MR. OLUWOLE ALUKO v. PRESIDENT AND COMMANDER IN CHIEF OF THE ARMED FORCE OF NIGERIA & ANOR (2019)

MR. OLUWOLE ALUKO v. PRESIDENT AND COMMANDER IN CHIEF OF THE ARMED FORCE OF NIGERIA & ANOR

(2019)LCN/12939(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/IB/48/2012

RATIO

CONSTITUTIONAL LAW: CONFLICT BETWEEN THE CONSTITUTION AND OTHER STATUTES: WHAT MUST BE DONE WHEN PROVISIONS OF STATUTES CONTRADICT THE PROVISIONS OF THE CONSTITUTION

But however, one main issue that has to been given prominence is whether there can be inconsistent provisions of the Constitution itself and what can be done in such situation and by whom?
The National Youth Service Act No 51 of 1993 in my view appears to be a piece of legislation that conforms to the essence of Section 4 (2) of the Constitution i.e. for the peace, order and good government of the federation.
It behoves the appellant to show any section of the National Youth Service Corp Act that infringes on any section of the Constitution. Appellants seem to show that the NYSC Act impinges on the right to life guaranteed in the Constitution by Section 33 (1) of the Constitution and the right to Liberty under Section 35 of the Constitution. Nothing is shown in the NYSC Act that impinges on the right to life under any law and the calling up of members of the NYSC under Section 2 of the Act is not a deprivation of liberty and any person so affected may apply for exemption under Section 2 (2) & (4) of the NYSC Act. It is not however shown that the appellant is a person affected under Section 2 of the NYSC Act.PER NONYEREM OKORONKWO, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

MR. OLUWOLE ALUKO Appellant(s)

AND

1. PRESIDENT AND COMMANDER IN CHIEF OF THE ARMED FORCE OF NIGERIA
2. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): By an originating summons filed in the Federal High Court at Ibadan on 9th May 2011, the appellant as plaintiff commenced an action against the respondents for the determination of the following ?questions of law? viz:
(I) Whether the National Youth Service Corps Decree of 1973 by which every Nigerian below the age of 30 years that has completed his first degree at any University in Nigeria is liable to be called upon to serve in the service corps for a continuous period of one year is inconsistent with Section 34 (1) (a) (b) and (c) of the 1999 Nigerian Constitution that confers on every citizen right to personal dignity and freedom from .and degrading treatment, slavery or servitude and freedom from performing forced or compulsory labour.
?(II) Whether the proviso of Section 34 (2) (e) (III) is applicable to the National Youth Service Corps having regard to the word ?part of the education and training? in that section and having regard to the fact that National Youth Service Corps is not an Educational Institution.

(III) Whether the National Youth Service Corps Decree of 1973 by which every Nigerian below the age of 30 years that has completed his first degree at any University in Nigeria is liable to be called upon to serve in the service corps without guarantee for safety of life of the corps members where they serve is inconsistent with the provision of Section 33 (1) of the 1999 Nigerian Constitution that guarantees the right to life of every person and therefore null and void.
(IV) Whether the National Youth Service Corps Decree of 1973 by which every Nigerian below the age of 30 years that has completed his first degree at any University in Nigeria is liable to be called to serve in the service corps without any liberty as to preference of place to serve is inconsistent with the provision of Section 35 (1) of the 1999 Nigerian Constitution that confers right to personal liberty on individual and therefore null and void.
(V) Whether the National Youth Service Corps scheme by which Nigerian Youths and Graduates below the age of 30 years are forced to take part in the National Youth Service Corps scheme is a violation of the African charter on Human and Peoples

Rights and Universal Declaration of Human Rights by the United Nation Organization of which Nigeria is a signatory and therefore null and void.
(VI) Whether the provision of Section 12 (1) of the National Youth Service Corps Decree of 1973 by which there cannot be employment anywhere in the Federation for any University graduate except on the production of the discharge certificate or exemption certificate issued by the Directorate of the National youth Service Corps constitutes act of compulsion and if the answer is in the affirmative whether the National Youth Service Corps Decree is invalid having regard to the provisions of Sections 33, 34, 35 of the 1999 Nigerian Constitution.
(VII) Whether the violation of the provisions of the 1999 Nigerian Constitution confers right on any citizen of Nigeria to seek redress in Court having regard to the provision of Section 1 (1) and (3) of the 1999 Nigerian Constitution that make the provisions of the Constitution to be supreme and having binding force on all authorities and persons and any law that is inconsistent with it null and void.
(VIII) Whether this Honourable Court under Section 74

(2) of the Evidence Act can take Judicial notice that some Youth Corpers lost their live in Suleja bomb blast and in Bauchi in year 2011.

