COMPELLABILITY OF SAMBO DASUKI UNDER THE NIGERIAN LAW OF EVIDENCE: WHERE THE HON. JUSTICE ABANG ERRED.
COMPELLABILITY
OF SAMBO DASUKI UNDER THE NIGERIAN LAW OF EVIDENCE: WHERE THE HON. JUSTICE
ABANG ERRED.
JOHNMARY
CHUKWUKASI JIDEOBI, Esq.
PREFATORY
REMARKS:
The application of the
law of evidence is at the very heart of all judicial proceedings, whether civil
or criminal. There has never been any argument about this by all stakeholders
in every justice administration system, at least in commonwealth jurisdictions.
The law of evidence is a vast area of law and occupies a prominent position in
all judicial proceedings. The reason is not far-fetched. Our law courts arrive
at their judgments based, only, on the facts and the body of hardcore evidence
assembled before it. Evidence has been
aptly described as any specie of proof,
or probative matter legally presented at the trial of an issue, by the act of
the parties, and through the medium of witnesses, records, documents, exhibits,
concrete objects etc, for the purpose of inducing belief in the mind of the
court or jury as to their contentions. See Onya vs. Ogbuji (2011)
All FWL (Pt. 556) 493 at 517 per Salauwa, J.C.A.). It is also important
to remember that evidence whether oral or
documentary consists of facts, and facts are the fountainhead of the law.
See Neka
B.B.B. Manufacturing Co Limited vs. A.C.B. Limited (2004) All FWLR (Pt. 198)
1175 at 1199. Of greater emphasis is that parties and the court, as already observed, are bound by the evidence
placed before the court. The reason is obvious. It ensures that the Judge must
decide a case before him on the evidence adduced and it is not allowed to rely
on other extraneous matters. See Nwobodo vs. Nwobodo (1995) 1 NWLR (Pt. 370)
203 @ 214.
THE
FACTUAL BACKGROUND:
On the 24th
of February, 2017, it was reported that the Federal High Court of Nigeria
(Court 10) sitting in the Abuja Judicial Division and presided over by the Hon.
Justice Abang, delivered a ruling in the interlocutory application brought by
the former National Spokesman of the People Democratic Party (PDP for short in
this article), Chief Olisa Metu.
Chief Olisa Metu (a
Lawyer), is currently standing criminal trial for allegedly diverting the hefty
sum of N400, 000, 000.00 (Four Hundred Million Naira Only) purportedly from the
Office of the National Security Adviser which sum the prosecutor is alleging
was part of the fund earlier earmarked for the purchase of military hardware
for combating terrorism in the North-Eastern part of the country. In the said
application earlier referred to, Chief Metu sought to subpoena the former
National Security Adviser, Col. Sambo Dasuki (Rtd.) to testify on his behalf
and in his defence. It is to be noted that currently, the former National
Security Adviser (NSA for short), is still in the detention facility of the
State Security Service (SSS in short otherwise called DSS) despite numerous
Orders of Courts of competent jurisdiction admitting him to bail and ordering
his release pending trial. In refusing/dismissing Chief Metu’s application,
just was quoted as stating the following;
“It
is not the duty of the court to compel anyone to come and give evidence in
court when that person is not a compellable witness.
The
name of Dasuki was not included in the list of witnesses filed by the defendants.
The question is, at what stage did the defendant make up his mind to include
Dasuki’s name in its lists of witnesses?
The application is made
in bad faith and with the intention to delay the trial. The defendants have
exhausted all the adjournments it is entitled to as stipulated in Section 394
of the Administration of Criminal Justice Act. The 1st defendant is no longer
entitled to any adjournment in this matter having granted 8 adjournments since
the commencement of the trial.”
It is worthy of note that the Hon. Justice Abang
delivered two (2) rulings on the said day. The other ruling was on the
application of Chief Metu for the court to order the temporal release of his
traveling documents to enable him to proceed to the United Kingdom, based on
the referral of the Doctors treating him in Nigeria, for further medical
treatment.
These facts shortly above stated could be read
from different websites of some of our national dailies.
