeal. The facts relied on in support of this contention is briefly as follows:- The original notice and grounds of appeal were filed on 12/3/96 against a judgment of the lower court given on 5/3/96. On 27/5/96, the defendant filed an application for leave to amend its notice and grounds of appeal on 11/3/96 by substituting fresh notice and grounds of appeal.
That motion was not taken until 1997 when it was granted as prayed. It is submitted that the defendant in order to effectively substitute, must withdraw his appeal filed on 12/3/96 and since by the time the motion for substitution was allowed, the defendant was completely out of time and having not asked for extension of time within which to substitute the fresh notice and grounds of appeal, its notice of appeal is said to be incompetent.
My reason to the above submission is that the court is not competent to make any pronouncement on the submission. This is because doing so will amount to sitting on appeal over our earlier ruling by which we granted the appellant’s motion for substitution. The appropriate step which the respondents ought to take in the situation should be to appeal against our said ruling to the Supreme Court.
Finally, it is necessary to mention that the Lower Court failed to make any pronouncement on the plaintiffs’ alternative claim for account of all money paid into the trust fund. But since there is no cross-appeal on that issue, I hold that it will be out of place to make any pronouncement on that aspect of the claim.
In conclusion, therefore, and for the reasons set out above, I hold that the lower court had no jurisdiction to entertain the claim before it in the instant case. I accordingly set aside the verdict. In its place, I hereby make an order striking out the plaintiffs’ claim. Alternatively, and for the reasons, I have also given above, I hold that the award of $56 million U.S. Dollars made by the lower court cannot stand in that the evidence led in support of that award was not pleaded. The appeal therefore succeeds and the appellant is awarded N2, 000.00 costs.
MOHAMMED, J.C.A.: I have had the preview before today of the judgment of my learned brother Akintan J .C.A. which has just been delivered. I entirely agree with his reasoning and conclusion in resolving the main issues raised in this appeal.
However I have further comments to make.
Although 5 issues were formulated for the determination of the appeal in the respondent’s brief of argument, while 6 issues were identified in the appellant’s brief, the issues in the two briefs are virtually the same. I shall therefore proceed to determine the appeal on the issues contained in the appellant’s brief of argument.
The question raised in issues (i), (ii) and (iii) in the appellant’s brief which state:-
“(i) Whether the commencement of the action herein is prohibited by law.
(ii) Whether the two individuals who sued as plaintiffs in this action properly or validly represented the person whom they claimed or purported to represent in the action herein.
(iii) In the light of the answer to question (ii) whether the court below ought to have entertained the action.”
are plainly related to the competence of the action and the jurisdiction of the lower court to adjudicate on the matter. I shall therefore take them together under the issue of jurisdiction on whether or not the lower court had jurisdiction to entertain the claims of the respondents in their action against the appellant.
In support of these issues, the learned Senior Counsel for the appellant Chief Williams had submitted that the subject matter of the action is a dispute or controversy between an employer and workers and which is connected with the employment or the terms of employment of such workers. That a dispute or controversy of this nature is within the definition of “trade dispute” in Schedule 47 of the Trade Dispute Act Cap 432, Laws of the Federation. The learned Senior Counsel referred to the provision of section 1A of the Trade Dispute (Amendment) Decree No. 47 of 1992 and submitted that in the circumstances of this case, the commencement of this action by the plaintiffs/respondents in 1994 was illegal and the court below ought to have struck out the action for want of jurisdiction as the subject matter of the action is a trade dispute. The cases of A.G. Leventis (Nigeria) Ltd. & Ors. v. Okongwu & Ors. delivered by this court in Lagos on 4-4-1996 and Udoh & Ors. v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139 were cited and relied upon in support of this submission.
On whether or not the plaintiffs/respondents’ action was properly heard as a representative action, it was argued for the appellant that where a plaintiff sued in a representative capacity, the provisions of Order 11 rule8 of the Bendel State High Court (Civil Procedure) Rules now applicable in Delta State applied. That as there is no evidence that the lower court had approved the institution of the action in a representative capacity by the two named respondents on behalf of the remaining claimants in the action, the action was incompetent for being not properly constituted on the authority of Akande v. Araoye (1968) NMLR 283 at 287.
