The judgment of the Court of Appeal chastising ‎Justice Okon Abang for refusing to grant former Peoples Democratic Party’s spokesman, Olisah Metuh’s application to call the ex-National Security Adviser, Col. Sambo Dasuki (rtd) as a witness may be what Metuh needs to defend the case of alleged money laundering filed against him by the Economic and Financial Crimes Commission, writes Davidson Iriekpen

The Court of Appeal in Abuja penultimate week ordered the Department of State Services (DSS) to produce the detained former National Security Adviser, Col. Sambo Dasuki (rtd.), before a Federal High Court in Abuja to enable him testify in defence of a former National Publicity Secretary of the Peoples Democratic Party (PDP), Chief Olisa Metuh.

In a unanimous judgment delivered by its three-man panel, the court ordered the trial judge, Justice Okon Abang, before whom Metuh is being prosecuted, to immediately sign the subpoena filed by the ex-PDP spokesperson and same be served on Dasuki, who has been in the custody of the DSS since December 2015.

Justice Peter Ige, who read the lead judgment, directed Justice Abang to indicate the date which the DSS must produce Dasuki in court and other subsequent dates when the ex-NSA’s court attendance would be required. He upheld Metuh’s appeal and nullified the ruling delivered by Justice Abang on February 23, 2017, when the judge refused to grant application for a subpoena to be issued and served on Dasuki. The appeal court, which resolved all five issues formulated in the appeal in Metuh’s favour, held that contrary to Justice Abang’s ruling, Dasuki was a competent and compellable witness as far as Metuh’s trial was concerned.

The Economic and Financial Crimes Commission (EFCC) had in January 2016 arraigned Metuh and his company, Destra Investments Limited, on seven counts of money laundering involving alleged cash transaction of $2million and fraudulent receipt of N400million meant for procurement of arms from the NSA office on November 22, 2014.

The prosecution alleged in the charges that Metuh and his firm used the N400m for funding PDP’s campaign activities. It closed its case with eight witnesses and the defence had, after its no-case submission was dismissed by the court, called six witnesses as of December 2016.
But the defence team, led by Dr. Onyechi Ikpeazu (SAN), had in December 2016 filed a subpoena which it requested the judge to sign in order to serve it on Dasuki as a summon inviting him to testify in court as a defence witness.

Following the refusal of the judge to sign the subpoena, the defence subsequently filed a motion on notice asking the judge to issue a subpoena compelling Dasuki to appear in court as a defence witness.
Delivering the lead judgment of the Court of Appeal, Justice Ige held that the refusal by Justice Abang to sign the subpoena and his subsequent refusal to grant the application requesting the signing of the subpoena was a violation of Metuh’s right to fair hearing guaranteed by section 36 of the constitution. It also ruled that with Dasuki’s name featuring prominently in the counts preferred against Metuh, the ex-NSA was an essential witness in the case.

The court added that it was not within the power of the judge “under the guise of exercising discretion” to determine whether or not Dasuki’s testimony would serve useful purpose to the defendant. Citing Section 175 (1) and (2) of the Evidence Act, It held that all competent witnesses were compellable witnesses. Explaining who was a competent witness, the court held that all persons such as a person with knowledge about the case at hand “shall be considered to be competent witnesses” except on conditions of “unsound mind” and prevented by “mental infirmity. A witness must be competent before he can be a compellable witness,” Justice Ige ruled.

His Lordship also explained that “all persons are competent to be a witness in all proceedings whether civil or criminal,” except when the concerned person enjoys “constitutional immunity” as provided under Section 308 of the constitution.

Such persons, according to him, are the president, vice-president, governors and deputy governors.
The court, therefore, held that apart from those exempted by law, “all competent witnesses are compellable witnesses. Dasuki is not the person granted immunity by the constitution and who cannot be compelled or served with a subpoena. Dasuki is a compellable person that can testify in these proceedings.”

The court also ruled that Section 36 of the constitution gave both the prosecution and the defence equal opportunity and right to call any witness of their choice. It noted that even though “the prosecution has not deemed it necessary to call Dasuki, nonetheless, the appellant is entitled to call him as witness.”

Faulting Justice Abang’s refusal to sign the subpoena, the appeal court ruled” “The learned judge did not take into account the right of the appellant to fair hearing and his right to be given the opportunity to secure the attendance of his witness in court.”

