No Court Can Convict Ex-Minister Kemi Adeosun For Forgery - 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?
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 were later discovered to be fake or you did fake things for me, does that make me guilty of whatsoever offence you commit 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 exception letter for sincere sake! Something you would do almost nothing to get once you are above 30 years of age.
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 exception. 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 work hand in hand in 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 order 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 but that is the law.
The above principle of law complements the age-long principle of law in latin maxim ‘ignoram juris non-excusat and ignoram 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) a 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:
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 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 left his wife and children behind. He arrived his friend’s state of residence and his friend came to pick him at the pack and headed for a beer parlour where he met with some other persons who are friends to my friend. 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 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? 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 exception 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, 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-
- he is over the age of thirty; or
- he has served in the armed forces of the Federation or Nigeria Police Force for a period of more than nine months; or
- 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
- 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 exception 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 exception certificate, and she ensures that it’s a genuine one this time around while she moves on.
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
Principal Partner,
Sun Natha-Alade & Partners (SNATHAP)
[email protected]
www.snathap.com