As a preliminary remark and caution, I should mention that the submissions made in this article are strictly mine and stem from my interpretation of the relevant provisions of the extant law(s) on the subject of this article. Additionally, it is important to state that this article is not a veiled attempt to join issue on the debate as to the “morality” or otherwise of certain persons “skipping” the National Youth Service Scheme (the Scheme) or join the discuss as to whether the Scheme has truly achieved its objective(s) or perhaps, whether it is best that the Scheme be abolished, having failed to achieve its mandate(s).
This article, as readers may soon find out, is more about drawing the readers’ attention, particularly, employ(er(s) of labour in Nigeria alike and non alike, of the need to ‘watch their backs’ and ensure they are adequately covered, through proper (legal) risk management procedures, to be provided by seasoned legal professionals – versed in compliance matters, to ensure that their businesses or thriving corporate entities do not fall victim to non-compliance with extant laws in Nigeria and particularly, in this case, the National Youth Service Corps Act Cap. N84, Laws of the Federation of Nigeria, 2004 ( NYSC Act).
This article is also not so much about those who have participated in the Scheme already but to examine the fate of those who have graduated but have chosen not to serve. It will proceed to further examine the liability of this set of persons and their (prospective) employers.
At this point, I must mention that I am not unaware of how far behind some of the enforcement procedures in our dearly beloved country is and how hard it could be sometimes to ensure that the letters of the law are given force to and dutifully implemented as one would expect in sane(r) climes. This article, however, should not also be seen as a subtle attempt to encourage graduates and employers to circumvent the law but I would rather this article is seen as one which draws attention to the existing gaps in the extant law crying to the high heavens for urgent legislative intervention. This article is predicated on the need to ensure our laws neither provide fertile ground for disputes nor provide an enabling environment for breeding confusion as to what the true state of the law is.
The foregoing said, I shall now proceed to discuss relevant provisions of the NYSC Act which I consider very crucial to the determination of the issues thrown up in this article.
What about the NYSC Act?
For starters, by a combined reading of Section 2(1) of the NYSC Act and Paragraph 1 of the NYSC Order, every Nigerian citizen who has successfully completed his or her first degree at the end of the 1973-74 academic year or any subsequent academic year at a university or degree awarding institution of higher learning either in Nigeria or outside Nigeria, is under an obligation to make himself or herself available for service for a continuous period of one (1) year from the date specified in the call-up instrument served upon him or her.
From a reading of the provision of Section 2(1) of the NYSC Act and Paragraph 1 of the NYSC Order, and riding on the back of the operative words used in Section 2 NYSC, to wit: “…every Nigerian shall…,” one may rightly opine that every Nigerian citizen who has successfully completed his or her first degree or graduated from academic year 1973/1974 up till date, is obligated to make himself or herself available for service for a continuous period of one (1) year, from the date specified in the call-up instrument “served” upon him or her.
Furthermore, it could be rightly asserted that the provision of Section 2 NYSC Act imposes an obligation on every Nigerian citizen who is a graduate or complete a university degree, whether in Nigeria or in a foreign country, with the exceptions of those specifically excluded from the provisions of the NYSC Act, to make himself or herself available for the one-year service effective from the date specified in the call-up instrument to be served upon such person. It would appear that the provision of Section 2 of the NYSC Act is what most Nigerian citizens (including the present writer) relied on in making ourselves available for the National Youth Service Scheme, albeit knowingly or unknowingly.
The foregoing notwithstanding, it is very pertinent to note that the provision of Section 2(3) NYSC Act expressly provides that a person liable to be called upon to serve in the service corps is under a duty to serve for a continuous period of one year as from the date specified in the call up instrument “served” upon him or her. Furthermore, a reading of Section 2(3) NYSC Act will reveal the intent of the draftsmen who it is argued, envisaged that the person caught by the provisions of the NYSC Act, wouldpresent himself or herself for the one-year national youth service, ONLY upon being called upon to serve in the service corps for one-year national service, through “service” of the call-up instrument on his or her person, from the date specified in the call up instrument.