In his response on the issues on jurisdiction, Chief Debo Akande learned Senior Counsel for the respondents maintained that the lower court had full jurisdiction to hear the action. He argued that the respondents’ action was not a subject matter of a trade dispute as contended by the appellant. Referring to section 47 of the Trade Dispute Act which defined the term “trade dispute”, the learned Senior Counsel argued that it is not every dispute between employers and workers that could be regarded as a trade dispute. That it depends on the reliefs claimed in the action whether it could be regarded as a trade dispute or not. In this respect, argued the learned Senior Counsel, a claim by an employee against his employer for recovery of unpaid wages or other benefits or for wrongful dismissal and the like cannot by any stretch of imagination be regarded as a trade dispute within the exclusive jurisdiction of the National Industrial Court. Learned Senior Counsel relied on the cases of Conway v. Wade (1909) AC 506 at 520 and Trucks (Nigeria) Ltd v. Ayo Payne Appeal No. CA/172m/93 of 10th February 1995 in support of what amounts to a trade dispute.
On the alleged failure of the plaintiffs/respondents to obtain the authority of the lower court to sue in a representative capacity, Chief Debo Akande contended that the failure of the respondents to obtain the order of the lower court to bring the action in a representative capacity was not fatal to their action having regard to the provision of Order 2 rule of the same rules of court applicable in Delta State and the case of Otapo v. Sunmonu (1987) NCC Vol. 18 part 11 677; (1987) 2 NWLR (Pt.58) 587. He stressed that failure to obtain leave to sue in a representative capacity cannot vitiate the validity of the action. That the case of Akande v. Araoye (1968) NMLR 283 relied upon by the Appellant is distinguishable with the present case.
There is no doubt whatsoever that the provisions of section 1A (1) of the Trade Disputes (Amendment) Decree No.4 7 of 1992 which states:-
Exclusion of court
“1A (1) Subject to the provisions of subsection (3) of section 20 of this Act, no person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void.”
has excluded from the regular courts all matters or actions which are the subject matter of trade dispute. The question for determination now is whether the claims of the plaintiffs/respondents in their action at the lower court is a subject matter of a trade dispute. The term “trade dispute” is defined under section 47 of the Trade Dispute Act as follows:-
“trade dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.”
Thus, for the dispute between the appellant and the respondents in this case to come within this definition, it must have been connected with the employment or non-employment or the terms of employment between the parties and the physical conditions of work of any of the respondents. The claims of the plaintiffs/respondents as contained in paragraph 13 of their statement of claim are:-
“(a) Declaration that from the totality of the relationship between the plaintiffs and the defendant there exists a workers Trust Fund.
(b) Order that the defendant do account to the plaintiffs for all moneys which have come to their possession/custody comprising 10% of annual profits after taxation of the business of Zapata from 1968-1992.
Alternatively N2 billion Naira in that the said funds were paid to Zapata home office in dollars. In further alternative any other sum as this Honourable Court may so order.”
The claim under the first relief (a) for a declaration on the existence or otherwise of the Workers Trust Fund is no doubt connected with the employment of the respondents by the appellant. That relief is also connected with the terms of employment of the respondents by the appellant because the declaration being sought is based on the totality of the relationship between the appellant and the respondents. The totality of the relationship between the parties is nothing but employment relationship. For this reason, I am of the firm view that the dispute between the parties as to whether or not having regard to the totality of the relationship between them there exists a Workers Trust Fund, is clearly a dispute between an employer and its workers which is not only connected with the employment of the respondents but also connected with the terms of the employment on the existence of the Workers Trust Fund and therefore within the definition of the term “trade dispute” under section 47 of the Trade Disputes Act. Thus, the nature of the dispute being one within the Trade Dispute Act, by virtue of section 1A (1) of the Trade Dispute (Amendment) Decree NO.47 of 1992 earlier quoted in full in this judgment, the lower court being a court of law, has no jurisdiction to entertain the relief claimed by the plaintiffs/respondents in respect of relief (a) of their claim. In other words by virtue of section 20 of the Trade Dispute Act, only the National Industrial Court has jurisdiction to entertain such a claim.
