Ade Adesomoju, Abuja
The Federal High Court in Abuja on
Wednesday struck out an application by former President Goodluck
Jonathan seeking an order setting aside the subpoena issued on him to
appear in defence of a former National Publicity Secretary of the
Peoples Democratic Party, Mr. Olisa Metuh.
The court, presided over by Justice Okon
Abang, also dismissed an application by a former National Security
Adviser, Sambo Dasuki, seeking an adjournment pending the determination
of his motion pending before the Court of Appeal to challenge the
subpoena issued on him to appear in the case.
Justice Abang held that granting
Dasuki’s application would amount to flouting the earlier judgment of
the Court of Appeal delivered on September 29, directing him to sign and
ensure the execution of the subpoena on Dasuki.
Jonathan had in his own application,
sought an order setting aside the subpoena issued on him or in the
alternative directing Metuh to deposit N1bn to cover his travelling
expenses to travel to Abuja to testify.
But the judge after hearing Jonathan’s
lawyer, Chief Mike Ozekhome (SAN), and Metuh’s defence team, who opposed
the application, held that he had no jurisdiction to entertain the
application.
The court held that since the
ex-President had yet to be served with the court’s subpoena directing
him to appear in court, it was not enough for him to rely on news
reported in the media to file the application.
He ruled, “It is my humble view that I
lack jurisdiction to entertain the application filed by the applicant,
that is, His Excellency, Goodluck Jonathan. From the records of the
court, it is not in dispute that Dr. Jonathan has yet to be served with
the subpoena issued by this court on October 23, 2017 on the application
of the 1st defendant (Metuh).
“Unless his Excellency, Dr. Jonathan is
served with the subpoena and the proof of service is duly filed and
placed before the court, I have no jurisdiction in making an enforceable
order, which is executory in nature, even if the order is declaratory,
either in his favour or against him.
“Service of the court process on him
goes to the root of adjudication, the absence of which nullifies the
proceedings, no matter how well conducted. I do not want to work in
vein. It is even not proper to work in vein.
“Dr. Jonathan, with the greatest respect
to him, cannot rely on a newspaper publication or news item from the
electronic media to come to the conclusion that the subpoena is vague.
It is a hearsay evidence, which has no relevance in court of law.
“The issue of alleged invasion of his
right to personal liberty or privacy can only be considered where he is
in court and in the witness box and he is asked questions. If there is
an objection then, the court will determine if such question infringes
on his right to personal liberty, not when he has not been served and he
is not in court.
“The application is likened to a
defendant arraigned in a criminal matter, except his plea is taken, the
court will not have jurisdiction to take decisions for or against the
defendant. See the case of Mohammed Abacha vs Federal Republic of
Nigeria, reported in Part 1042 NWLR. Except Dr. Jonathan is served with
the subpoena, I have no jurisdiction to entertain his application.
“I am inclined to dismiss this
application because it has been argued on the merit, but reluctantly. I
am going to strike it out. The application is struck out for want of
jurisdiction.”
With respect to Dasuki’s application,
the judge held that he refused to grant it because it would amount to
granting an order of stay of proceedings prohibited by the
Administration of Criminal Justice Act.
He cited the decision of the Supreme
Court in the case of Metuh against the Federal Government in which
judgment was delivered on June 9, 2017 validating the provision of
section 306 of the ACJA which prohibits stay of proceedings.
He said, “This is an application filed
in criminal proceedings, therefore, it is governed by the provision of
section 306 of ACJA” adding, “I am bound by the decision of the Supreme
Court in this regard.”
According to the judge, it would also
amount to staying the judgment of the Court of Appeal which ordered him
to sign the subpoena issued on Dasuki.
He added, “If I adjourn this case, it would have stayed the judgment of the Court of Appeal delivered on September 29, 2017.”
He said if Dasuki was dissatisfied with the Court of Appeal’s order, “the applicant knows what to do.”
He also told Dasuki not to urge the court not to move the court “to be on collision course with the Court of Appeal.”
The judge ruled, “I will take the
evidence of Col. Dasuki that is in court today,” adding that “the
justice of this case demands that it should be dismissed.”
Dasuki entered the witness box as Metuh’s eighth defence witness after Justice Abang dismissed his application on Wednesday.
Fielding questions from Metuh’s lawyer,
Mr. Emeka Etiaba (SAN), Dasuki told the court that he could no long
remember the details of the N400m which he gave to Metuh in 2014.
It was the first time Dasuki would be
physically asked questions relating to his alleged diversion of funds
meant for arms procurement into presidential campaigns of the then
ruling PDP in 2015.
Dasuki, who had been in the custody of
the Department of State Services since December 2015, was produced in
court by the agency’s operatives on Wednesday following an application
by Metuh that the ex-NSA be summoned.
Led in evidence by Etiaba, Dasuki said
he could not remember the details of the payment of N400m, which is part
of the subjects of the charges instituted against Metuh.
He said his incarceration for about two
years had deprived him of access to documents that could help him to
give any meaningful evidence.
When asked if he, as the then NSA,
remembered that he had dealing with Metuh and his (Metuh’s) firm, Destra
Investments Limited, in 2014, Dasuki said, “I cannot confirm if I had
any dealing with him from memory.”
He added, “If I have any dealing at all
as it relates to this case, it’s not possible that without reference to
my record, I cannot respond in a manner that will please you (referring
to Metuh’s lawyer).
He said as the NSA he was “essentially a principal staff officer in the Office of the President”.
Asked why he was in court, he said, he said, “I am here to answer to a court ruling, a subpoena.”
When asked to give the details about the
payment, Dasuki said, “That will be very difficult for me to give any
details of the money paid to Chief Olisa Metuh and the second defendant
(Destra Investment Limited) without reference to my records. “Three
years is a long time.”
Asked when he could have access to his
records, Dasuki said, “I have stated earlier that I have been in custody
for two years. As soon as authorities decide to obey the subsisting
court orders.
“I have four bail court orders and an
ECOWAS Court ruling. When they release me, I can go through the records.
“That is when I will be able to give a timeline. As long as I am in
detention, the answer is I don’t know.”
He confirmed that he had filed processes
before the Supreme Court in respect of his bail which had been slated
for hearin on January 25, 2018
At this point, Etiaba sought an adjournment on the basis of the need for Dasuki to have an access to his records.
Justice Abang fixed November 3 for ruling.
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