Metuh, Jonathan & Dasuki
Former President Goodluck Jonathan, yesterday, failed to persuade the Federal High Court in Abuja to set-aside the subpoena issued to compel him to testify as a witness in the ongoing trial of erstwhile National Publicity Secretary of the Peoples Democratic Party, PDP, Chief Olisa Metuh.
The high court, in a ruling delivered by trial Justice Okon Abang, struck out the motion as lacking in merit.
The Judge equally refused Jonathan’s alternative request for Metuh to be ordered to deposit with the court, the sum of N1billion in line with provisions of Section 241(2) of the Administration of Criminal Justice Act, 2015, before he would mount the witness box.
Jonathan had in a motion his lawyer, Chief Mike Ozekhome, SAN, moved before the court yesterday, maintained that the N1bn would cover travelling expenses for himself and his security personnel from his home town, Otuoke in Bayelsa State to Abuja, and also for time that he might spend appearing before the court as President of Nigeria between 2010 to 2015.
The ex-President said he got to know about the summon the court issued against him on October 23, through newspaper publications.
He contended that the evidence Metuh is seeking from him would amount to an invasion of his personal right to privacy, and family life as provided for in Section 37 of the Constitution of the Federal Republic of Nigeria, 1999.
He told the court that the evidence sought to be obtained from him was likely to expose him to a criminal charge, penalty or forfeiture.
Moreso, Jonathan argued that the subpoena ad testifiandum Justice Abang issued against him was vague, applied for and obtained on frivolous ground and in bad faith, saying it was meant to embarrass him as a person.
He insisted that Metuh was not a personal aid or his appointee and therefore could not have dealt with the President directly under any circumstance to warrant the invitation of the applicant to testify in the charge.
He said there was no nexus between him and Metuh and the charge for which the defendants are standing trial.
Neverthless, the ex-President said he was not doubtful of the fact that there was a contractual agreement between Metuh and the former National Security Adviser, Col. Sambo Dasuki, retd.
According to his lawyer, “The linchpin of this application is not that the former President is throwing doubts on transactions involving the defendants and Dasuki, but that he was not physically present when the transactions were going on, because he had many appointees.
“My lord, because of this, we are saying that he will not be a good witness to state what actually happened regarding the transactions.
“He can never be able to know details of transactions all his aides carried out within his over four years tenure in office. He is not saying that the transactions are fake or incorrect or fictitious, no! He is only saying that he does not know the details.
“Whatever evidence he will be giving based on the subpoena will amount to hearsay evidence”.
Meanwhile, in his five-paragraphed counter- affidavit, Metuh, through his lawyer, Mr. Emeka Etiaba, SAN, said he does not have N1bn to give Jonathan who he said had also admitted that he (Metuh) served the nation well.
Etiaba drew attention of the court to the fact that the bailiff earlier deposed an affidavit that he had yet to serve the subpoena on Jonathan.
“This application is therefore not only speculative, but premature and deserves to be struck out. “With respect to demand for deposition of N1bn, the 1st defendant in his affidavit averred that he does not have such amount.
“We believe that such demand is punitive and meant to frustate the 1st defendant’s attempt at obtaining an evidence that will assist him in the defence of the charge against him before this court.
“It is the view of the 1st defendant that from the first day that he was arrested, he made it clear that the release of the money was authorised by the former President and was released by the former NSA, Col. Sambo Dasuki, retd.
“My lord this application simply seeks to set aside the subpoena and to save this nation the embarrasment of having a man who means a lot to the entire country as a former President, to step into the dock to give evidence.
“My lord it is unprecedented, and the embarrassment could have been aborted if the charge against the 1st defendant was not preferred after he had disclosed to the EFCC the source of the fund for which the defendants are standing trial. “My lord in the circumstance, it is our position that this application be struck out”, Etiaba added.
His arguments were adopted by counsel to Metuh’s company, Destra investment Ltd, which is 2nd defendant in the matter, Mr. Tochukwu Onwugbufor, SAN.
On its part, the EFCC, through its lawyer, Mr. Sylvanus Tahir, told the court that it would remain indifferent to Jonathan’s application In his bench ruling, Justice Abang said he could not validly exercise jurisdiction to grant any of the former President’s prayers since the bailiff of the court had yet to serve him with a copy of the subpoena.
“Dr. Jonathan, with greatest respect to him, cannot rely on Newspaper publications or news item from electronic media to come to conclusion that the subpoena is vague. It is a heresay evidence which is not relevant before this court.
“His contention about invasion of his right to privacy can only be considered when he is in court and in the witness box. If he is asked a question, the court can determine if it is an invasion of his privacy or not.
“I am inclined to dismiss the application because it has been argued on its merit, but reluctantly I hereby strike it out”, Justice Abang held.
Immediately after the ruling, the trial Judge ordered the former National Security Adviser, NSA, under Jonathan, Col. Sambo Dasuki, retd, to mount the witness box.
