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GOVERNOR PETER MBAH AND THE WAR AGAINST NYSC – OBIAJULU NNOKA

The National Youth Service Corps (NYSC) established via National Youth Service Corps Act (No. 24 of 1973) marked its 50th anniversary this year. It is without a doubt one of the few institutions in Nigeria that have survived the ‘Nigerian Factor’. Most Nigerians are agreed that the scheme has continued to be relevant in line with its founding principles and philosophy.

However, very unfortunately, this programme lately has come under heavy flashlight as a result of the activities of a few mindless politicians. In response to enquiries by interest groups to the NYSC over the authenticity of the discharge certificate submitted to the Independent National Electoral Commission, by Peter Mbah, the newly inaugurated Governor of Enugu State, the NYSC has always maintained that the discharge certificate Peter Mbah is parading was not issued by it.

Peter Mbah had early in 2023, in a suspicious legal blitz filed an action against an individual whom he claims accused him of forging his discharge certificate. In a record four months, the FCT. High Court found the defendant guilty of wrongful accusation.The objective of this pre-meditated action is to set the cases up as Res Judicata at the election Petition Tribunal when as now, the matter is before the Tribunal. That has indeed been pleaded as part of the defendant’s case.

A very troubling part of this development is the recent action by Peter Mbah against the Corps itself, which is nothing but a brazen attempt to whittle down the integrity of the NYSC and its management. It is bizarre to confront an institution of the size and integrity of the NYSC with a forged document with the intention of intimidating it to accept such as authentic simply because the culprit has put himself on a collision course with the law. Instead of accepting the reality of the end of the road, Mbah will rather bring an action in court which original intention was to gag the Corps from making further embarrassing remarks about his forged document and particularly giving evidence before the Election Petition Tribunal sitting in Enugu. Very unfortunately for him, the court could not give such an order which effect would have been to shut out the truth. Indeed, that action has had the salutary effect of the NYSC ventilating details of Mbah’s criminal gambit and the extent he went to procure his forged certificate.

In a deposition by an Assistant Director in the Corps Certification Department, several indicting revelations were made by the NYSC. Documents submitted to the court to prove that Mbah submitted a forged discharge certificate to INEC include the alleged false certificate Mbah submitted to INEC, a photocopy of the original certificate that was to be issued to Mbah, a date sheet showing where discharged corps members signed for their certificates, official circulars authorizing the destruction of unclaimed certificates, photographs of incineration of the unclaimed discharge certificates, samples of NYSC discharge certificates during the period Mbah was supposed to have performed the service, Police and DSS letters of investigation etc. No deposition could have been more elaborate, indicting and convincing.

The plot by Mbah to set up a plea of Res Judicata at the Election Petition tribunal will fail because the plea of Res Judicata is legally founded on the basis that a previous judgement of a Court of competent jurisdiction had decided to finality the issues of law and facts raised by the Plaintiff in the present suit. In this regard therefore, four basic ingredients must exist for a plaintiff to successfully plead it.1, The parties (or their privies as the case may be) are the same in the present case as in the previous case. 2., The issue and subject matter are the same in the previous suit as in the present suit. 3., That the adjudication in the previous case must have been given by a Court of competent jurisdiction. 4., That the previous decision must have finally decided the issues between the parties.

The very first ingredient is decidedly fatal to Peter Mbah’s plea because the Defendant in the suite he instituted in the FCT. High Court is obviously not Chijioke Edeoga. This is crucial because Res Judicata is based on the principle that there must be a limit to litigation. It will amount to abuse of the judicial process to allow individuals to re-litigate matters that have been concluded. However, once the parties are not the same, Res Judicata will not avail the person pleading it. The second ingredient which is that the issue and subject matter are the same in the previous issue as in the present suit is also fatal to Peter Mbah’s case. The previous issue is a civil action based on balance of probabilities, while the present issue is anchored on crime which requires proof beyond reasonable doubt. So the standards of proof are not the same.The third issue is that the Court must be properly seized with jurisdiction and competence. It is doubtful if the FCT. High Court, by virtue of Section 251 of the 1999 as amended) which denies a state High Court jurisdiction to entertain a matter agains the Federal Government or its agencies is seised with jurisdiction. Even the fourth ingredient still does not help Peter Mbah because it requires that the previous decision must have finally decided the issues between the parties. The decision of the FCT. High Court could not have finally decided the issues between Peter Mbah and the defendant to the action he instituted in the FCT. High Court because NYSC was not subpoenaed to give evidence in the case. The position of the Supreme Court has been that the best evidence in case of forgery is a report by the supposed issuing authority. A pronouncement by the issuing authority is final because the law is not Juju. As the reader is already aware the NYSC Director General came on Arise Television to say categorically that the certificate which Peter Mbah submitted to INEC was not issued by the NYSC.

