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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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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