OBJECTIVES OF THIS
CONTRIBUTION:
The humble attempt of this write-up is to
vindicate the age long position of the law relating to competence and
compellability of witnesses in Nigeria which is that, with the exception of already
identifiable and identified class of persons, all persons are compellable witnesses
in proof of any fact in issue in all judicial proceedings in Nigeria. While
affirming the settled proposition that “all
compellable witnesses are competent but not all competent witnesses are
compellable”, this article will proceed to demonstrate, in all diligent
manner possible, that the former NSA, Sambo Dasuki, is a compellable witness, in
the entire circumstances necessitating the application of Chief Metu, contrary
to the pillar of reasoning upon which the Federal High Court rested its
decision to dismiss the application seeking to compel Sambo Dasuki to testify
on behalf and in defence of Chief Olisa Metu. The article will further
establish, resting on age-long superior judicial authorities, that in turning
down the crucial request of Chief Metu to have Sambo Dasuki subpoenaed to
testify in his defence, the Court may have eroded completely, unwittingly
though, the inviolable fair-hearing right of the Defendant amply consecrated in
section 36 (1) & (6) of the amended 1999 Constitution of the Federal
Republic of Nigeria, rendering the entire proceedings a nullity thereby.
THE GRAVAMEN:
The law of evidence in Nigeria is principally
governed by the Evidence Act, 2011. It is to this Act that we shall now turn
with a view to discovering the provisions governing compellability of witnesses
under our jurisprudence. Section 175 (1) & (2) of the Evidence Act is very
relevant here and we take the liberty of this discussion to reproduce it word
for word, only for purposes of clarity and completeness.
175. (1)
All persons shall be competent to testify, unless the court considers that they
are prevented from understanding the questions put to them, or from giving
rational answers to those questions, by reason of tender years, extreme old
age, disease, whether of body or mind, or any other cause of the same kind.
(2) A person of unsound
mind is not incompetent to testify unless he is prevented by his mental
infirmity from understanding the questions put to him and giving rational
answers to them.
Acknowledging that the law relating to
compellability of witnesses is indeed a vast forest, our efforts will be
carefully circumscribed and cautiously limited to only those aspects of the law
that would aid our quick and efficient attainment of the goal which this
article has set for itself. Since the thrust of our concern is about the class
of persons exempted from being compelled to appear before the court and give
testimony for the defendant/accused person, we shall now narrow down our
analysis to those sections of the Act that deals with non-compellable
witnesses.
Going by virtue of section 308 of the amended
1999 Constitution of the Federal Republic of Nigeria, The President of the
Federal Republic of Nigeria and his Vice, All State Governors and their
Deputies are conferred with immunity from both criminal and civil prosecution
in their personal capacity. Specifically, no process of any court requiring or
compelling the appearance of person to which the section applies shall be
applied for or issued. Following section 1 (1) & (2) of the Diplomatic
Immunities and Privileges Act, diplomats and members of their families,
their official and domestic staff and members of the families of their official
staff enjoy immunity not only against being sued but also against being
compelled to testify. We must make haste to state that even though the
aforementioned exempted category of persons are not compellable witnesses,
nevertheless, they are competent to testify and are at liberty to stand as
witnesses in the witness box if they so desire.
These postulations of the law
are well settled in a long line of judicial authorities including but not
limited to: Rotimi vs. MacGregor (1974) 11 SC 123; Tinubu vs. I.M.B. Securities Plc
(2001) 8 NWLR (Pt. 714) 192; Media Tech. (Nig.) Ltd. Vs. Adesina (2005) 1 NWLR
(Pt. 908) 461; Aku vs. Plateau Publishing Corporation Ltd (1985) 6 NCLR 338;
Onabanjo vs. Concord Press of Nigeria Ltd. (1981) 2 NCLR 298; Duke vs. Global
Excellence Comm. Ltd. (2007) 5 NWLR (Pt. 1026) 81 @ 106; Zabusky vs. Israeli Aircraft Industries
(2007) All FWLR (Pt. 352) 1759 @ 1794.
