Judgment Delivered IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIP Hon. Justice B. A. Adejumo -- President Hon. Justice B. B. Kanyip -- Judge Hon. Justice V. N Okobi -- Judge DATE: November 25, 2008 SUIT NO. NIC/1M/98 BETWEEN 1. Joy Maskew 2. Gabriel Mofunaya (for themselves and 011 behalf of Ex-employees or Zapata Marine Services Nigeria Limited members of NUPENG and PENGASSAN Trade Unions, Zapata Marine, Warri Branch) 3. Petroleum and Natural Gas Senior Staff Association of Nigeria 4. National Union of Petroleum and Natural Gas Workers - Applicants AND Tidex Nigeria Limited. - Respondent REPRESENTATION Mr. Allens Agbaka and with him at various sittings of the court were Mr. Ochem Charles, Mr. Clement Onwuewuno, Mr. O. Akinnimi, Mr. Agboola O. Peters, Mr. Stephen Onyemeziam, Mr. V. 1. Okonkwo, Mr. Abia Daniels, Mr. Robert Igbinedion, Mr. Omotola Bello, Mr. Ugwuzor Adindu, Mr. N. Nwamba, Mr. 1. Nwabuche, for the applicants. Mr. E. E. lnyang started the case as counsel to the 3rd applicant, which representation was later taken over by Mr. Aliens Agbaka. Mr. Ademola Akinrele, SAN, with him are Mr. J. Ukere, Mr. 13. C Akunwa, Mr. C. S. Eze, Mr. O. A. Silva and Miss Y. Ajibose, for the respondent. JUDGMENT This matter was first brought before the High Court of Justice Warri in Delta State in Suit No. W/313/94. On March 5, 1996, the High Court entered judgment in favour of the applicants in the sum of 56 million US Dollars or its Naira equivalent. Dissatisfied, the respondent appealed to the Court Appeal sitting in Benin City in Suit No. CA/B/131/96. On February 18, 1998, the Court of Appeal 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. The Court of Appeal went all to hold that even if it was wrong in holding that the High Court did not have jurisdiction in the matter, the judgment o[ the High Court awarding 56 million US Dollars to the applicants cannot stand as the 560 million US Dollar profit upon which the High Court awarded 10% (the 56 million US Dollars) as due to the applicants was not pleaded by the applicants and so the trial judge erred in relying on same to give judgment. The applicants did net appeal the judgment of the Court of Appeal. Instead they filed afresh the present matter in this court. The applicants came by way of a motion on notice dated and filed on 29th day of October 1999, brought pursuant to section 15(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 and the inherent jurisdiction of the court. The 1st and 2nd applicants brought this application against the respondent, who they claimed took over Zapata Marine Services Nigeria Limited. They 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 applicants. The 3rd and 4th respondents were joined as such during the hearing of the matter by the order of this court. The applicant submitted a memorandum supported by an 8-paragraphed affidavit deposed to by Stephen Onyemeziem, a 26-paragraphed reply affidavit deposed to by Joshua Onomroghenetota and a 5-paragraphed further reply affidavit deposed to by Joshua Onomroghenetota and 20 accompanying annexures, The applicants are by their processes praying the court for: 1. An order in respect of the interpretation/construction of the documents mentioned herein under, as to whether there exists for the benefit of the applicants ‘A Workers Trust Fund created for the benefit of the applicants herein a) Minutes of the meeting of NUPENG, PENGASSAN (ZAPATA) and Management held in Lagos on the 17th June 1993. b) Zapata Marine Services Memorandum of Understanding dated 10th July 1992 and 14th July 1992. c) Profit Sharing Scheme (Workers Trust Fund) Memorandum of Agreement dated 5th May 1969. d) Letter to all Zapata Marine Services (Nig.) Employees dated 11th May 1992. e) Letter to all Zapata Marine Services (Nig.) Ltd employees dated 27th December, 1991. f) Letter from Tidewater dated January 15, 1992. 2. A declaration that by virtue of items 1 (a) - (f) above, there exists a Zapata Marine Workers Trust Fund as opposed to, or distinctly different from the Zapata Marine Employers Shares created under, and by virtue of a trust dated 31/12/78 which shares have since been redeemed by TIDEX NIGERA LIMITED upon the event of the said ZAPATA MARINES Assets/liabilities being taking over by TIDEX NIGERIA LIMITED. 3. A declaration that, in the light of the documents mentioned in paragraph l (a) - (e) above, some of which were duly executed by the respondent and applicants herein, a Workers Trust Fund exists for the benefit of the applicants. 4. An order compelling and directing the respondent to render all accounts to the applicants for the various Sums of money paid into the said Workers Trust Fund from the date of the creation thereof to judgment. 5. An order that the total monies/sums mentioned in clause 4 above be paid over to the applicants. Alternatively 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. 