In the Federal High Court of Nigeria In the Abuja Judicial Division Holden at Abuja
On Wednesday, the 7th day of July, 2021
Before Their Lordships
Taiwo O. Taiwo
Judge, Federal High Court
Suit No. FHC/ABJ/CR/303/2021
Between
Folakemi Adeosun Plaintiff
And
Attorney-General of the Federation Defendant
(Judgement delivered by Honourable Taiwo O. Taiwo, J.)
Facts
The Plaintiff, a citizen of the United Kingdom with Nigerian descent, graduated from the University of East London, United Kingdom at the age of 20 years. The Plaintiff worked in the United Kingdom until the year 2003, when she came to Nigeria at the age of 36 years. She was appointed as a Commissioner for Finance in Ogun State, between the year 2011 and 2015. Thereafter, she was appointed as the Minister of Finance in 2015, a position she occupied till 2018, when it was paraded in the public space that she did not participate in the National Youth Service Corps (NYSC) Scheme, and as such, not eligible to hold an office as a Minister of the Federal Republic of Nigeria.
This rumour remained unabated, and the Plaintiff resigned from her office as the Minister of Finance.
Nonetheless, the Plaintiff’s career was impaired by the insinuations regarding her failure to participate in the NYSC Scheme, and this consistently put her at disadvantageous positions both within and outside the country. Hence, she instituted the present action by way of Originating Summons, inviting the Honourable Court for a determination of some questions. She also sought various reliefs from the court, including a Declaration that the Plaintiff, being a United Kingdom Citizen in 1989 when she graduated from the University of East London, United Kingdom at the age of 22 years, was ineligible to participate in the NYSC scheme, established by the National Youth Service Corps Act, (NYSC Act) Cap N84, Laws of the Federation of Nigeria (LFN), 2004.
Issues for Determination
The following questions were posed for determination of the court:
1.Having regard to the combined provisions of Sections 106 and 107; 192(4); 177 and 182; 65 and 66; 147(5); and 131 and 137 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which respectively prescribe the qualifications and disqualifications for the offices of a member of the House of Assembly of a State; a Commissioner in the State Executive Council; Governor of a State; member of the National Assembly; Minister in the Federal Executive Council; and the President of the Federal Republic of Nigeria, whether any Nigerian citizen is otherwise disqualified from holding any of the offices afore-listed by reason of not participating in the National Youth Service scheme, established by the NYSC Act.
2. Considering the clear provisions of Sections 200(1)(a) and 156(1)(a) of the Constitution which stipulate the qualifications membership of State Executive Bodies and Federal Executive Bodies respectively, whether any Nigerian citizen is disqualified from holding offices as a member or Chairman of any of the said bodies by reason of non-participation in the NYSC scheme, established by the NYSC Act.
3. Upon the combined reading of the provisions of Section 26 of the Constitution of the Federal Republic of Nigeria, 1979 (being the one in force in 1989), Sections 25 and 36(8) of the 1999 Constitution; and Section 6(1)(b) and (c) of the NYSC Act, whether the Plaintiff, being a citizen of the United Kingdom as at 1989, was not ineligible to participate in the NYSC Corp (as at 1989), when she graduated from the University of East London, London, United Kingdom at the age of 22 years.
Given the questions above, the Defendant raised a sole issue thus:
Whether the Plaintiff is entitled to the reliefs sought against the Defendant.
Arguments
In support of the application before the court, counsel for the Plaintiff contended that there is nothing in any of the referenced provisions of the 1999 Constitution which requires or mandates compulsory participation in the NYSC scheme, and obtaining a discharge certificate. Counsel reasoned that it is a constitutional misconception to conclude that the Plaintiff, who was born in the United Kingdom in 1967 and retains the citizenship of the United Kingdom as required in Section 28 of the 1979 constitution, and the fact that the Plaintiff lost her Nigerian citizenship immediately she attained the age of 21 years. By this fact, the Plaintiff lost the right and resultant liability accruing to a Nigerian citizen, including the right to vote and be voted for.
Conversely, the Defendant argued through his counsel that any graduate in employment in Nigeria is expected to have provided his employer in Nigeria with a discharge/exemption certificate prior to obtaining the job as obligated by the provisions of Section 12 of the NYSC Act. Counsel submitted further that by the provisions of Section 147(5) and 192(4) of the 1999 Constitution, the minimum qualification required for a Commissioner/Minister of the Federal Republic of Nigeria, is school leaving certificate. He posited that the provisions of the Constitution takes precedent over that of the NYSC Act, and that despite the fact that the Plaintiff is a graduate, there is no constitutional requirement for her to present her first degree certificate or any other certificate, including the NYSC certificate, to be appointed as a Minister. Counsel submitted that the ministerial appointment of the Plaintiff was neither illegal nor unconstitutional, even without presenting the NYSC certificate.
