A Federal High Court in Abuja has insisted that former President Goodluck Jonathan and ex-National Security Adviser (NSA) Mohammed Dasuki must appear Wednesday to testify for the defence in the ongoing trial of ex-spokesman of the People’s Democratic Party (PDP), Olisa Metuh.
Justice Okon Abang gave the directive Tuesday despite the pending motion by Dasuki, challenging the witness summons issued on him, and the uncertainty over whether or not Jonathan has been served with the subpoena issued by the court on Monday.
At the resumption of proceedings in the trial of Metuh and his company, Destra Investment yesterday, Justice Abang took argument from lawyer to Dasuki, Ahmed Raji (SAN) and other lawyers in the case on the motion by ex-NSA.
While arguing his client’s motion, Raji contended that there was no way Dasuki would testify in Metuh’s trial without implicating himself because the issues in the case and the three pending charges against him (Dasuki) were interlinked.
Raji, prayed the court to set aside the subpoena issued on Dasuki or suspend the execution of the court summon until he (Dasuki) was released from prison.
He argued that his client’s long detention by the Department of State Service (DSS) since December 2015 has deprived Dasuki of ability to meaningful participate in Metuh’s trial
Raji said the DSS continued to detain Dasuki despite being granted bail by three separate municipal courts and also to be released by ECOWAS Court.
He said with his client’s continued detention, the ex-NSA had no access records that could enable him to give meaningful evidence.
Raji said, “In sum total, my lord, up till this morning, all these facts are not controverted by the respondents.
“He was the National Security Adviser from 2012 to 2015, almost four years, and he treated many files, but he has been in detention for two years.
“Giving evidence is something that has do with state of the mind and recollection of events. The detention is not lawful and all the circumstances combine to completely dis-orient him.
“Most importantly my noble lord, he has no access to documents which he can make use of.
“He is willing and ready to assist the court but he is disabled and unable, that is why we are appealing in Prayer 2 that the court should sympathetically suspend the operation of this subpoena pending his release from detention. The law does not and cannot command what is impossible.”
Raji further argued that from the nature of the nature of the charges instituted against Metuh, Dasuki could be said to be an alleged co-accomplice.
He said the ex-NSA would “not be able to give evidence in the case without incriminating himself.”
Raji contended that Dasuki, as an alleged accomplice, was a competent witness, but not a compellable witness.
He stated that compelling Dasuki to give evidence would violate section 36(2) of the Constitution which guaranteed the right of a suspect to remain silent when arrested or detained.
Raji said Dasuki was not served personally with the subpoena, as such; the service of the subpoena through the Director-General of DSS was invalid.
Prosecuting lawyer, Sylvanus Tahir, and lawyers representing Metuh and Destra, Onyechi Ikpeazu (SAN) and Tochukwu Onwugbufor (SAN) opposed Dasuki’s motion.
They argued that the court lacked jurisdiction to hear the application.
Tahir, Ikpeazu and Onwugbufor argued that granting the application by the court would amount to a violation of section 287(2) of the Constitution which they said prohibited a lower court from reviewing or varying the judgment of the Court of Appeal which on September 29, ordered Justice Abang to sign the subpoena.
On Raju’s argument that his client, being an alleged accomplice could implicate himself, Tahir argued that such contention was without basis.
He said, “The applicant said he is an accomplice and his evidence will be self-incriminating
“That argument is contrary to section 198 (1) of the Evidence Act.”
On points of law, Raji said by virtue of the provisions of section 36(11) of the Constitution “nobody standing trial shall be compelled to give evidence”.
He added none of the respondents had challenged “the fact that we have no access to records and we are not in right mental state to give evidence in this case”.
Justice Abang has reserved ruling on Dasuki’s motion till today.
HE said: “The outcome of the ruling will determine which step to take about the first subpoena (issued on Dasuki), but the orders compelling His Excellency, former President Goodluck Jonathan, and Col. Sambo Dasuki, to appear in court on Wednesday, October 25, 2017 at the instance of the first defendant (Metuh) still stand.”
Justice Abang had issued separate subpoenas on Jonathan and Dasuki upon applications by Metuh, who had requested the two men to testify in his defence in his ongoing trial.
The judge confirmed that the subpoena on Jonathan was issue upon the receipt Metuh’s application for the summona to be served on the ex-President at about 3.59pm on Monday.
Justice Abang said, “Indeed, at the close of business yesterday (Monday) being October 23, 2017 precisely at about 3.59pm, the registrar forwarded to the court in chamber a subpoena to compel former President Goodluck Jonathan to appear in court to testify a the instance of the first defendant (Metuh).
“Therefore, in line with section 241(1) of Administration of Criminal Justice Act 2015, and having regard to the subsisting judgment of the Court of Appeal in the appeal, CA/A/159C/2017, between Olisa Metuh and Federal Republic of Nigeria dated September 29, 2017 to the effect that it will be tantamount to violating the right of the first defendant (Metuh) to fair hearing not to sign the subpoena, I have no option other than to sign a subpoena to compel former President Goodluck Jonathan to appear in court on September 25, 2017 (Wednesday)to give evidence at the instance of the first defendant,” he said.
When asked if Jonathan has been served with the subpoena, a registrar of the court said the bailiff of the court was yet to serve the subpoena on Jonathan as at Tuesday morning.
The registrar said the bailiff could not be reached after the judge signed the subpoena late on Monday.
He said the bailiff had therefore promised to pick up the subpoena for service on Jonathan on Tuesday.
Metuh and Destra are being prosecuted by The Economic and Financial Crimes Commission on a seven-count charge of money laundering involving alleged cash transaction of $2m and fraudulent receipt of N400m meant for procurement of arms from the Office of the NSA.
The EFCC alleged in the charges that Metuh and his firm used the N400m for PDP’s campaign activities during the 2015 presidential election.
The N400m was alleged to be “part of the proceeds of an unlawful activities” of the immediate past NSA, Dasuki.
Witnesses so far called by Metuh (who is currently conducting his defence have insisted that Jonathan authorised the N400m paid to the ex-spokesperson for the PDP from the Office of the NSA in November 2014, the money being part of the case against Metuh.
The defence legal team had insisted that given the roles which Jonathan and Dauski played in the N400m transaction, both men were needed as witnesses in the case.
