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The Claimant’s claim against the defendants by his complaint filed on the 23rd day of May 2013 is for an order or orders of this honourable court compelling the defendants to pay various sums of money to the claimant for reasons ranging from unlawful termination to accrued salaries, among other reasons. 1. AN ORDER of this Honourable Court compelling the defendants to pay to the claimant the sum of Thirty Million Naira (N30,000,000.00) only computed until the age of retirement. 2. AN ORDER of this Honourable court compelling the Defendants to pay to the Claimant the sum of (N5.000.000.00) Five million Naira only being the unnecessary litigation and professional fee of the Claimant’s Solicitor. 3. AN ORDER of this Honourable court compelling the Defendant to pay the claimant sum of (N10.000.000.00) Ten million Naira only for the purported letter of disengagement without 2nd Defendants resolution. 4. AN ORDER of this Honourable court compelling the Defendants to pay the claimant the sum of Fifteen Million Naira Only (15,000,000.00) for malicious and unlawful termination of his job. 5. AN ORDER of this Honourable court compelling the defendants to pay the claimant the sum of (N10,000,000.00) Ten million Naira only for accrued salaries arrears and other entitlements. 6. AN ORDER of this Honourable court compelling the defendants to pay the claimant the sum of (N5,000,000.00) Five Million Naira only for transportation cost, telephone and other incidental charges. 7. AN ORDER of this Honourable court compelling the Defendants to pay to the Claimant the sum of Fifteen Million Naira Only (15,000,000.00) for mental shock and disrepute to the Claimant and his family aggregated due the malicious letter of termination of Claimants employment. 8. AN ORDER of this Honourable court compelling the defendants to pay the claimant the sum of (N5,000,000.00) Five Million Naira only as general damages for the incontinence, mental torture and hardship suffered by the Claimant as a result of disengagement letter. 9. AN ORDER of this Honourable court compelling the defendants to pay to the claimant the sum of (N5,000,000.00) Five Million Naira as Special Damages for letter of disengagement that terminates the appointment of the Claimant. 10. Interest on the above sums at the rate of 10% from the date of judgment till Liquidation. The Complaint is accompanied by a Statement of Facts establishing the cause of action, list of witnesses, Statements on oath of witness, list and copies of documents to be relied upon at the trial. The defendants on the 25th September 2013 entered a conditional appearance and filed a Notice of Preliminary Objection brought pursuant to Order 11 Rule 1(3) NIC Practice Direction and under the Inherent Jurisdiction of this Honourable court, praying this honourable court for AN ORDER STRIKING OUT THIS SUIT FOR LACK OF JURISDICTION. The grounds for the objection are: i) The 1st defendant was not sued in his personal capacity but as Chairman of the 2nd defendant. ii) The 2nd defendant is not a juristic person known to law that has capacity to sue and be sued. iii) This court lacks jurisdiction to entertain this suit. In support of the Notice of Preliminary objection, the applicant’s Counsel filed a written address which he adopted as his argument in support. In reaction, Claimant/Respondent’s Counsel filed a 32 paragraph Counter Affidavit and a written address which he also adopted as his argument in opposition to the preliminary objection raised by the defendants/applicants. I find it necessary at this point to first determine the preliminary issue touching on the Counter Affidavit filed by the Claimant/Respondent. Counsel to the defendant/applicant sought and obtained leave of court to react on points of law to the Claimant’s Counter affidavit. On this, he submitted that the Counter Affidavit filed by the Claimant/Respondent is an abuse of Court Process. That the applicants have not filed any affidavit in support of their Notice of preliminary Objection, therefore the respondent ought not to have filed a counter affidavit. He referred the Court to the case of DUMEZ NIG. PLC vs. U.B.A.PLC (2006) 14 NWLR (Pt. 1000) 515 where the court held that an abuse of court process occurs where there has been an improper use of the legal process. Counsel urged the court to strike out the said process. It is clear from the rules of procedure that a Counter-Affidavit is filed in reaction to an Affidavit. By the NIC practice direction 2012, Order 11 Rule 1 of the NIC Rules 2007 makes provision for filing of Motions supported by Affidavit, and oppositions to such Motions by way of Counter affidavit. It also makes provision for the filing