A Federal High Court in Abuja on Friday dismissed the preliminary objection filed by the National Youth Service Corp (NYSC) against Gov. Peter Mbah of Enugu State’s N20 billion suit over alleged certificate forgery.
Justice Inyang Ekwo, in a ruling, held that the preliminary objection lacked merit and ought to be dismissed.
Justice Ekwo said that the provision of Section 20 of the NYSC Act, 2004 which the corps based its objection on was not applicable to Mbah since he was not a serving corps member.
“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 held that 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.
Justice Ekwo, who dismissed the NYSC’s preliminary objection for lacking in merit, adjourned the matter until Sept. 21 and Sept. 22 for hearing.
Governor Mbah had sued the NYSC and its Director, Corps Certification, Mr Ibrahim Muhammad, for publishing a disclaimer, denying the issuance of a discharge certificate issued to him on January 6, 2003.
Justice Ekwo, on May 15, restrained the NYSC, Muhammad and any of their agents from, henceforth, engaging in such publication pending the hearing and determination of the substantive matter.
The order followed an ex parte motion moved by Mbah’s counsel, Mr Emeka Ozoani, SAN.
But the NYCS, in its preliminary objection dated May 19 and filed May 22, sought an order dismissing or striking out the suit for want of jurisdiction and competence.
Giving three grounds of argument, the corps said that Mbah did not appeal to the president as required by the provisions of Section 20 of the National Youth Service Corps Act, Cap N84, Laws of the Federation of Nigeria, 2004 before instituting the suit against the defendants.
It argued that appeal to the president was a condition-precedent to instituting an action against the defendants in any court of law in Nigeria.
According to the NYSC, 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.
The NYSC had, on Feb. 1, written a letter signed by Mr Ibrahim Muhammed saying that the NYSC certificate belonging to Mbah was not issued by the corps.
Mbah of the People’s Democratic Party (PDP) was declared the winner of the Enugu state governorship election held in March 18 by the Independent National Electoral Commission (INEC).
