Ccourt of Appeal sitting in Abuja has, Friday, ordered the Department of States Services (DSS), to produce the detained embattled former National Security Adviser, Col. Sambo Dasuki (retd), before a Federal High Court in Abuja to testify in a case of N400m involving the former National Publicity Secretary of the Peoples Democratic Party, Chief Olisa Metuh.
Delivering the lead judgment of the three-man panel of Justices, Justice Peter Ige, directed Justice Abang to indicate the date for which the DSS must produce Dasuki in court for the trial.
Metuh is standing trial before Justice Okon Abang of the Federal High Court, Abuja.
In the unanimous judgment, the Court of Appeal also ordered Justice Abang to immediately sign the subpoena filed by the ex-PDP spokesperson.
The court equally upheld Metuh’s appeal and nullified the ruling delivered by Justice Abang on February 23, 2017, which refused to grant Metuh’s application for a subpoena to be issued and served on Dasuki.
The Court of Appeal also ordered the trial judge, Justice Okon Abang of the Federal High Court to promptly sign a witness summons/subpoena, applied for by Metuh since December 2016, for Dasuki to appear and testify as his witness.
The court equally ordered that proceedings in the case should immediately resume before the trial Judge at the Federal High Court, Abuja.
Metuh is being tried with his company, Destra Investment, before the Federal High Court, Abuja on a seven-count amended charge in which they were alleged to have unlawfully received N400m from Dasuki, whille in office.
Metuh, who is now conducting his defence, had in December 2016 applied for a subpoenaed to be issued on Dasuki, which the trial Judge refused to sign.
He again filed an application, seeking among others, to direct the DSS to produce Dasuki to testify as a defence witness.
The trial Judge also refused the application on the ground that Dasuki was not a necessary and compellable witness.
On the first issue, the Appeal Court held that it was wrong for the trial court to have held that Dasuki, whose name featured prominently in the charge against Metuh and his firm, was not a necessary and compellable witness on who a subpoena could be issued.
The court said any person was a compellable witness in court proceedings.
It identified non-compellable witnesses to include those covered by immunity under Section 308 of the Constitution and individuals certified to be of unsound mind, with no useful contribution to the proceedings.
On the second issue, the court held that, as against the conclusion of the trial Judge, the appellant was not required to disclose to the trial court the efforts he made without success, to bring the intended witness to court.
On the third issue, the appellate court held that the trial judge wrongly applied the provision of Section 241(1) of the Administration of Criminal Justice Act (ACJA).
It added that the use of the word ‘may’ in the provision did not give the trial Judge the power to decide for a party what constitutes a relevant or necessary witness.
On the fourth issue, the court held that the trial Judge was at error to have concluded that the application to call Dasuki was intended to delay proceedings.
The appellate Judge further held that the Abang was wrong to have hinged his refusal of Metuh’s application on the provision of Section 396(4) of the ACJA, when Section 256 of the same law provides allowances on which parties in criminal proceeding could manoeuvre.
The court also held that there is provision in the ACJA for the recall of witnesses or additional witnesses.
It added that the finding of the trial Judge, to the effect that the application to call Dasuki was a ploy to delay proceedings, violated the right of the appellant to ensure that the conduct of his case as he desires.
Justice Ige said, in the lead judgement, that “there is no doubt that Col. Dasuki, who was mentioned in counts 1, 2, 3, 4 and 7 of the charge, was an essential witness in the case.”
He noted that, since the prosecution, which filed the charge, failed to call him, the defendant, who felt he (Dasuki) was necessary to its case, should not be prevented from calling him.
Other members of the appellate court panel that sat on the appeal are Justices Emmanuel Akomaye Agim and Mohammad Mustapha.
The trial is expected to resume before Justice Abang on October 23.