6. Such further or other orders as this Court may deem fit to make in the circumstances. The applicants attached the following exhibits: (i) Exhibit Tide, letter written by Tidewater (home company of the respondent). (ii) Exhibit A1, Memorandum of Agreement with respect to the Workers Trust Fund created in 1968. (iii) Exhibit A2, the letter showing that Zapata. Marine Services Nigeria made a profit of $560 million U.S Dollars in 1991 in Nigeria operations alone and deposited 10% after taxation into the (Workers Trust Fund). (iv) Exhibit A3, the list of 405 employees on the payroll of Zapata Marine Services. (v) Exhibit A4, the letter/minutes distributed to the applicants acknowledging the taking over and promise to pay them after dealing with the white collar job. (vi) Exhibit A5, letter written by the applicants solicitor requesting for the payment of tile Workers Trust Fund. (vii) Exhibit A6, additional agreement executed between the applicants and the respondent in connection with the Workers Trust Fund. (viii) Exhibit A 7, judgment of the High C9urt of Delta State, Warri. (ix) Exhibit AS, judgment of the Court of Appeal (Benin City Division). The applicants in their affidavit deposed to by Stephen Onyemeziem stated that the applicants were at one time employees of Zapata Marine Services Nigeria Limited, which administration and management with regards to its entire assets/liabilities had been taken over by Tidex Nigeria Limited. The applicants alleged that Zapata Marine Services commenced business operation in 1968. That the applicants are members of the National Union of Petroleum and Natural Gas Workers (NUPENG) and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN). Zapata Marine Services then entered an agreement with the applicants, then workers, described as Profit Sharing made on the 5th day of May 1969 in consideration of their putting up their best endeavors to work hard in order to boost the progress and productivity of Zapata Marine; that Zapata Marine (initial employer) will create it Workers Trust Fund for the benefit of the workers into which was paid 10% of Zapata Marine annual profits after taxation. That Zapata Marine Services stated that any worker/employee who served in the company for 30 years or more shall benefit from the Workers Trust Fund but in the event that the company folds up and ceases to exist before the expiration 30 years then the workers/employees still on employment and/or pay roll of the company shall benefit from the Workers Trust Fund. In one of the meetings with Zapata Marine Services at the annual end of year meeting/end of ye.ir party held in 1991 at Palm Grove Motel, Warri that the applicants were informed by their former management that the company made $560 Million US Dollars profit from Nigeria operations alone. They further purported that, it follows that they (the applicants) are entitled to 10% of the said $560 Million Dollars. They also stated that Zapata Marine with 405 employees on the payroll folded up sometime in 1992 wherein the entire funds in the Trust Fund was handed over to the respondent (Tidex Nigeria Ltd) which not only acknowledged receipt of same but promised to pay over same to the applicants/workers at the time, but railed to do so. As a result the applicants briefed a solicitor. The issues for determination were outlined as follows: 1. Whether having regard to the fads of this case, this Court has the jurisdiction to hear and determine this application ill the way and manner it is brought. 2. Whether having regard to the facts of this case, the National Industrial Court is competent to make the declarations sought by the applicant. 3. Whether the respondent is the proper party in this action. 4. What are the guiding principles on the interpretation of the documents duly executed by parties? 5. Whether there exists a Zapata Marine Services Nigeria Limited Workers Trust Fund dated May 5th 1969 as opposed to or distinct from the Zapata Marine Services Nigerian Limited trust deed dated 31st December 1978. 6. What are the legal requirements on proof of allegation of forgery in a civil suit? 7. Whether the respondent by its affidavit and memorandum has admitted salient facts relevant to the proof of the applicants case. On the 1st issue, whether having regard to the facts of this case, this court has the jurisdiction to hear and determine this application in the way and manner it is brought, the respondent contended that since the matter was not referred to this court by the Minister of Labour under section 13 of the TDA, this court has no jurisdiction to entertain the mater, citing the Supreme Court decision in Western Steel Works v. Iron & Steel Workers Union [1987] 1 NWLR (Pt. 49) at 284 at 3m to the effect that proceedings at the National Industrial Court are not started by writ but by the processes enunciated in Part I of the TDA. In reaction, the applicants simply referred the court to section 15(1) of the TDA 1990, a provision under Part I of the TDA, which provides that - Notwithstanding anything in the foregoing provisions of this Act, the Minister or any party to a