From a combined reading of the provisions of Section 2(1) & (3) of the NYSC Act earlier alluded to, it could be argued that while every Nigerian citizen is obligated to undergo the one-year national service upon completion of degree or graduation from the university, the obligation only arises when the call-up instrument has been “served” on such Nigerian citizen.
It could be further asserted that no liability for the obligation to participate in the one-year national service will arise, until “service” of the call-up instrument has been effectively made on the Nigerian citizen caught by the provision of the NYSC Act in accordance with the provision of the Interpretation Act.
The position taken above is predicated on my construction of the provision of Section 26 of the Interpretation Act which expressly provides that where an enactment authorizes or requires a document to be served, whether the word “serve,” then: (a) the document may be served by posting an envelope which contains the document on the person on whom it is to be served at his last known address; (b) the document may be served by posting an envelope on which the postage (where any is payable) has been pre-paid on the person whom it is to be served at his last known address.
In any event, the position of law as it relates to “service” of any document(s) statutorily required as contained in Section 2 of the Interpretation Act is that such service will be deemed to have been effectively made at the time at which the envelope containing the required or necessary document(s) would have been delivered in the ordinary course of post, unless it is proved that the envelope was not delivered at that time.
In any case and in the event, where no service of the call-up instrument statutorily required to be “served” on the person caught by the provision of Section 2 of the NYSC Act at his or her last known address was made in accordance with the law, it could be argued, adopting the literal rule canon of statutory interpretation, that such a person has a statutory defense (Non-Service of Call Up Instrument) which could be used both in any potential civil or criminal proceedings that may be instituted against him or her pursuant to the NYSC Act. It is could further be contended that the non-service of the Call-Up Instrument constitutes the non-satisfaction of a condition precedent necessary for invoking the powers (jurisdiction) of a Court of competent jurisdiction in Nigeria competent Nigerian Court and as such, Nigerian courts lack the powers or are devoid of the jurisdiction to entertain such proceedings (whether civil or criminal), stemming from Section 2(1) & (3) of the NYSC Act. This is because it is well established principle of law that before any court of law assumes jurisdiction in making any determination or adjudicating on a cause or matter, such court must be competent and there must be any feature in the case that precludes the exercise of the court’s jurisdiction or makes such case unripe for the exercise of judicial powers pursuant to Section 6 of the Nigerian Constitution. The above stated position finds support in the celebrated case of Madukolu v. Nkemdilim (1962)2 SCNLR 341, where the Supreme Court held that a court is competent when: (a) The court is properly constituted as regards members and qualifications of the bench and no member is disqualified for one reason or the another; (b) The subject-matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to exercise of jurisdiction. We note further note that any defect in competence is fatal to any matter instituted in court (be it civil or criminal) because such a proceeding, no matter how brilliantly and well conducted, is susceptible to being declared a nullity.
Having examined the provisions of the NYSC Act which impose the obligation on every Nigerian citizen to undergo a one-year national service upon being served with a call-up instrument, I shall now proceed to: (a) consider whether there are other provisions in the NYSC Act capable of imposing liabilities on a prospective employer; and (b) examine the legal implication of entering into a contract of employment with a prospective employee, where such an employee has not undergone the Scheme.
Liabilities that may arise from Contract of Employment entered into in defiance of the NYSC Act
My submissions in the preceding paragraphs notwithstanding, I am quite aware that Section 13(1) NYSC Act creates a criminal liability for any person who fails to report for service in the service corps. The criminal liability being a fine of 2000 (Two Thousand Naira Only) or to imprisonment for a term of twelve months or to both such fine and imprisonment, upon conviction by a court of competent jurisdiction.
I am also aware that Section 12 NYSC Act imposes the duty on every prospective employer to demand and obtain from any person who claims to have obtained his first degree at the end of the academic year 1973-74, or as the case may be, at the end of any subsequent academic year, the following – (a) a copy of the Certificate of National Service of such person (b) a copy of any exemption certificate issued to such person; (c) such other relevant particulars.
Additionally, by Section 13(3) NYSC Act, any person who fails to comply with or who contravenes or causes or aids or abets another to contravene any provision of the NYSC Act, is guilty of an offence and liable on conviction to a fine of 5000 (Five Thousand Naira Only) or to imprisonment for a term of three (3) years or to both such fine and imprisonment.
