The Economic and Financial Crimes Commission, EFCC, on Monday, asked the Federal High Court in Abuja to vacate the subpoena it issued to compel former President Goodluck Jonathan to appear as a witness in the ongoing trial of erstwhile National Publicity Secretary of the People Democratic Party, PDP, Chief Olisa Metuh.
According to the anti-graft agency, Metuh’s insistence on calling ex-President Jonathan to mount the witness box to give evidence in the corruption case against him, has turned to “a stumbling block” in the trial.
EFCC noted that three attempts by the court bailiff to effect personal service of the witness summon on Jonathan at his Abuja residence proved abortive.
It accused the former PDP spokesman of deliberately using his request to have Jonathan in the witness box “as an instrument to tie down the hand of the court”.
Consequently, the prosecuting agency, through its lawyer, Mr. Sylvanus Tahir, urged the court to invoke the provision of section 250(2) (b) of the Administration of Justice Act, ACJA, 2015, and dispose off the matter by considering evidence already laid in the trial, as sufficient for the 1st defendant (Metuh) who has so far called eight witness in defence of the charge against him.
EFCC is prosecuting Metuh and and his firm, Destra Investment Limited, on a seven-count charge.
It alleged that Metuh had before the 2015 Presidential election, received N400 million from the Office of the National Security Adviser, ONSA, without executing any contract.
It said the fund was electronically wired from an account that ONSA operated with the Central Bank of Nigeria, CBN, to Metuh, via account no. 0040437573, which his firm operated with Diamond Bank Plc.
EFCC maintained that the fund which was released to Metuh and his firm by detained former NSA, Col. Sambo Dasuki, retd, was part of about $2.1billion earmarked for the purchase of arms to fight insurgency in the North East.
More so, the prosecution which had earlier closed its case after it called eight witnesses that testfied before the court, equally alleged that Metuh was involved in an illicit transaction that involved the exchange of $2million.
However, Metuh insisted that the money he got was on the order of ex-President Goodluck Jonathan.
The PDP chieftain, through witnesses he produced before trial Justice Okon Abang, admitted that fund was duly allocated to his office for media campaigns.
To substantiate his claim, Metuh persuaded the court to issue two separate subpoena ad testificanum to compel both Jonathan and Dasuki to testify in his defence, describing the duo as very crucial and vital witnesses in the matter.
Whereas the Department of State Service, DSS, on November 3, brought Dasuki before the court to testify as a witness in the trial, ex-President Jonathan had yet to appear before the court owing to the inability of the bailiff to serve a copy of the subpoena on him.
At the resumed sitting on Monday, the court bailiff deposed an affidavit of non-service, disclosing that on November 30 when he went to Jonathan’s house, he was told by a security man that pleaded anonymity, that the former President was out of the country and would return on December 11.
Reacting to the development, Metuh’s lawyer, Mr. Emeka Etiaba, SAN, alleged that the court bailiff had refused to disclose to the defence team the outcome of his effort to serve the witness summon on ex-President Jonathan.
“My lord, we are just hearing that the service was not effected for the first time. Going by the tenor of this affidavit of non-service, it would seem to me that the bailiff will be able to serve the subpoena on December 11.
“When we needed to serve our last witness, Dasuki, the attempt by the bailiff was not seamless or smooth. At that time, there were insinuations that we did not indeed want Dasuki to come and testify in this court but eventually he was served and had since appeared and testified and we are very happy with his evidence.
“Before this court is yet another issue relating to execution of subpoena on no less a person than former President of this country.
“This subpoena is one that has generated lots of controversies and threats, not just to the 1st defendant but to myself.
“The threat goes to the life of not just the 1st defendant, but to myself and our lead counsel, Dr. Ikpeazu.
“My lord, this will not make us to change our mind as to whether his Excellency should be called to testify as a witness in this matter or not.
“We will however plead with this court to allow the bailiff to make another attempt on November 11 at serving the subpoena on his Excellency.
“We are making this application because we will not want to turn the proposed witness into an adversary. We want him to appear as a person that freely subscribed to come as a witness that is willing to testify.
“Therefore, we shall be asking for an adjournment to enable the bailiff to make another attempt at serving the witness summon on his Excellency, Dr. Goodluck Jonathan”, Etiaba submitted.
At that juncture, Justice Abang asked if Jonathan was the only witness that Metuh intended to call in defence of the charge against him.
“The court wants to know from you and for the record, whether Dr. Jonathan is the only witness left to be called for the defendant to close his case.
“Specifically, are you not calling the 1st defendant himself to testify in this case?”, Justice Abang queried.