collective agreement may make an application to the National Industrial Court for a decision of that court as to the interpretation of any term or provision of the collective agreement. They then submitted that the wordings of the section are not ambiguous and thus should and must be given its literal meaning; that the operative words being the Minister or any party to a collective agreement may make an application to the National Industrial Court. The applicants then referred the court to National Bank of Nigeria Ltd v. Savol West Africa Ltd [1994] NWLR (Pt. 333) 435 at 444, and then argued that the wordings of section 15 confer jurisdiction on this court regarding the interpretation of documents. On the 2nd issue the applicants submitted that a declaratory judgment, though not executory, is by itself complete since it is a relief predicated on the main relief as shown in the applicants motion paper, the power of court to make a declaration where it is a question of defining the rights of two parties is limited by its own discretion which is very wide and should be exercised judicially and judiciously. The applicants then referred the court to the case of Ajagungbade III v. Laniyi [1999] 13 NWLH. (Pt. 633) 92 at 99 Ratio 11 at p. 113 para. C where the court held as Ii illows - A declaratory judgment is a remedy for the determination of a justifiable controversy where the plaintiff is in a doubt as to his legal rights. It is also a binding adjudication of the rights and status of litigants even though no consequential relief is awarded the discretion is very wide. Also referred to court were a host of cases, which include Ewaranmi v. ACB Ltd [1978] 4 SC 99 at 108 - 109; Ode v. Balogun [1990] NWLR (Pt. 622) 214 at 217 Ratios 4,5 and 7; Ogbuchi v. Gov. lmo State [1995] 9 NWLR (Pt. 417) 53. The applicants then submitted that the declaratory relief they are seeking is an offshoot of the main relief, which is the interpretation of the documents placed before the court; and so, that this court has the competence to give a declaratory judgment based on the materials placed before it by the applicants. On the 3rd issue as to whether the respondent is the proper party in this action, the applicants submitted that the general principle of law is that a non-party to a contract cannot sue; however there are exceptions to this rule which include but not limited to trust. That the relationship between the applicants and the respondent falls within the most of if not all the classes of trust particularly constructive trust, resulting trust and implied trust. That the respondent through Ade Williams signed cheques with which some of the applicants were paid off, while Gerald Gray signed the letter of redundancy. They also submitted that equity imposes a constructive trust where necessary to satisfy the demands of justice and good conscience with reference to any express or presumed intention of the parties. They further submitted that the affidavit evidence shows no dispute that the respondent took over the affairs of Zapata Marine Services Nig Ltd having admitted that they redeemed the employees trust deed created in 1978. On the 4th issue as to what are the guiding principles on the interpretation of the documents duly executed by parties, the applicants referred the court to Ademola v. Sodipo [1989] 5 NWLR (Pt. 121) 329 at 333 Ratios 14 and 15, which is to the effect that the object of interpretation of any written instrument is to discover the intention of its writer, the written declaration of whose mind it is always considered to be. Also referred to the court is the case of Western Steel Works v. Iron & Steel Workers Union, supra, at 287 Ratio 4 where the court held that it is the claim before the court that determines whether the court has the jurisdiction to entertain the claim and not the effect that claim will have if successful. In the instant claim it is the motion and the affidavit the court will look into. The applicants continued that the respondent was handed the Trust Fund for the purpose of paying the applicants on demand and that the respondent has placed itself in the position of Zapata Marine Services Nig Ltd in that there is no place in Nigeria that Zapata Marine Services Nig Ltd is still existing. As regards issue 5, as to whether there exist a Zapata Marine Service Nigeria Limited Workers Trust Fund dated May 5, 1969 as opposed to or distinct from the Zapata Marine Services Nigeria Limited trust deed dated 31st December 1978, the applicants submitted that there are two funds, Zapata Marine Workers Trust Fund dated 5th May 1969 and the employee trust deed dated 31st December 1978. The applicants then submitted that the main issue before the court is the interpretation and/or construction of the documents mentioned thereto and that the counter affidavit deposed to by Mr. Ade Williams should be totally discountenanced having regard to the mandatory effect of sections 86 - 89 of the Evidence Act. On issue 6, which deals with the