A Federal High Court, Abuja, Wednesday morning, struck out the application by the former National Security Adviser, Col. Sambo Dasuki (retd), to be discharged as a defence witness in the trial of former Peoples Democratic Party Publicity Secretary, Chief Olisa Metuh.
Metuh and his company, Destra Investments Limited, are standing trial on seven counts of money laundering involving alleged cash transaction of $2m and fraudulent receipt of N400m meant for procurement of arms from the Office of the National Security Adviser at a time Dasuki was the National Security Adviser (NSA).
The Appeal Court sitting in Abuja on September 29 had subpoena Dasuki to appear as defence witness at the instance of Metuh.
And Dasuki had opposed his appearance in an application brought before Justice Okon Abang, the trial Judge.
Dasuki’s counsel, Ahmed Raji, had on Tuesday argued that Dasuki as an accomplice, cannot be made to stand as a witness for a co accused.
He said Dasuki has remained in detention despite a court ordering his release.
He maintained that he has been unable to have access to him, noting “he is willing to assist the defendant but unable to do so because of the prevailing circumstances”
Raji pleaded with the court to “suspend the subpoena execution, pending his release from DSS custody.”
He also pleaded with the court to “bend backward and grant the application”
Raji argued further: “His name was mentioned in count one, two, three and four. Being an accomplice, on the face of the law, the question is he a competent witness? The answer is ‘no’.
“Again, anybody who is in detention or arrested reserved the right to remain silence.
“If an accomplice is compelled to give evidence from detention, the right to remain silence is violated. Col Dasuki is in detention, he is a co accused, if compelled to give witness it will make him testify against himself, he may incriminate himself.
“In conclusion, My Lord, he has not been served personally. In a situation like this he ought to be served personally.
Responding, Metuh’s counsel, Onyechi Ikpeazu, urged the court to discountenance Raji’s submission, adding with high court signing the subpoena, the Judge was merely abiding with the relevant sections of the Constitution and order of the Appeal Court.
He asked the court to dismiss Dasuki’s prayer.
According to Ikpeazu : “In this case he (Dasuki) is neither the first or second defendant. He merely appears as particular of offence of the first and second defendants” .
He argued that for the high court not to abide by Court of Appeal order will be an affront on the court.
“We wrote them (DSS), forwarded the Court of Appeal to them but they never responded,” he said.
The prosecution counsel, Sylvanus Tahir, who also opposed Dasuki’s motiona, in an oral application, said he was doing so on four grounds.
On the first ground, he said: “This court is subordinate to Court of Appeal, It is in my view, cannot varied, or set aside a judgment by Court of Appeal. It will be a judicial anarchy for the court to review judgment of Court of Appeal and we urged the court to dismiss the application not to plunge the court into judicial anarchy.
“On second ground the judgment of Court of Appeal is valid and subsistence that has not been appeal against. The court and parties are bound by the decision of the court that has not been appealed against.
“Thirdly, the applicant herein not being a party in the proceedings cannot apply to set aside a judgment of Court of Appeal. The court cannot undo an act that has been done. This honourable court cannot embark on a journey of an act that has been carried out. The court cannot suspend a completed action as contained in Section 282 of the Constitution of 1999 as amended.”
Concluding, Tahir said Dasuki application was “dead on arrival, what is left to give it is a burial ground”
Justice Abang had adjourned till Wednesday for a ruling.
In a short ruling Wednesday the court held that the application lacked merit and incompetent.
Justice Abang said the high court lacked jurisdiction to entertain or review the pronouncement of the Appeal Court.
He held by signing the witness summon, the court was merely obeying order of a superior court.
“From the argument of the applicant (Dasuki), it seems he is dissatisfied with the judgment of Appeal Court, if this is so, he knows where to go, what to do, certainly not to come before this court.
“This is legal impossibility. This court has no jurisdiction. I agreed with the prosecution counsel who said it will well be judicial anarchy. This court is bound to follow the pronouncement of the Appeal Court.
“Again the applicant is not a party to matter in the first instance.
“I have no jurisdiction to entertain the application on its merit.
“There is no live in the application. It is incompetent and accordingly struck out”, ” the court held.
On the argument on whether to compel Dasuki to stand as defence witness, Justice Abang ruled that the issue will be addressed administratively.
He however urged the prosecution team to prevail on the agent of government (DSS) as far as they were representing another department of government (the EFCC) to make Dasuki stand as witness.
He observed that if witnesses, the case may be stalematd to the disadvantage of the prosecuting agency, the EFCC.
On subpoena of the former President, Goodluck Jonathan, Justice Abang sufficient evidence has not been adduced to show that he had been served. Though the court bailiff said it tried once but unable.
The court directed that the defendants’ counsel to make sure that Jonathan is served with the order within five working days.
The consequently adjourned till Oct. 31 with the hope that Dasuki and Jonathan will be in court as defence witness.
… More details later