Why Appeal Court ordered Dasuki to appear in Metuh’s trial

The Appeal Court on Friday ordered the State Security Service to allow former National Security Adviser, Sambo Dasuki, to appear in court in the ongoing trial of former Peoples Democratic Party spokesperson, Olisa Metuh.

Mr. Metuh is facing trial on a seven-count charge of alleged diversion of N400 million brought against him by the Economic and Financial Crimes Commission, EFCC.

The fund was alleged to have been diverted from the office of NSA, when Mr. Dasuki occupied the office.

The Appeal Court presided by Justice Peter Ige faulted and overruled the decision of an Abuja division of the Federal High Court that Mr. Dasuki was a ‘non-compellable’ witness.

The lower court presided by Justice Okon Abang had refused an application by Mr. Metuh to compel Mr. Dasuki to appear in court.

Mr. Metuh had made the application in December 2016 asking the court to sign a subpoena for the appearance of witness in a trial.

But in his ruling, Mr. Abang said the application by Mr. Metuh amounted to a waste of time for the speedy adjudication of the matter.

Mr. Abang said Mr. Metuh failed to prove to the court that he had exerted enough effort without success in his attempt to secure the appearance of Mr. Dasuki in the trial.

The judge further said the section 241 (1) of the Administration of Criminal Justice Act which deals with the issuance of subpoena is at the discretion of the court and that his court did not consider Mr. Dasuki a compellable witness.

However in his ruling, Justice Ige said the desire of the lower court to ensure a speedy trial of the criminal matter should not override the need for justice in the matter.

“A suspect is entitled to equal right and opportunity of being heard,” said Mr. Ige. “The waiver of fair hearing is a waiver of justice,” he added.

According to Mr. Ige, the conclusion of the lower court that Mr. Dasuki was not a compellable witness beckons on the need to address the factors that make a witness ‘compellable or non-compellable’ in a trial. 

Speaking further, Mr. Ige said a witness must be competent to be regarded as compellable.

“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,” Mr. Ige said. 

“It is therefore a misconception on the part of the trial judge,’ to regard Mr. Dasuki as a non-compellable judge, he said.

“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,” the judge said.

Mr. Ige said the decision of the lower court was an infringement of Mr. Metuh’s right to fair hearing, as provided by section 36: 6 (b) and (d) of the constitution. “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,” Mr. Ige said.

The Appeal Court judge added that failure of compliance to the directives of the subpoena would attract a sanction from the court of law.

Mr. Dauski’s name is mentioned in five of the seven charges against Mr. Metuh. The former NSA is being tried separately for corruption.