legal requirements on the proof of allegation of forgery in a civil suit, the applicants submitted that once the issue of the forgery or fraud is raised in a civil case, it must be proved beyond reasonable doubt and not on balance of probabilities, referring to the case of Ukpo v. Adede [2002] 3 NWLR (Pt. 755) 671 at 676 Ratio 2. That upon the respondents counter affidavit, they caused the alleged documents to be sent to the Forensic Department or the Nigeria Police, Alagbon Close, Ikoyi, Lagos and the result (Expert Report) was attached to the applicants reply counter affidavit. That the allegation of forgery is an allegation of crime, which the applicants have discharged by sending the disputed documents to the police forensic department. In a notarized affidavit, Kenneth Waldorf had attested to the fact that at no time did he execute or sign any document relating to the Workers Trust Fund and that his signature thereon is a forgery. According to him, he did not even work for Zapata Gulf Marine until December of 1974. He attested further that Zapata Marine Service Nigeria Ltd never established this Workers Trust Fund and insinuated that the Memorandum of Agreement dated 5th May, 1969 is fraudulent. III another affidavit, Mr. Ade Williams deposed to the fact that the records of Zapata Marine Service Nigeria show that Mr. Kenneth Waldorf and Mr. Fred Egbe who purportedly signed the Memorandum of Agreement as Directors were not Directors as at May 1969 when the document was signed. It was to counter this piece of evidence of the respondent that the counsel to the applicants applied to the Forensic Science Laboratory, D” Department, Force ClD of the Nigeria Police for the examination of the signatures of Kenneth Waldorf in four attached documents including the Trust Deed of 31st December, 1978 and the Memorandum of Agreement of 5th May, 1969. Mr. Raphael Onwuzuligbo, a police inspector am a document examiner attached to the Forensic Science Laboratory Force CID, Alagbon Close Ikoyi, Lagos, conducted the examination and filed a report. He was called by the applicants to present the report and testify in court. Under oath, he testified that his duties include document analysis, issuance of report and giving evidence in respect of documents that he analyses. II took the court through the scientific processes of signature verification. The sum total of his opinion is that MI. Kenneth Waldorf signed the Memorandum of Agreement of 5th May, 1969 the document contested by the respondent. Under cross-examination, it was disclosed that M Raphael Onwuzuligbo did not comply strictly with the official process of performing II signature verification given that as a Government official his verification was not countersign. by a senior official and was in court not ill an official capacity but as an expert. The applicant then submitted that although this court has in the case of Chemical and Non-Metallic Senior St. Association v. Benue Cement Co. [2005] 2 NLLR (Pt. 6) 446 at 462 Ratio 23, 466 - 467 H – declined jurisdiction in wading into the matter of forgery, the said case is not applicable to matter at hand and so the court can look into the allegation of fraud and forgery. The responds however, cautioned that since the court did not have the original or certified true copy of document in issue, it casts doubt; and since the document was produced so many years after case has been in court, it is difficult to ascertain its authenticity and whether a Workers Trust Fund actually existed. On issue 7, i.e. whether the respondent by its affidavit and memorandum has admitted salient facts relevant to the proof of the applicants case, the applicants submitted that the contents of a document ought to be read and interpreted as a whole and related paragraphs must be construed together and that it is a cardinal principle of interpretation that the mere mention of a specific thing is the exclusion or all others. They referred the court to Ogbonna v. A. G. Imo State [1989] (Pt. 121) 312 at 3 14 where it was stated that- In the interpretation of a document the court must not only look at the words used but must also take into consideration the social conditions under which the written document was made (p. 325 paras. E - F) To read into the provision of any document or legislation words or meaning that are not therein more so when the words used are plain and unambiguous is to defeat the intention of the maker of the document (Ahamed v. Kassim [1958] SCNLR 28; [1958] ESC 51 referred to) (p.325, paras. D – E). The applicants submitted further that the memorandum entered by the representatives of the parties has conferred and reinforced the already established legal rights of the applicants and the contents of share can be varied by oral argument; and so from the circumstances of this case the applicants can conveniently claim from the respondent an account for their Trust Fund and that the memorandum entered by the parties bound them as a legal agreement. That the