In what appears to be an elucidation of the questions framed above, the appellant gave a brief particulars of the case he formulated thus:
(i) Following the gruesome murder of the members of the National Youth Service Corps in Bauchi Suleja and some parts of Northern Nigeria the appellant by his originating summon of May 6th, 2011 seek determination of questions of law by the Court on the validity of the National Youth Service Corps Act vis a vis provision of the 1999 Nigerian Constitution that confers right to life to every person and freedom from forced or compulsory labour and inhuman and degrading treatment.
(ii) The appellant by his originating summon of October 11th, 2011 at the Federal High Court requested the Federal High Court to refer to the Court of Appeal Ibadan the questions of law whether any other relief is required where an act is declared invalid null and void.
(iii) The appellant is now at the Court of Appeal by way of his Notice of Appeal against the decision of the Federal High Court of November 24th, 2011

that dismissed the Originating Summon summarily without any hearing.

It will be desirable to reproduce those facts given by the appellant which constitute the passion that inflamed him to bring this action by Originating Summons. The facts given by the appellant himself are reproduced.
The National Youth Service Corps was set up in 1973 by the Military Regime and under the National Youth Service Corps Decree of 1973 every graduate from Nigerian Universities and other higher Institutions below the age of 30 years are required to serve in any part of Nigeria for a period of one year.
Under the National Youth Service Corps Decree of 1973 there is element of compulsion on every Nigerian graduate to participate in the programme as no graduate, by virtue of the provision of Section 12 (1) of the National Youth Service Corps Decree of 1973 can secure employment anywhere in Nigeria without the production of the discharge certificate or exemption certificate issued by the Directorate of the National Youth Service Corps.
Nigeria, as a country, has lost many promising young people since the programme started in year 1973.

Hardly is there any year since the programme started in 1973 that there will not be report of loss of Youth Corpers. In year 2011 it was reported that some Youth Corpers lost their lives in bomb blast at Suleja Niger State. In the Sunday Punch of April 24th, 2011 it was reported that National Youth Service Corps members had to run away from Daura, Katsina State from the rioters who wanted to attack them.
In the Sunday Punch of April 24th, 2011 it was reported that the Deputy Senate President Ike Ekweremadu stated that there is urgent need to review the N.Y.S.C. programme in order to put an end to the incessant murder of innocent young Nigerians. On May 1st, 2011 the Sunday punch carried the advertisement of the National Youth Corps announcing the gruesome and untimely death of the Nine Youth Corpers that were killed in Bauchi. Eminent Nigerians, Muslim leaders in the South and Pastors from different religious organizations have called for the abrogation of the National Youth Service Corps scheme. In Gbongan, Osun State, it was pathetic when the body of a Youth Corper was being interred on May 4th, 2011. The life of that young promising Nigerian was terminated in Bauchi.

This was reported in the Punch of May 4th, 2011. In Imo State it was wailing and tears when a corps member that was killed in Bauchi was being buried. The National Youth Service Corps scheme is an instruction of the then Military Regime in Nigeria and it has no relevance in a democratic society with democratic constitution where there is obligation on every person and authorities to uphold the right that every person has to life and freedom from torture and from performing forced or compulsory labour. Nigeria is a signatory to the African Charter on Human and Peoples? Rights and United Nation. Universal Declaration on Human Rights and under these international treaties no citizen can be compelled to participate in any programme after his or her University Education and no citizen can be compelled to continue to release his or her children for any programme in which there is no guarantee of safety of life.
The National Youth Service Corps scheme is inconsistent with these international treaties of which Nigeria is a signatory and to the provisions of Section 33, 34 and 35 of the 1999 Nigerian Constitution and it is invalid, null and void.

