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.

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.

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 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.

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.”

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.”

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.

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