of a Notice of preliminary objection accompanied by a written address. Oppositions to such Notices of Preliminary Objection are made by way of written addresses. In the instant case, the application before the court is a Notice of Preliminary Objection filed by the Defendants/Applicants, accompanied by a written address. In reaction, the Claimant/Respondent has filed a Counter-Affidavit and a written address. On this point, Applicant’s counsel has asked the court to consider this as an abuse of court process since there has been an improper use of the legal process. He urged the Court to strike out the Counter affidavit. In the case of ARUBO V. AIYELERI (1993) 3 NWLR (PT.280) 126 the abuse of court process was defined thus: “Abuse of court process simply means that the process of the court has not been used bona fide and properly…..” The proper thing to do in this instance was to have filed a written address in reaction to the Notice of Preliminary Objection and the issues raised in the written address. Rather, the Claimant filed a Counter-Affidavit which filing is at variance with the Rules of this Court or any known procedure. It is my holding therefore that the Counter-Affidavit filed on the 7th day of November 2013 is hereby struck out. However, the Written Address filed on the same day, in reaction to the Applicant’s Notice of Preliminary Objection is deemed properly filed and is duly taken into consideration in writing this ruling. The defendants/applicants raised two issues for determination: 1. Whether the 2nd defendant is a juristic personality capable of being sued 2. If the answer to the above is in the negative, whether the 1st defendant who is sued not in his personal capacity but as the chairman of the 2nd defendant is liable to the claimant. On the first issue, the defendants’ counsel stated that the 2nd defendant is Ikwerre Cluster Development Board, an unregistered body set up by the host communities to manage and take ownership of its own development from Shell Petroleum Development Company of Nigeria. That it was in order to achieve this objective that Shell Petroleum Development Company entered into a global memorandum of understanding with the host communities. He referred the Court to the annexure 4 attached to the statement of facts filed by the claimant, which states thus: “The GMOU is to become the new frame work for sustainable community development allowing every cluster of communities to take ownership of its own development. The GMOU is a comprehensive agreement that governs the relationship between the communities within a cluster and SPDC over an initial period of 5 years”. He stated that the annexture (the GMOU) is not dated. Counsel then raised a question as to whether a body set up by host communities such as the 2nd defendant in this case, whose function is basically to manage the fund given by SPDC to the benefit of the host communities, is a legal personality who can sue and be sued. He submitted that the 2nd defendant has not been registered with Corporate Affairs Commission. Counsel cited the case of IYKE MEDICAL MERCHANDISE vs. PFIZER INCO & ANOR (2001) FWLR(pt.53) 62 @ page 77 paragraphs D to F where the Supreme Court, in determining who was a juristic person, stated that Juristic persons who may sue or be sued eo nomine have been recognized to include natural persons, that is to say, human beings; Companies incorporated under the Companies Act; Corporations aggregate and corporations sole with perpetual succession; Certain unincorporated Association granted the status of legal personal by law, such as Registered Trade Unions, Partnership; and Friendly societies or sole proprietorship” Counsel submitted that from the above judgment of the Supreme Court, a body can acquire the right to sue or be sued, either by registration with the Corporate Affairs Commission or by being created by or under a statute or by enabling statutory provision such as rules of court. He further cited the case of KWARA STATE & ORS vs. ALHAJI MOHAMMED LAWAL & ORS (2007) 13 NWLR (pt. 1051) 347 where the Court of Appeal held that: “Juristic personality consists of several categories, natural persons, incorporated companies, corporation with perpetual succession, and unincorporated associations granted the status of legal persons by law. Only juristic persons can sue and be sued in their names generally”. Ogunwumiju JCA in delivering the lead judgment in that case further stated that the exceptions to the general rule occur where such rights are created or vested by a statute or rules emanating from the exercise of statutory power. Counsel also made reference to the case of EMEKA AKAS vs. THE MANAGER AND RECEIVER OF THE ESTATE OF BENJAMIN GILLET AWADIKE & ANOR (2001) FWLR (pt.71) 1714, where Olagunju JCA stated thus: “From these and many more other decisions on the matter, there is a unanimity that for entity other than a natural person to claim the right to sue or be sued eo nomine, that entity must show that it was vested with that capacity by either incorporation or by a legislation either expressly or by implication. Where it is not expressly stated in the legislation creating the entity, to imply the capacity to sue or be sued eo nomine, there must be statutory functions of the entity from which such capacity can be implied.” It was counsel’s submission that the 2nd defendant is not registered with the Corporate Affairs Commission, and neither was it created by or under any statute or statutory provision such as rules of court, therefore, it is not a juristic person and does not fall within both the general rule and the exceptions there to. On the 2nd issue as to whether the 1st defendant who is not sued in his personal capacity but as Chairman of the 2nd defendant, is liable to the Claimant, Counsel to the Defendants/Applicants submitted that the 1st defendant who has been described as the chairman of the 2nd defendant cannot be liable in this circumstances. Citing the case of MACFOY V. UAC (1961) 3 W.L.R, he stated that you cannot put something on nothing and expect it to stand. (Per Lord Denning). He submitted that it follows that the 1st defendant cannot be held liable to the Claimant. He therefore urged the court to resolve this issue in the negative and resolve that the defendants are not juristic personalities capable of being sued, and accordingly, decline jurisdiction in the suit. Claimant/Respondent Counsel in his Written Address, formulated two issues for determination, viz: 1. Whether by the statement of facts and Annextures 1-10 adduced by the Claimant respondent, this Honourable court has the power to exercise its jurisdiction to entertain and hear this matter. 2. Whether the Defendant/Applicants can sue or be sued in a wrongful act. Claimant’s Counsel answered the first issue in the affirmative, and submitted that the jurisdiction of courts in Nigeria are conferred upon them by the Constitution or by Statutes as may be permitted by the constitution. He relied on the case of ADAH vs. NYSC (2004) All FWLR (Pt. 223) 1850 @1856 Para. B-C. He cited the case of MADUKOLU V.NKEMDILIM (1962) All NLR (Pg. 581 @ 589) in arguing that the court is vested with jurisdiction to hear this matter. It should therefore not rob itself of its constitutional powers as conferred on it by Section 254of the 1999 Constitution as amended. Counsel also cited the case of UTIH vs. ONIYIVWE (1991) 1SC (PT.1) Pg. 61 and submitted that the jurisdiction of our courts is derived from the constitution. He also relied on the case of ADEOMI V. GOVERNOR OF OYO STATE & 7 ORS (2003) FWLR (PT. 149) 1444 @ 1461 CA to submit that “The Court has to guard its jurisdiction jealously to preserve its jurisdiction in favour of its litigant; jurisdiction must be interpreted strictly and not to displace a litigant.” And that the jurisdiction of NIC is constitutionally conferred, thus, the defence cannot use a mere technicality to murder the order of fairness. He stated that by S. 254 (4) of the constitution of the Federal Republic of Nigeria, the National Industrial Court has jurisdictional powers to handle matters concerning labour, employment, industrial relation at work place and has all the powers of the High Court. Counsel to the Claimant/Respondent submitted that in determining jurisdiction, recourse has to be made to the statement of claim before the court, because the claims of the parties is what determines the jurisdiction of the court. See the case of FGN & ANOR V. ADAMS OSHIOMOLE & ANOR (2004) ALL FWLR (PT 209) @ 982 PARA A-B Counsel submitted that the suit before this court is the unlawful termination of the Claimant’s employment contract as pleaded in paragraphs 17 to 25 of the statements of facts and particulars of damage which disclosed a reasonable cause of action against the Defendants which gave this court the jurisdiction to entertain and hear this matter. See the cases of WILSON V. AC BENDEL STATE (1985) SC 191-259 and HON. DON EGBUE V. THE HON. E.O ARAKA(1988) SC (PT111) 98 @ 108, 110 He stated that if this Honourable Court will allow the Preliminary Objection to survive, it will amount to the 1st defendant benefiting from his illegal act. It is Counsel’s further submission that the 1st Defendant never signed any document without the approval of the 2nd Defendant which comprising Shell Petroleum Development Company (SPDC) and the Rivers State Government, gives the board a statutory flavor to operate. He stated that the 1st defendant had