ABUJA— LAGOS lawyer, Chief Gani Fawehinmi, practically exploded yesterday at the Abuja High Court after Governor James Ibori of Delta State opposed his (Fawehinmi's) bid to invite the Chief Judge of Abuja High Court, Justice Lawal Gummi, to testify in the on-going trial ordered by the Supreme Court confirming whether the governor is an ex-convict.
Chief Fawehinmi (SAN) is representing two members of the ruling PDP, Messrs Goodnews Agbi and Anthony Alabi, who procured the subpoena issued on the Abuja High Court judge to give evidence in the matter.
Justice Gummi, the governor averred, could not testify yet in the case until those that procured the subpoena issued on him complied with the law. Governor Ibori said section 229 (1) of the Evidence Act was clear on the matter which provides that the leave of the court must first be sought before the process was issued.
The section reads: “When a subpoena or summons has been issued by any court in any state or in the Federal High Court in the exercise of its civil jurisdiction in accordance with any power conferred by law requiring any person to appear and give evidence or to produce books or documents in any proceedings, such subpoena or summons may upon proof that the testimony of such person or the production of such books or documents is necessary in the interest of justice by leave of such person in any other state or Federal Capital Territory .
Governor Ibori’s lawyer, Chief Paul Ovhoworiole (SAN), said: “We are not saying that they cannot call their witnesses. All we are saying is that the normal procedure must be followed. The procedure cannot be waived.”
But Chief Fawehinmi, replying said: “I am surprised that a defendant is opposed to calling a witness. Ah, ah, I have never seen this type of thing in my life. What type of law are we practising in this country? Why should Ibori oppose my application to call witnesses? Why should Ibori say that I cannot serve them subpoena when my lord had already signed them? I do not understand this.
“When he served his subpoena on the chief registrar of the Abuja High Court to tender documents in this matter, nobody raised any eyebrow. He did not obtain the permission of this court and the court signed it. When he issued same on the Inspector -General of Police, no permission of this court was obtained and it was not only signed, it was also issued and the police are here.
“When I invited former judge of the Bwari Upper Area Court, Justice Awwal Yusuf, the subpoena was signed and it was issued. Justice Yusuf came and he is still here with us. When I am now calling the Abuja High Court chief judge who has not said that he is not interested in coming, they are saying we did not obtain the permission of the court and, therefore, he cannot come
“The Abuja High Court judge, Justice Gummi, is needed in this court to give evidence on a constitutional role he played in investigating an allegation that some court officials tampered with court records. He was mandated by the Chief Justice of Nigeria to probe this matter. He did it and turned in a report. That report is needed now for this case. He is also needed to make clarifications on some of the activities of the committee which he headed but which cannot be included in his report.
“But I am being told now that I cannot call him to tender the document which indicted Governor James Ibori. I cannot understand this,” he added.
As soon as Chief Fawehinmi mentioned a document which allegedly indicted Governor Ibori, Chief Ohvoworiole, defending Governor Ibori in the case, rose from his seat and said: “Counsel should be counsel of law and not counsel of opinion. We cannot be counsel of facts. I will refer the court to section 229 of the Evidence Act on the issuing of subpoena. It is not automatic. He should ask for the leave of the court.
“If he knows that he wants to bring somebody from Delta, for instance (referring to the Governor of Delta State), he must pay for his transport, accommodation, and things like that. This is the law.
“All these are the shortcomings in the subpoena issued. I am objecting because we are all officers of the court. We must follow the rules of the law. If he must bring any other witnesses, he must satisfy the court on why he is inviting them. He must convince the court,” he said.
It was at this juncture that the presiding judge reflected on the submission of Chief Ohvoworiole on the provisions of section 229 of the Evidence Act and said Chief Fawehinmi could leave Delta Governor for now and invite other witnesses since he had subpoenaed others.
But Chief Fawehinmi said that the witness he wanted in the witness box now was the Abuja High Court chief judge and not Governor Ibori.
He said he was aware that he had filed an application challenging the subpoena issued on him, stressing that since the application was yet to be moved, there was nothing that could be done now.
He told the judge that his next witness whose evidence was fundamental to their case now was the chief judge of the Abuja High Court.
According to him, after his evidence, decision would be taken on whether to close their case or not.
His words: “The next witness we have now is the Abuja High Court judge. After his evidence, we shall determine whether to close our case or not. But the point is that they cannot determine for us who to call as our witness. The report Justice Gummi is coming to tender in court is a constitutional report. It is he only that can tender it and not the chief registrar of the court. We thank you for accepting the chief judge as our next witness,” he added.
But the argument of Chief Fawehinmi appeared not have convinced the presiding judge who insisted that in view of the nature of the subpoena issued, it was necessary for both lawyers in the case to address him on whether the subpoena could be issued in the first place without the necessary permission of the court.
Responding, Chief Fawehinmi said: “But we served these subpoena about two weeks ago. There have been no returns from the registrar to the effect that they have not been able to serve them,” to which the court answered that they had all been served, adding: “If the court has signed the subpoena and it has been served, all we want to know is whether it is the chief judge that is objecting to coming or not . All the witnesses that have come to testify before you, you have not raised the issue bordering on the leave of the court. Why is this issue of leave being raised now?
“My lord, what I am worried about is the legal system of this country. We served subpoena on about six people. Why is it that this question is being raised now when it is the turn of the chief judge to testify. This is too novel, strange and serious for the legal system of this country.”
Chief Ovhworiole cut in, saying section 229 (1) caught up with them, stressing that they must get the permission of the court. Both parties, however, agreed to address the court orally on the issue on Monday so that the trial could continue.
Earlier, Chief Fawehinmi had lost two applications to Governor James Ibori during the re-examination of his witness and former Area Court Judge of Bwari, Justice Awwal Yusuf. Chief Fawehinmi, who said since the purpose of re-examination was to clear all ambiguities, told the court that a particular fact was hanging. The fact, according to him, related to a piece of advice Justice Yusuf claimed he gave to Governor Ibori to file a civil suit before the court to identify who was really convicted in the case. Chief Fawehinmi said since reference was made to the issue, nobody knew whether the advice of Justice Yusuf was followed at all or not.
In a bid to clear the ambiguity, he sought to tender a certified true copy of the civil suit filed by Governor James Ibori in line with the advice of Justice Yusuf but the move was opposed by the defence.
Following legal arguments by both parties on the admissibility of the document, the court ruled against Chief Fawehinmi on the grounds that the document was not pleaded by them.
Another application seeking to tender a certified true copy of the record of proceedings of September 28, 1995 was also rejected. The defence was of the view that since Chief Fawehinmi had earlier tendered a compendium of all the documents relevant in the case from the Upper Area Court to the Supreme Court, all certified at the apex court, it said it was objecting to piecemeal tendering of another rounds of documents in the matter.
According to the defence, if allowed, would introduce ambiguity rather than clearing them.
Although he lost the two applications to Governor Ibori, he hinted that he would still apply to tender the two documents by seeking the leave of the court where necessary.
Meanwhile, Governor Ibori yesterday hinted that he would challenge all other subpoenas issued by the court at the request of Chief Fawehinmi’s clients.
By implication, four other witnesses including the director-general of the SSS, the secretary of the National Population Commission and a top official of INEC already subpoenaed would not come to give evidence in the matter until the procedure for the issuance of the processes is followed.
The governor had himself initiated a legal action to stop Messrs Goodnews Agbi and Anthony Alabi from dragging him before the court to face an Upper Area Court judge, Justice Awwal Yusuf, over the allegation that he is an ex-convict for the purpose of giving evidence in the case.
