➥ CASE SUMMARY OF:
Mbah v. NYSC, Ibrahim Muhammad (FHC/ABJ/CS/611/2023, 10-NOV-2023)
by Branham Chima.
➥ ISSUES RAISED
Issuance of NYSC certificate.
➥ CASE FACT/HISTORY
In the Plaintiff’s Writ of Summons taken out on 4th May, 2023, the reliefs sought against the Defendants jointly and severally are as follows: ‘1. A DECLARATION that the Plaintiff participated in the National Youth Service Corps scheme for one calendar year vide a call up letter number FRN/2001/800351; Lagos code LA/01/1532 and upon completion was issued certificate of National Service No. A808297. 2. A DECLARATION that the Defendants conspired by fraudulent design, suppressed and misrepresented facts in supposition that the Plaintiff’s certificate of National Service with certificate Number A808297 was not issued by the Defendants, a fact they knew or ought to know as untrue, incorrect which act constitutes the tort of conspiracy. 3. A DECLARATION that the Defendants were negligent and maliciously misrepresented facts in these terms; “we are pleased to inform you that the certificate of National Service belonging to Mbah Peter Ndubuisi with certificate number; A808297 forwarded for verification was not issued by NYSC” which facts the Defendants know or ought to know as untrue and ought reasonably to have foreseen that damages would flow from such negligent misrepresentation of material facts. 4. A DECLARATION that the predominant purpose of the deceitful misrepresentation in these terms, “I am directed to refer to your letter dated 23rd November, 2022 on the above subject and to convey management’s delight for compliance with provision of NYSC Act regarding presentation of certificate of National service or Exemption certificate by employees/prospective employees holding degree and HND certificates. We are pleased to inform you that the certificate of National service belonging to Mbah Peter Ndubuisi with certificate number: A808297 forwarded for verification was not issued by the NYSC” was intended albeit to inflict damages in his legal profession, politics, business, as it was to unlawfully profit the Defendants. 5. AN ORDER that the Plaintiff’s certificate of National service No. A808297 is authentic and was validly issued by the 1st Defendant. 6. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants either jointly/severally, their officers, servants in whatsoever manner and howsoever called from disclaiming/resiling/repudiating the certificate of National Service No. A808297 issued to the Plaintiff Barrister Peter Ndubuisi Mbah. 7. The sum of $20,000,000,000.00 (Twenty Billion Naira) being general and exemplary damages against the Defendants jointly/severally; for tort of conspiracy, deceit, and misrepresentation of material facts.’
The Plaintiff participated in the NYSC scheme, completed it and was issued a certificate of National Service dated 6th January, 2003, with service No. A808297 but the Defendants have consistently disclaimed the said certificate and emphatically insisted that the NYSC certificate No. A808297 was not issued by the 1st Defendant.
➥ ISSUE(S) & RESOLUTION(S)
[SUIT SUCCEEDED]
I. (PROOF) Whether on a calm consideration of the evidence adduced, the Plaintiff has made out a case as to be entitled to the reliefs claimed?
RESOLUTION: IN CLAIMANT’S FAVOUR. (The Plaintiff proved his case).
[PW2 AFFIRMED AND WAS NOT DISCREDITED THAT THE CLAIMANT ATTENDED NYSC PROGRAMME
‘It is pertinent to state on the other hand, that the evidence of PW2 is not disputed concerning the fact that the Plaintiff served in his Law Firm after he was rejected by NPA where he was initially posted. It is also the evidence of PW2 which is not disputed that the Plaintiff served in the Law Firm of PW2 before his deferment of service and after he was reinstated. It is my opinion that PW2 is sufficiently linked to the facts of this case and is a credible source of evidence and I so hold. I have observed that the Defendants made an attempt in the course of cross examination to discredit the evidence of PW2, however, no question was asked PW2 by the Defendants which discredited his evidence. Again, Exhs. PW2 A1, A12, A13, A14, A15, A16, and A18 tendered by PW2 were not discredited thereby allowing them to stand unchallenged and uncontroverted. All these put together have led me to believe that it is the 1st Defendant that issued Certificate of National Service No. A808297 dated 6th January, 2003 (Exh. PW2-A23). At this point, I hold the opinion that the Plaintiff has discharged the onus placed on him by law, therefore, I need to consider the defence of the Defendants.’
THE EVIDENCE OF THE DEFENDANT WAS CONTRADICTORY
‘Now, the evidence of the Defendants that the Plaintiff’s certificate with No. A673517 which he did not collect is said to have been issued in 2001 and the certificate was incinerated following a mop up exercise of outdated, unused, and cancelled certificates of National Service and certificates of exemption, certificates of absconded members covering 1999 to 2004, is contrary to the evidence in this case. From the evidence in this case, the Plaintiff completed his service in 2003 upon being reinstated and not in 2001. It is not possible for the 1st Defendant to have pre-emptively prepared a certificate dated 2001 for a member of the service whose was deferred in 2002 and was reinstated to completed same in 2003. Furthermore, there is no evidence of the Defendants linking the said certificate with No. A673517 to either the file with Ref. No. LA/01/1532 (which was the substantive file opened at the time the Plaintiff joined the service) or file with Ref. No. LA/01/1532/T (which was a temporary file opened for the Plaintiff at the time he was reinstated) after his deferment. It is these files that would have been a formidable foundation of the case of the Defendants on which certificate it actually issued to the Plaintiff. There is no evidence that the Defendants also incinerated file with Ref. No. LA/01/1532 or file with Ref. No. LA/01/1532/T, in which case it would have been established that the files do not exist. It is the law that it is he who asserts that must prove;’
THE DEFENDANT ASSERTED BUT DID NOT PROVE THAT THE CALLIGRAPHY ON THE CLAIMANT NYSC CERTIFICATE IS FALSE
‘The other defence of the Defendants is that Certificates of National Service of all the members of the Service Corps in each State were calligraphed by a single officer of the 1st Defendant with the same handwriting. It is then contended that the calligraphy on the purported Certificate of National Service No. A808297 dated 6th January 2003 which the Plaintiff claimed was issued to him by the Defendants is different from the calligraphy on the Certificate of National Service prepared for Lagos State at the time of mobilization of the Plaintiff. This assertion has not been proved. No evidence was led to compare the calligraphy on Certificate with No. A673517 which the Defendants say they issued and certificate No. A808297 which they say they did not issue. No evidentiary weight can be ascribed to Exhs. DW1-A31 and A32 which are purportedly copies of certificates allegedly issued by the Defendants in 2003 as there was no relevant evidence properly comparing same to Exh. PW2-A23. I find that the assertion of calligraphic dissimilarity having not been effectively proved, the entire assertion on the issue does not have any evidentiary weight and I so hold.’
DEFENDANT ASSERTED INCINERATION OF NYSC CERTIFICATES FROM 1999 TO 2004 BUT YET PROVIDED A CERTIFIED TRUE COPY OF A 2003 CERTIFICATE
‘It is also the evidence in this case that by directive of the 1st Defendant’s top management of 18th August 2021, following a mop up exercise covering 1999 to 2004, all the outdated, unused, and cancelled certificates of National Service and certificates of exemption, certificates of absconded members of the Service Corps, including the Plaintiff’s certificate with Number A673517 which he did not collect, have been disposed of by incineration. However, Exhs. DW1-A31 and A32 are certified true copies of certificates both dated 6th January, 2003. Now, if all the outdated, unused, and cancelled certificates of National Service and certificates of exemption, certificates of absconded members of the Service Corps 1999 to 2004, were all disposed of by incineration, how did the Defendants obtain Exhs. DW1-A31 and A32 each of which is dated 6th January, 2003 which they certified and tendered in this case? To make matters worse, the certification by the stamp thereon was done on 19th August, 2023 long after this case was initiated on 4th May, 2023. A person can only certify a document which original it has in his possession. By tendering Exhs. A31 and A32, there is material conflict between the oral evidence in this case and other documentary evidence such as Exhs. DW1-A12, A13, A14, A15, A16, A17, A18, A19, A20, A21, A22, A23, A24, A25, A26, A27, A28, A29 and A30 on the subject matter. I find that the evidence of the Defendants on the issue of disposal by incineration of all the outdated, unused, and cancelled certificates of National Service and certificates of exemption, certificates of absconded members of the Service Corps 1999 to 2004 has lost credibility upon the Defendants tendering Exhs. A31 and A32 which belong within certificates which the Defendants claim to have disposed of by incineration in 2022 and I so hold. I also find that Exhs. A31 and A32 are lies unto themselves and ought to be discountenanced and I so do.’
THE CLAIMANT IS ENTITLED TO DAMAGES
‘The question now is, whether any harm was occasioned the Plaintiff by the act of the Defendants? The answer is; yes! The effect of the repeated disclaimer of Exh. PW2 A23 on the career path of the Plaintiff and the injury thereof cannot be quantified. The conduct of the Defendants comes with consequential damages. Upon weighing the circumstance of this case, I make an Order awarding the sum of N5,000,000.00 (Five Million Naira) against the Defendants jointly and severally as general damages for misrepresentation of material facts against the Plaintiff.’]
.
.
.
✓ DECISION:
‘Upon considering the preponderance of credible evidence in this case, I find that the 1st Defendant is the one that issued Certificate of National Service No. A808297 dated 6th January, 2003 (Exh. PW2-A23) to the Plaintiff. They had ample to opportunity to give this Court credible evidence to find otherwise but failed.’
➥ FURTHER DICTA:
⦿ BURDEN OF PROOF IN CIVIL CASES
It is to be noted that in civil cases, the proper question for the Court to determine in order to effectually and completely determine the case between the parties is: Whether the Plaintiff has proved his case upon preponderance of evidence as required by law? This question is in line with our law, that the onus is on the Plaintiff to prove his case by preponderance of evidence and the burden of proof does not shift. There is a plethora of judicial authorities on this. Let me quote extensively what the Court said in Odum v. Chibueze (2016) All FWLR (Pt. 848) 714 at 742 743 to wit: “Now, one of the most firmly established principle of legal adjudication is that in a civil suit, the person who asserts a fact has the primary burden of proving the assertion. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, (2005) All FWLR (Pt. 246) 1231; Olaleye v. Trustees of ECWA (2011) All FWLR (Pt. 565) 297, (2011) 2 NWLR (Pt. 1230) 1; Imonikhe v. Unity Bank – Plc. (2011) All FWLR (Pt. 586) 423; (2011) NWLR (Pt. 1262) 624. In other words, the onus of proof of an issue rests upon the party whether claimant or Defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleading place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. The true meaning of the rule is that where a given allegation whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him Elemo v. Omolade (1968) NMLR 359; Fashanu v. Adekoya (1974) 6 SC 83; Atane v. Amu (1974) 10 SC 237; Kate Enterprises Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt. 5) 116 and Ogboru v. Uduaghan (2011) All FWLR (Pt. 577) 650, (2011) 2 NWLR (Pt. 1232) 538.” — I.E. Ekwo J.
⦿ COURT WILL EXPUNGE INADMISSIBLE EXHIBIT RECEIVED IN EVIDENCE
The law is that where a Court has received evidence that is inadmissible, the proper thing is to expunge such evidence from the records; see Zenith bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) at 213 214. Consequently, I make an Order expunging Exhs. PW1-A1 PW1-A7 from the record of this Court in this case. — I.E. Ekwo J.
➥ PARTIES:
⦿ CLAIMANT
Barrister Peter Ndubuisi Mbah
⦿ DEFENDANT(S)
National Youth Service Corps
Ibrahim A. Muhammad (Director Corps Certification NYSC)
➥ LEAD JUDGEMENT DELIVERED BY:
Honourable Justice I.E. Ekwo
➥ APPEARANCES
⦿ FOR THE CLAIMANT
Emeka Ozoani, SAN.
⦿ FOR THE DEFENDANT(S)
Aminu Sadauki, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