In his response, Etiaba told the court that calling Metuh to personally defend himself would be dependent on Jonathan’s testimony.
“If Jonathan does not attend court after he has been served with the subpoena, we will confer with the defendant on the next step to take for his defence.
“But if the court on its own motion decides otherwise, that will not without prejudice, affect my right to withdraw from further representation of the 1st defendant in his defence.
“I answer this, knowing that the difference between today and December 11 is only seven days, out of which five are working days”, Etiaba added.
While supporting the adjournment request, counsel to Metuh’s firm, Chief Tochukwu Onwugbufor, SAN, argued that Jonathan’s evidence would have a fundamental implication on the case of his client.
“It will have the impact that will determine the direction of the evidence of the 2nd defendant because his evidence, if it covers our grounds, we need not call further evidence.
“So we urge your lordship to grant an adjournment to enable him testify”, Onwugbufor submitted.
Ruling on the issue, Justice Abang held that Metuh’s failure to take steps to serve the subpoena on Jonathan was to further delay progress in the matter.
The court stressed that it has the power to set-aside the witness summon against Jonathan if it was intended to frustrate the trial.
“The first defendant cannot hold the court to ransom when he has failed to timeously have the process served by substituted service”.
Justice Abang said there was no guarantee that the bailiff would on November 11 effect personal service of the summon on Jonathan.
Neverthless, the Judge said he was minded to in the interest of justice, give Metuh one more chance to serve the subpoena on ex-President Jonathan, saying the decision was to afford the defendant ample opportunity to defend the case against him.
The court said Metuh was at liberty to call any other witness, apart from Jonathan, on Tuesday, failing which he would be forclosed as prayed by EFCC.
EFCC lawyer had earlier urged the court to compel Metuh to serve the summon on Jonathan via substituted means.
He contended that whereas section 123(A) of ACJA made provision for personal service, section 124 allows for posting of such summon at some conspicuous part of the premises or place in which the intended witness resides.
“Again section 122 of ACJA also makes provision for service by courier. With the available record of attempted service before this court. We submit that due diligence as envisaged by section 124 of ACJA has been exercised by the bailiff thereby justifying having recourse to alternative means.
“It is our humble submission that any further attempt at service should not be by the previous methods that were tried but failed. This is so as not to hold this court to ransom”.
Meantime, based on questions from the trial Judge, the EFCC lawyer subsequently made a U-turn and asked the court to rather set-aside the subpoena against Jonathan.
The later request by the agency infuriated the defence lawyer who accused Justice Abang of deliberately steering the prosecution to change his position on the issue.
The court had on November 1, declined to set-aside the subpoena it issued against Jonathan on October 23 based on Metuh’s request.
Justice Abang struck out a motion Jonathan filed through his lawyer, Chief Mike Ozekhome, SAN, to challenge the subpoena against him, as lacking in merit.
The Judge further refused Jonathan’s alternative request for Metuh to be ordered to deposit with the court, the sum of N1billion in line with provisions of Section 241(2) of the Administration of Criminal Justice Act, 2015, before he would mount the witness box.
Jonathan had insisted that the N1bn would cover travelling expenses for himself and his security personnel from his home town, Otuoke in Bayelsa State to Abuja, and also for the time that he might spend appearing before the court as President of Nigeria between 2010 to 2015.
The ex-President said he got to know about the summon the court issued against him through newspaper publications.
He contended that the evidence Metuh is seeking from him would amount to an invasion of his personal right to privacy, and family life as provided for in Section 37 of the Constitution of the Federal Republic of Nigeria, 1999.
He told the court that the evidence sought to be obtained from him was likely to expose him to a criminal charge, penalty or forfeiture.
Jonathan said the subpoena was vague, applied for and obtained on frivolous ground and in bad faith, saying it was meant to embarrass him as a person.
He insisted that Metuh was not a personal aid or his appointee and therefore could not have dealt with the President directly under any circumstance to warrant the invitation of the applicant to testify in the charge.
He said there was no nexus between hiim and Metuh and the charge for which the defendants are standing trial.
In his bench ruling, Justice Abang said he could not validly exercise jurisdiction to grant any of the former President’s prayers since the bailiff of the court had yet to serve him with a copy of the subpoena.
“Dr. Jonathan, with greatest respect to him, cannot rely on Newspaper publications or news item from electronic media to come to conclusion that the subpoena is vague. It is a hersay evidence which is not relevant before this court.
“His contention about invasion of his right to privacy can only be considered when he is in court and in the witness box. If he is asked a question, the court can determine if it is an invasion of his privacy or not.
“I am inclined to dismiss the application because it has been argued on its merit, but reluctantly I hereby strike it out”, Justice Abang held.