WHERE JUSTICE ABANG
ERRED:
The right of an accused person/defendant, in a
criminal trial, to defend himself and establish his defence through the mouth
of his chosen witness (es) is imperishably embedded in the Constitution. For
purposes of thoroughness (even at the risk of prolixity), we shall take a shot
at the very section 36 of the Constitution providing for this inexterminable
right.
36(1). In the determination of his civil rights
and obligations, including any question or determination by or against any
government or authority, a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by law and constituted
in such manner as to secure its independence and impartiality.
36(6) Every person who is charged with a
criminal offence shall be entitled to-
(a) ……….not relevant
(b) Be given adequate time
and facilities for the preparation of his defence
(c) ……….not relevant
(d) Examine, in person or by
his legal practitioners, the witnesses called by the prosecution before any
court or tribunal and obtain the attendance and carry out the
examination of witnesses to testify on his behalf before the court or tribunal on
the same conditions as those applying to the witnesses called by the
prosecution; and
(e) …………… not relevant.
(italics and underlining supplied by us for
emphasis)
The aggregate of the
foregoing provisions represents the summary of the irrefragable right to fair
hearing which rests on the twin pillars of natural justice to wit; audi
alterem patem and nemo judex in causa sua (translated
to mean: hear the both parties and no one should be a judge in his own case). While
it is true that all the parties are enjoined to frontload the list of their
witnesses in criminal trial, it is not a rule cast in iron. This writer has
participated in many criminal trials where at different stages of the proceedings,
the prosecutor makes an application to the court seeking leave to call
additional witnesses who originally were not listed in the list of witnesses
filed alongside the criminal charge before the court. In fact, the Administration of Criminal Justice Act
(ACJA for short) itself, which was relied on by the Learned trial Judge,
generously provides in these lucid terms;
241(1) “The Court may, on the application of the
prosecution or defence, issue a summon or writ of subpoena on a witness
requiring him to attend court to give evidence in respect of the case, and to
bring with him any specified documents or things and any other document or
thing relating to them which may be in his possession or power or under his
control.”
256 The Court may, at any stage of a trial, inquiry or other proceedings
under this Act, either of its own motion or on application of either party to
the proceeding, call a person as a witness or recall and re-examine a person
already examined where his evidence appears to the Court to be essential to the
just decision of the case.
The corollary of a community reading of the
foregoing sections points to the effect that the ACJA itself aims at
strengthening the constitutionally guaranteed right to fair hearing rather than
abridging it. Whereas the ACJA provisions relating to the powers of the court
to call a witness, or issue a subpoena on such a witness either on its motion
or on the application of either the prosecutor or the defence, seem to donate
discretion to the court by the use of the phrase “the court may”, we hold
the considered view that such discretion will not be available to the Court
where the Constitution itself has conferred the right on a defendant to secure
the attendance of any person as a witness for his defence with the phrase “shall
be entitled”. This can only be so because the Constitution is superior
to the ACJA which derives its validity and strength from the Constitution.
Validating this position, the Supreme Court observed in the case of A.-G.,
Abia State v. A.-G., Fed(2006) 16 NWLR (Pt. 1005) 265 @ 381, paras C-E as follows;
“The
Constitution of a nation is the fons et origo, not only of the jurisprudence
but also of the legal system of the nation. It is the beginning and the end of
the legal system. In Greek language, it is the alpha and the omega. It is the
barometer with which all statutes are measured. In line with this kingly
position of the Constitution, all the three arms of Government are slaves of
the Constitution, not in the sense of undergoing servitude or bondage, but in
the sense of total obeisance and loyalty to it. This is in recognition of the
supremacy of the Constitution over and above every statute, be it an Act of the
National Assembly or a law of the House of Assembly of a State.”
THE BREACH OF FAIR
HEARING AND CONSEQUENCES:
It has been stated from time immemorial that
courts are bound to give all the parties before them the ample opportunity of
hearing before coming to a decision. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
Fair hearing includes hearing all the evidence the parties intend to place
before the court (especially through their witnesses) with a view to
establishing their case. See Aladetoyinbo v. Adewumi (1990) 6 NWLR (Pt.