Justice Abang had in an earlier ruling, dismissed Dasuki’s application for Metuh’s trial to be suspended pending decision on an appeal he filed to challenge a separate subpoena the court issued on October 3 to compel him to also testify in the matter.
Dasuki had through his lawyer, Mr. Ahmed Raji, SAN, asked the Court of Appeal in Abuja to quash the subpoena, insisting he was not in the right frame of mind to give evidence in the trial since he has been in detention for over three years and could not access any of his records.
However, Justice Abang declined to hands-off the trial, stressing that doing so would contravene an order the appellate court made on September 29.
He said the appellate court did not only direct that the former NSA should be summoned as a witness, but also for Metuh’s trial to resume immediately.
Justice Abang held that granting Dasuki’s adjournment request would contradict section 305 of the ACJA, 2015, and an order of the Supreme Court that forbade any court from staying proceeding in criminal trials.
After he was compelled to mount the witness box, Dasuki, said he could not recollect whether or not his office released N400million to Metuh prior to the 2015 prsidential election.
He told the court that he would not be able to effectively testify in the matter until he is released by the Department of State Service, DSS, to consult his records.
Responding to questions from Metuh’s lawyer, Dasuki said: “My lord I am currently in custody of the DSS. I am a pensioner. I know Chief Olisa Metuh.
“I cannot recall whether I had any dealings with him or his company from memory. If I had any dealing at all that could be linked to this case, it is not possible for me to recall such without reference to my record.
I cannot respond in a manner that will please the counsel. “I did held an office during the last administration. I was the NSA. I know the functions of the NSA. It’s a public knowledge that the NSA is essentially a principal staff officer in office of the President.
“I am here to answer to a subpoena, eventhough I have not benefited from respecting court orders and rulings.
“It will be very difficult for me to without reference to my record, give details on issue of monies paid to Chief Olisa Metuh and the 2nd defendant.
Three years is a long time. “In other words, it will be very difficult for me to answer questions with respect to charges against the defendants.
“I stated ealier that i have been in custody, as soon as the authorities agree to obey four subsisting orders of court that gave me bail.
“When the authorities decide to obey the four court orders and one ECOWAS ruling on my bail, that is when I will be able to give a timeline on when I can be able to go through my records.
“But as long as I am in detention, I dont know how long it will take. We however have processes in court to enforce the bail orders. Hopefully, when the Supreme Court decides, those in charge today will listen.
“My appeal before the Supreme Court is coming up on January 25, 2018”, Dasuki told the court. At that juncture, Metuh’s lawyer, Etiaba, SAN, applied for an adjournment of the case.
He said: “My lord, I have a witness who is most ready to testify. He is in the witness box. He has taken introductory questions but has been unable to give answers with regards to specific questions regarding his functions and all he did when he was in that office of NSA in 2014.
“My witness insists that he has to refresh his memory and look at his documents before he can be able to give correct answers to questions being raised.
“My lord his position is justifiable because in our presence, the court registar warned him that if he told lies or gave incorrect answer he could be prosecuted.
“His desire therefore to give correct answers to questions from me cannot be faulted and I believe there is need for him to consult his records.
“It is very important to note that the only reason why he does not have or has been able to consult his record is that he has been detained by the same state that is proseciting the defendants in this case.
“I believe that it is possible for some administrative efforts to be made to enable him to get in touch with his record. I say this beause when it was difficult to serve the subpoena on him, this court directed the prosecutor to explore administrative means to not only serve the subpoena but to also ensure presence of the witness in court.
“In the circumstance, I apply that the witness be allowed sometime to get in contact with his record and God willing, the same effort that produced him here, if applied will ensure that he get his records, study them and appear to testify with respect to what he knows about this case”.
Counsel to the 2nd defendant supported the adjournemnt request, saying he could not cross-examine Dasuki since he was unable to give evidence in the matter.
EFCC lawyer, Tahir, however urged the court to refuse the adjournment request. He said: “Without sounding insensitive to the plight of the witness and to counsel to the defendants, no effort at all has been demonstrated by the defence to size up the witness”.
He told the court that the only document that linked Dasuki to the charge was an e-payment mandate he jointly signed with the then Director of Finance and Accounts of ONSA, transferring the sum of N400m to Metuh’s company.
He argued that no attempt was made by the defence lawyers to show the said document which was already in evidence before the court, to Dasuki.
“I believe if that attempt was made and the witness responded otherwise, that would have settled the issue. I am therefore opposed to the application for adjournment.
“In the event that the defence are not ready to proceed with the witness in the box, the prosecution should be at liberty to cross-examine him based on what he has said so far and he should thereafter be discharged”, EFCC lawyer submitted.
After he had listened to all the parties, Justice Abang adjourned ruling on the issue till Friday.
The court held that in the event that Etiaba’s request is refused, the defendants would be at liberty to continue with the process of extracting evidence from Dasuki who is testifying as the eight defence witness, DW-8.
Justice Abang also directed the DSS to ensure that it produced Dasuki in court on the next adjourned date.
