Dasuki declines to testify in Metuh’s case

• Says he needs to consult his records
• Court dismisses Jonathan’s application

Former National Security Adviser (NSA), Colonel Sambo Dasuki, yesterday declined to testify at the trial of former National Publicity Secretary, Peoples Democratic Party (PDP), Chief Oliseh Metuh.

Dasuki, who has been in the detention facility of the Department of State Service (DSS), was brought to court through a subpoena , to serve as the eighth defence witness in charges of corruption levelled against Metuh by the Federal Government.

Metuh had earlier told the court that the N400million, for which he is being prosecuted, was given to him through the office of the NSA on the instruction of former President Goodluck Jonathan, towards media campaign for PDP in the 2015 presidential election.

However, when Dasuki was called to the witness box by the defence counsel, Emeka Etiaba (SAN), he told the court that it would be difficult for him to answer any question, considering that he had been in detention since 2015, and thus, not being able to consult his records with regard to any transactions with the defendant.

When asked if he recalled the functions of his previous office, he said: “I know the functions of the office of NSA. It is essentially a principal staff officer in the office of the president.”

On the reason he was brought to court, he answered: “I am here to answer to a subpoena issued by this court, even though I have not benefitted from other court rulings.”

And when Etiaba (SAN) asked if he could tell the court about the transaction he had with Metuh, which formed the basis for the charge against the defendant, Dasuki answered in the negative.

“It will be very difficult for me to give any details on money given to Metuh and the second defendant (Destra Investment Limited) without reference to my records. Three years is a long time even for those of us who believe we are still young.”

“In other words, it is not possible for you to answer questions without consulting your records”, Etiaba said.   “Yes. It will be difficult for me”, Dasuki responded.

Dasuki was subsequently asked the length of time he considered appropriate to return to the court and give evidence. At this point, he told the court that he had been in detention, and that he could only give evidence when he is granted bail based on four different bail orders and the ECOWAS court.

“I have stated earlier that I have been in custody. So long as the authority decides to obey the four bail orders and one ECOWAS court ruling, and release me, from that moment, I will go through my records. That is when I would be able to give a time line.  But as long as I am in detention, the answer is ‘I don’t know’.

“We have processes in court, hopefully, by the time we get to the Supreme Court, those in charge today will listen.”

He further confirmed that his matter at the Appeal Court would be coming up on January 25, 2018, “God willing.”

With these, Etiaba turned to the court, stating that he had a witness most willing to testify in court but was unable to answer questions with regard to specific actions of his while functioning as the NSA.

“His position is justifiable since he is on oath to say only the truth. I believe he needs to consult his records. It is very important to note that the reasons he does not have his records is because he is being detained by the same state that is prosecuting the defendant.

“I believe that it is possible for some administrative efforts to be made to enable him to get in touch with his records. When it seemed difficult to serve a subpoena on the witness, this court directed the prosecutor to apply administrative means to ensure it was not only served, but also, that the witness appeared in court.

“That directive worked and that is the reason Dasuki is here in court. In the circumstance, I apply that the witness be allowed some time to get in contact with his records, and God willing, the same efforts that produced him here, if applied, would ensure he gets in contact with his records, study the same and come to testify in court as to the truth of what he knows about the charge against Metuh and his company.”

But Etiaba’s submission was countered by the prosecution counsel, Mr. Sylvester Tahir, who believed that no effort was made by the defence counsel to “size up” Dasuki into giving detailed evidence.

“The charges against the defendant are specific, and only one document linked PW8 (Dasuki) to the transaction – an e-payment mandate signed by the Director of Accounts, Office of the NSA, transferring the sum of N400 million to the account of the second defendant.

“No attempt was made to show the document to the witness. I believe if that attempt was made and the witness responded otherwise, that would have been a different thing”, Tahir said.

He therefore opposed the application for adjournment, stressing that if the defence counsel was not ready to proceed with the questioning, the prosecution should be given the go ahead to carry out cross-examination and afterwards, discharge the witness.

According to him, there was no reason the defence could not finish with the witness.  Justice Okon Abang adjourned the matter till tomorrow for ruling.
He requested that Dasuki appears in court as he might be called upon to testify should the application for adjournment fails.

“If the application is overruled, the defendant will have to do with the evidence of PW8. So, PW8 should be in court on November 3”, the judge held.

