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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 17, 2014 SUIT NO. NICN/LA/547/2013 BETWEEN Mr. Chukwuma Amaefule - Claimant AND Diamond Bank Plc - Defendant REPRESENTATION U. Onwukwe, and with him is P. S. Awhana, for the claimant. Miss T. W. Oluwafemi, for the defendant. RULING The claimant by a complaint dated and filed on 8th October 2013 is claiming against the defendant for the following reliefs – 1. A declaration that by virtue of the Constitution of the Federal Republic of Nigeria (third Alteration) Act 2010 which came into operation on 4th of March 2011, the Lagos High Court had lost jurisdiction to deal with or entertain matters relating to the subject matter of this suit as at 27th September 2011 when it delivered a judgment coram A. M. Nicol Clay J in Suit No. LD/613/08 between the claimant herein and the defendant on the issue(s) that form the subject matter herein. 2. A declaration that as at 27th September 2011 when the Lagos High Court delivered its judgment in Suit No. LD/613/08, jurisdiction in the subject matter of the said suit has been exclusively conferred on the National Industrial Court by virtue of the Constitution of the Federal Republic of Nigeria (third Alteration) Act 2010 which came into operation on 4th of March 2011 and as such the said judgment of the Lagos State High Court is null and void. 3. A declaration that the purported dismissal of the claimant from the defendant’s employment by the defendant’s letter dated March 18, 2006 (for gross misconduct) is wrongful, improper, malicious, void and contrary to the contract of employment between the claimant and the defendant especially given the findings and/or minutes of the defendant’s Disciplinary Committee dated March 18, 2006 as they relate to the claimant at page 5 thereof. 4. An order for the payment of the sum of N837,731.85 (Eight Hundred and Thirty Seven Thousand, Seven Hundred and Thirty One Naira, Eighty Five Kobo) by the defendant to the claimant being special damages for the claimant’s wrongful dismissal from the employment of the defendant. PARTICULARS OF SPECIAL DAMAGES (i) 6 months salary in lieu of notice at the basic salary at the rate of N49,621.83 x 6 = N297,731.85 (ii) 2005/2006 Financial year profit sharing earned by the claimant N400,000.00 (iii) Statutory IPO sales commission for 2005 N140,000.00 Total N837,731.85 5. An order for the payment of the sum of N15,000,000.00 (Fifteen Million Naira) only being aggravated and exemplary damages reasonably foreseeable from the outrageous, fraudulent and malicious act of dismissing the claimant from the defendant’s employment purporting the said dismissal to be pursuant to the recommendation or report of a Disciplinary Committee when the said Disciplinary Committee, to the knowledge of the defendant, never made such report or recommendation or purporting the said dismissal to be for his unauthorized dealing on foreign exchange transaction when the minutes or report of the Disciplinary Committee exonerated him of this allegation. Accompanying the complaint are the statement of facts, claimant’s list of witnesses, claimant’s witness statement on oath, claimant’s list of documents to be relied upon and copies of the documents. The defendant entered formal appearance by filing its memorandum of appearance. The defendant then filed a notice of preliminary objection challenging competence of the suit and urging that the case be struck out/dismissed for the reason that the issues in the suit have been determined in Suit No. LD/613/08 between Chukwuma Amaefule v. Diamond Bank Plc at the High Court of Lagos State. In support of the preliminary objection is a written address. The Court had at its first sitting of 30th January 2014 noted that reliefs 1 and 2 framed by counsel to the claimant call for declaratory orders from this Court that by virtue of the Third Alteration to the 1999 Constitution, the Lagos High Court lacked jurisdiction to entertain and deliver judgment in Suit No. LD/613/08. The Court then asked counsel to the claimant whether this is not asking the Court to sit on appeal over the Lagos High Court. To this counsel to the claimant answered that on good authority, this Court can grant reliefs 1 and 2. He then prayed for the opportunity to address the Court on this issue. The Court accordingly indulged him his request. So in reacting to the defendant’s preliminary objection, counsel to the claimant filed the claimant’s written address titled “Plaintiff’s Written Address in Opposition to the Defendant’s Preliminary Objection and in Support of the Propriety of the Plaintiff’s First Two Claims Against the Defendant”. To this process, the defendant reacted by filing its “Written Address in Reply to the Claimant’s Written Submission and Against the Propriety of the Claimant’s First two Claims”. The case of the defendant regarding its preliminary objection is that the same issues between the parties in this suit have been determined in Suit No. LD/613/08 at the High Court of Lagos State. The defendant accordingly framed two issues for the determination of the Court, namely – 1. Whether the claimant can litigate a second law suit on the same issues and claim. 