the right to do what he did, and that an employee may be summarily dismissed without notice and without wages, if he is guilty of gross misconduct. But that the claimant has not committed an offence. Instead, he was promoted and his salaries were increased by the 1st defendant on the approval of the 2nd defendant. He cited the case of EZE V.SPRING BANK PLC (2011) 10-12 KLR (PT. 301) 2347. He urged the court to discountenance the argument of the Defendants/Applicants and hold that this honourable court has jurisdiction to entertain the suit. On the second issue for determination as to “Whether the 1st defendant can be sued for wrongful act committed”, Claimant’s Counsel submitted that the Chairman of the 2nd Defendant is like a director of a company. Thus, “A director of a company stands in a fiduciary relationship towards the company and shall observe the utmost good faith towards the company in any transaction with it and on its behalf.” See the case of OREOWO vs. MILGORE (1979) 11 SC.133 He submitted that it is clear that the 1st defendant (Barr. B.S Emerengwa) who is the Chairman, acted in a manner that breached the purpose and function of the 2nd Defendant for which the 2nd defendant was formed, and that it is also true that he refused to follow procedures of operation by waiting for the 2nd defendant’s resolution to that effect. Counsel referred the court to S. 282 (3) of CAMA which provides that “Each director shall be individually responsible for the actions of the board in which he participated, and the absence from the board’s deliberating shall not relieve a director such responsibility”. Counsel stated in summary that the 1st defendant should not use his position as chairman of the 2nd defendant to act ultra vires, and urged the court to hold that the 1st defendant cannot approbate and reprobate simply because he is the Chairman of the 2nd defendant operating under the statutory flavor of Shell Petroleum Development Company Ltd (SPDC); that the 1st Defendants was receiving millions of Naira from SPDC and he is not contending (sic) that. Counsel referred to the case of AGBONMAGBE BANK vs. G MANAGER GB OLLIVANT LTD (1961) ALL NLR 116 where the Supreme court appreciated that the same non-legal persons could be sued eo nominee, where such a party has been given by statute, expressly or impliedly or by the common law, either a legal persona under the name by which it sues or is sued. For instance a corporation, sole and aggregate bodies incorporated by foreign law and quasi-corporations constituted by Act of parliament; partnerships, trade unions, friendly societies, and foreign institutes authorized by their own law to sue and be sued but are not incorporated. He also cited the case of ATAGUBA & CO vs. GURA (2000) FWLR (PT. 24) 1522 CA, where the Court held that a firm can sue and be sued in its firm’s name even though unincorporated. It was also held that persons who conceal their real names can be sued in their unregistered names. See IYKE MEDICAL MERCHANDISE vs. PFIZER, INC (2001) FWLR (PT. 53) 62 @ 76, 77 AND 78 SC, Counsel noted that the defendants in this case are juridical persons and not juristic persons as contended by the defendants counsel. He stated that juridical personality is acquired when a law accepts and recognize the existence of unincorporated associations. See NBA & ORS vs. GANI FAWEHINMI (1986) 3CA (Pt. 1) 308; FAWEHINMI vs. NBA (No.2) (1989) 2NWLR (Pt.105) 558; J. K. RANDLE vs. KWARA BREWERIES LTD (1985) 2 SC. 1; AKAS vs. THE RECIEVER MANAGER OF THE ESTATE OF ANWADIKE (2001) FWLR (PT. 71) 1714 CA (2001) 8 NWLR (PT. 715) 438. In conclusion, Counsel referred to the case of MR. JOMBO vs. PETROLEUM EQUALIZATION FUND (MANAGEMENT BOARD) & ORS (2005) 14 NWLR (PT 945) 443 7 SC, where The Supreme Court held that “Court Should always itself as knight errant in a shining armor brandishing its sword to help the hopeless and evenly seen not to collaborate with forces that choke and asphyxiate the rights of people thereby forcing them into the limbo of disillusionment and frustration.” I have carefully considered the arguments and submissions of both parties, and have formulated 2 issues for determination: 1. Whether the 2nd defendant is a juristic personality capable of being sued? 2. Whether the 1st defendant who is sued not in his personal capacity but as the chairman of the 2nd defendant is liable to the claimant. On issue one: Whether the 2nd defendant is a juristic personality capable of being sued, the law recognizes two categories of people who can sue and be sued. They are natural persons with life, mind and brain and other bodies or institution having juristic personality. It is also trite law that a party who should commence action in court must