As for the reliefs claimed under paragraph (b) for an order for the appellant to account for the moneys comprising 10% of annual profits after taxation of the business of Zapata from 1968-1992 and the alternative claim of N2 billion Naira, are both clearly connected with the existence of the said Workers Trust Fund for which the claim for declaration was made under paragraph (a). In other words the reliefs claimed under paragraph (b) are consequential to the declaration under paragraph (a) on the existence of the Workers Trust Fund between the parties.
Therefore since the claims under paragraph (b) cannot stand alone in the absence of the declaration sought under paragraph (a) of the plaintiffs/respondent’s claims, the claims must be read as part of the claim in paragraph (a) and therefore outside the jurisdiction of the lower court. See F. C. Udoh & Ors. v. Orthopaedic Hospital Management Board & Ors. (1993) 7 NWLR (Pt. 304) 139 at 148. It is trite that the issue of jurisdiction is a fundamental issue because any decision reached devoid of jurisdiction is a nullity no matter how well conducted. See Central Bank of Nigeria Ltd v. Manexport S.A. (1987) 1 NWLR (Pt. 47) 86, Achineku v. Ishagba (1988) 4NWLR (Pt. 89)411 and Aunam (Nig.) Ltd v. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458.
As for the alleged failure of the plaintiffs/respondents to obtain the authority of the lower court to sue in a representative capacity, it is not at all in dispute that the action filed by the respondents at the lower court was in contravention of the provisions of Order 11 rule 8 of the High Court (Civil Procedure) Rules of former Bendel State applicable in Delta State in that no approval of the lower court was sought and granted before filing the action in a representative capacity. The question now is what is the effect of this failure to comply with the rules of the lower court? The answer appears to lie in the provisions of Order 2 rule 1 of the same Bendel State High Court (Civil Procedure) Rules 1988 applicable in Delta State which states as follows:-
“(1) where in the beginning or purported to begin any proceedings or at any stage in the cause or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirement of these rules whether in respect of time, place, manner, form or content or in any other aspect the failure may be treated as an irregularity and if so treated will not nullify the proceedings or any judgment or order therein.”
No doubt the effect of this rule is to turn the failure of the plaintiffs/respondents to comply with the provisions of Order 11 rule 8 of the rules of the lower court into a mere irregularity which is not capable of having the effect of nullifying the proceedings, judgment or Order of the lower court. See Aermacchi S.P.A. & Ors. v. A.I.C. Limited (1986) 2 NWLR (Pt. 23) 443 at 453. It is indeed the law that the authority of a person to bring a representative action can be challenged by way of preliminary objection on motion on notice and not by way of a defence. See Melifonwu v. Egbuji (1982) 9 SC 145. Therefore in the present case, if the appellant wanted to raise an objection to its being sued in a representative capacity by the respondents without obtaining the leave of the lower court, the appellant should have raised a preliminary objection to the action before the commencement of the hearing. This is because the current position of the law on this issue is that failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 600 and Anabaronye & Ors v. Nwakaihe & Ors. (1997) 1 NWLR (Pt. 482) 374 at 382. Based on these authorities and having regard to the circumstances of the present case, I have no option but to hold that the failure of the respondents to obtain the leave of the lower court before suing in a representative capacity is not fatal to their case.
Having regard to the conclusion I have reached on the issue of jurisdiction which the lower court lacked in entertaining the suit, the lower court ought to have struck out the respondents’ action. Since the lower court had failed to do so, this Court in exercise of its power under section 16 of the Court of Appeal Act Cap 75 of the Laws of the Federation 1990, can now make the appropriate order of striking out the plaintiffs/respondents action which is hereby struck out.
However, in case I am wrong in holding that the lower court has no jurisdiction to entertain the claims of the plaintiffs/respondents, as this court is not the final court of appeal in this country, in line with the decision of the Supreme Court in the case of Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126 at 149 where Akpata JSC (as he then was) said:-
“While the Supreme Court being the final Court of Appeal can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.”
I shall now proceed and determine the remaining issues raised on the merits of the appeal.