2. Whether the Court can set aside judgment delivered by a court of coordinate jurisdiction. Regarding issue 1, the defendant answered in the negative. That it denotes that an issue that has been determined upon by a court cannot be litigated upon a second time. That the claimant having litigated on the issue in Suit No. LD/613/08 at the Lagos State High Court cannot come before this Court to litigate a second suit on the same issues and claim. Therefore, that the issues and claims before this Court is res judicata and in totality the Court is barred from entertaining the suit, referring to Margi v. Yusuf [2009] 17 NWLR (Pt. 1169) 162. On issue 2 i.e. whether the Court can set aside judgment delivered by a court of coordinate jurisdiction, the defendant submitted that every judgment of a court of competent jurisdiction is valid and it remains so until set aside, citing Ononaku v. Akubue [2009] 15 NWLR (Pt. 1165) 539. Furthermore, that it is only the Court that gives judgment without jurisdiction that has the power to set it aside once the court is a court of record. In other words, that even if the judgment in Suit No. LD/613/08 was given without jurisdiction, that only the High Court of Lagos State has the power to set it aside, hence this Court does not have the power, referring to Alamieyeseigha v. Yeiwa [2002] 7 NWLR (Pt. 767) 581. On the whole, the defendant submitted that this Court is barred from entertaining this suit and same should be struck out/dismissed. In his joint reaction to the twin issues of competence of the Court to grant reliefs 1 and 2, and the defendant’s preliminary objection, the claimant started off with the issue of the competence of reliefs 1 and 2. Here the claimant submitted that this Court has the jurisdiction to entertain and grant reliefs 1 and 2, and same will not amount to sitting on appeal over the judgment of the Lagos High Court. That this Court is of coordinate jurisdiction with the Lagos High Court when the latter delivered its judgment on 27th September 2011, which fact is acknowledged by the defendant in terms of its second issue i.e. whether this Court can set aside the judgment delivered by a court of coordinate jurisdiction. To the claimant, this Court can set aside its own judgment and/or judgment of a court of coordinate jurisdiction which was delivered without jurisdiction. That a judgment delivered without jurisdiction is unarguably a nullity, citing Okoye & ors v. Nigerian Construction & Furniture Co. Ltd [1991] 6 NWLR (Pt. 199) 501 at 538 where the Supreme Court held that it is wrong to decide that a judge of the High Court cannot set aside the judgment of another High Court that is a nullity (not just on the ground of fraud) and Flower v. Lloyd (1877) 6 Ch.D 297, which held that a judgment of the Court of Appeal, which was, according to the plaintiff, obtained by fraud, could be challenged by a fresh and original action of the High Court before a Judge at first instance. See also UBA v. Ajileye [1999] 13 NWLR (Pt. 633) 116 at 124, Dana Impex Ltd v. Aderotoye [2006] 3 NWLR (Pt. 996) 78 at 93 – 94 and FRN v. Ifegwu [2003] 15 NWLR (Pt. 842) 113. To the claimant, the philosophy behind this principle of law is simple. It is that when an order of court is a nullity, the court in its inherent jurisdiction is entitled ex debito justitia to have it set aside, citing Okoye & ors v. Nigerian Construction & Furniture Co. Ltd and Sken Consult (Nig) Ltd v. Ukey [1981] 1 SC 6. In fact, that in such a case, an appeal is unnecessary, referring to Adeyemi-Bero v. LSDPC [2013] 8 NWLR (Pt. 1356) 238. The claimant went on that it its treatment of issue 1 in the argument of the preliminary objection, the defendant argued that the judgment of the Lagos High Court created res judicata. To the claimant, a judgment rendered without jurisdiction cannot be the basis for the operation of the doctrine of res judicata, referring to