parties cannot by affidavit deny the contents of document they legally signed. That the representatives of the applicants and the respondents having entered a memorandum of understanding are bound by its content. In response to the applicants originating processes, the respondent filed at respective times counter-affidavits, the first on 15th October, 2001 and the second on 12th September 2005 deposed to by Ade Williams. Also filed was the respondent memorandum, which was later amended as the case progressed. The second counter-affidavit raised issues of fraud and forgery on the part of the applicants. The respondent then went on to admit the following facts - That the 1st and 2nd applicants me ex-employees of Zapata Marine Services Nigerian Limited and belong to the 3rd and 4th applicants trade unions; that Zapata Marine Services Nigeria Limited began operation in Warri sometime in 1968 and discontinued its operations between 1992 and 1993 and that they established a Trust Fund in December 1978 for the benefit of its workers pursuant to the Nigerian indigenization Decree; that Zapata Marine Services Nigeria Limited redeemed the Trust Fund of 1978 by paying the various entitlements in 1993; and that a merger took place in the United States between Zapata Gulf Marine Services (the parent company of Zapata Marine Services Nigeria Limited) and Tidewater Inc. (the parent company of the respondent). To the respondent, the disputed facts of this case are that the applicants aver that a Trust Fund was set up in 1969 by Zapata Marine Services Nigeria Limited for the benefit of the workers, the terms of the trust deed including a provision that 10% of Zapata Marine Services Nigeria Limited profit after tax would be paid into the Trust Fund to be distributed to Zapata Marine Services Nigeria Limited stall at the end of 30 years or if the company folds up or ceases to operate in Nigeria whichever comes first. The respondent insists that it did not take over Zapata Marine Services Nigeria Limited and they deny further the knowledge or existence of a Trust Deed. The respondent then framed the following three issues for determination, namely - 1. Whether there exists a Zapata Marine Services Nigeria Limited Workers Trust Fund dated May 5th 1969 as opposed to or distinct from the Zapata Marine Services Nigeria Limited trust deed dated 31st December 1978. 2. Whether Exhibit Al attached to the affidavit 111 support of the applicants motion IS fraudulent or forged? 3. Assuming Exhibit Al was valid whether the applicants are entitled to the reliefs sought. On the 1st issue, i.e. whether there exist a Zapata Marine Services Nigeria Limited Workers Trust Fund dated May 5th 1969 as opposed to or distinct from the Zapata Marine Services Nigeria Limited Trust Deed dated 3151 December 1978, the respondent submitted that there is no Workers Trust Fund created by Zapata Marine Services Nigeria Limited in 1969 as alleged by the applicants. The respondent then referred to the applicants motion on notice dated 1ih April, 2005 where they outlined six documents for interpretation, namely- 1. The minutes of the meeting of NUPENG, PENGASSAN (ZAPATA) AND MANAGEMENT held in Lagos on the 17th June 1993. The respondent contended that this document simply records the discussion between the NUPENG Branch of ZAPATA and management which took place on the 17th of June 1993. The respondent contended further that the date is instructive us at that time there was in existence a Trust Fund made in 1978 which both parties are aware of. 2. ZAPATA MARINE SERVICES Memoranda of understanding dated 14th July 1992 and l0th July 1992. The respondent contended that these two documents embody two agreements reached between the management of Zapata and NUPENG in one and Zapata and PENGASSAN in the other. That what is referred to here is the 1978 Trust Deed, which in any event was not applicable to every employee as only those who have spent one year in the service of the company and who have been allotted shares under the scheme are entitled to benefit from it. 3. Profit sharing scheme (Workers Trust Fund) Memorandum of Agreement dated 5th May 1969. The respondent doubted the authenticity of this document arguing that it is being produced for the first time in over eleven years. 4. Letter to all Zapata Marine Services (Nig.) Ltd Employees dated 11th May 1992. The respondent contended that this is an internal memo of Zapata Marine Services Nigeria Limited; that the only reference to a Trust Fund was reference to the 1978 Trust Deed because it was established to meet the provisions of the Nigerian Enterprises Promotion Decree 1977. 5. Letter to all Zapata Marine Services (Nig.) Ltd employees dated 27th December, 1991. The respondent contended that the letter makes reference to a Workers Trust Fund into which 10% of the companys profit for that year was being paid; that as at this date there was in existence an employee Trust Fund and that it is not clear as to which Trust the letter is referring. 