Any programme that will lead to loss of life is always of concern to the members of the International Community and under Section 33 (1) of the 1999 Nigerian Constitution the right to life that every person has cannot be taken away by the person who has that right and where that person is not successful in an attempt to take away his or her own life he has committed criminal offence against himself and or herself and this is the origin of the Locus Standi of the plaintiff to file a suit in Court in order to determine the validity of the programme that had led to loss of lives of promising young people. Nigeria was being run as a Unitary State when the programme was established in 1973 and it is not relevant now in a Federal System of Government.

By way of response to the Originating Summons, the respondent herein as defendant at the Federal High Court urged the Court to strike out/dismiss the suit on the following grounds:
a. That the plaintiff failed to comply with the National Youth Service Corps Act which requires anyone who is aggrieved by the scheme or anything done under it to first appeal to the Presidency before any action can be commenced in any Court of law

in Nigeria. As the matter relates to the challenge of the NYSC created by the NYSC Act, and a precondition ? appeal to the President has not been made by the plaintiff.
b. That there is no cause of action against the 1st and 2nd Defendants/Applicants in this suit as the National Youth Service Corps Decree (now Act) an existing law entrenched in the Constitution and not inconsistent with the provision of the Constitution of the Federal Republic of Nigeria 1999 or any other Statutes;
c. That contrary to Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules 2009, the Plaintiff?s Originating Summons does not contain any reliefs/declaration being sought by the plaintiff;
d. That the reliefs cannot be granted against the Defendants as any charges on the NYSC Act goes beyond the scope of the Federal Government and extends to the State Governments of all the States of the Federation as provided under Section 9 of the Constitution of the Federal Republic of Nigeria 1999.
e. That the Originating Process filed in this suit does not have the endorsement contemplated by Sections 97 and 98 of the Sheriffs and Civil Process Act.<br< p=””

</br<

The underlying facts as given by the respondents are contained in their summary of facts as follows:
The National Youth Service Corps (NYSC) Decree was promulgated in 1973 as Decree No. 24 of May 22, 1973 and the Decree was amended twenty (20) years later by the National Youth Service Corps Decree No.51 of June 16, 1993. Upon Nigeria becoming a democratic Nation in 1999 all existing Decrees, including the NYSC Decree became and were deemed Acts of the National Assembly of Nigeria and the NYSC Decree is codified in the 2004 edition of the Laws of the Federation of Nigeria Cap. N84. (NYSC Act).
The NYSC Act is contained in the Constitution of the Federal Republic of Nigeria 1999 and forms part of the 1999 Constitution, which without any exclusion whatsoever guarantees every Nigerian the right to life. Certain categories of Nigerians, including those who are above 30 years of age and those who have been engaged in the military and intelligence services in Nigeria are exempted from serving in the NYSC Scheme.
Nigerians who are above thirty (30) years of age and have not served in the scheme are entitled to a certificate (Certificate of Exemption)

exempting them from serving in the scheme. Only Nigerian youths who have obtained first degrees (BSC or HND) and no other category of Nigerian youth are required to produce discharge or exemption certificates for employment purposes.
As a result of the increasing number of Nigerian youths, who are eligible, willing and able to serve in the corps, the National Directorate of the NYSC recently increased the number of batches from a single batch to three batches which is now referred to as batches a, b and c in order to accommodate the teeming youths.
After the elections conducted by the Independent National Electoral Commission (INEC) in April, 2011, violence erupted in some Northern States of Nigeria, which caused the loss of some innocent lives including NYSC members. The 1st Defendant has taken active steps to assuage the pains of the families and the sorrow of Nigerians over the loss of some of the NYSC members that died as a result of the post-election violence.

At 93 of the record is the written address of the appellant in support of the Originating Summons part of which reads as follows in the last paragraph of page 93 as follows:<br< p=””

</br<

?a great deal of issues were raised relating to the Locus Standi of the Plaintiff?——-

Thus one issue that was raised by the parties at the lower Court was among others according to the appellant, the question of ?locus standi of the plaintiff?

On 24th November 2011, upon the case coming up, the trial Court recorded as follows:
I have read the processes filed by the parties in this case. I am of the candid opinion that this Court lacks jurisdiction as the plaintiff who is a practicing lawyer does not have any locus stand to institute this action. It is not only time wasting but a mere attempt at showmanship. I would serve no useful purpose dealing with this suit. The applicant still has a great opportunity to correct any conclusion reached, If otherwise, wrong at a higher Court.
This suit is dismissed in its entirety.
SGD
HON. JUSTICE J.E. SHAKARHO
24TH NOVEMBER, 2011

This was the decision that aggrieved the appellant that led to his appeal upon the Notice of Appeal of 25/11/2011 upon the sole ground of appeal and particulars thus:
The learned trial judge erred in law by dismissing the

originating summon of the appellant dated May 6th, 2011 and filed at the Federal High Court on May 9th, 2011 that involve determination of the Question of law alone whether the provisions of the National Youth Service Corps Act 1993 are inconsistent with the provision of the 1999 Nigerian Constitution and therefore ?.null and void on the ground that the appellant has no locus standi when the issue of lack of locus standi of the appellant was not raised by the respondents in any process of the Court before the Court and there was originating summon of October 11th, 2011 pending before the Court for reference of questions of law which include that of locus standi to the Court of Appeal Ibadan.

In the appellant?s brief, learned appellant, himself a lawyer of good standing declared that the essence of the Originating Summons is as follows:
To determine the validity of the National youth Service Corps Act vis a vis the provisions of the 1999 Nigerian Constitution that confers right to life on every person and freedom from forced and compulsory labour and inhuman and degrading treatment in view of the operation of the National Youth Service

Corps Act that has been consuming the lives of promising young Nigerians since its operation began during the Military Regime in 1973.

In response to question from the Court and observations of the respondent, learned appellant argued that in the Originating Summons he used the words ?inconsistent? ?invalid? null and void in relation to the National Youth Service Corp Act and that any declaration of the Court to that effect would settle the matter and in respect of locus standi, that his son was posted to Bauchi State against his will.

On locus standi, appellant argued that it was wrong for the trial Court to raise the issue of locus standi and to determine same suo motu without any imput or prompting from counsel citing:
(i) Rear Admiral Agbiti vs. Nigerian Navy (2011) 1-2 S.C. (pt. III) 144 at 194.
(ii) Elike vs. Nwankwola (1984) 12 S.C. 301 at 312
(iii Saclua vs. Kwande LCC (1990) 5 NWLR (pt. 152) 548 at 555.
(iv) Shitta Bey vs. Federal Public Service Commission (1981) 1 S.C. 40 at 59.

Among other cases;
Appellants contends citing Nigeria Airways Ltd vs. Lapite (1990) 7 NWLR (Pt.163) 392 at

410 that assuming there was lack of locus standi in the appellant, the proper order was one striking out the case for of competence and not one for dismissal.

Still on Locus standi, the appellant argue further that Locus standi is clearly irrelevant where the issue involved is loss of life or threat thereof as he argued
(i) The issue involved in the originating summon relates to loss of life and life is so sacred that no nation anywhere in the world by its municipal law can contract outside its obligation under International Law to protect right of every person to life within her territory regardless of the place where the person comes from and any operation of programme of Government that continues to consume life of its citizens constitute crime against humanity at the International Court of Criminal Justice.
(ii) The issue of Locus Standi is inapplicable where loss of life is involved and the issue involved relates to violation of the constitutional provision relating to right of every person to life Refer to Attorney-General of Bendel State vs Attorney General of the Federation and 22 ors (1981) 1 AIINLR part II page I at 133 where

the Supreme Court held as follows ?..with these observation in mind, I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written federal constitution where rumor mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware or believes or is led to believe that there has been an infraction of any of the provisions of our constitution or that any law passed by any of our legislatives houses whether federal or state is unconstitutional, access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process. Any person whether he is a citizen of Nigeria or not who is resident in Nigeria or who is subject to the laws in force in Nigeria has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Constitution of Nigeria. Indeed it is his civil right to see that this is so. This of that inconsistence, null and void by virtue of the provisions

of the Constitution is to the extent of that inconsistency, null and void by virtue of the provisions of Sections 1 and 4 to which I have referred?.

Learned appellant urges Court to determine the vital issues of law which he raised in his originating summons.

The Respondents in their brief of argument raise two issues for determination which are:-
Whether the Appellant who was given the opportunity to present his case and did present his case as he thought best can be deemed to have been denied fair hearing (Ground I)
Whether, the learned trial Judge was right in dismissing the Appellants? suit. (Ground 1)

The main point of the respondent?s argument is in paragraph 4.1.2 of the brief where the following argument was given
On November 24, 2011 when the matter last came up, after hearing Counsel to both parties on the issue of locus standi, and having read the parties processes, the Court delivered its judgment on the plaintiff suit. It is notable that the suit was initially adjourned to this date for the parties to address the Court on the issue of locus standi which was raised by the trial judge suo motu. It was after hearing the

parties that the Court delivered its judgment. In its judgment, the Court agreed with the Respondents that the suit was incompetent and that the Court lacks jurisdiction to entertain it. The Court further held that as the plaintiff, a legal practitioner is not a serving corps member; he has no cause of action and lacks the locus standi to institute the suit. For the above reasons therefore, the Court dismissed the suit.

Respondent, citing Atoyebi vs Bello (1997) 11 NWLR (Pt.528) 266 at 296 and University of Lagos & Anor vs. M.I Algoro (1985) 1 NWLR (Pt. I) at 143 argue that though the issue of locus standi was raised by the trial Court suo motu. It was within the province of a trial Court to do so as it was a question of jurisdiction.

Dovetailing the argument into their issue No 2, respondents per their counsel Fabian Ajogwu SAN submitted thus at paragraph 4.1.1 of this respondents brief thus:
My Lords, we submit that locus standi is the legal capacity to institute an action in a Court of law, the standing to sue. It is the status which the plaintiff must possess before being heard in Court and a condition precedent to the determination of a

suit on its merits. See Thoma v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Owodunni v. Reg. Trustee C.C.C. (2000) 6 SC (pt. 111) 60.

Still on Locus standi and citing BM Ltd v. Woermann-Line (2009) 13 NWLR (PT.1137) 149 where it was declared that ?Locus Standi is a forerunner to jurisdiction, learned Senior counsel resorted to the iconic case of Adesanya v. President, Federal Republic of Nigeria (1981) & NCLR 358 where the Supreme Court Per Bello JSC (later CJN) outlined the features of the doctrine of locus standi; thus.
?A careful perusal of the problem would review that there is no jurisdiction within the common law countries where a general license or a blank cheque if I may use that expression without any strings or restriction, is given to private individual to question the validity of legislative or executive action in a Court of law. It is a common ground in all the jurisdiction of the common law countries that the claimant must have some justiciable interest, which may be affected by the action, or that he will suffer injury or damage as a result or the action. In most cases the area of dispute, and sometime, of conflicting

decisions has been whether or not on particular facts and situations the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether the claimant has sufficient interest or injury to accord him a hearing depends on the facts and circumstances of each case; Bengal Immunity Co. v. State of Bihar (1955)2 S.C.R 206, Forthinghan v. State Mellon (1925) 262 U.S. 447; for India and America respectively. Even in the Canadian case of Torson v. Attorney-General of Canada (1974) I N.R.2254 and the Australian case of McKinley v. Common Wealth (1975) 135 C.L.R cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which decisions in both cases were reached.”

Respondents further submit therefore that:
We submit that the ?Appellant does not have a cause of action against the Respondents in this case. He alleged that the National Youth Service Corps Act Cap N84 LFN 2004 is inconsistent with the Constitution of the Federal Republic of Nigeria 1999 (CFRN). The National Youth Service Corps Act Cap N84 LFN 2004 is not inconsistent with

the CFRN 1999 but is as a matter of fact incorporated into the CFRN 1999. The National Youth Service Corps was created by the enabling statute, which is an existing Act of the National Assembly, having been entrenched in the Constitution by Section 315 thereof.?
and that the Nation Youth Service Act Cap N84 LFN is now incorporated into the Constitution by Section 315 (5) (a) of the Constitution which provides thus
(5) Nothing in this Constitution shall invalidate the following enactments that is to say:-
(a) the National Youth Service Corps Decree 1993;
(b) the Public Complaints Commission Act;
(c) the National Security Agencies Act;
(d) the Land Use Act.
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution.