Court’s Judgement and Rationale
Preceding the determination of the questions posed by the Plaintiff, the court addressed the issue/stance of the Defendant that the Plaintiff did not establish a cause of action against the Defendant. The court adjudged this as a jurisdictional issue and addressed same first, before delving into resolution of the main questions/issues. His Lordship referred to the affidavit in support of the Originating Summons and decided that though the Defendant was not responsible for the resignation of the Plaintiff as a Minister, nonetheless, the issues before the court are constitutional in nature, and the court should not shy away from finding solutions to constitutional questions within the Constitution itself and any other subsidiary legislation. The Plaintiff has a constitutional and legal right to approach the court, and where there is no remedy provided either in common law or statute, the courts have been urged to create one – OMOYINMIN v OGUNJI (2008) 3 NWLR (Pt. 1075) 471.
It is the law that the proper person to be made a party/Defendant in cases relating to the interpretation of the Constitution, is the Defendant herein. Though the Plaintiff voluntarily resigned her appointment as Minister, her action does not prevent her from asking the court to determine the questions posed in the instant case, and joining the Attorney-General as a Defendant in the suit.
Going to the main issues/questions before the court, His Lordship reiterated the trite decision of courts, that where the words of the Constitution or statute are plain, clear and unambiguous, they must be give their plain, ordinary meanings as there is nothing to interpret – A-G BENDEL STATE v A-G FEDERATION (1981) 10 SC. 1.
Sections 106 and 107, 192(4); 192(4), 177 and 182; 65 and 66; 147(5); 131 and 137 of the Constitution, prescribe the qualifications for members of the House of Assembly of a State; Commissioner in a State; Governor, member of the National Assembly, Minister, Federal Executive Council and the President of the Federal Republic of Nigeria. There is nowhere in the Constitution where any Nigerian, including the Plaintiff, is disqualified from holding office by reason of non-participation in the NYSC scheme. The Constitution is supreme, and any law which provisions is inconsistent with the Constitution, is void, while the Constitution prevails. By Section 147(5) of the Constitution, a person becomes eligible to be appointed a Minister in Nigeria, if he is qualified for election as a member of the House of Representatives. Sections 65 and 66 relate to the yardstick for qualification as member of the House of Representatives, and participation in the NYSC scheme is not one of the listed grounds.
In this case, the Plaintiff was born in the United Kingdom and became citizen of the United Kingdom. Her education, up to university level, was also obtained in the United Kingdom, until she graduated in 1989 at the age of 22. If she was a citizen of Nigeria when she graduated at the age of 22, she would have been eligible to participate in the NYSC scheme upon her return to the country. However, by the time she moved to Nigeria in the year 2003, she was already 36 years old, and not eligible to participate in the NYSC scheme. To do otherwise, would have been a criminal offence. Nonetheless, the Plaintiff falls into the category of persons entitled to an exemption certificate upon restoration of her Nigerian citizenship by the 1999 Constitution, by which time she was already 30 years old. Further, the Plaintiff had also been self employed, and needed not to produce any certificate to an employer.
Regarding the provisions of Section 26 of the 1979 Constitution (which was the applicable law at the relevant time when the Plaintiff graduated), she was not a citizen of Nigeria at the time, and was not eligible to participate in the NYSC scheme. The referenced Section 26 of the 1979 Constitution has been repealed by Section 25(1)(c) of the 1999 Constitution, which provision restored the Nigerian citizenship of the Plaintiff. However, at the time the 1999 Constitution became operational, the Plaintiff was not eligible to participate in the NYSC scheme, as she was well over the required age for participation. More so, NYSC discharge certificate is not a mandatory requirement for qualification to contest, or be a member of the House of Representatives.
While the court observed that the reliefs sought by the Plaintiff were declaratory in nature, and that the Plaintiff must prove her entitlement to the declaratory reliefs sought, the court held that from the evidence before it, there was nothing to show that the Plaintiff had not proved her entitlement to the reliefs sought. His Lordship stated that, to deny the Plaintiff the reliefs will not do justice to her and her reasons for approaching the court. Thus, the court granted all the reliefs sought by the Plaintiff.
Claim Succeeds.
Representation
Chief Wole Olanipekun, SAN with Emeka Ananyi for the Plaintiff.
T.A. Gazali, SAN for the Defendant.
Reliefs in the claim Granted.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)
