Court Dismisses NYSC’s Objection in Mbah’s Suit

Last week’s dismissal of the preliminary objection filed by the National Youth Service Corps to challenge the N20 billion suit slammed on it by Governor Peter Mbah of Enugu State is his latest effort to prove the conspiracy, deceit and misrepresentation of facts by the corps against him, Wale Igbintade writes

Enugu State Governor, Mr. Peter Mbah, has continued to triumph over allegations of forging the certificate of the National Youth Service Corps (NYSC) with the latest being the dismissal of the preliminary objection filed by the corps against the N20 billion suit he slammed on it by Justice Inyang Ekwo of the Federal High Court in Abuja.

Mbah’s NYSC discharge certificate has been a subject of controversy between him and the NYSC. Recall that the corps had on February 1, 2023, written a letter signed by its Director of Certifications, Ibrahim Muhammad, saying the certificate belonging to Mbah was not issued by the corps.
This made Mbah to sue the NYSC and Muhammad for N20 billion, demanding compensation for what he described as conspiracy, deceit, and misrepresentation of facts. Apart from N20 billion damages, the governor is seeking a declaration that he participated in the NYSC scheme for one calendar year via a call-up letter numbered FRN/2001/800351 with the Lagos code LA/01/1532. He said this was why he was issued a certificate of national service numbered A808297 upon completing his service year in 2003.

The governor is further seeking a declaration that NYSC and its director for corps certification “conspired by fraudulent design, suppressed, and misrepresented facts” in voiding his certificate of national service. He said: “The predominant purpose of the deceitful misrepresentation was intended albeit to inflict damages in legal profession, politics, business, as it was to unlawfully profit the defendants.”
In an affidavit submitted in support of his counterclaim, his lawyers said the governor returned to Nigeria to practise as a barrister and solicitor of the Supreme Court after bagging a law degree from the University of East London in 2000. They said he applied and was admitted into the Bar Part I programme of the Nigerian Law School.

“The plaintiff upon completing the Bar Part I exam had to wait for the Bar Part II programme. He was advised that instead of idling away to proceed on the mandatory one year National Youth Service Corps programme. The plaintiff upon completion of his NYSC service, was issued the NYSC certificate No. A808297 dated 6th January, 2003, certifying that he completed the one year of NYSC from 7th January, 2002 to 6th January 2003,” the lawyers said.
But the NYSC, in its preliminary objection filed on May 22, NYSC prayed for an order dismissing or striking out the suit for want of jurisdiction and competence. It maintained it did not issue the certificate in Mbah’s possession.
Giving three grounds of argument, the defendants said Mbah did not appeal to the President as required by the provisions of section 20 of the NYSC Act before instituting the suit against them. It argued that the appeal to the president was a condition precedent to instituting an action against them in any court of law in Nigeria.

“Consequent upon the refusal of the plaintiff/respondent to comply with the provisions of Section 20 of the National Youth Service Corps Act, this suit is premature for the jurisdiction of the court to crystalise,” they said.
But Mbah’s counsel urged Justice Ekwo to dismiss the objection on the grounds that the sections cited in the NYSC Act were not applicable in the instant suit and that a counter-affidavit and written address had been filed in response to the preliminary objection. Amongst other reliefs, Mbah in his counter-affidavit said that Section 20 of the NYSC Act, which NYSC’s lawyer referred to, did not apply to him.

At the last adjourned date, the counsel for NYSC had argued that Mbah contravened the NYSC Act in the institution of the suit. While urging the court to strike out the suit, he said Mbah did not appeal to the President as required by the provisions of Section 20 of the NYSC Act before instituting the suit against them.
While the suit was pending, the Director General of NYSC, Brigadier General Y. D. Ahmed, on a live television programme, categorically claimed that the certificate with number A808297, which Mbah is parading, was forged and that it was not issued by them. But Mbah has insisted that it was genuine and issued by the institution.

In his ruling, Justice Ekwo dismissed NYSC’s preliminary objection for lacking merit. He ruled that because Mbah was not a serving corps member, the provision of Section 20 of the NYSC Act, 2004, on which the corps founded its argument, did not apply to him.
“Again, I am minded to agree with the plaintiff (Mbah) on whom the provision of Section 20 of the NYSC Act, 2004 applies. This means that the provision has a category of persons to whom it is applicable.

“A keen perusal of the provision of Section 22 (1) and (2) of the Act would reveal that it sets out the person to whom the provision of Section 20 of the Act applies which is a ‘member of the service corps’ which is defined to mean a person registered as a member of the service corps.
“It is then stated in Section 21 (2) that for the purpose of the Act, the reference to a ‘member of the service corps’ includes, unless to the context otherwise requires or it is otherwise expressly provided, a prospective member of the service corps or any person who is a registered member.

“The major characteristic of the provision of Section 21 (1) and (2) of the Act, is that the draftsman puts wordings thereof in the present tense and not past tense. It makes the provision applicable to ‘a prospective member of the service corps or any person who is a registered member,’” he said.
Justice Ekwo said upon studying the statement of Mbah’s claim, he found no averment or claim thereof where it was stated that the governor was either “a prospective member of the service corps or any person who is a registered member.”

He said it was a settled law, without prejudice to the position of the law, that “the jurisdiction of a court is determined by the subject matter of the action and the claim before the court.”
“Consequently, I find that the substance of the preliminary objection of the defendants is not predicated on a proper interpretation of the provision of Section 20 of the NYSC Act, 2004 and therefore premised on erroneous consideration of the said provision.
 “It is rather sad that this preliminary objection has been used to waste the time of the court and consequently divert proceedings in this case from the substantive matter,” he said.

Last May, Justice Ekwo had upon a motion ex-parte by Mbah’s counsel, sequel to the suit, made “an order of interim injunction restraining the defendants and respondents whether by themselves, their directors, officers, servants, legal representatives, counsel or any other person or persons howsoever described and connected, from issuing, publishing or continued to issue, publish disclaimer to the effect that the NYSC certificate of national service dated 6th January, 2003, certificate No. A808297 issued to the plaintiff Mbah Peter Ndubuisi, in accordance with Section 11 of the NYSC Decree No. 51 of 1993 was not issued by NYSC pending the hearing and determination of the motion on notice filed in this suit.”

The conspiracy, deceit, and misrepresentation of facts which the governor accused the NYSC of was exposed at the state Governorship Election Petitions Tribunal when the Department of State Services (DSS) and Independent National Electoral Commission (INEC) debunked claims that he forged his discharge certificate.
With the dismissal of NYSC’s preliminary objection by Justice Ekwo, those who are keenly following the case feel that when it resumes for further hearing on September 21 and 22, which are the next adjourned dates, it would be academic exercise.