The Abuja Division of the Federal High Court will on Wednesday decide on an application by former spokesperson of the Peoples Democratic Party (PDP), Olisa Metuh, for a long adjournment of his trial.
Mr Metuh is facing a seven-count charge before the court for alleged diversion of N400 million from the office of the former National Security Adviser, Sambo Dasuki.
The former PDP spokesperson, who was diagnosed of having spinal cord injuries, fell in the court room while approaching the dock on Monday.
Later, his lawyer Emeka Etiaba, asked that the matter be adjourned to allow his client attend to his health.
Mr Etiaba also threatened to withdraw from the case.
The judge, Okon Abang, reluctantly adjourned the matter till Tuesday, after blaming the prosecution for failing to oppose the call for adjournment.
On Tuesday Mr Metuh did not appear in court and his lawyers demanded a further adjournment till he is able to appear in court.
Counsel to the second defendant, Tochukwu Onwugbufor, who addressed the court, said the current condition of his client was the primary reason for seeking an adjournment in the matter.
“The defendant must be present in court and give appropriate directive to his council,” the lawyer said.
“So I urge your lordship to hold that under Section 26 of ACJA and under Section 36 of the Constitution, Your Lordship cannot go on this morning to handle the matter.
“I know it is in your discretion. If the court decides that the absence of the defendant this morning was within the provisions of section 266 of ACJA and the exception there, Your Lordship can go with the trial.
“But if Your Lordship decides that the issue before the court is not within the exception of section 266 and section 135 of the ACJA, Your Lordship will have no discretion than to adjourn the matter,” said Mr Onwugbufor, a Senior Advocate of Nigeria.
Prosecution narrates Metuh’s fall, alleges disobedience of court
While responding to the submission of the defence counsel, the prosecution lawyer, Sylvanus Tahir, accused Mr Metuh of scheming to delay the trial.
“We would wish to draw the attention of the Honourable Court to what happened yesterday. Immediately after the Honourable Judge came in and took his seat, the case was called as usual.
“The first defendant who represents the second defendant rose to his feet and was making his way to the dock with a walking aid to support himself.
“Immediately the Honourable Court, in the hearing of the gallery asked the accused to stay where he was, as in previous proceedings.
“But for reasons best known to the first defendant, he ignored the directive of the court and went ahead, making his way to the dock, resulting into a fall. The rest is history.
“Suffice it to state on our part that what happened yesterday on the part of the defendant amounts to misconduct.
“Ignoring a lawful directive. Willfully refusing to abide with the directive of the court. In other words it was a wilful disobedience to the directive of the honourable court,” Mr Tahir submitted.
Reacting also to a submission of Mr Tahir about the medical practitioner who checked Mr Metuh at the court on Monday, Mr Abang said he never directed that a medical director be invited to his court room.
“The court did not direct a medical doctor. I do not know who directed the medical doctor to come in and attend to the defendant. He fell down on his own,” said Mr Abang.
Mr Tahir then asked the court to disregard the observations made by the medical director, since she was not invited by the court.
“It has not been brought to the notice of this court, what transpired thereafter, to the best of my knowledge. More so that the presence of the medical director yesterday was not on the invitation of the court. It should therefore not be presumed that the court, nor the prosecution knows the state of the accused at this stage.
“There is therefore no evidence explaining the absence of the defendant in the court this morning. That being the case, what is playing out is a complete disregard and disobedience to the authority of the court.
“The accused persons can therefore not be entitled to the benefits of section 266 of ACJA,” Mr Tahir submitted.
“In other words, we are urging Your Lordship to invoke section 266 (a) of ACJA to take the conduct of the accused yesterday and its continuance today as a misconduct and proceed with trial in his absence.”
Mr Tahir said the law does not only provide for fair hearing on behalf of the defence, but also on behalf of the prosecution.
“The requirement of fair hearing is not only for the benefit of the accused but also for the state. The defendant has no right to hold the court or the prosecution to ransom, by doing things that are calculated to delay a fair trial. Counsel should not therefore ask for unnecessary adjournment.
“For the records, it took the prosecution less than a month, January 25 to February 9, 2016 to call eight witnesses and close its case.
“And despite the several judgement of the apex court, mandating a speedy trial of this case, unfortunately there doesn’t seem to be any end in sight, due to the antics of the defense.
“If My Lord marries section 266 (a) and 352 (4) dealing with trial in absentia, My Lord will be more than conformable to proceed with this trial.
“So we urge Your Lordship to invoke both sections which state that the defendant is in disregards of the court. The provision allows a court to proceed with the trial of an accused in his absence and convict him unless he is found otherwise.
Allegations against defence and Channels television
Mr Tahir also accused a defence counsel of making prejudicial comments against the prosecution on Channels Television.
“May I bring to the notice of this Honourable Court the discussion of Channels Television this morning where analysts spoke about this matter. Ordinarily we won’t bother, but for the involvement of a counsel in this case.
“This is not the first time it is happening. Prejudicial comments were made.
“I can readily call the learned friend who is also a counsel in this case. He is my learned friend, Ben-Chux Nwosu. We feel constrained, because that is not the first time he is making prejudicial comments.
“We are all guided by the rules of professional conduct, including my learned friend.”
Mr Tahir said according to the rules of the profession, a lawyer or firm engaged in or associated with the prosecution of a civil or criminal matter shall not while proceedings are going on make comments that can be termed prejudicial or give adverse effect to the course of an ongoing matter.
He asked the court to order Channels Television to provide the video to the court, and and called for s
action by the Legal Practitioners Privileges Committee.
Noting that the request made would require an executors order against Channels Television, Mr Abang asked if the prosecution was against the court hearing first from Channels.
Defense counsel reacts, accuses judge of favoritism
Reacting to the claims made by Mr Tahir, Mr Etiaba said the allegations lacked merit.
“The prosecution failed to provide any evidence. It makes the application incompetent. If any of the defence had made this application today, the prosecution would have submitted that it is an attempt to waste time.
“Yesterday I was in this court when the first defendant fell. After the court asked the clerks to for narrative of what happened, I sought to give my own narrative, because in my watch, the sequence of what happened earlier were not properly put in court.
“The efforts I made to have my own narratives recorded in the court was refused and the court could not record me, because we had not announced appearance when the event happened,” said Mr Etiaba.
The lawyer also recalled a similar application made from the bar by the defence, saying the court refused the application, but accepted the recent request by the prosecution, despite the similarities in both.
“I was at a loss when counsel decided to pass information to the prosecution, applied to provide information off record.
“My learned friend informed the court that he was called about a programme on Channels. My Lord did not only listen, but he asked that it be put on record.
“I do not have a problem with the court taking down the submission of the prosecution. But I believe that what is good for the prosecution is also good for the defendant. The facts alluded to by the prosecution amounts to counsel giving evidence from the bar.
“I have had course to tell this court that my client is in the hospital and my good friend Tahir asks the court to discountenance it because it is coming from me, his lawyer.
“May I say that the programme was watched by me. I saw that two counsel represented the prosecution.
Mr Etiaba said his client had entered the dock over 45 times, since the case began and therefore the court should not take the case where Mr Metuh was tried from outside the dock during five hearings as the normal position of the defendant in court.
Responding, the judge, Mr Abang noted that his court only allows what it feels will not impede justice and would not act against the interest of parties.
He adjourned the matter till Wednesday for ruling on the application for adjournment.