The masterstroke in the judgement was delivered by the Mohammed Mustapha who held “Counts 1, 2,3,4 and 7 of the charge against Metuh are alleging that he received N400,000 from the former NSA with the knowledge that the funds formed part of an unlawful of Dasuki.

“No, if that were so, one cannot but wonder how the appellant could possibly explain or discharge the burden placed on him, especially as it is on those facts that the trial court found the existence of prima facie evidence.

“Subject to the exception sections 175(1) and (2), all persons are competent witnesses for the purpose of testimony in proceedings, whether civil or criminal. Persons who cannot be compelled on the other hand are those legally disqualified, e.g by reason of immunity on account of the office they hold i.e the president, governors and their deputies. Even they cannot be said to be incompetent as witnesses, they only are simply not compellable as no writ can legally be issued on them. Against this background, Dasuki is clearly a competent and compellable witness.

“It stands to logic and common sense that an accused person is entitled to call any witness of his choice in his defence, and in calling such witness, it is perfectly within the right of such an accused person to approach the court to issue a subpoena to secure the attendance of such a witness.

“It is very important at this juncture to emphasise that section 241(1) of the Administration of Criminal Justice Act is meant to empower an accused person take advantage of section 36(6)(1)(b) and (d) of the constitution, for that reason, any attempt to deny an accused person such an opportunity is akin to the proverbial saying of tying his hands behind him and expecting him to ward off assailants. It is simply wrong for the trial court to even suggest that the witness sought to be subpoenaed (Dasuki) is not compellable. Doing so is a clear denial of the appellant’s right as enshrined in section 36 of the constitution,” he held.

To many observers, the judgment by the Court of Appeal was not just a relief to both Metuh and his defence team but to the country’s jurisprudence which has sufferred serious damage due to controversial orders, rulings and pronouncements some of which defied logic. They believe that the decision will no doubt strengthen the country’s jurisprudence in a long time to come.

Many analysts are still at loss trying to figure out why the trial judge held that Dasuki was not a competent witness and a compellable witness in Metuh’s trial. Was it a honest mistake or a deliberate misinterpretation of the law? While some are of the views that the judge should be given the benefit of the doubt others suspect a foul play and wonder whether it is proper for the judge to continue to hear the case. Many fear that Metuh may not get justice in the circumstances.

The setting aside of the ruling has again added to the number of controversial rulings, orders and judgments delivered by Justice Abang in recent times. On two major occasions last year, the court of appeal set aside his judgments.
So reckless and perverse are some of his orders and judgments that many analysts wondered why the National Judicial Council (NJC), continues to close its eyes its eyes to the embarrassment he had caused the third arm of government. Still fresh in the minds of Nigerians, perhaps is the role he played in the crises that rocked the PDP until the Supreme Court rescued the party from disintegration.

One of the most sacrilegious judgments delivered by Justice Abang was on June 27, 2016, when he ordered Dr. Okezie Ikpeazu to vacate his seat as governor of Abia State for falsifying tax documents. He equally ordered the Independent National Electoral Commission (INEC) to issue a certificate of return to Mr. Sampson Ogah who came second in the Peoples Democratic Party (PDP) primary election held in December 2014.

But in a unanimous judgment, the Court of Appeal held that the trial judge was not only perverse and biased in his judgment, but had turned the law upside down. First, the court held that Justice Abang erred in law and occasioned a miscarriage of justice against the governor when he refused to give him a fair hearing and that he pre-judged the matter when he touched on the substantive issues at the preliminary stage without hearing the appellant. The court also held that the trial judge turned the head of the law upside down in his conclusion that it was the appellant that should bear the burden of proof of an allegation made by Ogah.

Justice Helen Ogunwumiju, who delivered the lead judgment in one of the appeals, held that Justice Abang “committed grave violence against one of the pillars of justice” relating to fair hearing. She further held that the judge raped democracy in his order that INEC should issue a certificate of return to Ogah when there was no evidence of forgery or criminality against the appellant.

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While some are of the views that the judge should be given the benefit of the doubt others suspect a foul play and wonder whether it is proper for the judge to continue to hear the case.

Metuh can now call Dasuki as witness