be known to law as a legal person. See the case of ALH. MAILAFIA TRADING AND TRANSPORT COMPANY LIMITED vs. VERITAS INSURANCE COMPANY LTD (1986) 4 NWLR (Pt. 38) 802. In the case of IYKE MEDICAL MERCHANDISE vs. PFIZER INCO & ANOR (2001) FWLR (pt.53) 62 @ page 77 paragraphs D to F, the Supreme Court, in determining who was a juristic person, stated thus: “Juristic persons who may sue or be sued eo nomine have been recognized to include: i. Natural persons, that is to say, human beings; ii. Companies incorporated under the Companies Act; iii. Corporations aggregate and corporations sole with perpetual succession; iv. Certain unincorporated association granted the status of legal personal by law, such as: (i) Registered Trade Unions (ii) Partnership; and (iii) Friendly societies or sole proprietorship” Iguh JSC in the above case also stated that: “In the case of partnership, companies, trade unions, sole proprietorships or corporation sole or aggregate, the best evidence in the event of a dispute as to their juristic personalities or their right to sue or be sued co nomine, is the production of their certificate of registration or incorporation under the relevant laws”. From the pronouncements of the apex court cited above, it is clear that a body can acquire the right to sue or be sued either by registration with the Corporate Affairs Commission or by creation by or under a statute or by an enabling statutory provision, such as Rules of Court. From the processes pleaded by the parties it is not in dispute that Ikwerre Cluster Development Board is an unregistered body set up by the host communities to manage and take ownership of its own development from Shell Development Company of Nigeria in which a Memorandum of Understanding was entered into to achieve this singular objective. See Annexure 4 attached to the Statement of Facts. It is also not in dispute that they have not been registered with the Corporate Affairs Commission under part C of the Companies and Allied Matters Act. Claimant’s Counsel had argued that the defendants in this case are juridical persons and not juristic persons as contended by the defendants counsel. The Supreme Court has held in the case of Odife v. Aniemeka (1992) NWLR (Pt. 251) 25 that "Juridical personality is acquired when the law accepts and recognises the existence of such a body or unincorporated association. Even then, the capacity to sue and be sued is not thereby given by mere recognition and acceptance of its existence." Per OGWUEGBU, JSC. (P. 19, paras. F-G). In Fawehinmi v N.B.A. No 2 (1989) 2 NWLR (Pt.105) 558, the Supreme Court held that "The Constitution of the Nigerian Bar Association is not a statutory instrument. It is not a subsidiary legislation to the Legal Practitioners Act. It is a pure and simple private document which the members of the Nigerian Bar Association were entitled to draw up in exercise of their right to provide a constitution for the Association to regulate its affairs. It was accorded its due superior position by the Legal Practitioners Act, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar. This does not make the Nigerian Bar Association a juristic person. It only gives the body recognition as a legal entity made up of legal practitioners. The fact that the legislature has in the Legal Practitioners Act, 1975 and the Legal Education (Consolidation etc.) Act, 1976 given the Nigerian Bar Association representation on the Body of Benchers and the Council of Legal Education is no indication that legislature constituted the Association a suable entity." Per OBASEKI, J.S.C. (Pp.92-93, Paras. C-A). From the above authorities, it is clear that the 2nd Defendant can hardly be referred to as neither a juristic person nor a juridical person. There is nothing from the Pleadings before the Court pointing to any legal instrument or statutory recognition of the 2nd Defendant as a Juristic or Juridical personality. The GMOU can at best be described as a pure and simple private document which the SPDC entered into with various groups, to enable them achieve the aims stated therein. Even if it were, then the capacity to sue and be sued is not given by mere recognition and acceptance of its existence. See Odife v. Aniemeka (Supra). And infact it gives no indication that it is a suable entity. See Fawehinmi v N.B.A. No 2 (Supra). The law is settled that a non-juristic person, generally, cannot sue or be sued. In Agbonmagbe Bank Ltd. vs. General Manager G.B. Ollivant Ltd. & Ors. (1961) 1 All NLR 116; (1961) 2 SCNLR 317 it was held that "General Manager, G.B. Ollivant Ltd." is not descriptive of a juristic person. The defendant so named, was struck out of the action on a preliminary objection. See MAERSK LINE & ANOR vs. ADDIDE