(2018) LPELR-46744(CA) · 2019. 4. 6. · ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of...
Transcript of (2018) LPELR-46744(CA) · 2019. 4. 6. · ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of...
MASKEW & ANOR v. TIDEX (NIG) LTD
CITATION: (2018) LPELR-46744(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON FRIDAY, 16TH NOVEMBER, 2018Suit No: CA/L/1364/2016
Before Their Lordships:
TOM SHAIBU YAKUBU Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal
Between1. JOY MASKEW2. GABRIEL MOFUNAYA(For themselves and on behalf of Ex-Employees ofZapata Marine Services Nigeria Ltd, Members ofNUPENG and PENGASSAN Trade Union. ZapataMarine, Warri Branch)
- Appellant(s)
AndTIDEX NIGERIA LTD - Respondent(s)
RATIO DECIDENDI
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1. APPEAL - BRIEF OF ARGUMENT: Whether failure of therespondent to file brief of argument will make the appealof the appellant to succeed"The respondent did not file a brief of argument and it wasnot represented at the hearing of the appeal on 16thOctober, 2018, albeit that respondent's learned counsel,was duly served with the hearing for 16/10/18. The appealwas heard and is to be determined on the appellants' briefof argument, only. Nevertheless, the failure of therespondent to file a brief of argument, does notautomatically, translate to the success of the appeal whichwill largely depend upon the strength of the appellants'contentions against the decision of the Court belowagainst them. Cameroon Airlines v. Otutuizu (2011) 4N.W.L.R. ( pt. 1238) 512; (2011) LPELR - 827 ( SC); SkyeBank & Anor v. Akinpelu (2010) LPELR - 3073 (SC), JohnHolt Ltd. v. Oputa (1996) 9 NWLR (pt. 470) 101, Sofolahanv. Folakan (1999) 10 NWLR (pt. 621) 86."Per YAKUBU,J.C.A. (P. 7, Paras. A-E) - read in context
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2. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING:Whether fair hearing can be viewed in the abstract by aCourt"Let me draw the curtain on this appeal, by recounting thejudicial words on marble, of his Lordship, Niki Tobi, JSC.,God bless his soul, when in circumstances not toodissimilar to the instant case, where parties just latch ontothe principle of fair hearing, willy-nilly, as a talisman, acure - for all deficiencies in an action in trial Courts. InOrugbo & Anor v. Una & Ors (2002) 9-10 S.C. 61; (2002)LPELR - 2778 (SC) @ 36-37, the learned Law Lord, statedthat: "It has become a fashion for litigants to resort to theirright to fair hearing on appeal as if it is a magic wand tocure all their inadequacies at the trial Court. The fairhearing Constitutional provision is designed for bothparties in litigation, in the interest of fair play and justice.The Courts must not be given a burden to the provisionwhich it can not carry or shoulder. I see that in this appeal.Fair hearing is not a cut-and-dry principle which the partiescan, in abstract, always apply to their comfort andconvenience. It is a principle which is based and must bebased on the facts of the case before the Court. Only thefacts of the case can influence and determine theapplication or applicability of the principle. The principle offair hearing is helpless or completely dead outside thefacts 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 mymind that the allegation of denial of fundamental right tofair hearing by the appellants in this matter is notavailable to them. They only succeeded in flogging andforcing the principle of fair hearing, which is dead, on thefacts and circumstances of the instant matter. And it is atruism that he who flogs a dead horse, embarks on afruitless exercise of dissipating his energy needlessly."PerYAKUBU, J.C.A. (Pp. 20-21, Paras. A-D) - read in context
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3. COURT - RAISING ISSUE(S) SUO MOTU: Whether aCourt can raise an issue suo motu and determine itwithout hearing parties"Of course, the law is well settled to the effect and this isbeyond reproach, that where a Court raised an issue, notcontemplated nor raised and ventilated upon by theparties, it must invite counsel to the parties to address it,particularly on the said issue so raised, before coming to adecision on it, in order to satisfy the avowed and cherishedrequirement of the golden principle of fundamental right tofair 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. LawaniBabalola (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 NationalElectoral Commission & Ors (2014) LPELR - 23763 (SC);Ozonma (Barr.) Chidi Nobis - Elendu v. INEC (2015) LPELR -25127 (SC)."Per YAKUBU, J.C.A. (Pp. 17-18, Paras. E-D) -read in context
4. EVIDENCE - PUBLIC DOCUMENT: Whether the onlyadmissible secondary evidence of public documents is acertified true copy of same"...Unarguably, the vexed document (Exhibit A), is a publicdocument which by virtue of Sections 102 & 104 ofthe Evidence Act, 2011 ought to have been certified by theappellants' witness - Mr. Raphael Onwuzuligbo. And thelaw is well settled to the effect that it is only certified truecopies of secondary evidence of public documents that areadmissible 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)."Per YAKUBU, J.C.A. (P.19, Paras. B-E) - read in context
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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)
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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.
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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.
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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.
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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.
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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).
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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
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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.
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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
be fo re the exp i ra t i on o f 30 years , t hen 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.
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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
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"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
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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
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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.
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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
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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,
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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.
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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
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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 Al l 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.
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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.
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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.
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CA)
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.
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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 herebyaffirmed.
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Appearances:
N. I. Quakers, SAN with him, O. Okonkwo, Esq. &S. Fashanu, Esq.For Appellant(s)
For Respondent(s)
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ELR-46
744(
CA)