A former spokesperson of the People’s Democratic Party, Olisah Metuh, has been instructed to present his next defence witness, besides former President Goodluck Jonathan at his ongoing trial.
The order was made on Monday during the trial of Mr. Metuh at an Abuja Division of the Federal High Court, for alleged diversion of N400 million from the office of the former National Security Adviser, Sambo Dasuki.
Mr. Metuh had earlier asked the court to compel Mr. Jonathan to appear as a defence witness, alongside Mr. Dasuki, in a bid to prove his (Metuh’s) innocence.
Although the court presided by the judge, Okon Abang, initially refused the application to subpoena Mr. Dasuki, it later consented to the request, after an Abuja division of the Appeal Court overruled Mr. Abang.
Consequently, the court ordered its bailiff to issue a subpoena on Messrs.
Dasuki and Jonathan, in October.
Mr. Dasuki appeared in November, in compliance with the writ of summons.
Mr. Jonathan, on the other hand, asked the court to direct Mr. Metuh to pay N1 billion as cost of logistics for himself and his aides to travel from the former President’s hometown in Otuoke, Bayelsa state.
The court refused the application, made by Mr. Jonathan on the grounds that the said request was not ripe for hearing.
After three attempts to serve Mr. Jonathan, the court bailiff on Monday read an affidavit in court, explaining that he was told by Mr. Jonathan’s security officer to return on December 11 and serve the former President with the subpoena, ”in person.”
Following the explanation by the bailiff, Mr. Metuh’s lawyer, Emeka Etiaba, asked for more time to allow the bailiff effect the service.
Responding, however, the prosecution counsel, Sylvanus Tahir, submitted that the defence counsel should have asked for a chance to ”serve the subpoena through substituted means, than request for a further adjournment till a date after December 11.”
After Mr. Tahir, concluded his submission, Mr. Abang drew the attention of the prosecution counsel to the fact he (Abang) had informed the defence of their right to apply for service of the subpoena through substituted means.
Mr. Abang added that the decision of the counsel to demand an adjournment suggests that the defence was not ready to request for substituted means of service on the proposed witness.
“What should I do with the subpoena?” asked Mr. Abang, who wondered whether the prosecution was suggesting that he continues despite writ of summons present in court.
Subsequently, Mr. Tahir urged the court to set aside the writ of summons and compel the defence to either produce their next witness or close their case.
Mr. Tahir cited section 250 (2) (b) of the Administration of Criminal Justice Act to support his submission.
Reacting to the submissions of Mr. Tahir, Mr. Etiaba accused the judge of ‘instigating’ the submission of Mr. Tahir saying that Mr. Abang elicited a particular response from Mr. Tahir.
Counsel to the second defendant, (Destra Investment) Tochukwu Onwubufor, also responded to the submissions of Mr. Tahir, saying that the court lacked the powers to upturn its own orders, including a writ of summons.
Mr. Onwubufor also reiterated a point earlier made by Mr. Etiaba that Section 250 of the ACJA, cited by Mr. Tahir was not applicable to the case at hand.
In a ruling on the matter, Mr. Abang agreed with the submission of the defence that the Section 250 cited by Mr. Tahir was inapplicable in the current state of the matter.
“I have dispassionately listened to the arguments of counsel. Regarding the submission of counsel to the first defendant that the court, in raising an issue-sue motto, guided the prosecution in his response, I think this submission is greatly misconceived,” said Mr. Abang who added that “the court ”rightly raised the issue to help counsel with necessary clarifications”.
“No counsel is prejudiced,” he added.
“Though I agree with the submission of the first defendant that section 250 does not apply with the current case in court; if the defence counsel is reluctant to make the necessary step to effect service of a subpoena, the counsel to the prosecution has a right to make the submissions made by prosecution,” Mr. Abang said.
The judge also refused the submission of the defence that the court lacked powers to set aside its previous order.
Citing the two earlier attempts made by the court bailiff to effect service of the subpoena on October, 26 and 30, respectively, Mr. Abang stated thus: “there is yet another affidavit deposed to on December 4 that the bailiff also attempted service on November, 30. Based on this, I agree entirely that the three attempts made by the bailiff constitute due diligence in his attempt to serve the former president with the subpoena.
“The defendant, ought to have taken steps to effect service of summons by substituted means since the last adjournment on November 3.
“Contrary to the submission of the first defendant that the court has no power to set aside its writ of summons, the court has the power to set it aside, if the defendant fails timeously to effect service of the proposed witness with the sermons personally or by substituted means.
Mr. Abang further said the submission of Mr. Etiaba that the defence depended on the testimony of Mr. Jonathan to determine whether or not the Mr. Metuh would testify in his trial; was contrary to the provisions of law.
He, however, noted that although his court had powers to set aside the subpoena, he (Abang) would ‘reluctantly’ avoid doing so.
“Having regards to the issues raised above, this matter will be adjourned, then the question is, when will this case be adjourned to?”
“The matter is hereby adjourned till December 5 and 6 to allow the defendant present any other defence witness on December 5 or testify himself, while the court will decide on the next date for the service of the subpoena on December, 6.”