Therefore the next issue for determination is whether the evidence of the only witness who testified at the lower court that the management of Zapata Marine Service Co. Limited told the plaintiffs that the profits for the year 1991 was US$560 million is admissible. In support of this issue, Chief Williams the Learned Senior Counsel for the appellant referred to part of the evidence of the only witness at page 20 of the record of the lower court and observed that the evidence shows that Tidex the defendant/appellant took over the business from Zapata in 1992. That being so, explained the learned senior counsel, the evidence regarding the 1991 profit was not evidence relating to the profit of Tidex the appellant but that relating to the profit of its predecessor in business Zapata. That being the case, the evidence of the respondents witness regarding the amount of profit earned by Zapata in 1992 is inadmissible as no such facts were pleaded in the statement of claim. Secondly, that the said evidence related to the contents of written documents being the Profit and Loss Account of Zapata Marine Services Limited which by law the company must be presumed to have prepared as part of its annual accounts pursuant to the mandatory sections 334(2)(c) and 335(8) of the Companies and Allied Matters Act.
That for these reasons, the lower court ought not to have admitted the evidence.
For the respondents however, it was contended for them by their learned Senior Counsel Chief Debo Akande that the evidence of their witness on the profit earned by Zapata Company in 1991 is neither hearsay nor unsupported by pleadings as argued by the appellant. That the claim of the respondents was for moneys they became entitled to under their previous employment with Zapata which the appellant agreed it had taken over along with it together with the entire workforce of Zapata when it folded up. Learned Senior Counsel referred to paragraph 9 of the respondent’s statement of claim which contains the gist of their claim in support of which their witness gave evidence. That the amount claimed by the respondents in the action only formed part of the 10% profit of Zapata which Tidex, the appellant had admitted it had received and was in its possession and which it infact promised to pay but later reneged. On the evidence of declaration of profit by Zapata at Palmgrove Motel, Learned Senior Counsel maintained that the evidence is also supported by pleadings and that the evidence did not come from the contents of any document as alleged by the appellant but from the disclosure of the profit made by the management of Zapata to its workers the plaintiffs/respondents at the end of the year party in 1991. That in any case, the provisions of section 131(2) of the Evidence Act allows the reception of such evidence having regard to the case of Nsirim v. Omuma Construction Co. Ltd. (1994) 1NWLR (Pt. 318) 1. It was further argued that since the appellant as the defendant at the lower court failed to file any Statement of defence to rebut the averments in the respondents’ statement of claim, the averments in the statement of claim were deemed to have been admitted by the appellant on the authority of the case of Oke v. Aiyedun (1986) 2 NWLR (Pt.23) 548. Finally, the learned senior Counsel for the respondents concluded by stressing that since the claim of the respondents was simply for the refund of moneys due lo them under a Trust Fund taken over by the appellant, in the absence of any defence to the claim from the appellant, the burden of proof on the respondents was discharged upon only minimum of proof. A number of cases including the case of Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 435 were cited in support of this submission.
In resolving this issue, it is necessary to examine the relevant paragraphs 5 to 10 of the respondents statement of claim relied upon by the learned trial Judge in his judgment as containing the relevant facts pleaded by the respondents in support of their claims, and the evidence of the only witness who testified for the respondents in support of their claims in order to determine if the evidence accepted by the learned trial Judge on the amount of profit made or declared by Zapata in 1991 of USS560 million dollars had been pleaded. The learned trial Judge himself had stated in his judgment at page 65 of the record of appeal submitted by the respondents that the crucial averments in support of the reliefs claimed are contained in paragraphs 5-10 of the statement of claim which I hereby reproduce below as follows:-
“5. In or about 1992 in Warri within me jurisdiction of this court Zapata folded up. The first defendant took over all arrangements regarding the future conduct of Zapata’s entire work force. As a first step the workers of the said Zapata were transferred to a successor Logo “T” Company – which successor Company as aforesaid is me 1st defendant. Thereafter the 1st defendant made arrangements regarding the future of the plaintiffs some of which arrangements are as set out in a document dated 10/7/92 in me possession of the defendants. Photostat copies of which were later distributed to the plaintiffs present at the meeting where these arrangements were made.
