The nullification of the judgment of Justice Okon Abang convicting the former spokesman of the Peoples Democratic Party, Olisa Metuh, by the Court of Appeal has again added to the long list of Abang’s controversial rulings, orders and judgments. Davidson Iriekpen writes
It was a judgment any rational being knew could not stand the test of time on appeal, because of the atmosphere it was conducted at the lower court. Many even knew that the court was on mission to jail and convict him at all cost. So, when the Court of Appeal nullified the judgment and set the former spokesman of the Peoples Democratic Party (PDP), Olisa Metuh free last week, it did not surprise those who were carefully following his case.
Metuh, who held sway under the Goodluck Jonathan administration as PDP mouthpiece, was arraigned by the Economic and Financial Crimes Commission (EFCC) alongside his company, Destra Investment Limited in 2016 on a seven-count charge of diversion of illegal monies received from a former National Security Adviser, Colonel Sambo Dasuki (rtd).
The former spokesman was also accused of transacting with the sum of $2 million without going through a financial institution, in violation of a provision of the Money Laundering (Prohibition) Act. He had pleaded not guilty to the charges.
But on February 25, 2020, Justice Abang sentenced Metuh to seven years imprisonment after finding him and his firm guilty. If Metuh’s conviction did not make any sense, the most incongruous was that of Dasuki.
The former NSA was not a defendant in the case but only appeared in case as a subpoenaed defence witness. But judge went ahead to indict him for breach of trust and acts of corruption by his action of giving the sum of N400million to the former PDP spokesman from the office of the NSA’s account without justification.
Dissatisfied, Metuh, his firm and Dasuki separately filed appeals against the judgment at the Court of Appeal, accusing Justice Abang of bias and alleging a breach of their rights to fair hearing by the judge. They quoted from the records of proceedings of the trial court, the perceived bias comments of the judge criticising Metuh and members of his legal team for allegedly making life difficult for him over his firm handling of the case.
Specifically, Dasuki, who is standing trial before another court in respect of the handling of the funds of the NSA office ahead of the 2015 general election, stated in his appeal that without being charged or allowed to defend himself in the case before Justice Abang, more than 10 indicting comments were made against him by the judge. He said his indictment by the judge was a breach of his right to fair hearing.
In a unanimous judgment, the three-man panel of the Court of Appeal, not only voided the trial and conviction of Metuh and his firm by Justice Abang, but also held that their trial was tainted with bias and prejudice.
Justice Stephen Adah, who read the lead judgments, said from the record of proceedings, it was evident that Justice Abang not only descended into the arena, but also portrayed himself as someone who had an axe to grind with the defendants and his team of lawyers. He noted that the trial judge, in his judgment, narrated his ordeal in the hands of the appellants (defendants) and their lawyers, which also portrayed him as someone, who was not willingly trying the case.
Justice Adah, however, gave Abang some tutorials in law when he said the duty of a trial judge is to be detached from the case before him, adding that such a judge is expected to afford both parties fair hearing in the case. The appellate court’s judge, who noted that a trial judge is expected not only to be fair to both sides, but must be seen to be impartial in his handling of any case brought before him, held that in his handling of the case, Justice Abang did not treat the defendants (appellant) and their lawyers fairly.
“His (the trial judge’s) comments betrayed the mindset of the court against the appellants (defendants),” Justice Adah said.
He added that the appellants were able to convince the appellate court that there was the likelihood of bias on the conduct of the trial judge, who denied them fair hearing while the trial was going on.
“Where somebody is charged, he must be subjected to fair trial and accorded respect,” Justice Adah said, adding that the implication of a trial tainted with bias on the part of the judge is that the product of such trial could not stand.
He accordingly annulled the proceedings leading to the February 25, 2020 judgment of Justice Abang, and ordered the return of the case to the Federal High Court for retrial.
In the third judgment, the Court of Appeal upheld the appeal by Dasuki, against his indictment in some portions of the judgment convicting Metuh.
The same three-man panel of the Court of Appeal held that the trial judge was wrong to have indicted Dasuki in some portions of the judgment when he (Dasuki) was not a defendant in the case, but only acted as a subpoenaed witness.
Justice Adah, in the lead judgment, was of the view that the trial judge breached Dasuki’s right to fair hearing as he was not heard in respect of the issues on which the trial judge made indicting statements against him, particularly as it related to the N400 million his (Dasuki’s) office was said to have transferred to Metuh’s account.
He faulted certain lines of the judgment, which indicted the appellant (Dasuki) without giving fair hearing, noting that the only role he played in the trial was as a subpoenaed witness. The judge said the appellant was not heard on the issues on which indicting statements were made against him in the judgment.
Nullifying those portions of the judgment that indicted Dasuki, Justice Adah said: “This appeal is allowed and every strand of those lines, indicting the appellant in the judgment is nullified. The appeal of the appellant succeeds.”
For many, who were following the case, it was not a surprise that the Court of Appeal unturned the judgment of Justice Abang. During trial, he had given orders that made many to think if he was acting a script. The first was when he repeatedly denied Metuh the permission to travel abroad for medical attention, when many of his colleague judges were granting defendants permission to do that.
One of the most obvious sign that Metuh would not get justice from Justice Abang was when his lawyer, Oneykachi Ikpeazu, in December 2016 filed a subpoena requesting him to summon Dasuki to testify in court as a defence witness.
This is because in Metuh’s statement, he had claimed that Dasuki gave him the N400million on the orders of former President Goodluck Jonathan. But instead, he refused, saying 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 Justice Abang’s refusal 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, therefore, 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.
The masterstroke in the judgment was delivered by Justice Mohammed Mustapha, who held “Counts 1, 2,3,4 and 7 of the charge against Metuh are alleging that he received N400million 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 those facts that the trial court found the existence of prima facie evidence.
“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 subpoena to secure the attendance of such a witness.”
It was not far-fetched why Justice Abang did not want Dasuki to appear as a defence witness. He knew that when the former NSA appears before him, he would cite the judgment of Justice Binta Nyako of the same Federal High Court in the case of Mohammed Bello Adoke vs Attorney General of the Federation, which exonerated him from liability for carrying out presidential directives.
Even when Dasuki eventually appeared before him and cited the case, and telling the world that he acted on presidential directive, the judge was not convinced. He did not only still convict Metuh, but also indicted the ex-NSA.
Interestingly, the setting aside of the ruling has again added to the controversial rulings, orders and judgment delivered by Justice Abang in recent times. On two major occasions lately, the Court of Appeal has called his bias and knowledge of the law to question.
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. His bias and judicial blunder came to the fore, when he sat on appeal on a judgment delivered by a similar court of concurrent jurisdiction presided over by Justice Abdullahi Liman of the Federal High Court sitting in Port Harcourt.
Also fresh in the memory of many, was his judgment in 2016, ordering 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 PDP primary election held in December 2014.
But in a unanimous judgment, which lasted six hours, the five justices of the Court of Appeal held that the trial judge was not only perverse and biased in his judgment, but that he was ignorant of the law.
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 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.