Adeyemi-Bero v. LSDPC and Achiakpa v. Nduka [2001[ 39 WRN 1 at 25. That in the instant case, the Lagos High Court lost the jurisdiction to entertain the subject matter of this suit when it delivered judgment on 27th September 2011. That this Court, which is now the Court vested with jurisdiction and is of coordinate jurisdiction with the Lagos High Court can entertain a fresh suit seeking to set aside the previous judgment of the Lagos State High Court. It is the further submission of the claimant that as between the two Courts, this Court is a preferred forum to entertain this suit because it has jurisdiction over all the claims of the claimant as against the Lagos High Court which can only entertain the claim for setting aside its previous judgment. To the claimant, the Third Alteration to the 1999 Constitution came into effect on 4th March 2011 and the law is that if there is a court with jurisdiction to determine all the issues raised in a matter including the principal issue, it is improper to approach a court that is competent to determine only some of the issues, referring to Tukur v. Govt. of Gongola State [1989] 4 NWLR (Pt. 117) 517 at 549. Furthermore, that the issue of res judicata raised by the defendant is incompetent as it is improperly raised. That the plea of estoppel per rem judicatam is a matter of pleading. That the defendant has not filed its defence or any form of pleadings at all. As such it cannot raise the plea as it did, citing Achiakpa v. Nduka (supra) at 22 – 23 and Abubakar v. FMB Ltd [2002] 15 WRN 95 at 104 where Salami, JCA (as he then was) noted that res judicata is a shield not a sword; and being a defence of estoppel, it has to be properly set up and can only be appropriately set up by pleadings. The claimant accordingly urged the Court to discountenance the plea of res judicata raised by the defendant or resolve the issue against them based on the earlier submission that a judgment delivered in the absence of jurisdiction cannot support the plea of estoppels per rem judicatam. The defendant had in arguing issue 2 said that even if the Lagos High Court judgment was delivered without jurisdiction, only the Lagos High Court can set it aside, citing Alamieyeseigha v. Yeiwa. To the claimant, Alamieyeseigha v. Yeiwa does not create such a limitation; and even if it does, it will run contrary to Okoye & ors v. Nigerian Construction & Furniture Co. Ltd and FRN v. Ifegwu. Thus that it is not only the Lagos High Court that can entertain a claim for the setting aside of its null judgment, another Court of coordinate jurisdiction can and in the instant case, it is this Court. The claimant then urged the Court to dismiss the defendant’s preliminary objection. In reaction, the defendant contended that the claimant misconceived the principles of law adumbrated in Okoye & ors v. Nigerian Construction & Furniture Co. Ltd. That in Okoye, the Supreme Court laid down 4 conditions before a court of coordinate jurisdiction can assume jurisdiction and set aside the judgment of court of equal jurisdiction. The conditions are – a) Where the judgment is obtained by fraud. b) Where there is a serious procedural fundamental defect in the proceedings that led to the judgment of. c) Where on the face of the record of the proceedings that led to the judgment it is a nullity. d) Where the judgment is obtained in the absence of a party. To the defendant, that a critical look at the facts of this case will show that facts of this case are not in pari materia with the facts of the case before this Court. That they are fundamentally different. In any event, that there is nothing in the case before this Court that brings it under any of the conditions highlighted by the Supreme Court in Okoye for the following reasons – 1. The judgment in Suit No. LD/613/08 was not obtained by fraud. 2. The claimant did not allege any procedural fundamental detects in the proceedings that gave rise to the judgment delivered by Justice Nicol-Clay. 3. Nothing on the face of the record of proceedings that led to the judgment can make the said judgment a nullity as Lagos State High Court properly assumed jurisdiction from inception. 