6. Letter from Tidewater elated January 15, 1992. The respondent contended that this letter only speaks of a merger. On the 2nd issue, i.e. whether Exhibit Al attached to the affidavit in support of the applicants motion is fraudulent or forged, tile respondent contended that the document is forged and is a calculated attempt to defraud the respondent. That where an allegation of crime is made in a civil matter, it must be proved beyond reasonable doubt, referring to Omorhiri v Enatevwere [1988] 1 NWLR (Pt. 73) 746. That the document only came to light after eleven years of litigation and that the document was signed by Mr. Kenneth Waldolf and Mr. Fred Egbe as directors of the Zapata Marine Services Limited. The respondent then contended that the two persons named art: not directors of Zapata Marine Services Limited as at the material time. They went on to refer to minutes of shareholders in which the board of directors for the company were a piece of evidence and/or the weight to be attached to it. That what is required is an explanation for the delay which they have already-given in their uncontroverted affidavit evidence. On the 3rd issue, i.e. assuming Exhibit Al (i.e. the Memorandum of Agreement) was valid, whether the applicants are entitled to the reliefs sought, the respondent contended that the applicants are not entitled to the reliefs sought especially to the US$56 million. The respondent advanced four reasons for this contention. First, that the respondent is not a party to the contract made between Zapata Marine Services Nigeria Limited and its employees. That there is no nexus between the respondent and Zapata Marine Services Limited regarding Exhibit Al so as to make the respondent accountable to the applicants on the contract. Secondly, that, at all material times, the respondent did not take over or merge with Zapata Marine Services Nigeria. That the merger or takeover occurred between the parent companies of the parties, Tidewater Inc and Zapata Gull Marine Service Limited, both based in the United States of America. The respondent then submitted that a subsidiary company has its own separate legal personality distinct from its parent company, referring to Union Beverages Ltd v. Pepsicola Int. Ltd & ors [1994] 3 NWLR (Pt. 330) I and Omobare v. New Nigeria Bank Ltd [1978] NCLR 180 at 194. In consequence, that the Exhibit A 1 does not bind the respondent. Thirdly, that although Zapata Marine Service- Nigeria Limited is no longer operational it has not been wound up and its name is still on the register of companies, referring to paragraph 6 of the counter-affidavit of Ade Williams. That the implication of this is that Zapata Marine Services is still responsible for its own contracts. The applicants reaction to this contention is that while the general rule in contract law as captured by the pri vity rule is that a non-party to a contract cannot validly maintain an action in respect of breach of the said contract, this rule is not absolute as it admits of exceptions, one of which relates to the law of trust. The applicants then referred the court to the definition of the word trust in the Blacks Law Dictionary, 8th edition at pp. 1546 -1547. To the applicants, the respondent is a trustee to the Workers Trust Fund created in 1968 as envisaged in the deed executed by the parties in 1969. In any event, that the redemption of the 1978 trust deed by the respondent could only have been on the basis that the respondent was a trustee. The fourth reason advanced by the respondent is that assuming Exhibit A1 is ever enforceable, that the applicants are only entitled to 10% of the profit after taxation of Zapata Marine Services Nigeria. That it follows that where there are no declared profits, the applicant are not entitled to anything for that year. That the pertinent question then becomes whether all profit after tax was declared by Zapata Marine Services Nigeria from 1969 - 1992. To the respondent, the only evidence advanced by the applicants as to the profitability of Zapata Marine Services Nigeria is Exhibit A2 attached to the affidavit of Stephen Onyemcziem, which is a letter dated 2ih December 1991 signed by one J. S. Lalwani as General Manager/Chairman Board of Directors of Zapata Marine Services Nigeria, in which he claimed that the company made US$560 million profit after tax in Nigeria operations alone in the year 1991. To the respondent, the contents of this letter are not only false, but also preposterous. That a companys profit after tax is proven by tendering its audited Statement of Account, referring to Livestock Feed Ltd v. Igbino Farms [2000] 5 NWLR (Pt. 759) 118. The respondents went on to tender the audited accounts of Zapata Marine Services Nigeria from 1986 -1991, which show the companys profit after tax to be as follows - 1985 (11,775.00 Naira); 1986 (113,993 Naira); 1987 (235,674.00 Naira); 1988 (830,678.00 Naira); 1989 (808,092.00 Naira); 1990 (929,007.00 Naira); and 1991 (747,516.00 Naira). The respondent