Justice Peter Ige of the Appeal Court on Friday ordered the Department of State Services (DSS) to allow Col. Sambo Dasuki (rtd), to appear in court in the ongoing trial of a former spokesman of the Peoples Democratic Party (PDP), Chief Olisa Metuh.
The Appeal Court ruling overruled the ruling of Justice Okon Abang of the Federal High Court who had refused Metuh’s application to compel Dasuki to appear in court as a witness.
The former National Security Adviser (NSA) who served under the administration of Ex-President Goodluck Jonathan is facing trial on a seven count charge of alleged diversion of N400million illegally siphoned from the Office of the NSA under Dasuki’s watch. Dasuki was mentioned five times in the seven count charge against Metuh.
Metuh had submitted an application sometime in December 2016, asking the court to sign a subpoena for the appearance of a witness in a trial. Justice Abang however rejected the application, saying that it was going to amount to a waste of time for the speedy adjudication of the matter.
Abang added that Section 241 (1) of the Administration of Criminal Justice Act which deals with the issuance of subpoena is at the court discretion and that his court did not consider Dasuki a compellable witness.
However, Justice Ige noted that Abang’s desire for a speedy trial should not override the need for justice in the cases, adding that the decision of the Federal High Court was an infringement of Metuh’s right to fair hearing as provided by Section 36:6(b) of the Constitution.
“A suspect is entitled to equal right and opportunity of being heard,” Justice Ige said.
“The waiver of fair hearing is a waiver of justice,” he added.
“A defendant does not need to tell the judge what efforts he has done in a bid to get the witness to attend court. It is the duty of the court to sign the subpoena. Once the subpoena is signed, the person to whom it is directed is obligated to appear in court, except if he can explain to the court, giving good reasons why he cannot appear,” he added
The Appeal Court judge said that the conclusion of the Federal High Court that the former National Security Adviser (Dasuki) was not a compellable witness beckons on the need to address the factors that make a witness compellable or non-compellable in trial.
“Competence implies legal capacity qualification or fitness. Persons who can be regarded as non-compellable are persons who are legally not competent, or persons covered by immunity like presidents or governments.
“Sambo Dasuki is not one of those persons covered by immunity neither is he not competent. The powers given to the trial judge by law is not personal to him, but should be used to secure justice.”
“It is therefore a misconception on the part of the trial judge,’ to regard Mr. Dasuki as a non-compellable judge.
“It is my firm view that retired Col. Dasuki whose name features prominently in most of the charges against the appellant is a competent and compellable witness,” Ige said.