INVESTMENTS LTD & ANOR (2002) 11 NWLR (Pt.778). It is my holding therefore that the 2nd Defendant is not a juristic person, therefore not capable of suing or being sued. Consequently, the 1st defendant, sued (not in his personal capacity) but as chairman of the 2nd defendant, cannot be held liable to the Claimant. Claimant’s Counsel had argued that the 1st defendant being the Chairman of the 2nd defendant was operating under the statutory flavor of Shell Petroleum Development Company Nigeria Ltd. The term "statutory flavour" has been defined by the Court of Appeal in the case of ADEGOKE v. OSUN STATE COLLEGE OF EDUCATION CITATION: (2010) LPELR-3601(CA) as simply meaning "covered by statute". Thus, an employment will be taken as enjoying statutory flavour when it is covered or governed by statutory provisions in every material particular as to appointment of the employee, termination or dismissal and other sundry conditions." Per ALAGOA, J.C.A.(P. 13, paras. F-G). The case of OBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY CITATION: (2013) LPELR-19958(CA) is quite instructive as regards when a contract of employment can be said to have statutory flavor. "An employment is said to have statutory flavour where the terms and conditions of the contract of employment or service are specifically provided for by Statute or regulation made there under. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan vs. Unversity of Lagos, supra; Ogunke vs. National Steel Development Authority (1974) NWLR 128; Fakuade vs. O. A. U. T. H (1993) 5 NWLR (Pt. 291) 47; Ideh vs. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bay vs. Public Service Commission (1981) 1 S.C. 40; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; and Udo vs. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.” Per IYIZOBA JCA (Pg. 24, paras. C-G). In an employment with statutory flavor, there must be clear terms of employment. This was the ruling in the case of PHCN vs. OFFOCIO (2013) 4 NWLR (Pt. 1344) Pg. 380 where the Supreme Court held that 2 vital ingredients must co-exist before a contract of employment may be said to import statutory flavor i.e. (a) The employer must be a body set up by statute; (b) The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned, especially in matters of discipline. There can be said to be an employment with statutory flavor when the appointment and termination of the employment is governed by statutory provisions. This is clearly absent in the case before the court. Even the GMOU upon which the Claimants rely does not make any provision regulating the employment of the Claimant. Neither does it make any provision regulating the employment of the 1st defendant. Nothing in the Statement of Facts and Annextures give any indication of a statutory relationship. As regards the question as to whether the 1st defendant as Chairman of the 2nd defendant can be sued for the wrongful act of the 2nd defendant, the Claimant’s submission is that the 1st defendant is like a director. I wish to point out that being like a director cannot be equated to being a director. They mean two different things. No further reasons, arguments or authorities have been proffered in this regard, apart from a mere statement that the 1st defendant is like a director. It has been established that the 2nd defendant has no legal personality. Having also held that it is not a juristic person capable of being sued, no representative action can be maintained against the 1st defendant. Even if the court were to have held otherwise, (i.e. even if the 2nd defendant were held to have been a juristic person), “the officers and members of an incorporated company are covered by the company's veil of incorporation and that veil cannot be lifted for the purpose of attaching legal responsibilities to its officers who are carrying on the usual business of the company. A classicus case on this issue is the authority of Salomon v. Salomon & Company Ltd. (2002) 1 WRN 1; (1897) A.C. 22 which laid down the principle." This was the decision of the Court of Appeal (Per Mshelia JCA) in the case of Bebeji Oil Allied Prod. Ltd. v. Pancosta Ltd. (2007) (VOL. 31) WRN 163 at Per Mshelia, JCA 197 lines 35-40 (CA). The law is trite, that any agent acting on behalf of a disclosed and known principal, as in the instant case, is not liable for his acts of agency. Only the principal should be liable. See GLOBAL SOAP AND DETERGENT IND. LTD. & ORS. V. BELLO & ANOR. (2010) LPELR-9092 (CA). On the whole and for all the reasons given, the Preliminary objection of the Defendants/Applicants succeeds. This court declines jurisdiction to hear this matter. The suit is hereby struck out. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge