A Federal high court in Abuja on Friday has dismissed the preliminary objection filed by the National Youth Service Corp (NYSC) against Governor Peter Mbah’s N20 billion suit over alleged certificate forgery.
In a ruling on Friday Justice Inyang Ekwo held that the preliminary objection lacked merit and ought to be dismissed.
Mr Ekwo said section 20 of the NYSC Act, 2004, which NYSC based its objection on, did not apply to Mr 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,” the judge explained. “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.”
He added, “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 judge stressed that 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,” pointing out that it “makes the provision applicable to ‘a prospective member of the service corps or any person who is a registered member’.”
Mr Ekwo held that upon studying the statement of Mr 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.”
According to the judge, it was 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,” the judge stressed. “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.”
Mr Ekwo adjourned the matter until September 21 and 22 for a hearing.
Mr Mbah had sued the NYSC and its director of corps certification, Ibrahim Muhammad, for publishing a disclaimer denying the issuance of a discharge certificate issued to him on Jan.6, 2003.
On May 15, the judge restrained the NYSC, Mr Muhammad and any of their agents from engaging in such publication pending the hearing and determination of the substantive matter.
But the NYSC, 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.
The NYSC had, on February 1, written a letter signed by Mr Muhammad saying that the agency did not issue the NYSC certificate belonging to Mr Mbah.
But Mbah dismissed the disclaimer, insisting he never forged his NYSC discharge certificate.
In his main suit (which was followed by an exparte motion) filed by his lawyer, Emeka Ozoani SAN, the governor sought “an order that the plaintiff’s certificate of National Service Number A808297 is authentic and was validly issued by the NYSC,” among other prayers.
He also asked the court to declare that the press release issued by the NYSC regarding his Certificate is deceitful and was “intended albeit to inflict damages in his legal profession, politics, business, as it was to unlawfully profit the NYSC and its DG.”
But the NYSC legal team filed a preliminary objection against the case, urging the court to declare Mbah’s case as “premature.”
But in his ruling on Friday, Justice Ekwo observed that the Section cited by the NYSC is applicable to a prospective member of the service Corps or any person who is a registered member.
The judge agreed with Mbah that he is a sitting governor of Enugu State and not a member of the service Corps and is not “required to make any presentation to the presidency by way of an appeal or otherwise.”
Justice Ekwo ruled that Mbah has a reasonable course of action which necessitated the institution of his case.
“This preliminary objection lacks merit and ought to be dismissed.
“I make an order dismissing the preliminary objection,” Ekwo held while adjourning the case to September 21 and 22 for hearing.
Mr Mbah of the Peoples Democratic Party (PDP) was declared the winner of the Enugu governorship election held on March 18 by the Independent National Electoral Commission (INEC).
