Tidex Nigeria Limited V. Joy Maskew & Anor (1998)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from the judgment of Obi, J. delivered at Warri High Court in Delta State on 5th March, 1996 in suit no. W/313/94. The action was instituted by way of originating summons as a result of which the trial was to be conducted by means of affidavits and counter-affidavits filed by the parties. However, when the learned trial Judge found that there were conflicting averments in the affidavits filed by the parties, he ordered that pleadings should be filed. In compliance with that directive, the plaintiffs filed a 14-paragraph Statement of Claim on 26th June, 1995.

The plaintiffs’ claim, as set out in paragraph 13 of the Statement of Claim, is as follows:-

“Wherefore the plaintiffs claim as follows:-

(a) Declaration that from the totality of the relationship between the plaintiffs and defendants there exists a Workers Trust Fund.

(b) Order that the defendants do account to the plaintiffs for all moneys which have come into their possession/custody comprising 10% of annual profits after taxation of the business of Zapata from 1968 to 1992. Alternatively N2 billion naira in that the said funds were paid to Zapata home office in dollars. In the further alternative, any other sum as this Honourable court may so order.”

The respondent (now appellant), however, did not file any statement of defence despite the fact that it was granted 3 weeks extension of time within which to file it on 17th July 1995 upon an application for such extension of time to do so.

The plaintiffs pleaded, inter alia, in paragraph 2 of their statement of claim that:-

“Plaintiffs are also members of PENGASSEN and NUPENG Oil Workers Union depending upon whether they belong to the Senior or Junior cadre of the said unions. They pursue this action in the representative capacity shown above…”

The defendant (now appellant) did not file any statement of defence as at 6th October, 1995 when Joy Maskew, the first plaintiff and only plaintiff’s witness gave his evidence. The man told the court, inter alia, in the course of his evidence, that they brought the action “on behalf of ex-employee of Zapata Marine Services Nigeria Limited members of NUPENG and PENGASSEN Trade Unions, Zapata Marine Warri Branch. UNPENG is the junior cadre while PENGASSEN is the senior cadre. He said further that Tidex bought over Zapata on 15/1/92. Tidex then took over the conduct of their employment. The workers Union held several meetings with management of Tidex in the course of which they arrived at the following agreement:

“1. That Tidex was to take over the payment of salaries with effect from 15/1/92. This payment was made up till 1993 when we were declared redundant. Tidex then agreed to pay us our abrupt workstop, extra gratia, payment which we would have been entitled from Zapata.”

The witness further told the court that the Management of Zapata had told the staff of Zapata that there was a message from Houston, Texas (the headquarters of the company, Zapata) that a decision had been taken to create a Workers Trust Fund for the benefit of the workers into which 10% of the annual net profit would be paid.

And that member of staff who served the company for up to 30 years would be entitled to benefit from the workers Trust Fund. But in the event of the company folding up before the expiration of the 30 years, the money accruing in the trust fund would be shared equally to workers then still working with the company at the time.

The trust agreement is said to be in Houston, Texas in U.S.A. The above information was said to have been given to the workers during an annual end of year party where the annual profit of the company was usually disclosed to the workers. The witness further said that the last annual end of year meeting was held in 1991 at Palm Grove Motel, Warri. He gave his account of what the workers were told at the meeting and what led to the institution of the action as follows:-