4. The said judgment was not obtained in the absence of the claimant. As a matter of fact the claimant herein instituted the matter. It is, therefore, the case of the defendant that Okoye relied upon by the claimant does not support the claimant’s case. The defendant went on that by necessary implication, where the judgment sought to be set aside by the Court of equal jurisdiction does not meet any of the conditions laid down by the Supreme Court in Okoye then the only court that has jurisdiction to look into the judgment is the Court of Appeal. To the defendant, when a court assumes jurisdiction on a matter it follows that the same court cannot deliver a judgment that is null and void in the absence of any fraud established. The defendant continued that on the basis of Tukur v. Govt. of Gongola State, the Court must have granted reliefs 1 and 2 before it proceeds to hear and determine reliefs 3 – 5. Needless to say, that it is the Court that granted a judgment without jurisdiction that has jurisdiction to set it aside – so it is the same Court that should assume jurisdiction, referring to Bello v. INEC without a citation though referred to by the claimant as Bello v. INEC & 2 ors [2010] 8 NWLR (Pt. 1196) 342. Furthermore, that FRN v. Ifegwu relied upon by the claimant does not lend support to the claimant’s case as the suspect in that case was tried for an offence that was not known to law and was convicted of the same offence. The defendant went on that assuming without conceding that this Court sets aside the decision of Nicol-Clay J, the claimant is late in time to cry foul that the said High Court lacks jurisdiction to entertain the matter. That from the antecedents of this case, the claimant instituted this matter before the Lagos High Court pursuant to the then High Court of Lagos State (Civil Procedure) Rules. The claimant concluded its case sometimes in 2010. The defendant opened and concluded its case on 06/06/2011. Parties’ respective final addresses were then adopted. That the claimant was aware of the Third Alteration to the 1999 Constitution which allegedly ousts the jurisdiction of the Lagos High Court but never raised it nor brought it to the attention of the Court until final addresses were adopted and judgment delivered on 27/09/2011. That the claimant did not raise this issue of jurisdiction in 2011 or 2012. The defendant appealed against the said judgment while the claimant cross-appealed. That in all of this, the claimant did not raise the issue of jurisdiction until 2013, two years after he submitted to jurisdiction at the Lagos High Court for the disposition of the matter and even participated in appeal. That it is too late in the day to come under the cover of jurisdiction and seek to set aside the decision of the Lagos High Court, the claimant not having raised it before the said Lagos High Court which is the appropriate Court of first instance to such issue of jurisdiction. Continuing, that while it is trite that the issue of jurisdiction can be raised at anytime, it has been held by the Supreme Court that the right to do so is not absolute, citing Akere v. Governor of Oyo State [2012] 12 NWLR (Pt. 1314) 240 at 267 – 268. That subject to conditions the issue of jurisdiction cannot just be raised at anytime. One such requirement is that it must be properly raised, which in the instant case, it is not the case as the better forum to raise it is either at the Court that gave the judgment or the Court of Appeal, certainly not this Court. That it will amount to taking this Court through a wild goose chase by now invoking lack of jurisdiction of the Lagos High Court. It is the further submission of the defendant that the claimant’s instant suit is an abuse of judicial process. That Suit No. LD/613/08 between the same parties having been properly adjudicated upon by the High Court, instituting a similar suit between the essentially the same parties in fundamentally the same subject matter before this Court amounts to nothing but an abuse of judicial process, referring to TSA Ind. Ltd v. FBN Plc (No. 1) [2012] 14 NWLR (Pt. 1370) 326 which held that the improper use of the judicial process by a party in litigation to interfere with the administration of justice and/or multiplicity of actions on the same parties, even where there exists a right to bring the action, is regarded as an abuse. Also held as an abuse of court process by the Supreme Court in Congress for Progressive Change v. INEC & ors [2012] 13 NWLR (Pt. 1317) 215 at 276 is the filing of two similar processes to achieve the same purpose. Additionally, as held in Buhari & ors v. Obasanjo & ors [2003] 16 NSCQR 68 at 78 and 111, that litigation is not a game of cheese where the parties try tricks at each other to maneuver to get victory. The defendant concluded by submitting that the instant case is god-digging, vexatious, frivolous, an abuse of judicial process, misleading and so should be dismissed in its entirety with substantial