Mbah’s lawyers, in advancement of the Res Judicata gambit which I have shown cannot stand legal scrutiny have moved to stop the NYSC from coming to give evidence at the Tribunal. Their counsel has informed the Tribunal that the FCT High Court has ruled on the substance of the case before them. In effect, they are asking the tribunal not to enter the issue of certificate forgery at all. But they are confronted by a constitutional roadblock. Section 285(8) of the 1999 Constitution (as amended) provides that: Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or court in any pre-election matter or the competence of a petition itself is raised by a party, the tribunal or court shall suspend its ruling and deliver it at the stage of final judgement.

This section of the Constitution was interpreted by the Supreme Court in APP vs. Obaseki where his Lordship Ogunwumiji, JSC, said that: ‘’ By section 285(8) of the 1999 Constitution (as amended), every ruling that is capable of terminating an election petition in limine be it a preliminary objection or an interlocutory issue touching on the jurisdiction or competence of the court must be deferred or suspended until the final judgement when both will be rendered together.

The provision of section 285 (as amended) of the 1999 Constitution is mandatory, as the word ‘’shall’’ used therein leaves no room for discretion. The mischief sought to be cured by the section is simply to prohibit the tribunal or court of first instance in election matters from truncating an election petition in limine based on any preliminary objection to the jurisdiction of the tribunal or court on the competence of the petition.

It has also been erroneously argued that the issue of qualification of a candidate is solely a pre-election matter. There are two categories of pre-election matters, the one is pre-election matters as provided for by the Constitution, while the other is pre-election matters as provided for in the Electoral Act 2022. For the provision of section 285(14) (c) of CFRN, it would appear that locus standi to file a pre-election petition thereunder is not for aspirants but for political parties that are aggrieved by the actions of INEC. It gives room for political parties to challenge actions, decisions or activities of INEC in respect of nominations of candidates for an election, the timetable for an election, registration of voters and other activities in respect of preparation for an election. This is the window for political parties to challenge the nomination of candidates of another party.

The second category under sections 29(5) and 84(14) of the Electoral Act 2022 confers locus standi on aspirants only.

The true position is that the qualification of a candidate is both a pre and post-election issue.

Section 66 (1) (1) of the 1999 Constitution as amended states that anybody who submits a forged document to INEC stands disqualified. Section 134 (1) (a) of the Electoral Act 2022 instructively dropped down the provision of Section 66 (1) (1) of the CFRN by providing in their grounds for petition that ‘’An election may be questioned on any of the following grounds: ‘’ a person whose election is questioned was, at the time of the election, not qualified to contest the election. This provision of the Electoral Act 2022 was emphatic that for an allegation of presentation of false information in the affidavit submitted to INEC to succeed against any candidate in electoral matters, it must relate to the constitutional requirements. In the same way, section 134(1)(a) of the Electoral Act allows the opponents of any candidate to challenge the victory of the candidate after the general elections on the ground that the candidate was as at the time of the election not qualified to contest the election.

The Supreme Court has held in a number of cases that ‘no law, legislation, be it regulation or guidelines of whatever nature can come into effect to undermine a constitutional provision’. In other words, no one can be disqualified on any ground except on the ground that the person did not meet the constitutional requirements to contest the election.’

The Supreme Court further in Saleh v. Abah & Ors held that ‘the intention of the Constitution is that anyone who had presented a forged certificate to INEC should stand automatically disqualified…No decent system or polity should condone, or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contests’. ’’This court must take the lead, righting the wrong in our society if and when the opportunity presents itself as in this appeal.’’ ‘’Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity, will only mean that our waters are and will remain dangerously contaminated.’’ ‘’The purification efforts must start now and be sustained as we seek, as a nation, to now change from our old culture of reckless impunity.

The basis of this provision is to ensure that only individuals who are of impeccable moral fiber assume offices. The forging of documents as a crime strikes at the moral constitution of the individual and therefore is not acceptable to the Constitution. Indeed, our country is on its knees today because of the activities of criminals who have pervaded all levels of government. It therefore could be deduced that an individual who could forge a document to deceive his country and deprive same of token post-graduation service is not fit to be elected into any office, let alone the high office of the governor of a state.

 

 

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