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| Richarmond O. Natha-Alade |
What if you are dancing in church, a young
beautiful lady passes by while you are completely engrossed in the act of
dancing, and your hands accidentally grabbed her breast, are you guilty of
Indecent assault?
The essence of life is trust: in yourself, in your
friend, in your next-neighbour, in your associates, in your spouse, in your
children, in your parents, in your government institutions, in your pastor,
imam or spiritual leaders, in establishment officials, in institutions and
authorities of all forms.
If you trust and engage any persons of any capacity of the above categories and they let you down, are you guilty of whatever they do?
If you trust and engage any persons of any capacity of the above categories and they let you down, are you guilty of whatever they do?
What if you are told today, your operating certificate,
your Visa, Your international passport, your driver’s licence or any of your other
vital documents is not genuine after fulfilling all righteousness? Are you a
forger?
Fulfilling righteousness in this instance
means, you approached the necessary institution, in person (if required) or by
its agent and/or self acclaimed agent or through a friend (If allowed), took
necessary forms, do necessary stuffs and took your leave only to expect result;
you must have personality problem and/ or trust issues to ‘ordinarily’ doubt
whatever is given to you as the result.
In better perspective: if you call yourself a
lawyer, a doctor, a certified engineer or a government official to mention a
few, and in such belief, I contracted you or engage you to do something for me
in your capacity as a professional, if you are later discovered to be fake or
you did fake things for me, does that make me guilty of whatsoever offence you've committed under the law?
Having said that, Put Mrs. Kemi Adeosun in
your shoe, will you agree you forged? Not NYSC service certificate itself but
NYSC exemption letter for sincere sake! Something you would do almost nothing
to get once you are above 30 years of age. It is automatic.
What is exception letter/ certificate?
Exception letter/certificate is given to persons above the age of 30 years who
are no longer considered as youth: meaning they are higher institution graduates,
but age factor would not allow them to serve, because they are no longer youth
as described by the enabling law, i.e. the National Youths Service Corps Act;
hence they are issued a certificate of exemption. The certificate confers the
status of a waived compulsory and/or mandatory duty / service on the holder as
if he/she had performed such mandatory duty. Ask me, what is so special about
that? Something that in a saner clime should not take less than 24 hours to
apply for once your documents and/or documentations shows you are above the
age. I even belief it should be automatic with no application once your documentations
from your higher institutions shows that.
Coming back
to Law and forgery allegations on Kemi Adeosun:
In proving any crime in law, two factors are
compulsory proved in law court before you can be convicted and sentenced under
the law; they are the Mens rea which
means guilty mind and the Actus reus
which means guilty act. Both are Siamese twins that works hand in hand. that is in our criminal jurisprudence. You cannot convict or secure conviction based on one
without proving the other.
The Law is trite that a man cannot be guilty
unless his mind is guilty. In other words, the guilty act of a man does not
make him guilty unless his mind is guilty. What that simply means is, whatsoever
your act is, you must have conceived it from your mind and make same happen. Anything
(criminal) done out of mistake or done in good fate that constitutes crime without
your mind preconceiving same does not make you guilty in law. That sounds strange
to you as a layman? Eventually, that is the law.
The above principle of law complements the
age-long principle of law in latin maxim ‘ignorantia juris non-excusat and ignorantia facti excusat ; meaning, the ignorance of law is not an excuse but ignorance of
fact is an excuse.
Simply put, if I found in your bag (unknown to
you) my stolen phone, kept in your bag by another person or even given to you by
your friend to hold for him without the knowledge that it was stolen, does that
make you a thief and/or guilty of receiving stolen property?
Although no law is absolute, there are
exceptions to the above principle of law, which I acknowledge Kemi Adeosun’s
mistake is not and can never be part of. I leave the exceptions to the general
rule in criminal jurisprudence that ‘a man cannot be guilty except his mind is
guilty’ for another day discussion.
Before I move on fully on Adeosun matter, Iet
me quickly share a story of one of my clients which I belief would put my
points in better perspective as follows:
My client was fully self employed and well
respected and known for his job and professionality; he had been in that job
for about a decade and doing fine until one day he busted into an old time
friend he knows from secondary school days. They both re-ignited the passion of
friendship by asking each other what they do for a living. My client told his friend
he is into supply of building materials while my client's friend told him that he
is into construction and that he buys a lot of building materials and could
even help my client to secure a supply contract with other building
contractors. My client’s friend even gave my client his (fake) business card to
seek my client’s assurance; he therefore promised to call my client for a job.
Gullibly and innocently my client fell for
all. To cut the story short, Three weeks after their meeting, my client’s
friend put a call across to him to come over to his own state of residence. My client
planned the journey in search of a greener pasture, he left his wife and children
behind believing he was going to work somewhere far away. He arrived his friend’s state of residence and his friend came to pick
him at the motor park and headed for a beer parlour where he met with some other
persons who are friends to my client. When it was night time when they were
supposed to go home and sleep, My client was put in a car belonging to obviously
one of them and he was asked to drive and to follow a particular vehicle, he asked why? They
shut him up. They soon complained he was driving too slowly. My client was
therefore ordered to stop and move to the back sit of the car while another
person took the steering and drove on in commando’s style chasing the spotted
vehicle. After my client was moved to the back sit, his friend gave him a gun,
sensing the trap he might have just fell in, my client shouted, cried and
protested to be let off and released and that he no longer wants any contract
or job. Like expected, he was swooped upon by all the gang; they beat him up,
pointed the gun at him as they threaten to kill him if he made any further
protest. That same night, they succeeded in robbing a man of his vehicle. Unknown
to them the vehicle was tracked. While they were taking the stolen vehicle away,
the vehicle stopped and the police rang on them. All the gang members ran away
but my novice client and one other person were arrested and later taken to
court. If you are the judge, will you sentence my client for armed robbery? On how it ends, your
guess is as good as mine. But you know what? You could also be that my client. Will
you accept you are an armed-robber if you were caught in such circumstance?
I painted all the above scenarios that we may
appreciate that principle of law that states that a man cannot be guilty except
his mind is guilty. Yet, be mindful that that same principle has exceptions.
At this juncture I refer to the appellate
court decision of LIMAN V. STATE (2016) LPELR-40260 Pp. 12-13, paras. E-D where
Per ABIRU ,J.C.A relying on the decision of the Supreme court in the case of
Njoku v. State court held as follows on the prove of criminal allegations:
"It is also trite that criminal
responsibility for the commission of a crime is premised on the satisfactory
proof of the two pillars of actus reus and mens rea, the doing of the act that
constitutes the offence and the requisite mental capacity and the duty is
always on the prosecution to prove the commission of a crime by proving the act
done and the requisite guilty mind of the accused person beyond reasonable
doubt. In other words, in a criminal trial, before an accused person is asked
to undergo any sort of sentence, there must be a finding by the trial Court on
the concurrence of the two main elements of any crime; that is, the actus reus
and the mens rea. Actus reus is taken to be the wrongful deed that comprises
the physical components of a crime and that generally must be coupled with mens
rea. Mens rea is the criminal intent or guilty mind of the accused. For the
prosecution to establish a criminal act against an accused person, it must go
beyond establishing the commission of the unlawful criminal act by the accused
and establish that the accused had the correct legal criminal mind of
committing the act. The two must co-exist, whether explicitly or by necessary
implication - Njoku Vs State (2013) 2 NWLR (Pt 1339) 548."
In line with the above decision, consider the
following statements from Kemi Adeosun:
“I was born and raised up in the United Kingdom,
indeed, my parental family home remains in London. my visits to Nigeria up
until the age of Thirty-Four (34) were holidays, with visas obtained in my UK
passport. I obtained my first Nigeria passport at the age of Thirty-four (34)
and when I relocated here, there were debates whether NYSC laws applied to me.
Upon my enquiry as to my status relating to NYSC, I was informed that due to my
residency history and having exceeded the age of Thirty (30), I was exempted
from the requirement to serve.
Until recent event, that remained my understanding.