then submitted that the claim for US$56 million cannot be sustained. Furthermore, that by the applicants own admission, Zapata Marine Services Nigeria ceased operations in Nigeria in 1992. The respondent then wondered whether a company that made an alter lax profit of US$560 million would immediately cease operations in the succeeding year. In any event, that Mr. Lalwanis utterances must be viewed with caution having regard to the letter dated 11th May 1992 wherein he betrayed disaffection and deep prejudice against the respondent to warrant serious doubt as to the veracity of his statement. On the 4th issue, i.e. whether the present action as constituted is competent in view of the alleged existence of a trust/beneficiary relationship between the parties, the respondent contended that the proper defendants in any action seeking an order directing that an account be made in respect of trust money are the trustees themselves. That the applicants cannot maintain an action against the respondent insofar as the respondent is not the trustee of the said trust. That nowhere in the originating motion or the affidavits of the applicants is it alleged that the respondent is the trustee to the alleged trust fund of 1968. That the law is clear to the effect that a beneficiary cannot bring an action in his own name against a debtor to a trust estate, referring to the case of Ojikutu v. Fella [1954] 14 W.A.C.A 628 at 629 - 630. That the applicants are not trustees of the alleged trust and so cannot maintain an action against the respondent. The respondent concluded by urging the court to dismiss the action. The 3rd and 4th applicants, joined by the order of this court, in respective Memorandum adopted the submissions of the 1st and 2nd applicants as they affect them as trade unions. Each drew attention of the court to the fact that it represents a segment of the workforce in issue, the 3rd applicant representing senior staff to which the 1st applicant belongs and the 4th representing junior staff to which the 2nd applicant belongs. In reacting Oil points of law, the applicants submitted that proving a companys financial status is not limited to audited statement of accounts. That the respondent did not include the 1991 audited account in their processes. The applicants then urged the court to presume under section 149(1)(d) of the Evidence Act that if such document is produced, it will be adverse to the respondents case. Furthermore, that the court should take judicial notice of all processes filed in this case especially the subpoena issued to Mr. Ade Williams as forming part of the records of the court in consonance with section 74 of the Evidence Act. The applicants concluded by submitting that the case of Union Beverages Ltd v. Pepsicola, supra, cited by the respondent is irrelevant and Omobare v. NNB, also cited by the respondent, is a High Court decision which is not binding on this court. Before considering the main issues raised in the submissions of counsel in this matter, it is pertinent to first dispose of the issue of jurisdiction raised by the respondent in its submissions. The respondent had argued that this court is not competent to hear and determine this matter as filed by the applicants because the matter was not referred to this court by the Minister of Labour as laid down in section 13 of the TDA, citing the Supreme Court decision in Western Steel Works v. Iron & Steel Workers Union in the process. We must state that the respondent got it wrong in this submission. Referral of cases to this court by the Minister of Labour is only one of the ways actions can be commenced in this court under the TDA. Regarding the interpretation jurisdiction of this court, under which the applicants came, the Minister of Labour is simply one of several parties that can activate the jurisdiction of this court. It must be noted that section 15 of the TDA dealing with interpretation jurisdiction of this court relating to collective agreements is very categorical as to who can activate the jurisdiction of this court in that regard; it is equally forceful when it commences with the words, Notwithstanding anything in the foregoing provisions of this Act. Because section 13 precedes section 15, it must, be read subject to section 15. In other words, the referral powers of the Minister of Labour under section 13 cannot override or prevent qualified parties from activating the interpretation jurisdiction of this court under section 15. Even when the Supreme Court alluded to the referral power of the Minister of Labour in Western Steel Works v. Iron & Steel Workers Union, this was not in a manner that suggests that that was the only way to approach this court with grievances. We do not, therefore, agree with the respondent that this court has no jurisdiction to hear and determine this matter as filed by the applicants. The applicants approached this court under section 5 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/l4/2002 delivered on October 27, 