Dasuki maintained that it would not be proper for him to appear as Metuh’s witness before the Federal High Court in Abuja since he was already labelled as an accomplice in the charge.
Addressing the court through his lawyer, Mr. Ahmed Raji, SAN, the former NSA said he would not mount the witness box to implicate himself, saying he had yet to receive a copy of the subpoena the court issued to compel his attendance in the matter.
He told the court that his state of mind “is currently in turmoil because of the protracted unlawful detention by the Department of State Service”.
Dasuki stated his position on a day trial Justice Okon Abang confirmed that the court had equally summoned former President Goodluck Jonathan to appear on Wednesday to give evidence in the case.
Justice Abang said his decision to summon Jonathan was in the overall interest of justice and fair-hearing.
Metuh who is answering to a seven-count charge the Economic and Financial Crimes Commission, EFCC, preferred against him and his firm, Destra Investment Limited, had described both Jonathan and Dasuki as his “very important and crucial witnesses”.
EFCC is prosecuting the defendants over allegation that they received N400million from the Office of the National Security Adviser, ONSA, before the 2015 presidential election, without executing any contract.
It said the fund which was released to Metuh and his firm by Dasuki, on the order of former President Jonathan, was part of about $2.1billion earmarked for the purchase of arms to fight insurgency in the North East.
The former PDP spokesman was equally accused of engaging in money laundering. EFCC alleged that he was involved in an illicit transaction that involved the exchange of $2m.
Metuh’s lawyer, Dr. Onyechi Ikpeazu, SAN, told the court that his client decided to apply for subpoena ad testificandum to be issued against Jonathan after the ex-President snubbed letters his chambers wrote to him with respect to the case.
Meanwhile, at the resumed sitting on the matter yesterday, Justice Abang said he summoned Jonathan in line with a ruling of the Court of Appeal in Abuja that faulted his earlier refusal to grant Metuh’s request for subpoena to be issued against Dasuki. He said: “Indeed, at the close of business yesterday being October 23, 2017, precisely at about 3.59pm, the registrar forwarded to the court in chamber a subpoena to compel former President Goodluck Jonathan to appear in court to testify a the instance of the first defendant (Metuh).
“Therefore in line with section 241(1) of Administration of Criminal Justice Act 2015 and having regard to the subsisting judgment of the Court of Appeal in the appeal CA/A/159C/2017, between Olisa Metuh and Federal Republic of Nigeria dated September 29, 2017 to the effect that it will be tantamount to violating the right of the first defendant to fair hearing not to sign the subpoena.
“I have no option other than to sign a subpoena to compel former President Goodluck Jonathan to appear in court on September 25, 2017 (Wednesday)to give evidence at the instance of the first defendant.” A registrar of the court, however, confirmed to the Judge yesterday that the court’s bailiff could not serve the subpoena on Jonathan. Metuh had in his application, requested that the summon be served on Jonathan in his Abuja home.
However, despite inability of the court’s bailiff to reach the former President, Justice Abang maintained yesterday that the two subpoenaed witnesses (Jonathan and Dasuki) must be in court today. Justice Abang said he would firstly rule on Dasuki’s motion to set aside the subpoena against him, before resuming hearing on the case. The former NSA had in his motion dated September 20 and predicated on section 255, 492(3) of the ACJA, 2015, sections 183 & 198(2) of the Evidence Act, 2011, and section 36(6) of 1999 Constitution, challenged the subpoena against him. He prayed the court for, “An order to set aside the issuance and service of the subpoena ad testificandum issued by this honourable court, for the purpose of compelling Col. Mohammed Sambo Dasuku, Rtd, to give evidence in this case. As well as, “An order to suspend execution or further execution of the subpoena ad testificandum issued by this honourable court, for the purpose of compelling Col. Mohammed Sambo Dasuku, Rtd, to give evidence in this case, pending his release from the custody of the DSS”.
Dasuki told the court that he has been in the unlawful custody of the DSS contrary to orders that admitted him to bail on September 1, 2015, in charge No FHC/ABJ/CR/ 319/2015, on December 18, 2015, in charge No. FCT/CR/42/2015 and December 21, 2015, in charge No FCT/CR/43/2015. He said the propriety of his ability to stand trial in the mentioned charges, in the face of his continued unlawful detention, is currently the subject matter of two appeals pending at the Supreme Court.
Dasuki said that having not exhausted his right of appeal, “It will be overreaching on the Applicant and pre-emptive of the Suprem Court, if the Applicant is compelled to give evidence in this case, bearing in mind that the subject matter thereof is intricately knitted to the current charges filed against him”.
He said he has not been afforded the opportunity to go home or to access relevant files, records and documents required to refresh his memory of any decisions/actions he took or authorised while in office.
He said his constitutional right to fair hearing/trial would be adversely prejudiced if he is compelled to testify or give evidence in Metuh’s trial, while still in custody, in disregard of the appeals already set down for hearing at the Supreme Court on January 25. 2018.
The ex-NSA further contended that the subpoena was served on the Director General of the DSS instead of on him personally. Besides, in a 28-paragraphed affidavit that was deposed to by one David Ogundipe, Dasuki said his protracted and arbitrary detention has negatively impacted on his state of mind.
“Such that makes him unfit to stand any trial now or give evidence relating to his actions or omissions in office. “I know that the issuance of a subpoena at this stage is inchoate and premature. It will be tidier and neater, if this honourable court grants the instant application, by either setting aside the subpoena ad testificandum, or suspend its execution.
“It is in the interest of justice that this application is granted”, he added. Neverthless, both EFCC and Metuh, yesterday, urged the court to dismiss Dasuki’s motion.
While praying the court to uphold the subpoena, Metuh’s lawyer decried that the DSS ignored two letters his client wrote for the detained ex-NSA to be released to appear before the high court to testify on his behalf. On his part, EFCC lawyer, Mr. Sylvanus Tahir, argued that the summon was binding on Dasuki since the subpoena was issued in compliance to a subsisting order of the appellate court.
He argued that vacating the subpoena on Dasuki would amount to Justice Abang overruling the Court of Appeal.
Likewise, counsel to Metuh’s company, Mr. Tochukwu Onwugbufor, SAN, urged the court to insist on the presence of both Jonathan and Dasuki as witnesses in the matter.