On the basis of that advice and with the guidance and assistance of those, I thought
were trusted associates, NYSC were approached for documentary proof of status. I
then received the certificate in question. Having never worked in NYSC, visited
the premises, being privy to or familiar with their operation, I had no reason
to suspect that the certificate was anything but genuine…”
The above statement is what the law qualifies as
res ipsa loquitor (the facts speaks
for itself). If Kemi Adeosun had all by herself knowing fully well that she
does not want to participate in NYSC and does not want to apply to government
authority to issue the exemption certificate due to the fact of not being a
graduate, none qualification or other reasons and thereafter went to a computer
expert to procure one certificate, it would be a different ball game. By that,
the mens rea and actus reus would have been proved beyond reasonable doubt. The action
would have been premeditated and she would be liable for same under the law.
Based on the above analysis, could you say, if
Adeosun is to be prosecuted today, the prosecution can secure conviction from
court against her for forgery? The answer is capital No!
WHAT KEMI ADEOSUN SHOULD SIMPLY HAVE DONE:
While I acknowledge the fact that Kemi Adeosun
resigned based on morality grounds. morality is different from law, by the
provisions of the National Youths Service Corps Act there are options obviously
left for her to choose from. Before I go into the options available for her
than resignation, I hereunder for ease of convenience, reproduce section 2 of the act with my main focus on section 2(2)(a),
which is the main and relevant provision of the NYSC Act as follows:
2. (1) Subject to the
provisions of this Act, every Nigerian shall-
(a) if, at the end of the academic year
1972-73 or, as the case may be, at the end of any subsequent academic year, he
shall have graduated at any university in Nigeria; or
(b) if, at the end of the academic year
1974-75 or, as the case may be, at the end of any subsequent year, he shall
have graduated at any university outside Nigeria; or
(c) if, at the end of the academic year
1975-76 or, as the case may be, at the end of any subsequent year, he shall
have obtained the Higher National Diploma or such other professional qualification
as may be prescribed; or
(d) if, at the end of the academic year
1975-76 or, as the case may be, at the end of any subsequent academic year up
to the end of the 1983-84 academic year, he shall have obtained the National
Certificate of Education, be under an obligation, unless exempted under section
(2) of this section or section 17 of this Act, to make himself available for
service for a continuous period of one year from the date specified in the
call-up instrument served upon him.
(2) Notwithstanding the provisions of subsection (1) of this section, with effect
from 1st August 1985, a person shall not be called upon to serve in the service
corps if, at the date of his graduation or obtaining his diploma or other
professional qualification-
(a)
he is over
the age of thirty; or
(b)
he has served
in the armed forces of the Federation or Nigeria
Police Force for a period of more than nine months; or
(c)
he is member
of staff of any of the following, that is- (i) the Nigerian Security
Organisation; or (ii) the State Security Service; or (iii) the National
Intelligence Agency; or (iv) the Defence Intelligence Agency; or
(d)
he has been
conferred with any National Honour.
I have studied the provisions of the NYSC Act
as well as other relevant laws, it seems to me that the only seeming applicable
section to Kemi Adeosun and all persons in her shoe is the provision of section
2(2)(a) of the Act.
While I would later by another legal article
appraise the propriety and/or the applicability or otherwise of the entire Act
to Ms. Kemi Adeosun and persons in her shoe, I am of the firm view that nothing
precludes the ex-minister of finance by provisions of the Act from re-applying
for another exemption certificate. Based on the facts on ground and no-bar
clause in the provision of the enabling laws, she could simply have re-applied
for another exemption certificate, and she ensures that it’s a genuine one this
time around, while she moves on as mininster.
In the alternative, the law also allows Ms.
Kemi Adeosun to continue as minister without even applying at all. Legal
analysis on this shall be addressed in my next legal article.
Like earlier said in the opening of this
article, ‘the essence of life is trust…’ Ms. Kemi Adeosun is another victim of
circumstance that had just been betrayed of her trust in a ‘trusted associate’,
it could be you!
Richarmond
O. Natha-Alade is the Principal
Partner of,
Sun
Natha-Alade & Partners (SNATHAP)
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