154) 98. The audi alterem partem principle as
guaranteed under section 36(1) of the 1999 Constitution (as amended) remains a
binding and indispensable requirement of justice applicable to and enforceable
by all courts of law. See Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10
NWLR (Pt. 1466) 124 @ 197. Any decision reached in violation of the
principle of fair hearing must go down under the sledge-hammer of the appellate
court. See Mohammed vs. Olawunmi (1990) 2 NWLR (Pt. 133) 458.
After reproducing section 36 of the constitution
and in showing the fatal implication of the violation or curtailment of this sacred
right of a defendant bestowed by the Constitution, the Supreme Court, in the
case of Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 124 has this to say;
“This is a
constitutional provision which must not be toyed with. It is well settled that
the right to fair hearing entrenched in section 36 (1) of the 1999 Constitution
(supra) entails not only hearing a party on any issue which could be resolved to
his prejudice but also ensuring that the hearing is fair and in accordance with
the twin pillars of justice, namely, audi
alteram partem and nemo judex in
causa sua. Thu, where a party is not heard at all in a matter which affects
his right or the trial is adjudged unfair, any judgment generated therefrom,
becomes a nullity and of no legal consequence. It is bound to be set aside.”
Going further at pages 197 to 198, the Supreme
Court, per Muhammad, J.S.C. stated with a tone of finality thus;
“One
outrightly agrees with learned appellant’s counsel that it is trite that where
a person’s legal rights or obligations are challenged he must be given full
opportunity of being heard before any adverse decision is taken against him
with regard to such rights or obligations. This “audi alterem partem” principle
as guaranteed under section 36(1) of the 1999 Constitution as amended remains a
binding and indispensable requirement of justice applicable to and enforceable
by all court of law. The principle affords both sides to a dispute, ample
opportunity of presenting their case to enable the enthronement of justice and
fairness. In the application of the principle, a hearing is said to be fair and
in compliance with the dictates of the Constitution when, inter alia, all the
parties to the dispute are given a hearing or an opportunity of a hearing. If
one of the parties is refused or denied a hearing or the opportunity of being
heard, the court’s proceedings being perverse will be set aside on appeal.”
SUMMARY:
When the gamut of principles of law reviewed
above are applied to the facts and circumstances forming the basis of this
discussion, it would be clearly seen that it is a gross violation of Chief
Metu’s constitutional right to fair hearing for the trial Court to refuse him
the opportunity of calling a Defendant of his choice. If the charge against
Chief Metu hinges mainly on the alleged diversion of a humongous sum of N400, 000, 000.00 (Four Hundred Million
Naira Only), purportedly emanating from the Office of the National Security
Adviser and the said former NSA is sought to be subpoenaed to testify, I doubt
if a reasonable man would consider the ruling dismissing such application as just.
It is now seen that Sambo Dasuki is
indeed a competent and compellable witness for Chief Olisa Metu contrary to the
decision of the Hon. Justice Abang.
For the avoidance of doubt, a trial High
Court is without powers to determine for the defendant/accused person which
witness to call in his defence. The duty of the trial Court rather is to
enforce that unassailable right of the defendant to obtain the attendance of
any witness for his defence. See Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433)
626. The ruling (under scrutiny herein) delivered by the Hon. Justice
Abang on the 24th February, 2017 is one lacking in constitutional
foundation. See Adigun v. A-G of Oyo State (1987) 1 NWLR (Pt. 53) 678. It is
irredeemably flawed in law being one without the approval of superior
authorities. See Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111. Such decisions
arrived at in violation of the constitutional rights of the accused/defendant
is a journey in futility. It carries dead wounds on its face. The reason is that
the weight of all existing authorities on the point is against Justice Abang’s
reasoning. See Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) 659. Since
Justice Abang’s Ruling has parted ways with the current of Nigeria’s law of
evidence, it is only liable to reversal on appeal, sharing the same fate with a
blind man who carries a holding license.
Let me stop here.
I can be reached on: [email protected]
COMPELLABILITY OF SAMBO DASUKI UNDER THE NIGERIAN LAW OF EVIDENCE: WHERE THE HON. JUSTICE ABANG ERRED.
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Saturday, March 11, 2017
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