Earlier, the court had dismissed an application filed by Dasuki, asking the court to suspend proceedings pending the outcome of the motion on notice at the Court of Appeal.

The court dismissed an application filed by former President Goodluck Jonathan, asking it to set aside the subpoena, on the ground that it had no jurisdiction to entertain such considering that he (former president) had not been served.

Earlier at the resumed sitting, counsel to Dasuki, Ahmed Raji (SAN), while arguing the motion on notice filed on October 30, urged the court to adjourn further proceedings relating to the subpoena issued on his client.

The request for an adjournment, he said, was to enable the Court of Appeal to decide on the application seeking to stay execution of the subpoena served on his client. He contended that although his client was in court, even though he reserved the right to oppose the subpoena issued against him, the court should grant his application for adjournment, and not enquire whether the appeal or the pending application would succeed.

According to him, a subpoenaed witness reserves the right to oppose the subpoena or bring an application to challenge it. Also, he stated that an order made by Appeal Court is predicated only on the application made at the Federal High Court, which the court initially refused.

“The Court of Appeal did not issue the subpoena. It only directed this court to issue the subpoena. Being a process emanating from this court, it is only before this court that the subpoenaed witness should come and table his grievances.”

In his argument, the prosecution counsel, Tahir, said he had filed a counter affidavit and written address, seeking to oppose the application for adjournment.

Coming under the provisions of Section 305 of the Administration of Criminal Justice Act (ACJA), Tahir held that there was nothing to warrant the request for adjournment in the case, while waiting for the outcome of the motion at the Appeal Court. He alleged some levels of inconsistencies on the part of the defence counsel, Etiaba who supported the application for adjournment.

Tahir noted that Dasuki was in court at the instance of the first defendant. He therefore wondered why the same first defendant should turn around to support the adjournment of the case.

“It is our submission that the applicant is not entitled to an adjournment. Granting the application will work contrary to the judgment of the Court of Appeal, which directed this court to commence trial immediately”, Tahir held.

But counsel to Metuh, Etiaba responded that the application did not seek setting aside of the subpoena, rather, its prayer was to adjourn further trials with respect to all matters relating to the subpoena, pending the determination of the motion filed on October 27, seeking a stay of execution of the subpoena.

The court also heard the argument on the application filed by Jonathan, through his counsel, Chief Mike Ozekhome, who in his argument asked the court to set aside the subpoena it issued last week compelling the former president to appear and give evidence in the case.

Describing the subpoena as vague, and hinged on frivolous ground, he, however, gave reasons the former president should be excused from coming to testify in the matter.

He said that Jonathan trusted those he appointed, and he believed that any contractual transactions said to be made between Metuh and Dasuki was not fictitious but in the best interest of the country. Yet, it would be difficult for him to come and testify since he was not at the point of transaction.
“We have stated that the applicant appointed many ministers, political appointees and personal aides running into 100s in his five years in office.

“The pivot of the applicant’s case therefore is not that he is throwing doubt on the transaction involving the defendants and Dasuki, and others, but that he was not physically present when the transactions were going on. As a result, he will not be a good witness to say what happened, as he does not have all the facts,” Ozekhome stated.

According to him, notwithstanding section 175 of the Evidence Act, which makes his client a competent witness (since he is no longer a sitting president), Section 183 of the same Act, which provides that no one is bound to answer any question if such a question will expose the person to any criminal charge, was applicable.

“There has been a series of embarrassments made against the former president and his wife, trying to make his wife forfeit her personal money by the same prosecutor,”  he said.

Metuh had filed an application, asking the court to subpoena Dasuki to appear as witness, an application that was rejected. Consequently, Metuh headed to an Appeal Court, when on September 29, on appeal no. CA/A/159C/2017 between Olisa Metuh and the Federal Government, the Appeal Court directed the lower court to sign the subpoena.

Back in the lower court, Justice Okon Abang signed the subpoena, compelling Dasuki to appear in court.

But the counsel to Dasuki, Raji (SAN), had filed a motion, asking the court to vacate the order on the ground that his client had been on detention since 2015.   However, since the lower court could not vacate the order granted by the appeal court, Dasuki quickly filed a motion on notice at the appeal court, asking for the stay of execution of the subpoena since his client had been in detention.

In spite of the argument against Dasuki, the retired colonel made a surprise appearance at the Federal High Court yesterday, and until he was called to the witness box, he sat quietly while the arguments lasted.