BY
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 driving license.
Let me stop here.
I can be reached on:
joannesmaria2009@yahoo.com
