A Federal High Court in Lagos has declared as unlawful, the decision by the National Youth Service Corps (NYSC) to bar Nigerian graduates who do not possess credit passes in ‘O’ Level Mathematics, from taking part in the exercise.
The judgment was made in a suit filed by a Nigerian overseas graduate, Terna Tarka, who was denied mobilisation because he does not have a credit pass in Mathematics in his ‘O’ Level certificate examination.
In denying him, NYSC cited a correspondence from the Ministry of Education which had directed it to comply.
But the graduate through his counsel, Adekunle Oyesanya (SAN) filed a legal action at the Federal High Court, Lagos challenging the NYSC decision.
Joined in the suit are Chairman, National directorate of the National Youth Service Corps and the Minister, Ministry of Education as second and third defendants respectively.
Ruling, Justice Mohammed Idris said given the NYSC’s powers by virtue of the provisions of Sections 2(i) (b) of the National Youth Service Corps Act, Cap N84, Laws of the Federation of Nigeria, 2004, it was illegal to deny the young man national service on account of a policy that is not recognised by law.
The court held that the correspondence between defendants upon which the defendants based their decision to prevent the plaintiff from participating in the NYSC scheme is neither law nor regulation.
Justice Idris, therefore, made an order compelling the first and second defendants to register the plaintiff in the next batch of the NYSC scheme or in the alternative to exempt the plaintiff from participating in the scheme and issue him with a certificate of exemption to that effect.
“The grievance is a continuous one since the plaintiff cannot secure a job lawfully without obtaining an NYSC certificate. There was no official reply to the letters written by the plaintiff. The plaintiff had written two letters to the defendants and none was honoured with any reply. At best, time starts to run from when the first and second defendants filed their counter-affidavit to this suit”, the judge declared.
“The president has not exercised his power to make further regulations under the law as well”, Idris ruled, adding that it is an offence punishable by 12-month imprisonment and/or fine if a graduate, without exemption, fails to make himself available for service under the NYSC scheme for one year. He noted that the law is clear that no employer shall employ such a person.
“In fact, it was only a staff of the first defendant who hinted the plaintiff on the reason why his application for NYSC mobilisation was refused. His letters of protest were not also replied until he saw the defendants counter-affidavit,” the judge stated.
Earlier, Oyesanya had adopted his written addresses, affidavit and other supporting documents while counsel to first and second defendant, O.P Omuru adopted his counter affidavit and other supporting documents.
He urged the court to mandate NYSC to mobilise his client or in the alternative give him exemption letter, arguing that the law states that any Nigerian graduate who graduates under 30 years must submit himself for national service.
The counsel insisted that disallowing his client mobilisation based on a mere correspondence between Ministry of Education and the NYSC is unlawful.
“The NYSC cannot operate laws in retrospect. If they want to make a new law, let them make it known to the public”, he argued, adding that the action was not statute-barred.
In his response, Omuru argued that the plaintiff was informed that he would not be mobilised for the national service in February 2013 by an officer of the scheme but that he did not bring up the action until the three months allowed by law elapsed.
He therefore, urged the court to dismiss the suit for lack of jurisdiction. “The cause of action is statute-barred. The cause of action arose since February 2013. So there is no cause of action to grant the prayers of the plaintiff by this court for want of jurisdiction”, he submitted.
Oyesanya however said that it was only the officer of the third respondent (Ministry of Education), who informed his client, and that since the third respondent, even though they were served did not deem it fit to file a defence, they have acquiesced to the claims.
The plaintiff in his originating summons had prayed the court to determine whether the decision by the first and second defendant to deny him the opportunity to register in Batch A of the NYSC scheme in March 2013 is lawful and is in accordance with the provisions of the NYSC Act, Cap N84, laws of the federation of Nigeria.
“Whether or not the third defendant’s directive to the first and second defendants to deny the plaintiff the right to register for the NYSC on account of his not having five credits in his O’ Level or West African Examination Council (WAEC) results, (particularly in Mathematics) is lawful and in accordance with the NYSC Corps Act, Cap N84, Laws of the Federation of Nigeria, 2004,” he stated.
In his affidavit, the plaintiff said that he had two credits and four passes in his WAEC before proceeding to the United Kingdom to remedy the result in Mathematics and other subjects.
That, he said was done in Irwin College, Leicester, UK before he gained admission to Greenwich School of Management of the Plymouth University, where he took ‘access modules’ to enable him qualify and take a degree programme.
He said that he later graduated in 2011 with a Bachelor of Science degree with second-class Upper Division in Business Management and Information Technology.
He swore: “That I visited the third defendant’s office whereupon my results were perused and I was informed that due to the fact that I did not have five credits O’ Level credits, particularly in Mathematics, I was not qualified or eligible for registration into the service corps scheme.
“ I was shocked at this development because I knew that at the time I sat for the West African School Certificate Examinations in 1999 and even up till date, there was no such regulation in the law setting up the NYSC.”