Instructively and more importantly, Section 13(5) NYSC Act provides that where an offence has been committed under Section 13(3) NYSC Act (the provision which relates to aiding and abetting the contravention of the NYSC Act) by a body corporate is provided to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other official of the body corporate, or any person purporting to act in such capacity, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Flowing from the foregoing and review of the extant laws, it is submitted that there is a duty imposed by law on every prospective employer to demand and obtain from any person who claims to have obtained his or her first degree (either in Nigeria or outside Nigeria) from 1974 till date to present any of the follow, to wit: (a) a copy of the Certificate of National Service of such person; or (b) a copy of any exemption certificate issued to such person; or (c) such other relevant particulars.
It is further opined that while a prospective employee may rely on the failure to be served with the call-up instrument at his or her last known address the defense for not non-compliance, there is a greater risk that the prospective employer (corporate) and her directors, managers, secretaries or other officials or any persons purporting to act in such capacity management position, may be criminally held liable for a breach of Sections 12(1), 13(3) and 13(5) of the NYSC Act. This is because the duties and (criminal) liabilities stipulated in Sections 2, 12(1), 13(1), 13(3) and 13(5) of the NYSC for prospective employee(s) and prospective employer(s) are distinct, separate and independent of one another, with the exceptions of aiding and abetting in the contravention of the provisions of the NYSC Act. For instance, the duty imposed in Section 12(1) NYSC to demand and obtain a copy of the Certificate of National Service or a copy of any exemption certificate issued pursuant to the NYSC Act, is specifically on the “prospective employer” and not the person who graduated from the university or obtained a first degree from a Nigerian or foreign university.
Recommendations and Conclusion
Where any employer, for whatever reason and in defiance of the provisions of the NYSC Act, decides to go ahead with the contract of employment with a prospective employee who has not undergone the Scheme, there is a great likelihood that the contract of employment being declared as illegal, null and void. This submission stems from the contention that the NYSC Act precludes a prospective employer from employing a person who graduated from Nigerian or foreign university from 1974 upward, without obtaining the person’s NYSC Certificate or Exemption Certificate, and further stipulates penalty for breach of the NYSC Act.
It remains to be seen, however, whether parties can contract out of the NYSC Act and choose a governing law other than the laws of the Federal Republic of Nigeria. This is because a contract which otherwise would have been illegal in Nigeria, but form the basis of any judgment or arbitral award cannot be enforced in Nigeria as a foreign judgement as same will be against public policy. See Ramon v Jinadu (1985) 5 NWLR (Part 39) 100 where the Court of Appeal set aside the registration of a high court foreign judgement due to the fact that it relates to a contract that was illegal under Nigerian law. It is trite that the effect of illegality is that the plaintiff will be prevented from enforcing the illegal transaction (agreement). When a contract (agreement) is void, it is a nullity in law, and not only bad but incurably bad with nothing that can be founded on it, and being of no legal effect whatsoever.
The position taken in the above paragraph of the law is founded on the principle of public policy and is expressed in the maxim ex turpi causa non oritur actio, meaning that an action does not arise from an illegal cause. Therefore, it goes without saying that where a contract is expressly forbidden by statute, its illegality is without question, and the Courts are forbidden to enforce it, or allow itself to be used to perpetuate illegality, or enforce same in all its ramifications. Where a contract is illegal ex-facie, neither party can desire any right or interest from it for it is void ab initio.
Going forward and with a view to managing risks effectively for companies, it is recommended that employees who have not undergone the Scheme be engaged on contract basis but not as a full-time employee as that portends great risk for the Nigerian employer. Prospective employees caught by the provisions of the NYSC Act and which the NYSC Act apply to, are encouraged to enlist for the Scheme.
*This post (represents only the personal views of the writer) and is provided to highlight issues as well as for general information purposes only; it does not constitute legal advice. Whilst reasonable steps were taken to ensure the accuracy of information contained in this post, the author does not accept any responsibility for any loss or damage that may arise from reliance on information contained in this post.