cost in favour of the defendant. I heard learned counsel and considered all the processes filed in the matter. In considering the merit of the matter at hand, I must remark on a thing or two. In paragraph 2.5 of the defendant’s reply on points of law, the defendant gave a quotation without stating the source of the quotation. How counsel to the defendant expects the Court to source for where the quotation comes from is what I cannot fathom. Secondly, the defendant made an issue of the claimant submitting to the jurisdiction of the High Court and so cannot be heard now to complain. The defendant even sought solace in the case of Bill Construction Co. Ltd v. Imani & Sons Ltd/Shell Trustees Ltd [2006] 19 NWLR (Pt. 1013) 1 at 14 cited (wrongly) as Real Construction Company Ltd v. Emmani & Sons Ltd [2006] 19 NWLR (Pt. 1013) 1 at 14 by the defendant where it was held that where a party is given an ample opportunity to conduct his case within the ambit of the law and failed to avail himself of the opportunity, he cannot later be heard to complain. This statement of principle is reminiscent of and relates to fair hearing, not jurisdiction. An uncritical citation and use of case law authorities does no counsel any good in terms of advocacy. Even when the defendant argued that Akere v. Governor of Oyo State held that the rule that jurisdiction can be raised at anytime is not absolute, the example of the exception given by the defendant does not appropriately substantiate the issue at hand. The point to note is that parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court where jurisdiction is lacking (Okolo v. Union Bank of Nig. Plc [2004] All FWLR (Pt. 197) 981 and FGN v. Oshiomhole [2004] 3 NWLR (Pt. 860) 305); neither can they waive jurisdiction (Okolo v. Union Bank of Nig. Plc and Mobil Production Nig. Unltd v. Monokpo [2004] All FWLR (Pt. 195) 575); and a Court cannot expand its jurisdiction, it can only expound it (Tukur v. Government of Gongola State [1989] NWLR (Pt. 117) 517, Mudiaga-Erhueh v. NEC [2003] FWLR (Pt. 137) 1066, African Newspaper & ors v. FRN [1985] 2 NWLR (Pt. 6) 137 SC, Ifeajuna v. Ifeajuna [2000] 9 NWLR (Pt. 671) 107, Eguamwenze v. Amaghizemwav [1993] 9 NWLR (Pt 315) 1, SCC (Nig.) Ltd & 2 ors v. Yusuf Sedi [2013] 1 NWLR 230 and this Court’s decision in Errand Express Limited v. Maritime Workers Union of Nigeria unreported Suit No. NIC/LA/39/2011 the judgment of which was delivered on March 26, 2014). So the argument of the defendant that the claimant submitted to jurisdiction cannot hold ground and so is untenable; and I so hold. The claimant’s action is predicated on the fact that the judgment of Hon. Justice A. M. Nicol-Clay of the Lagos State High Court in Suit No. LD/613/08 when it was decided was decided without jurisdiction and so the judgment delivered thereby on 27th September 2011 was a complete nullity. See S. O. Akegbejo & ors v. Dr D. O. Ataga (Director NIFOR) & 3 ors [1998] 1 NWLR (Pt. 534) 459, Peenok Investments Ltd v. Hotel Presidential Ltd [1983] 4 NCLR 122 and Osadebay v. AG, Bendel State [1991] 1 NWLR (Pt. 169) 525. The key issue, therefore, that arises is whether the judgment in Suit No. LD/613/08 was actually delivered without jurisdiction so as to render it a nullity as the claimant argues. The old test for determining the competence or jurisdiction of the Court was the existing law at the time the cause of action in a dispute arose and not the existing law at the time a trial Court or Court of Appeal heard the matter or appeal respectively. See Gabriel Madukolu v. Johnson Nkemdilim [1962] 1 All NLR (Pt. 4) 581 at 595, Western Steel Workers Union of Nig. & anor v. Iron & Steel workers Union & anor [1986] 6 SC 35 at 50 – 51, Chief Victor Ukwu & ors v. Chief Mark Bunge [1997] 8 NWLR (Pt. 518) 527 at 544 and Uwaifo v. AG, Bendel State [1983] 4 NCLR 1. However, this test has now changed. The new test for determining jurisdiction when the law is changed, altered or amended has been laid down by the Supreme Court in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496, following the earlier decision in Osakue v. Federal College of Education, Asaba [2010] NWLR (Pt. 1201) 1 SC. In that case, the Supreme Court per His Lordship Rhodes-Vivour, JSC in his lead judgment made the distinction as between the law for determining a cause of action and the law for determining jurisdiction. As relates to the determination of a cause of action, that the law is the law in existence at the time the cause of action arose. But as to determining jurisdiction, the law is that in existence