An Appeal Court in Abuja on Friday ordered the Department of State Services, DSS, to produce former National Security Adviser, Col. Sambo Dasuki(rtd) before a Federal High Court in Abuja.
The court said the order was to enable Dasuki testify in defence of a former National Publicity Secretary of the Peoples Democratic Party, PDP, Olisa Metuh.
he appellate Court has ordered the trial judge, Justice Okon Abang, of the Federal High Court, Abuja to immediately sign the subpoena filed by Metuh.
A unanimous judgment delivered by its three-man panel and read by Justice Peter Ige, also directed Justice Abang to indicate the date which DSS must produce Dasuki in court.
Metuh is currently facing trial before Justice Abang-led court for allegedly receiving N400m from the funds meant for the procurement of arms deals allegedly diverted from the Office of the NSA under the immediate past administration of Goodluck Jonathan.
Justice Peter Ige, who prepared and read the lead judgement of the appellate court,directed Justice Abang to indicate the date which the DSS must produce Dasuki in court and other subsequent dates.
It upheld Metuh’s appeal and nullified the ruling delivered by Justice Abang on February 23, 2017, when the judge refused to grant Metuh’s application for a subpoena to be issued and served on Dasuki.
Punch report that, other members of the panel, Justices Emmanuel Agim and Mohammed Mustapha, agreed with the lead judgment.
Meanwhile, the trial before the Federal High Court in Abuja is to continue on October 23.
The court upheld Metuh’s appeal and nullified the ruling delivered by Justice Abang on February 23, 2017, when the judge refused to grant Metuh’s 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 on Friday that contrary to Justice Abang’s ruling, Dasuki was a competent witness and a compellable witness as far as Metuh’s trial was concerned.
The Economic and Financial Crimes Commission had in January 2016 arraigned Metuh and his company, Destra Investments Limited, on seven counts of money laundering involving alleged cash transaction of $2m and fraudulent receipt of N400m 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.
The prosecution had 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 on Friday, 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 Nigerian Constitution.
The appeal court 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, the Court of Appeal held that all competent witnesses were compellable witnesses.
Explaining who was a competent witness, the Court of Appeal 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.
The Justice of the Court of Appeal 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 the appeal court, 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.”
Justice Ige ruled, “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 of Appeal also ruled that Section 36 of the Constitution gave both the prosecution and 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 (Justice Abang) 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.”