6. Those who carried out these, arrangements on the part of the defendants included one Carl Annesa who was reputed to have come to Nigeria from Tidex Water in Louisiana U.S.A. and the second defendant; they covered me transitional period of change of Zapata’s workforce to the point of its elimination making it possible for the 1st defendant to assume ownership of Zapata’s properties.
7. Between 1992 and 1993 when these arrangements were carried out the plaintiffs demanded payment to them of their entitlements under a Workers Trust Fund created for their benefit as from the date of the establishment of Zapata since 1968. This Trust Fund was made up of 10% of the annual profits of Zapata after taxation. To this fund was paid me quantum of the said profits from year to year until the events giving rise to this action in 1992 and an equal share of the said fund was to be paid to each of the plaintiffs after he had put in 30 years of service to the company or on the occasion of the folding up of the company whichever was earlier.
8. From time to time Zapata held meetings with the plaintiffs concerning the progress of me said Workers Trust Fund. Zapata told the plaintiffs that its responsibility to them was strictly fiduciary, and that all what was needed was for the affected worker to show his credentials as at the date of his retirement if he had served 30 years or in the event of me company folding up and he would be paid his share of the said Workers Trust Fund.
9. During the period of these arrangements that is between 1992 and 1993 me said Carl Annesa and the second defendant who also claimed to have come from Tidex Water Louisiana confirmed to the plaintiffs in one of the several meetings they had with them that Tidex Nigeria Ltd 1st defendant had firm custody of the said Workers Trust Fund but that they were not in a position to pay these moneys as they were busy with other arrangements concerning the liquidation of Zapata, payoffs of several other entitlements of plaintiffs and the payments of white collars employees of a similar Trust Fund and that on completion of these exercises the defendant would address me demands of the plaintiffs. The Photostat record of one of these meetings distributed to the plaintiffs after one of the said meetings dated 17/6/93 was handed over to me plaintiffs. It will be relied upon during trial.
10. When after several repeated demands made upon them to honour their obligations the defendants refused to pay over to the plaintiffs the said Workers Trust Fund, plaintiffs employed the services of their solicitors to renew these demands whereupon the defendants handed over certain documents to plaintiffs’ solicitor claiming that the entitlements of plaintiffs were included in an Employees Trust Fund. This was the first occasion that a majority of the plaintiffs know of such a Trust Fund.”
Having carefully examined these 6 paragraphs of the plaintiffs/respondents statement of claim, it is quite plain that it has not been pleaded in any of these paragraphs that in 1991 Zapata had declared a declared a profit of USS560 million dollars from its Nigerian operations. In other words these facts were not in fact pleaded by the respondents in any of its 14 paragraph statement of claim. The law in this respect is quite trite that evidence led on unleaded facts goes to no issue in the determination of the case. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 531 and Ogboda v. Adulugba (1971) 1 All NLR 68.
However, it is quite clear that this piece of evidence on the unpleaded facts on the alleged profit declared by Zapata in 1991 was the basis of the lower court’s award of the sum of S56 million Dollars in its judgment in favour of the respondents. Indeed one would have thought that the learned trial Judge quoted paragraphs 5-10 of the respondents’ statement of claim in his judgment in order to guide him in his evaluation to the facts pleaded. Regrettably however, the learned trial Judge did not even exercise these paragraphs of the statement of claim against the evidence led in support of the respondent’s claim so as to be guided in his evaluation of the evidence before him as he should have done under the law. See Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167 at 186.
As for whether or not the evidence on the alleged profit made by Zapata in 1991 is hearsay, it is necessary to refer to that pan of the evidence of the only witness who testified in support of the respondent’s claims at page 20 of the record where the witness said:-
“I knew Palm Grove Hotel Warri. At the end of every year the Management used to hold meetings with us as an end of year party where annual profits (sic) is declared. We held the meeting last in 1991. That year they declared 560 million U.S. Dollars as profit from Nigerian operations. In 1992 when Tidex took over we demanded payment from the Workers Trust Fund. The management of Tidex told us that all the documents in connection therewith have been handed over to them intact. They promised to pay us. It was when we were declared redundant that we asked for our Trust Fund but surprisingly they refused to pay us.”
It is quite clear from this evidence that the alleged declaration of 560 million U.S. Dollars as profit from its Nigerian operations was made by Zapata Company at the end of the year party with the respondents in 1991 before the appellant Tidex Company took over the affairs of Zapata in 1992. Tidex Company was not shown in the evidence to have been present at the party when this alleged declaration was made. Apart from the claim of the witness in his evidence that the declaration of the profit was made by the management of Zapata at the end of the year party for the workers in 1991, there is no direct evidence as to who made the alleged declaration among the officials of Zapata Company at the party. In other words the source of the information of the witness as to how the profit was made and declared by Zapata is not disclosed in his evidence. Therefore since the witness did not say he was part of the management of Zapata Company who might have direct information as to the amount of profit after taxation made by Zapata from its Nigeria operations in 1991, the evidence of the witness in the circumstances of this case must in my opinion be regarded as hearsay evidence and therefore inadmissible.
In the result I hold that the evidence of the only witness who testified for the plaintiffs/respondents relating to the alleged declaration of profit of 560 million U.S. Dollars made by Zapata from its Nigerian operations in 1991, not having been pleaded by the respondents in their statement of claim, and also for being hearsay evidence, is inadmissible. For this reason, the evidence should not have been used by the learned trial Judge as the basis of the award of the sum of S56 Million Dollars in favour of the respondents in his judgment.
The next issue for determination is whether the court below ought to have granted a declaration that there exists a Workers Trust Fund in an action to which the persons who were said to be the trustees of the said fund were not parties. It was argued for the appellant in support of this issue that since it was not part of the case for the plaintiffs/respondents that the Defendant/appellant are the trustees of the alleged fund, such claim did not lie against the appellant particularly having regard to the evidence on record that Mr. Joe Hauson and Jackson Watson were made the trustees of the Fund and that the Trust Agreement is in Houston with the Trustees who are also in Houston in the United States of America. That since there is evidence that the funds or moneys of the Trust were vested in the two Trustees, failure to join them in the action is fatal to the case of the respondents because in law, the legal estate or interest in the Trust Fund is in the Trustees and that all the respondents as beneficiaries could have therein is equitable interest. Pages 37-38 of Underhill’s Law of Trusts and Trustees 15th Edition was cited in support of this submission. That in the absence of any pleaded fact as to how the Trust Funds in the custody of the Trustees in Houston in the United States of America found its way to the custody of the appellant Tidex Company in Nigeria and evidence in support of these facts, there is a gap in the respondents’ case. It was finally argued for the appellant that the non-joinder of the Trustees in the action is fatal to the case of the respondents who have failed to show in their pleading and evidence if the Trust Funds had been paid over to Tidex by the Trustees. That in the absence of the alleged trust instrument, the findings of the lower court on the existence of the Workers Trust Fund must be set aside-concluded the learned Senior Counsel for the appellant.
However, it was contended for the respondents on this issue that there is uncontradicted evidence on record accepted by the lower court on the existence of the Trust Fund. That the finding of the lower court in this respect is supported by the evidence on record which shows that the Trust Fund had left the hands of Zapata Hand the Trustees appointed by them and consequently the presence of the Trustees is no longer necessary in the circumstances of this case since the liability of the defendant/appellant arose from the fact of their admission which the company made no effort to controvert. Learned Senior Counsel further argued that since the evidence of the respondents on the existence of the Trust Fund was not challenged, it was not necessary for the trial Judge to have insisted on seeing the Trust Deed or instrument before granting the relief on the declaration sought.
The resolution of this issue is indeed quite simple. The declaration sought by the respondents in paragraph (a) of their reliefs reads:-
“Declaration that from the totality of the relationship between the plaintiffs and Defendants, there exists a Workers Trust Fund.
The only evidence led by the lone witness who testified for the respondents in support of the existence of the Workers Trust Fund is contained at page 20 of the record of this appeal. The most relevant part of this evidence in which the witness was only narrating what he said he heard the management of Zapata company the former employer of the respondents was saying at a meeting with its workers in 1968 reads as follows:-
“I was present at this meeting to enable them stay in business and we retain our employment. They declared that we have every reason to benefit from company’s profit.
They further told us that there is a message from Houston Texas to create Workers Trust Fund for the benefit of the workers. And that this Workers Trust Fund will consist of 10% of the annual profit of the company after the taxation. One Mr. Joe Hauson and Jackson Watson were the Trustees. We were happy and agreed to this arrangement. A Trust document was prepared and signed by Joe Hauson and Watson. Management signed. The management told us that when we served the company up to 30 years we would be entitled to the Workers Trust Fund but if the company ceases to exist before the end of 30 years, the money accruing in the Trust Funds will be shared equally to workers then still working with the company at the time. From time to time we were made acquainted with the progress of this Trust Fund. The Trust Agreement is in Houston with the Trustees who are all in Houston in U.S.A.”
It is quite clear from this evidence that the respondents including the witness were only told of the alleged existence of the Workers Trust Fund by an unnamed official of Zapata Company at a meeting. Although the witness named Joe Hauson and Jackson Watson as the appointed Trustees of the Fund, there is no indication that the witness had ever seen the Trustees and con finned from them the existence of the Trust Fund. Furthermore, the witness also referred to the Trust Document prepared and signed by the two named Trustees and management of Zapata but clearly stated that the Trust Document or Agreement as he called it was with the named Trustees in Houston in the United States of America. This witness did not say he took part in the preparation of the Trust Agreement, nor did he say he ever saw it or was present when it was signed by the Trustees and the Management of Zapata Company. Thus the witness who was clearly not testifying from his own personal knowledge on the existence of the alleged Workers Trust Fund, his evidence in this respect was nothing but hearsay which is not admissible evidence.
In the circumstances of this case, having regard to the evidence of the witness that the creation of the Trust Fund took place in Houston in the United States of America where the Trustees and the Trust Agreement are also located, it is only the Trustees or any of the management staff of Zapata Company which created the Trust Fund that could have been called at least as witnesses to confirm the existence of the Workers Trust Fund. I therefore entirely agree with the argument of the appellant that having regard to the nature and the quality of the evidence on record, the finding of the learned trial Judge on the existence of the Workers Trust Fund cannot be supported and therefore is liable to be set aside. This is because although there is evidence that the said Workers Trust Fund was in custody of the two named appointed Trustees in Houston Texas in the United States of America, there is no corresponding evidence that the named Trustees had returned the Trust Fund to Zapata company which created it and which company in turn handed it over to its successor Tidex for the alleged payment to the respondents. This issue must therefore be resolved in favour of the appellant.
The next and last issue for determination is whether the award of USS56 million Dollars ought to have been made by the court below in favour of the plaintiffs/respondents having regard to the statement of claim and the evidence herein. It was submitted for the appellant that the award of 56 million U.S. Dollars in favour of the plaintiffs/respondents is wrong and ought to be set aside in view of the fact that the evidence of the only witness on the point is inadmissible.
Learned Senior Counsel for the appellant therefore finally submitted that the application of sheer common sense demonstrates that the award of 56 million U.S. Dollars which is well over 4 Billion Naira is outrageously perverse and ought to be set aside.
Learned Senior Counsel for the respondents however contended that the award of the sum of U.S.S56 million dollars was clearly justified having regard to the admissible evidence on record that all the documents connected with the Trust Fund are in possession of the appellant and that the evidence in this respect was not hearsay nor unsupported by the pleadings as submitted by the appellant.
This last issue in fact has already been resolved in this judgment. In other words the question of whether the award of USS56 million Dollars ought to have been made by the court below in favour of the plaintiffs/respondents having regard to the statement of claim and the evidence has already been resolved in issue 4 when I came to the conclusion that the assertion of the respondents that their former employer Zapata company had made a profit of USS560 million Dollars from its Nigerian operations in the year 1991 was not pleaded and hence the evidence in support thereof went to no issue. Also the fact that there is no credible and admissible evidence in the absence of the Trustees and officials of the management of Zapata company to give evidence on the existence of the Workers Trust Fund itself, the award of the sum of USS56 million Dollars made by the lower court in favour of the respondents has no legs to stand on and therefore must be set aside. I must however emphasise that the fact that the award which came up to over 4 Billion Naira does not itself make it outrageous and perverse as submitted by the appellant if there had been the legal basis for the claim and if it were supported by credible and admissible evidence.
In the result, this appeal must succeed and it is hereby allowed. The judgment of the lower court of 5-3-1996 in favour of the respondents is hereby set aside. In its place, an order dismissing the plaintiffs/respondents’ entire claims is hereby Substituted.
There shall be Two thousand Naira (N2, 000.00) costs in favour of the appellant.
ROWLAND, J.C.A.: I had read before now the draft of the judgment just delivered by my learned brother Akintan, J.C.A. My lord ably dealt with all the issues canvassed in this appeal and I therefore endorse his reasoning and conclusions therein.
It is manifest from the definition of “Trade dispute” in Schedule 47 of the Trade Disputes Act, Cap 432 of the Laws of the Federation 1990 and the provisions of Section 1A of the Trade Disputes Act as Amended by the Trade Disputes Amendment Decree 1992 (No.47 of 1992) that the subject matter of the action in the case in hand is a dispute or controversy between an employer and workers which is connected with the employment or terms of employment of the workers. That being so, the trial court lacked the jurisdiction to try this case. The relevant Laws have been well set out in the leading judgment and as such. I do not consider it necessary to repeat same here.
The capacity in which the respondents instituted the action was also contested by Chief Williams S.A.N. for the appellant. It was argued that since the respondents instituted the action in a representative capacity they ought to comply with the provisions of Order 11 Rule 8 of the High Court (Civil Procedure) Rules
1988 of the former Bendel State applicable in Delta State. In other words, they ought to have sought leave of the lower court before instituting their action in a representative capacity.
Chief Debo Akande. S.A.N. for the respondents, conceded that no leave of the lower court was in fact sought and obtained before the action was filed as required by Order 11 rule 8 of the afore-mentioned High Court (Civil Procedure) Rules, 1988. But he argued that the present position of the law is that such omission is usually treated as a mere irregularity that is curable under Order 2 rule 1 of the same High Court (Civil Procedure) Rules 1988, particularly when the objection was raised too late. I must say also that the provisions of the Rules have been well set out in the lead judgment and it is unnecessary for me to repeal same here.
It is not in doubt that Order 2 rule 1 is a panacea to the provisions of Order 11 rule 8, and therefore, the failure of the respondents to comply with the latter Rule should be treated as a mere irregularity which should not vitiate the whole proceedings. See John v. Rees (1969) 2 WLR 1294 at page 1306; Otapo v. Sumonu 1987) NSCC Vol. 18 page 677; (1987) 2 NWLR (Pt.58) 587; Harkness Asbestors & Eng. Ltd. (1960) 3 All E.R 843; Chief P.O. Anatogu & Ors v. The Hon. Attorney General of the East Central State of Nigeria & Ors. (1976) 11 S.C. 109 at pp. 123-124.
It must be mentioned also that this case has brought into focus again the importance of pleadings in the trial of cases at the High Courts. It is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the court. See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at p. 77. National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd & Ors. (1969) NMLR 99 at page 104; Idahosa v. Oronsaye (1959) SCNLR 407; (1959)4 FSC 166 at page 171; Kalu Njoku & Ors v. Ukwu Eme & 4 Ors. (1973) 5 S.C. 293 at pp. 300-302.
In the case in hand, I took a hard look at the pleadings of the respondents and there is no where in the Statement of Claim was it pleaded that the annual profit of Zapata was 560 million U.S. Dollars in 1991. It follows therefore that evidence given by the 1st plaintiff to that effect and upon which the learned trial Judge based his 56 million U.S. Dollars award ought to have been ignored by the learned trial Judge.
In the light of the foregoing and for the fuller reasons well articulated in the leading judgment of my learned brother Akintan, JCA. I too, hold that the lower court had no jurisdiction to entertain the claim before it in the instant case. The appeal therefore succeeds. I abide by the consequential orders contained in the leading judgment including the order on costs.
Appeal allowed.
Appearances
Chief F.R.A Williams SAN (with him, Dr. Mudiaga Odje, SAN; T.E. Williams; A. M. Odje and I.R. Nwalia) For Appellant
AND
Chief Debo Akande, SAN (with him, L. Ahiedenor E. Omogbemi and Ehoho) For Respondent