as at the time trial commenced. In the exact words of His Lordship Rhodes-Vivour, JSC – The law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on the 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990). If trial commences before 1993, the court to try the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court. I must quickly point out here that, contrary to the submission of the claimant that the judgment in Suit No. LD/613/08 is a nullity because it was delivered after 4th March 2011 when the Third Alteration to the 1999 Constitution, which divested the High Court of jurisdiction, came into effect, Obiuweubi did not say that the law for determining jurisdiction is the law as at the time judgment is delivered. The Third Alteration to the 1999 Constitution came into effect on 4th March 2011. Did trial in Suit No. LD/613/08 commence before or after 4th March 2011? A copy of the judgment in Suit No. LD/613/08 is part of the processes frontloaded by the claimant. The second paragraph at page 2 of the judgment states as follows – At the close of Pre-Trial Conference the matter proceeded to trial on the 20th of October 2009. And at page 3 of the judgment, it was stated that the “defence opened its case on 15th day of March 2011”. What I gather from this is that trial commenced on 20th October 2009 long before 4th March 2011, the date Third Alteration to the 1999 Constitution came into effect. On the authority of Obiuweubi, therefore, the Lagos State High Court had jurisdiction to hear and determine Suit No. LD/613/08. The judgment consequently delivered by Nicol-Clay J in that case could not have been without jurisdiction as argued by the claimant. The case accordingly remains valid and subsisting; and I so find and hold. This being the case, the very basis of the claimant’s instant case before this Court falls like a pack of cards; for if the judgment in Suit No. LD/613/08 is valid, subsisting and binding, this Court cannot even interpret it (Hydroworks Ltd v. Rimi Local Government [2002] 1 NWLR (Pt. 749) 564 held that it is not within the jurisdiction of a Court to interpret the judgment of a Court of coordinate jurisdiction), talk more of setting it aside. That task is that of the Court of Appeal. In fact, agreed that Olutola v. Unilorin [2004] 18 NWLR (Pt. 905) 416 held that Courts that are of similar or concurrent jurisdiction are not even bound to follow the decision of each other, yet the law is that even at that the remedy open to an aggrieved party is to appeal to a superior Court. Nothing is said about a Court with coordinate jurisdiction overruling or setting aside such a decision. A judge cannot even overrule himself in the same proceeding (Lawani v. Yakubu Dawodu [1972] 8 – 9 SC 83). Even if Suit No. LD/613/08 were to have been decided without jurisdiction, I do not think that that is the kind of nullity that would entitle another court of coordinate jurisdiction to hear and declare it as a nullity for the purpose of setting it aside. That is appropriately the function of an appellate court, the Court of Appeal in the present instance. The kind of nullity envisaged by the authorities cited by the claimant is that which require the proof of facts that make the judgment a nullity such as fraud. A verdict simply required so as to brand a judgment as one given without jurisdiction and hence a nullity requires more of a review of the law, not of the facts as such; and that function is appropriately that of an appellate court, not one with coordinate jurisdiction. In any event, I agree with the defendant that the claimant did not meet the conditions (as to existence of fraud, serious procedural defects, the judgment being a nullity on its face and the judgment being obtained in the absence of a party) laid down in Okoye & ors v. Nigerian Construction & Furniture Co. Ltd to enable me set aside the judgment delivered in Suit No. LD/613/08. On the whole, therefore, I find and hold that the judgment in Suit No. LD/613/08 was delivered when the Lagos State High Court had jurisdiction so to do. The said judgment was given by a Court with jurisdiction to give it and so the judgment is accordingly not a nullity as to require this Court setting it aside. Even if the judgment was given without jurisdiction, the claimant did not satisfy the Court as to the conditions needed to warrant this court stepping in and setting the judgment aside. The objection of the defendant accordingly has merit and so succeeds. The claimant’s case is hereby dismissed. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip