AKPUCHUKWU v. NATIONAL YOUTH SERVICE CORPS & ANOR

RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Awka Judicial Division delivered on the 6th of December 2016 in Suit No. FHC/AWK/CS/118/2016.
In the said judgment, the lower Court dismissed the suit of the Appellant.
SYNOPSIS OF FACTS
By originating motion on notice filed on the 8th of July 2016, the Appellant (as Applicant in the Court below) sought leave to apply for an Order of mandamus requiring the National Youth Service Corps (NYSC) and the Director General of National Youth Service Corps (NYSC) to issue the Applicant a certificate of National Service, the Respondents having willfully unconstitutionally, illegally and unlawfully denied or withheld same from the Applicant since 15th of October 2015 when the Applicant completed the mandatory National Youth Service Corps (NYSC).
And an order for substituted service of the originating process and all other processes in this Suit on the Respondents. Pages 2 3 of the Record of Appeal.
In the motion on notice filed on the 10th of October 2017, the Applicant seeks judgment in this suit, the Respondent having willfully, illegally and unlawfully denied or withheld same from the Appellant since 15th October 2015 when the Appellant completed the mandatory National Youth Service with National Youth Service Corps (NYSC).
N10, 000 000.00 (Ten Million naira) as general/or punitive damages jointly and severally against the Respondents.
25% interest compounded on the amount awarded. This is accompanied by a statement in support of the application and a verifying affidavit. Pages 1 10 of the Record of appeal.
The Appellant had been shortlisted and mobilized for National Service on Batch C of the National Youth Service Corps (NYSC) of the 1st Respondent.
He was posted to Bayelsa State of Nigeria in November 2014, where he, (between November 2014 and October 2015) he undertook the National Service, and successfully passed out upon the completion thereof.
The Respondent had refused to issue to him his certificate of service (NYSC Discharge Certificate) despite repeated demands for same. He appealed to the Office of the President, he also commenced his suit by seeking the leave of the lower Court to apply for an order of mandamus compelling the Respondents to issue him his certificate of discharge from the NYSC.
After the hearing of the application, it was granted by the lower Court on the 4th of October 2016. On the 10th of October 2016, the Appellant applied that an order of mandamus be issued against the defendants (Respondents in this appeal).
Upon being served, the Respondents filed a memorandum of conditional appearance and a counter affidavit with a written address.
According to the Respondents, the Appellant had filed the current suit against them at the Lagos Division of the Federal High Court for the refund of monies collected by the Respondents from prospective corps members for online registration and printing of call-up letters. That the Federal High Court, while dismissing that suit had disclosed that a case of perjury was established against the Appellant which was being investigated by the Federal High Court.
The Respondents asserted that their decision to withhold the Appellant’s Certificate of National service was to await the final report of the investigation of the allegation of perjury by the Federal

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High Court.
The Respondents further assert that the Appellant had instituted the suit, the subject matter of this appeal, without waiting for the decision of the Presidency. Therefore the lower Court lacked jurisdiction to entertain this suit.
The Appellant admitted that he had filed the suit, the subject matter of this appeal, which suit was dismissed. However that the Federal High Court made no finding of perjury against him in that suit. That no investigation was being carried out against him for perjury by any Court or any law enforcement agency.
Despite this, the lower Court dismissed the Appellants suit for being an abuse of Court process.
The Appellant is dissatisfied with this decision of the lower Court and has appealed it.
The Appellant filed a Notice of Appeal on the 1st of February 2016, with four Grounds of Appeal. Pages 76 82 of the Record of Appeal.
The Appellant filed his brief of argument on the 11th of April 2017. It is settled by C. I. S AZORO ESQ.
The Respondents filed their brief of argument on the 8th of May 2017. It is settled by J. U. NAYABA ESQ.
The Appellant filed a reply on points of law (Reply brief?) on the 1st of June 2017.
On the 24th of April 2018, the parties adopted their respective briefs of argument.
The Appellant distilled a sole issue for determination from the Grounds of Appeal. It is
WHETHER OR NOT THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE APPELLANT’S SUIT AMOUNTED TO AN ABUSE OF COURTS PROCESS

On their part, the Respondents had distilled two (2) issues for determination from the Ground of Appeal. They are
1. WHETHER IN VIEW OF THE PROVISIONS OF NYSC ACT CAP N84 LAWS OF THE FEDERATION OF NIGERIA 2004, THE DECISION OF THE TRIAL JUDGE WAS WRONG WHEN HE DECLINED JURISDICTION TO ENTERTAIN THE CASE.
2. WHETHER THE DECISION OF THE TRIAL JUDGE WAS WRONG IN HOLDING THAT THE CASE WAS AN ABUSE OF COURT PROCESS.

A cursory look at the respective issues of the parties seems to me that the issue No. 2 of the Respondents issue for determination is an adoption of the Appellants issue for determination.
The Respondent issue No. 1 goes to no issue. Even so the issue of abuse of Court’s process goes to jurisdiction.
I shall therefore consider this appeal based on the based on the sole issue for determination of the Appellant. Resolution of that sole issue would in my humble view take care of the threshold jurisdictional issue of JURISDICTION.
In arguing this sole issue, it is the Appellant’s contention that for abuse of Court’s process to be present, the action must be between the same parties, must be on the same subject matter and on the

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same issues.
That the matter before the lower Court has to do with application for mandamus, and in the Respondents counter affidavit in response to his application, he never briefed on that issue of abuse of Court’s process.
That the Appellant was one of the applicants in an earlier suit filed against the Respondents at the Federal High Court, Lagos Division seeking the refund of monies collected by the Respondents from prospective corps members for online registration and printing of call-up letters.
That the suit was dismissed by the Federal High Court Lagos and the Court made no finding on perjury against him in that suit. No investigation was being carried out against him for perjury or any other criminal offence for that matter.
The Respondents submits that the trial judge was right in dismissing the suit for want of jurisdiction. That to exercise jurisdiction on a matter, the Court is guided by laid down principles, among which is that the subject matter of the case must be within the jurisdiction of the Court, and there must be a feature in the case which prevents the Court from exercising its jurisdiction A G ANAMBRA STATE V A G OF THE FEDERATION(2007) 8 MJSC 28 @ 82 Paras a g.

They submit that the trial Court was right when he held that the Appellant’s case was an abuse of Court process.
They submit that when a party improperly uses the machinery of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice, same amounts to abuse of Court’s process. OLUTINRIN V AGAKA (1998) 6 NWLR (PT. 554) 366, A-G OF THE FEDERATION V A-G OF ABIA STATE & ORS (2001) 11 NWLR 689.

They submit that the Respondents action in withholding the Appellant’s certificate was because of the matter which the Appellant earlier instituted at the Federal High Court Lagos Division.
That the contention of the Appellant that the matter that was dismissed at the Federal High Court Lagos Division is different from the case instituted at the Federal High Court Awka Division, is wrong.
That the perjury investigation by the Federal High Court in Lagos of the Appellant, is the reason why the Respondents withheld the Appellant’s discharge certificate.
So much for the submissions of the learned counsel for the respective parties.
It is observed in Ground No. 1 of the Appellant’s Ground of Appeal that it states thus
The trial Court erred and misdirected itself when at pages 6 of the judgment it held thus The Appellants neither states whether there was error of law or of fact in that Ground. Many a time, one observes that counsel seem to forget what a ground of appeal is. It is the totality of the reason why the decision complained of is considered wrong by the party appealing. In other words, they are the reason why the aggrieved party considers the decision to be wrong OJEMEN V MOMODU 11 (1983) 1 SCNLR 188.
CHIEF N. P. UGBOAJA V S. A. SOWEMIMO & ORS (2008) 7 SC 1.
Decidedly, the whole purpose of a Ground therefore is to give sufficient notice and information to the Respondent of the precise nature of the Appellants complaint against the judgment appealed MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V EXPO SHIPPING LINE (NIG.) LTD (2010) 5 SCM 111 3 5 SC (PT. 1) 171.

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More so, it is bad couching of Grounds of Appeal, when an alleged error and misdirection, without even stating in what regard (whether of law or of fact) is stated NGERE V OKURUKET XIV (2017) 5 NWLR PT. 1559 Pg. 464 paragraph e f.
That Ground is defective ab initio, it is incompetent in form and cannot be allowed to stand. A Respondent must be able to discern and understand Grounds of Appeal which the Appellant has filed. When a ground is ambiguous and vague, then it attracts striking out.
I am of the view that that Ground, being grossly incompetent is one that should be struck out and same is hereby struck out accordingly.
RESOLUTION
From records, the process, the subject matter of this appeal is vide a motion on notice for an order of mandamus against the Respondents.
Also, the Appellants claimed judgment and the sum of 10, 000 000.00 (Ten million naira) as general and/or punitive damages against the Respondents, jointly and severally.
25% interest compounded on the amount awarded.
In his 14 paragraph affidavit in support of his application, the Appellant (Applicant in the Court below) had deposed to the following facts inter alia
6) That I did my National Service from November 2014 to October 2015 and successfully passed out with my colleagues upon completion of my National Service. Evidence in support of this is hereby attached and marked as Exhibit B.
7) That my service year was never attended for any punitive or disciplinary reasons or any other reason whatsoever. In fact, throughout my service year, I was never found wanting in the discharge of any obligation required of me.
8) That upon successful passing out with my colleagues from the 1st Respondent’s service year, the NYSC refused to issue me with my NYSC discharge certificate despite repeated demands for same, while other participants similarly placed and who successfully completed their National Service were issued with their discharge certificates. Evidence of such demands by me for the issuance of my NYSC discharge certificate, including my appeal to the office of the president of Nigeria is hereby attached and marked Exhibit C & D.
9) That I have suffered financially since the completion of my NYSC service year. No establishment or organization to which I applied was able to employ me since it is a criminal offence for anyone to employ me without the NYSC Discharge Certificate and the Respondents have unlawfully refused to issue me with same.
10) That there is a statutory duty placed on the Respondents to issue me with my NYSC discharge Certificate upon completion of my service year. This duty, by law, ought to be performed by the Respondents within a reasonable time. A period of one year (which is grossly unreasonable) has already elapsed and yet the Respondents have failed/refused/neglected to perform their statutory duty in this case.
11) That the Respondents will still not perform their said statutory duties in this case unless this honourable Court intervenes and grants the reliefs sought against the Respondents in this application.
The Respondents in their joint defence filed on the 24th of October 2016 a three (3) paragraph counter affidavit, I deem it necessary to reproduce same verbatim.
3d. That the Respondents did not deliberately refused the release of the Applicant’s certificate of National Service.

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e) That the Applicant with Azoro, Okoye & Nwokolo [a Firm of Legal Practitioners] has on 11th November 2014 instituted an action at the Federal High Court Lagos Division, against the Respondents seeking amongst others for the order of the honourable Court for the refund of monies collected by the Respondents from prospective corps members for online registration and printing of call-up letters.
f) That the said Suit at the Federal High Court, Lagos Division was dismissed for being incompetent and want of jurisdiction.
g) That on the 9th day of November, 2015, when the matter was dismissed, the honourable Court disclosed that a case of perjury was established from investigation and that it was being handled by the Court.
h) That the Applicant was duly informed on 15th December 2015 of the investigation of the honourable Court of his complicity in the allegation of perjury in the dismissed suit. The letter written to the applicant is hereby attached and marked Exhibit A.
i) That the Respondents decision to withhold the Applicants certificate of National Service is to await the final report of the investigation of the allegation of perjury by the honourable Court.
j) That the subject matter of this suit is the decision of the Respondents to withhold the Applicants Certificate of National Service.
k) That the applicant is aggrieved by the Respondents action in sub-paragraph (h) above.
l) That though the Applicant did appeal to the presidency in respect of his grievance, but he did not wait for the presidency to decide on his appeal before instituting this action in Court. This is a condition precedent before any action can be instituted in Court.
m) That there is no cause of action in the suit.
n) That the Applicant does not merit the grant of the reliefs sought from the honourable Court.
o) That the honourable Court has no jurisdiction to entertain the suit.
It is apparent that the challenge of the Respondents as disclosed in paragraph 3 1(f) of their counter affidavit is that the lower Court has no jurisdiction to entertain the matter, on grounds which if proved will constitute abuse of Courts process. This is because the applicant had previously instituted a similar suit before a Federal High Court in Lagos.
A better understanding of this matter is better served when the events leading to this appeal are viewed serially.
First of all, the Appellant was a youth corper and served in the Bayelsa State axis of the Respondents from November 2014.
Second of all, on the 15th of October 2015, he successfully passed out with his colleagues but no discharge certificate was issued to him. He had served from November 2014 to October 2015.
Third of all, he had together with some of his ilk filed an action against the Respondents in respect to another matter in a Federal High Court, Lagos in Suit No FHC/L/CS/1710/14.
Fourth of all, on the 24th of November 2015, the Suit was dismissed.
On the same date, the Appellant wrote to the Director of NYSC to release his discharge certificate. There was no reply.
Noteworthy is that the Appellant brought the application, the subject matter of this appeal in the year 2016. The motion on notice having been filed on the 10th of October 2016. page 24 of the Record of Appeal.
From records, the Appellants had by letter dated 24th November 2015 written to the Director General National Youth Service Corps, demanding his NYSC Discharge Certificate.
On the 8th of December 2015, the Appellant wrote a letter to the President, Federal Republic of Nigeria, which letter was received on 11th of December 2015 by endorsement. In that letter, he did

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state inter alia that
I had cause to be part of the Plaintiffs that sued the NYSC at the Federal High Court Lagos in Suit No: FHC/L/CS/1710/14 AZORO, OKOYE AND NWOKOLO AND ANOR VS PRESIDENT FEDERAL REPUBLIC OF NIGERIA & 2 ORS, challenging the legality of the fee being charged prospective corps members for e-printing of call-up letters.

On the 24th of November 2015, the suit was dismissed by Hon. Justice Buba.
The Appellant thereafter, in fact, on that same day, wrote a letter to the Director General of the NYSC demanding the release of his discharge Certificate. The Respondents refused and never responded to the Appellant’s letter.
Vide letter dated 28th of September 2015, to the Zonal Inspector NYSC Zonal Office, Yenagoa with reference number MJ/SGPS/8, the government of Bayelsa State of Nigeria, Ministry of Justice, a final clearance for Corp member was done in favour of the Appellant AKPUCHUKWU INNOCENT OBINNA.
In paragraphs 3 (e) and (f) of the counter affidavit deposed to by the Respondents, they refer to a suit instituted in 2014 by the Appellant at the Federal High Court in Lagos. The suit was not annexed as Exhibits.
They alleged that the judge of the Federal High Court accused the Appellant of perjury. Now, where are the facts supporting this allegation? I find none.
Depositions in affidavits are akin to pleadings and any pleading not supported by evidence goes to no issue.
There is no doubt that the Appellant was not treated fairly. He is a legal practitioner, young and has been unable to get any employment.
He has not been afforded his discharge certificate for one year after his discharge.
Sec. 11 of the NYSC Act 1993 states that
The Directorate shall, on completion of the service of a member of the service corps, unless such person is exempted under Section 17 of this Act, issue him with a certificate of National Service which shall contain such particulars as may be prescribed.
By virtue of Section 12 of the Act, the refusal and/or failure to give the Appellant a discharge certificate deprives him of having employment opportunity.
The Appellant is not expected to wait for ever to hear from the President before going to Court.
The Respondents did not reply to his letter, neither the President. Is he expected to remain unemployed?
On the issue of abuse of Courts process which the lower Court dwelt on, I am of the view that the Courts observation is misconceived. The suit instituted by the Appellant in 2014 has nothing to do with the matter at hand. Abuse of Courts process is a concept which is imprecise. But a common feature of it is improper use of judicial process by a party in litigation to interfere with the due administration of justice. It includes instituting a multiplication of actions on the same subject matter against the same opponents on the same issues; instituting different actions between the same parties simultaneously in different Courts even though on different grounds; where two similar processes are used in respect of the exercise of the same right, for example a cross-appeal and a respondents notice; where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexation and constitutes an abuse of Court process. SARAKI V KOTOYE (1992) 9 NWLR (PT.264) 156. LOKPOBIRI V OGOLA (2016) 3 NWLR Pt. (1499) 329 at 367 368 Paras e b.

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For one to appreciate whether there exist any abuse of Court process in this matter, there would have been the need to exhibit the processes at the Lagos State High Court, but the Respondents have not done this. How does one know whether there was any incident of abuse of Courts process?
In establishing the prerogative writ of mandamus, the Applicant must show that a distinct demand for the performance of a duty has been made and that the demand has deliberately not been complied with. R. V. WITTS & BERKS CANAL CO. 1835 3 AD & EC 477. R. V. STOKE ON TRENT TOWN CLERK 1912 12 KB. 518.
Where there is undue delay where the Appellants motives are unreasonable, above are circumstances where the Court will refuse to make an order of mandamus. FAWEHINMI VS AKILU 1987 ALL NLR (PART 57) 797 at 834; FAWEHINMI V IG OF POLICE 2002 7 NWLR (PT. 767) 606, CHIEF OHAKIM V CHIEF AGBASO (2010) 7 SC 85 @ 132.

It is apparent that the Respondents refused to reply to the demands of the Appellant who out of frustration now resorted to the presidency. Still after a period of one year, no word from either the Respondents or the Presidency.
The life of the Appellant was obviously being wasted, and he is entitled to the equitable remedy being sought.
In paragraph 3 (m) of the counter affidavit filed by the Respondents on the 24th of October, 2016, they simply deposed that
The Applicant does not merit the grant of the reliefs sought from the honourable Court.

It is my view that there is nothing in the circumstances of this case which divests the lower Court of the jurisdiction to entertain this case. This is because the lower Court was not faced with a circumstance of abuse of Courts process and I am of the view that the Appellant had exhausted all before approaching a Court to institute the action.
I must comment on the judgment of the lower Court in dismissing the application at the lower Court. This is simply because it is apparent that he did not have a grasp of the facts before it. As it did not consider the issues before it by considering issues of abuse of Court process.
I must reproduce a portion of the lower courts finding. I shall do so verbatim
In my humble view, the Applicant was in error by instituting this suit in this Court, knowing that he had earlier filed a similar suit in another Court; worse still without disclosing this fact in his originating process. This is liable to lead to judicial anarchy whereby this Court may unwittingly be sitting on appeal over the decision of another division of the same Court.

It is apparent from above that the lower Court did have a grasp of the facts.
This appeal succeeds as I find that the Appellant is entitled to be granted the reliefs sought.
The lower Court was wrong to have dismissed the application as it did.
The sole issue formulated by the Appellant is hereby resolved in favour of the Appellant and against

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the Respondents.
The judgment of the Federal High Court Awka Judicial Division delivered on the 6th of December 2016, by Hon. Justice I. B. Gafai is hereby set aside.
The reliefs sought by the Appellant/Applicant is hereby granted as prayed, save relief No. 4 while I hereby award the sum of five million naira (N5, 000 000.00) to the Appellant.
Costs against the Respondents assessed at N200, 000.00.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the judgment rendered by my Lord, RITA NOSAKHARE PEMU, JCA. I am in agreement with his Lordships conclusion to the effect that the appeal has merits.
It is amazing to me that the learned trial judge found that the action before him at appellants instance was an abuse of the process of the Court in view of the earlier action by the appellant and some other persons against the respondents, at the Lagos division of the Federal High Court. What is the nexus and relationship between the two actions FHC/AWK/SC/118/2016 and FHC/L/CS/1710/14? I find none.
The concept of abuse of Court process is the avoidance of multiplicity of actions on the same subject matter by the same parties, in the same Court or different Courts. Miss Ifeyinwa Ogoejeofo v. Daniel Chiejina Ogoejeofo(2006) 1 S.C.N.J, 69 at 80; Dingyadi v. Independent National Electoral Commission (2010) 11 SCNJ (pt. 1) 1 at 27; Lokpobiri v. Ogola (2015)11 SCNJ 71.
In Agwasim v. Ojichie & Anor(2004) 10 N.W.LR. (pt. 882) 613 at 624, the erudite jurist, Niki Tobi, J.S.C., had cautioned that:
A litigant has no right to pursue pari pasu two processes which will have the same effect in two Courts at the same time with a view of obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps.
I am satisfied that the action in FHC/LJCS/1710/14 at the Federal High Court, Lagos Division, was not prostituted or infirmed by the latter action in FHC/AWK/SC/118/2016, Awka Division; therefore it cannot be said as wrongly found by the learned trial judge in that latter case, that the action before him was an abuse of the process of Court.
It is for this and the fuller reasons adumbrated in the lead judgment that I, too allow this meritorious appeal.
The judgment of I. B. Gafai, J., in re-Suit No. FHC/AWK/SC/118/2016 rendered on 6th December, 2016 is accordingly, set aside.
I adopt the consequential order and that in respect of costs, contained in the lead judgment, as mine.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree with his reasoning and conclusion therein that the appeal has merit and should be allowed. It is obvious that the respondents deliberately decided to withhold the NYSC Discharge Certificate of the appellant as a punishment for daring to exercise his constitutional right to approach the Court to seek redress for his grievances about the payment of registration fee being collected by the respondents from prospective NYSC members called up to serve the nation. It is unfortunate that the learned trial judge did not see through the vindictive decision of the respondents. Their decision to withhold his Certificate of completion of National Service is nothing but a reckless misuse of power as the alleged case of perjury cannot obliterate his right and entitlement to NYSC Discharge Certificate which is the only evidence that he has been called up to serve his nation, he answered the call and successively completed the assignment. The respondents are fully aware of the fact that it would be near impossible for him to be gainfully employed either by any government in Nigeria or government agency or private entity without the NYSC Discharge Certificate. There is nothing in this case that constitutes an abuse of the process of the Court. I agree that the learned trial judge seriously erred in dismissing the appellants application. I too allow the appeal. I abide by all the orders made in the lead judgment including the award of damages and costs.