Resolution of Issues
Many interesting issues have been raised in this appeal ranging from locus standi and competence and inconsistency of law to

the Constitution. But however, one main issue that has to been given prominence is whether there can be inconsistent provisions of the Constitution itself and what can be done in such situation and by whom?
The National Youth Service Act No 51 of 1993 in my view appears to be a piece of legislation that conforms to the essence of Section 4 (2) of the Constitution i.e. for the peace, order and good government of the federation.
It behoves the appellant to show any section of the National Youth Service Corp Act that infringes on any section of the Constitution. Appellants seem to show that the NYSC Act impinges on the right to life guaranteed in the Constitution by Section 33 (1) of the Constitution and the right to Liberty under Section 35 of the Constitution. Nothing is shown in the NYSC Act that impinges on the right to life under any law and the calling up of members of the NYSC under Section 2 of the Act is not a deprivation of liberty and any person so affected may apply for exemption under Section 2 (2) & (4) of the NYSC Act. It is not however shown that the appellant is a person affected under Section 2 of the NYSC Act.

To put the issue differently, the appellant has not shown that the NYSC Act is in any manner inimical to life or good livelihood. On the contrary the Act list the objectives of the NYSC scheme in Section 1 (3) thereof which are
(3) The objectives of the service corps shall be
(a) Inculcate discipline in Nigerian youth by instilling in them a tradition of industry at work and of patriotic and loyal service to Nigeria in any situation they may find themselves;
(b) Raise the moral tone of the Nigerian youths by giving them the opportunity to learn about higher ideals of national achievement, social and cultural improvement;
(c) develop in the Nigerian youths the attitudes of mind, acquired through shared experience and suitable training which will make them more amenable to mobilization in the national interest;
(d) Enable Nigerian youths acquire the spirit of self-reliance by encouraging them to develop skills for self-employment;
(e) Contribute to the accelerated growth of the national economy;
(f) Develop common ties among the Nigerian youths and promote national unity and integration;
(g) Remove prejudices, eliminate ignorance

and confirm at first hand the many similarities among Nigerians of all ethnic groups; and
(h) Develop a sense of corporate existence and common destiny of the people of Nigeria.
(4) In order to achieve the objectives in Subsection (3) of this section, the service corps shall ensure—
(a) The equitable distribution of members of the service corps and the effective utilization of their skills in areas of national needs;
(b) That as far as possible, Nigerian youths are assigned to jobs in States other than their States of origin;
(c) That such group of Nigerian youths assigned to work together is representative of Nigeria as far as possible;
(d) That the Nigerian youths are exposed to the modes of modes of living of the people in different parts of Nigeria;
(e) That the Nigerian youths are encouraged to eschew religious intolerance by accommodating religious intolerance by accommodating religious differences;
(f) That members of the service corps are encouraged to seek at the end of their one year national service career employment all over Nigeria, thus, promoting the free movement of labour;

(g) That employers are induced partly through their experience with members of the service corps to employ more readily and on a permanent basis, qualified Nigerians, irrespective of their State of origin.
The originating summons is used where the issue for determination is or likely to be one of interpretation of a written law, deed, instrument or other document. See, Sulieman Atago vs. Mr. Ibiso Nwuche & 2 Ors (2012) 12 SC (pt. II) 107. This being case, I do not see how the NYSC Act impinges on the right to life or liberty.
One big issue not raised by the parties herein but is apparent in the proceedings is the supremacy of the Constitution and the implication of Section 315 (5) (a) of the Constitution which provides thus:
(5) Nothing in this Constitution shall invalidate the following enactments that is to say:-
(a) The National Youth Service Corps Decree 1993;
(b) The Public Complaints Commission Act;
(C) The National Security Agencies Act;
(d) The Land Use Act.
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions

forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution.
If by Section 315 (5) of the Constitution, the National Youth Service Corp Act has become an integral part of the Constitution and cannot be altered or repealed except in the manner specified in Section 9 (2) of the Constitution, can any Court including the trial Federal High Court or this Court of Appeal declare it (i.e. NYSC Act) null and void or inconsistent with the Constitution?
This cannot be because the constitution is the Supreme Law of the Land. See Federal Republic of Nigeria vs. George Osahon & Ors (2006) 2 SCNJ 348. The validity of all other Laws is measured by reference to the Constitution. In People Democratic Party (PDP) vs. Congress for Progressive Change (CPC) & Ors. 2011 10 SC 53.
?No provision or section of the constitution can be declared invalid or inconsistent or null and void and the National Youth Service Corp Act by Section 315 (5) is part of the Constitution. It cannot be declared inconsistent or null and void in relation to the constitution as the appellant seem to

suggest and pray for. The National Youth Service Act has come to be part of our Organic law i.e. the Constitution. It is only by an alteration of the Constitution in the manner specified in Section 9 (2) of the Constitution that it can be abrogated.
Against the background above, both the action of the appellant at the Court below and the appeal emanating therefrom are without legal basis and would be dismissed.
The appeal accordingly lacks merit and is dismissed.

HARUNA SIMON TSAMMANI J.C.A.: My learned brother N. Okoronkwo, JCA gave me the advantage of reading the draft of the judgment just delivered.

The Appellant herein, a lawyer of over three (3) decades instituted the action before the Federal High Court at Ibadan by way of an Originating Summons. He sought principally, by the Onginating Summons the nullification of the National Youth Service Corps Decree of 1973 on the ground that it is inconsistent with the Constitutional Provision of the Fundamental Right to life; and freedom from inhuman and degrading treatment, slavery or servitude; and also freedom from performing forced or compulsory labour.

As pointed out by my learned brother in the lead judgment, the National Youth Service Corps (NYSC) Decree (now Act) has been incorporated into the Constitution of the Federal Republic of Nigeria, 1999 as part of the Constitution by virtue of Section 315(5)(a) of the Constitution. It is therefore an integral part of the Constitution and therefore cannot be nullified by any Court in Nigeria on the ground that it is inconsistent with any provision of the same Constitution. If any inconsistency is discovered between any of the provisions of the Constitution (which is not so here), the remedy is in an amendment by the National Assembly. Thus, in the case of Opara & Anor v. Amadi & Anor (2013) 12 NWLR (Pt.1369) 512, Ngwuta, JSC held that:
“One section of the Constitution cannot derogate from, or override the provision of another section of the same Constitution. The supremacy of the Constitution in Section 1 thereof is shared and enjoyed by all the sections including the amended sections of the Constitution.?
See also Oshiomhole & Anor v. F.G.N & Anor (2007) 8 NWLR (Pt.1035) 58.
?For the above reasons and the other reasons precisely

stated in the lead judgment, I agree that this appeal is devoid of any merit. It is accordingly dismissed.

ABUBAKAR MAHMUD TALBA J.C.A.: I have had the benefit of reading the draft of the leading Judgment prepared by my learned brother NONYEREM OKORONKWO KA, I agree with his lordships reasoning and conclusion.

The main issue that has to be determined Is whether there can be inconsistent provisions of the constitution itself and what can be done in such situation and by whom?
By virtue of Section 315 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Youth Service Corp Act has become an integral part of the Constitution, therefore it cannot be altered or repealed except in the Manner Specified in Section 9 (2) of the Constitution. Pursuant to the above provision the National Youth Service Corp Act cannot be declared inconsistent or null and void in relation to the constitution.
In A.S.H.A v. Tijani (2012) 8 NWLR (pt. 1303) 483 this Court held:
?By the provisions of Section 1 (1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, the

Constitution is Supreme and its provisions are binding on all authorities and persons in Nigeria. Therefore, if any law is inconsistent with any provisions of the Constitution. The Constitution shall prevail and other law shall to the extent of that inconsistency be void?
The National Youth Service Corp Act being an integral part of the Constitution, it cannot be inconsistent with the provisions of the Constitution itself.
The appeal lacks merit and it is accordingly dismissed.

Appearances:

Oluwole AlukoFor Appellant(s)

For Respondent(s)

Appearances

Oluwole AlukoFor Appellant

AND

For Respondent