The Federal High Court in Abuja on Wednesday gave the court bailiff five days to serve former President Goodluck Jonathan with the witness summon, compelling him to appear in court with respect to the trial of a former National Publicity Secretary of the Peoples Democratic Party, Olisa Metuh.
The court also ordered the counsel prosecuting Metuh, Mr. Sylvanus Tahir, to persuade the Economic and Financial Crimes Commission to explore administrative means of ensuring that the Department of State Services produced the detained former National Security Adviser, Col. Sambo Dasuki (retd.), in court on October 31.
Upon applications by Metuh, the court had issued two separate subpoenas on Jonathan and Dasuki, compelling them to appear in court on Wednesday. Jonathan and Dasuki were summoned by the court upon Metuh’s application requesting that they be ordered to testify in his defence with respect to the sum of N400m, which he was said to have received fraudulently from the Office of the NSA in 2014.
But the two summoned witnesses were absent from court on Wednesday. Ruling after hearing the lawyers involved in the case on Wednesday, Justice Abang noted that without the two summoned witnesses appearing, it would be difficult for the court to make any progress in the case. He also noted that while Dasuki had been served with the subpoena issued by the court, Jonathan had yet to be served.
He noted that, therefore, the ex-President could not be blamed for failure to attend court on Wednesday. But the judge held that a singular attempt by the court bailiff to serve Jonathan personally with the witness summons in Abuja was not sufficient. He, therefore, directed the bailiff to take further steps to ensure personal service on Jonathan within five days from Wednesday.
He said if after five days the bailiff was still unable to serve Jonathan personally, Metuh, who was the one who applied for the subpoena, should kick-start the process of serving the ex-President through substituted means. Concerning Dasuki, Justice Abang noted that since the prosecuting lawyer, Tahir, was handling the case on behalf of the Federal Government, which the DSS, the body detaining Dasuki, is its agent, the EFCC must liaise administratively with the DSS to ensure that the ex-NSA was produced in court on October 31. The judge ruled:
“Col. Dasuki (retd.), His Excellency, Goodluck Jonathan, are not in court today (Wednesday) to give evidence in this matter.
“As regards Col. Dasuki (retd.), there is proof of service by the order of the Court of Appeal in appeal number CA/A/159C/17, has been complied with by serving the subpoena on the DSS to produce Col. Dasuki today. No reason has been offered and he is not produced in court today.
“As regards the production of Col. Dasuki in court today, at the subsequent hearing of this matter, this will be addressed administratively.
“From the judgment of the Court of Appeal dated September 29, 2017, it is stated that Col. Dasuki, in the custody of the DSS, which is an organ or an integral part of the Federal Government of Nigeria, the learned counsel representing the Federal Government of Nigeria in this matter must persuade his client, that is the Federal Government of Nigeria, to produce Col. Sambo Dasuki (retd.) in court at the next adjourned date, failing which it will be extremely difficult for the court to make progress in this matter.
“As regards His Excellency, Dr. Goodluck Jonathan, who is not in court today, it is on record that he has yet to be served the witness summon.
“The court cannot apportion blame to him for his failure to be in court today.
“It is my humble view that service of court process on the witness or a party goes to the root of adjudication, absence of which will nullify proceedings no matter how well conducted.
“It is not sufficient that the bailiff of court only made one attempt to serve him with the witness summon.
“On this, I agree entirely with the learned counsel for the first defendant (Metuh), Dr. O. Ikpeazu (SAN), that it cannot be exercise of due diligence on the part of the bailiff to have His Excellency, Dr. Goodluck Jonathan, served with the witness summon on only one attempt.
“The bailiff is hereby directed to make further attempts in effecting personal service of the witness summon on His Excellency, Dr. Goodluck Jonathan.
“Although the law does not state the number of attempts to be made in effecting personal service, one attempt, in my view, is not sufficient.
“The bailiff of court is hereby given five days from today to effect personal service of the subpoena on His Excellency, Dr. Goodluck Jonathan.
“Thereafter, the law will take its course.
“However, if personal service cannot be effected, it can be served by substituted means.
“For this purpose, the bailiff, under section 124 of the Administration of Criminal Justice Act, is an agent of the first defendant, Olisa Metuh, for the purpose of substituted service of process on His Excellency, Dr. Goodluck Jonathan.
“The bailiff is the agent of the first defendant for the purpose of substituted service. This is because the first defendant elected to call him (Jonathan), not the court.
“If personal service cannot be effected, it is only reasonable that the first defendant has a duty to apply for leave to serve His Excellency, Dr. Goodluck Jonathan, by substituted means. I so hold.”
The judge then scheduled both Jonathan and Dasuki to appear in court on October 31. The court ruled:
“In the light of the above, the matter will be adjourned again, at the instance of the first defendant, to enable the subpoenaed witnesses to be in court.
“This matter is, therefore, adjourned until October 31 to enable the subpoenaed witness – Col. Sambo Dasuki (retd.) and His Excellency, Dr. Goodluck Jonathan, to give evidence at the instance of the first defendant.”
Earlier on Wednesday, Justice Abang struck out an application by Dasuki, seeking an order setting aside the subpoena directing the ex-NSA to appear in court to testify on behalf of Metuh. The judge ruled that having been ordered by the Court of Appeal in Abuja on September 29, 2017, to sign and ensure the service of the subpoena, he lacked jurisdiction to hear and determine the motion on merit.
He held that determining the motion on merit would amount to an attempt to review the judgment of a higher court, the Court of Appeal. He held that all issues raised by Dasuki, through his lawyer, Mr. Ahmed Raji (SAN), had become academic since the court lacked jurisdiction to hear the complaints.
Punch