2004 and Itodo 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 in this judgment and are asking this court to interpret same and come to this conclusion that they are entitled to the slim of US$56 million. It must be pointed out that this is the same US$56 million that the High Court granted to them but which the Court of Appeal held was erroneously granted to them as it was not pleaded at the High Court. By activating the interpretation jurisdiction of this court, the applicants are praying this court to now grant them the said amount. To be able to interpret the said documents, we must first resolve the issue of the authenticity of the Memorandum of Agreement of 5th May, 1969, which is the key agreement said to create the Workers Trust Fund and hence entitle the applicants to the US$56 million prayed for. As indicated earlier, when the applicants first filed this action, this document was not exhibited, It surfaced only years latter. The respondent naturally doubted its authenticity. To prove that the document is authentic, the applicants called Mr. Raphael Onwuzuligbo, a police. inspector and a document examiner attached to the Forensic Science Laboratory, Force CID, Alagbon Close, Ikoyi, Lagos, who had examine the said documents and, others to testify and tender his report in that regard. Mr. Onwuzuligbo had, on cross examination, confirmed that the documents sent to him to examine were photocopies although he disagreed that there will be a margin of error when one examines the photocopy of a document as opposed to the original. To counter the applicants, the respondent presented statements on oath of Mr. Kenneth Waldolf and Mr. Ade Williams showing that Mr. Waldorf was not a Director of Zapata Nigeria when the said Memorandum of Agreement was executed in 1969, After a due consideration of the processes filed in this matter, the report and testimony of Mr. Onwuzuligbo, we agree with the respondent that the authenticity of the Memorandum of Agreement of 5th May, 1969 is doubtful. We had asked the applicants the capacity in which Mr. Waldorf singed the Memorandum of Agreement as Director i.e. whether as an Executive Director with authority to bind the company or nominal Director. We were not given a satisfactory answer. All the applicants did was to exhibit the particulars of directors from the Corporate Affairs Commission showing Mr. Waldorf as a Director of the company. This does not in any way resolve the question we posed. Because the Memorandum of Agreement is doubtful, we cannot rely on it as a valid collective agreement for purposes of this action. But assuming the said Memorandum of Agreement is valid, the issue still remains that section l5 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 the obligations of the latter. The merger shown to this court was between two foreign companies in the United States of America (USA). No where was it shown to us that the respondent as a Nigerian company merged with Zapata Nigeria. We agree with the respondent that a subsidiary company is separate and distinct with the parent company and so must be held accountable for its acts. The respondent has not been shown to have merged with Zapata Nigeria and so cannot be said to be a party to the collective agreement in issue; and because it is not a party to the collective, it cannot be sued under the interpretation jurisdiction of the court as provided for under section 15 of the TDA. Even assuming we are again wrong on this score, the issue remains whether from the totality of the documents exhibited, the applicants are entitled to US$56 million being 10% of US$560 million profit after tax of Zapata Nigeria. Once again we have our doubts as to the authenticity of these figures. The only document evidencing the sum ofUS$560 million as profit after tax of Zapara Nigeria is the letter from Mr. J. S. Lalwani dated 2ih December, 1991. Although we agree with the submission of the applicants that the audited accounts of a company is not the only way to ascertain the financial status of a company, we do not see how reliance is to be placed on the letter of Mr. Lalwani for that purpose. In the first place, given the memorandum of the same Mr. Lalwani dated 11th May, 1992, Mr. Lalwani appears an interested party and so cannot be objective enough in his assertion that Zapata Nigeria made US$560 million profit in 1991. Secondly, we wonder why a Nigerian company should draw up its profit after tax in US Dollars and not the Naira. Thirdly, as argued by the respondent, it is a wonder too why a company that made US$560 million profit after tax in 1991 will cease to operate in the country so soon thereafter. Lastly, but for the sum of US$560 million, no where 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. The applicants claims lack merit and are hereby dismissed. We make no order as to cost. Judgment is entered accordingly. Hon. Justice B. A. Adejumo
Posted on: Wed, 06 Aug 2014 16:20:00 +0000
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