The refusal by Justice Okon Abang of the Federal High Court to grant a former spokesman of the Peoples Democratic Party, Olisa Metuh, permission to travel abroad â€Žfor medical treatment while others facing similar trials are granted the opportunity, is a major cause for concern, Davidson Iriekpen writes
Despite obtaining a medical report from a United Kingdom-based hospital, the application of a former National Publicity Secretary of the Peoples Democratic Party (PDP), Olisa Metuh, to travel abroad for treatment was rejected last week by the trial judge, Justice Okong Abang, of the Federal High Court in Abuja.
Metuh is facing trial for an alleged diversion of N400 million he received from the office of the former National Security Adviser. The Economic and Financial Crimes Commission (EFCC) had in January 2016 arraigned him and his company, Destra Investments Limited, on a seven-count charge of money laundering after it alleged that they used the money for funding PDPâ€™s campaign activities
Metuh was consistently attending his trial until he started having health challenges. Last February, he asked for permission to travel abroad for medical treatment. The court refused to grant the request and adjourned proceedings till March. At the continuation of the hearing, however, when the PDP chieftainâ€™s condition was not improving, his lawyers again made another request. Again, his request was turned down.
After appearing in court on a stretcher in March, the defence counsel appeared with a medical report from a foreign hospital. According to them, the former spokesman of the PDP is suffering from spinal cord injuries and requires urgent medical attention. The lead lawyers, Onyeachi Ikpeazu, requested a prolonged adjournment to allow for proper recuperation.
Delivering his ruling penultimate Thursday, the judge, recalled his earlier decisions refusing a similar application. He ruled that the former PDP spokesman misled the court by claiming ill-health and employing efforts to delay the trial. The judge questioned his failure to appeal the previous decisions and ruled that his court lacks jurisdiction to upturn its earlier decision. He also warned the defence team against bringing any medical report from any Nigerian hospital.
Those following the proceedings wondered what was special about going abroad for medical treatment that the judge would refuse to give permission. They also wondered how the judge arrived at the claim that the defendant misled the court when he did not call for independent medical examination or approve the oral applications of his lawyers on three occasions for the EFCC medical personnel to examine his condition?
Records at the disposal of THISDAY revealed that several persons standing trial for alleged embezzlement, misappropriation and money laundering offences, much bigger in proportions than Metuhâ€™s had at different times been granted permission to travel abroad making analysts to wonder why Metuhâ€™s case is different.
For instance, former Governor of Adamawa State, Murtala Nyako, standing trial for offences bordering on N29 billion fraud, was granted permission to travel for medical treatment.
Similarly, former Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), Andrew Yakubu, accused of N3billion fraud and related offences was granted leave to travel on February 28, 2018. Also on February 28, 2017, Mohammed Umar, a former air force officer, accused of laundering $1,030,000 (over N500million) was granted leave to travel for medical treatment.
On June 1, 2017, the court granted Justice Ofili-Ajumogobia permission to travel for medical treatment that has to do with high blood pressure, hypertension. So was her co-accused.
Ex-Minister, Jumoke Akinjide’s standing trial for N650million money laundering charge was granted permission to travel abroad for medical treatment. On December 05, 2017, court granted the former Minister of Finance, Nenadi Usman leave to travel abroad for medical treatment. She is standing trial for N4.9billion fraud. On February 15, 2016, court granted ex- Governor Aliyu Akwe-Doma of Nasarawa State who is standing trial for N2billion, leave to travel abroad for medical treatment.
Also, the court had granted ex-Balyesa State Governor, Timipreye Sylva leave to travel abroad for medical treatment. He was facing trial on N19.2billion fraud. Until he was acquitted recently of a 2billion fraud, the court had granted former Head of Service of the Federation, Steve Oransaye permission to travel abroad for medical treatment. On July 18, 2016, the court granted ex-Governor Ikedi Ohakim of Imo State permission to travel abroad for medical treatment.
Considering the above, analysts could not understand why Justice Abang would not give Metuh the same opportunity other accused persons were afforded.
They also consider the judge’s denial of Metuh’s application to travel abroad to be following a pattern already established in the trial of Metuh. They made reference to when his lawyer, Ikpeazu, in December 2016 filed a subpoena requesting him to summon former National Security Adviser (NSA), Col. Sambo Dasuki (rtd), to testify in court as a defence witness. Metuh in his statement, had claimed that Dasuki gave him the N400million on the orders of the former President, Dr. Goodluck Jonathan.
But the judge in his ruling refused, saying that because Dasuki had engaged in unlawful activity, he did not need to be subpoenaed as his evidence was immaterial in the case. It took intervention of the Court of Appeal for the former NSA to appear before the judge.
Delivering the lead judgment upon appeal, Justice Peter Ige of the Court of Appeal, 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 Metuhâ€™s right to fair hearing guaranteed by Section 36 of the constitution. The court also ruled that with Dasukiâ€™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 â€œunder the guise of exercising discretionâ€ to determine whether or not Dasukiâ€™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 appellate court held that all persons such as a person with knowledge about the case at hand â€œshall be considered to be competent witnessesâ€ except on conditions of â€œunsound mindâ€ and prevented by â€œmental infirmity. A witness must be competent before he can be a compellable witness,â€ Justice Ige ruled.
The justice of the Court of Appeal also explained that â€œall persons are competent to be a witness in all proceedings whether civil or criminal,â€ except when the concerned person enjoys â€œconstitutional immunityâ€ as provided under Section 308 of the Constitution.
The masterstroke in the judgment was delivered by Justice Mohammed Mustapha who held â€œCounts 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 act.
He hedl: â€œNo, 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 those facts that the trial court found the existence of prima facie evidence.
â€œSubject 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.
â€œIt 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 subpoena to secure the attendance of such a witness.
â€œIt 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 appellantâ€™s right as enshrined in section 36 of the Constitution.”
The question many analysts are asking is why is Metuh being prosecuted? Metuh was never a public officer. He did not misappropriate or embezzle funds. He did not steal either. He was the spokesman of the PDP, an errand boy. He was given money to run some errands for his party. His employers have not lodged any complaints with the police.
He told the world how he got the N400million paid into his account. As a spokesman of the party in power then, he met President Goodluck Jonathan who directed the former National Security Adviser, Col. Sambo Dasuki (rtd) to give him some money to run his office. The EFCC, however, insists that the money given to Metuh was stolen from the public purse. But it couldnâ€™t conceivably have been in Metuhâ€™s contemplation that the boss stole from the public to fund his elections. Jonathan got many billions during his presidential campaigns fundraising.
Was he expected to have asked his boss about the source of the money before running the errand. Many have suggested that if Metuh had returned the money he would have received instant salvation. But others have since countered the argument, wondering how he could have returned money that had been spent on for what it was meant for. They further wonder why EFCC cannot bring his boss to explain why he gave the former PDP spokesman stolen money?
When Dasuki was compelled to appear in court, he told the world that he acted on presidential directive which from the recent judgment of Justice Binta Nyako in the case of Mohammed Bello Adoke vs Attorney General of the Federation, he is not liable for.
Several persons standing trial for alleged embezzlement, misappropriation and money laundering offences, much bigger in proportions than Metuhâ€™s had at different times been granted permission to travel abroad