The Court of Appeal in Abuja has ordered the Director General of the Department of State Services (DSS) to produce former National Security Adviser (NSA), Sambo Dasuki in the trial of ex-spokesman of the People’s Democratic Party (PDP), Olisa Metuh.
Dasuki, considered by the appellate court as a relevant and compellable witness in the case, is expected to testify as Metuh’s witness.
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.
The appellate court gave the orders in a unanimous judgment of a three-man panel, delivered on Friday in an appeal filed by Metuh.
Metuh’s appeal was against the ruling by Justice Abang in March this year, refusing his (Metuh’s) application for among others, an order directing the DSS’ DG to produce Dasuki (who is being held in DSS custody) to testify as his (Metuh’s) witness.
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.
In the lead judgment read by Justice Peter Olabisi Ige, the Court of Appeal resolved the four issues identified for determination in Metuh’s favour.
The court allowed Metuh’s appeal; set aside Justice Abang’s ruling and held that it was not for the trial judge to decide for the defence which witness is relevant.
On the first issue, the 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 Metuh was intended to delay proceedings.
The appellate judge further held that the trial judge 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.
Meanwhile, two appeals by Metuh and his firm are still pending before the Supreme Court.
The first is that filed by Metuh against the decision of the Court of Appeal, which upheld the trial court’s ruling, refusing his no-case submission.
The second is that filed by Destra against the judgment of the Appeal Court, upholding the ruling by the trial court, that counts one and two of the charge were not strictly about contract, on which the Federal High Court lacked jurisdiction.
The Supreme Court has not given dates for the hearing of both appeals.
