There has been heightened frenzy in the polity about the *subpoena ad testificandum* (summons to attend court and testify) issued by an Abuja Federal High Court presided over by Honourable Justice Abang on former President Goodluck Ebele Jonathan (hereinafter referred to simply as "GEJ") in what is now notoriously known as and called the "Olisa Metuh Case".
Opinions are divided on the development although it ought not to be so if the citizens are duly abreast of the law.
This order of court commanding the former President to attend court and testify sounds Greek to many including those who see it as witchunt or outright disrespect to the person of the former President.
Many Nigerians do not understand why and how a former President should be invited to come to court to testify although, we must say, this is predicated on ignorance of the law.
Those who take this myopic view do so for the simple reason that they do not have adequate information or lack knowledge about the true legal position on GEJ's competence and compellability as a former President of Nigeria.
Against the foregoing backdrop, acting under a sense of duty and responsibility, let us enlighten on the following thematic areas in the honest belief that it will help clear the enveloping doubts on the subject matter.
✔ EVERY PERSON IS COMPETENT TO TESTIFY
There is the rebuttable presumption that every person is competent to testify.
Firstly, we enlighten that the dry letters of section 175 (1) of the Evidence Act 2011, provide that
"All persons shall be
competent to testify,
unless the court
considers that they
are prevented from
understanding
questions put to them,
or from giving rational
answer 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."
From the above provision of the Evidence Act, being the fountain head of our adjectival jurisprudence or procedural law, it is settled or trite that every person is a competent witness under the law.
This general principle admits of a few notable exceptions which are outside the scope of of our present inquiry.
✔COMPETENCE IS DIFFERENT FROM COMPELLABILITY
Subject to recognised exceptions to the general rule that every person is presumed competent to testify, it is key to underscore that it is not every competent witness that is compellable.
An incompetent witness is never compellable.
In adjectival law, every discussion of competency provokes a consideration of compellability.
The competence and compellability of a witness do not always go together as a witness may be competent but not automatically compellable.
A witness is compellable if he is legally obligated to testify.
A witness under immunity is not compellable.
✔EX-PRESIDENT GEJ IS COMPETENT AND COMPELLABLE
Specifically, under section 175 of the Evidence Act, 2011, a former President like GEJ is competent to testify without fuss just as any other ordinary law abiding citizen of the land.
With respect to compellability, section 241 (1) of the Administration of Criminal Justice Act provides in relation to Subpoena ad testificandum that-
"The court may, on
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,...."
By a community or combined reading of the provisions of section 241(1) of the Administration of Criminal Justice Act, 2015, and section 175 of the Evidence Act, 2011, (quoted verbatim earlier), it is unarguable that the former President GEJ is a competent witness that is compellable to attend court to testify voluntarily or by order of court such as is the case in the Olisa Metuh Case.
This is unlike when he was in office as President of Nigeria and shielded from being compellable because of immunity conferred under section 305 of the 1999 Constitution as amended.
✔EQUALITY BEFORE THE LAW
Every citizen is equal before the law.
With greatest respect, a former President is not a special or extra-ordinary citizen. He is and remains a citizen.
Subject to proof of service and satisfaction of conditionalities and logistics for securing his attendance, the former President is competent and compellable to attend court to testify in the Metuh case.
This is no disrespect or affront either to GEJ in person or his former office.
It is rule of law in action.
It is consistent with the principle of equality before the law as enshrined in the Nigerian Constitution and universally recognised in the International Bill of Rights.
✔LOGISTICS AND COST OF SECURING GEJ'S ATTENDANCE TO COURT
Section 241 (2) of the Administration of Criminal Justice Act, 2015 expressly provides that-
"Where the Prosecutor is not a public officer, the person to whom the summons is addressed is not bound to attend unless his travelling expenses are paid to him."
Based on the foregoing, if Olisa Metuh, as defendant, satisfies the court that the appearance and testimony of the former President in court is necessary in the interests of justice then, subject to leave of court and on such terms as the court may impose, a subpoena ad testificandum will be served on him.
It is not in dispute that the former President is no longer a public officer. He is now a private person as he is no more in office.
To secure his attendance in court, he is therefore entitled to be paid "travelling expenses" by Olisa Metuh for him to attend and testify.
Hence, under section 241 (2) of the Administration of Criminal Justice Act, in determining what will be GEJ' s "travelling 📌expenses", the court is entitled to recognise that it will involve a measure of heavy logistics and security and transport costs to move the former President to a court in Abuja from his Otuoke country home and strike a reasonable balance.
We must accentuate that the law is no respecter of persons but the law does not also despise people.
A former President is not to be despised but he cannot be made a first class citizen over and above other citizens.
This is the delicate balance the court must and will strike.
✔A WRIT OF SUBPOENA MUST BE OBEYED ONCE PROPERLY SERVED
Subpoena is a mandatory command or order of court and must be obeyed by all with all the seriousness it deserves.
Once the Subpoena is duly served on GEJ, he must attend court to testify.
✔FAILURE, NEGLECT OR REFUSAL TO ATTEND TO TESTIFY AMOUNTS TO CONTEMPT OF COURT WITH DISASTROUS CONSEQUENCES
In a long line of cases decided by the superior courts, it has been firmly established that upon proper service and consequential proof of same, if a person summoned to give evidence or to produce a document by the Court fails to attend, at the time and place mentioned in such subpoena, to give evidence or to produce the specified documents, such failure or refusal amounts to contempt of court punishable either by a fine or imprisonment or both, unless the person excuses his failure or refusal to the satisfaction of the court.
Where a subpoena is issued to produce a document, or to give evidence, the failure to do so, is not a subject of adverse finding by the Court.
The proper step to be taken by the Court in accordance with the law, is to issue a committal warrant for disobedience of the subpoena.
■See the cases of BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941), AKANNO v. NIGERIAN ARMY (2000) FWLR (Pt. 83) 2212.
■See section 253 (2) of the Evidence Act, 2011.
■See generally the book,
Obiaraeri N.O., Contemporary Law of Evidence in Nigeria, Whitmont Press Ltd, Crayford Kent, United Kingdom, (2012) pp. 239, 347-361.
✔CONCLUSION
Not to be informed or properly guided about the true state of the law is to be deformed.
Citizenship education and continuous legal enlightenment are indispensable in a thriving democracy.
Olisa Metuh, as defendant in the criminal complaint, is within his right to ask through the trial court that the former President be made to attend court to testify on his behalf and in his defence.
This may be the first time such a thing is happening but it is not against our law.
It is an application within and known to our laws and a court is within its right to so order subject to being satisfied that the interest of justice will be served.
As this matter is still pending in court with all the drama and histrionics and legal fireworks that go with it, we await the outcome and reasoned judgement or decision of the Court.
As the Court Pleases!
A new normal is possible...Biko gwazie ndi yard unu inugo!
Prof Obiaraeri N.O. Ph.D (Law) etc.
☆☆☆☆☆5-Star Civilian General
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