Dasuki claims memory loss, courts insists Jonathan must appear
The court, presided over by Justice Okon Abang, also dismissed an application by a former National Security Adviser, Sambo Dasuki, seeking an adjournment pending the determination of his motion pending before the Court of Appeal to challenge the subpoena issued on him to appear in the case.
Justice Abang held that granting Dasuki's application would amount to flouting the earlier judgment of the Court of Appeal delivered on September 29, directing him to sign and ensure the execution of the subpoena on Dasuki.
Jonathan had in his own application, sought an order setting aside the subpoena issued on him or in the alternative directing Metuh to deposit N1bn to cover his travelling expenses to travel to Abuja to testify.
But the judge after hearing Jonathan's lawyer, Chief Mike Ozekhome (SAN), and Metuh's defence team, who opposed the application, held that he had no jurisdiction to entertain the application.
The court held that since the ex-President had yet to be served with the court's subpoena directing him to appear in court, it was not enough for him to rely on news reported in the media to file the application.
He ruled, "It is my humble view that I lack jurisdiction to entertain the application filed by the applicant, that is, His Excellency, Goodluck Jonathan. From the records of the court, it is not in dispute that Dr. Jonathan has yet to be served with the subpoena issued by this court on October 23, 2017 on the application of the 1st defendant (Metuh).
"Unless his Excellency, Dr. Jonathan is served with the subpoena and the proof of service is duly filed and placed before the court, I have no jurisdiction in making an enforceable order, which is executory in nature, even if the order is declaratory, either in his favour or against him.
"Service of the court process on him goes to the root of adjudication, the absence of which nullifies the proceedings, no matter how well conducted. I do not want to work in vein. It is even not proper to work in vein.
"Dr. Jonathan, with the greatest respect to him, cannot rely on a newspaper publication or news item from the electronic media to come to the conclusion that the subpoena is vague. It is a hearsay evidence, which has no relevance in court of law.
"The issue of alleged invasion of his right to personal liberty or privacy can only be considered where he is in court and in the witness box and he is asked questions. If there is an objection then, the court will determine if such question infringes on his right to personal liberty, not when he has not been served and he is not in court.
"The application is likened to a defendant arraigned in a criminal matter, except his plea is taken, the court will not have jurisdiction to take decisions for or against the defendant. See the case of Mohammed Abacha vs Federal Republic of Nigeria, reported in Part 1042 NWLR. Except Dr. Jonathan is served with the subpoena, I have no jurisdiction to entertain his application.
"I am inclined to dismiss this application because it has been argued on the merit, but reluctantly. I am going to strike it out. The application is struck out for want of jurisdiction."
With respect to Dasuki's application, the judge held that he refused to grant it because it would amount to granting an order of stay of proceedings prohibited by the Administration of Criminal Justice Act.
He cited the decision of the Supreme Court in the case of Metuh against the Federal Government in which judgment was delivered on June 9, 2017 validating the provision of section 306 of the ACJA which prohibits stay of proceedings.
He said, "This is an application filed in criminal proceedings, therefore, it is governed by the provision of section 306 of ACJA" adding, "I am bound by the decision of the Supreme Court in this regard."
According to the judge, it would also amount to staying the judgment of the Court of Appeal which ordered him to sign the subpoena issued on Dasuki.
He added, "If I adjourn this case, it would have stayed the judgment of the Court of Appeal delivered on September 29, 2017."
He said if Dasuki was dissatisfied with the Court of Appeal's order, "the applicant knows what to do."
He also told Dasuki not to urge the court not to move the court "to be on collision course with the Court of Appeal."
The judge ruled, "I will take the evidence of Col. Dasuki that is in court today," adding that "the justice of this case demands that it should be dismissed."
Dasuki entered the witness box as Metuh's eighth defence witness after Justice Abang dismissed his application on Wednesday.
Fielding questions from Metuh's lawyer, Mr. Emeka Etiaba (SAN), Dasuki told the court that he could no long remember the details of the N400m which he gave to Metuh in 2014.
It was the first time Dasuki would be physically asked questions relating to his alleged diversion of funds meant for arms procurement into presidential campaigns of the then ruling PDP in 2015.
Dasuki, who had been in the custody of the Department of State Services since December 2015, was produced in court by the agency's operatives on Wednesday following an application by Metuh that the ex-NSA be summoned.
Led in evidence by Etiaba, Dasuki said he could not remember the details of the payment of N400m, which is part of the subjects of the charges instituted against Metuh.
He said his incarceration for about two years had deprived him of access to documents that could help him to give any meaningful evidence.
When asked if he, as the then NSA, remembered that he had dealing with Metuh and his (Metuh's) firm, Destra Investments Limited, in 2014, Dasuki said, "I cannot confirm if I had any dealing with him from memory."
He added, "If I have any dealing at all as it relates to this case, it's not possible that without reference to my record, I cannot respond in a manner that will please you (referring to Metuh's lawyer).
He said as the NSA he was "essentially a principal staff officer in the Office of the President".
Asked why he was in court, he said, he said, "I am here to answer to a court ruling, a subpoena."
When asked to give the details about the payment, Dasuki said, "That will be very difficult for me to give any details of the money paid to Chief Olisa Metuh and the second defendant (Destra Investment Limited) without reference to my records. "Three years is a long time."
Asked when he could have access to his records, Dasuki said, "I have stated earlier that I have been in custody for two years. As soon as authorities decide to obey the subsisting court orders.
"I have four bail court orders and an ECOWAS Court ruling. When they release me, I can go through the records. "That is when I will be able to give a timeline. As long as I am in detention, the answer is I don't know."
He confirmed that he had filed processes before the Supreme Court in respect of his bail which had been slated for hearin on January 25, 2018
At this point, Etiaba sought an adjournment on the basis of the need for Dasuki to have an access to his records.
Justice Abang fixed November 3 for ruling.