Ibori: Court rules today on whether Abuja CJ can testify
JOSEPH NWANKWO, Abuja
JUSTICE Hussein Muktar of the Abuja High Court will today decide whether
the court�s Chief Judge, Justice Lawal Gumi, can be summoned to testify in
the case to ascertain the identity of the James Onanefe Ibori that was convicted
in 1995 by a Bwari Upper Area Court
Muktar reserved ruling on Monday after the conclusion of arguments by the
opposing counsel, Chief Gani Fawehinmi (SAN) and Chief Milton Ohwovoriole
(SAN)
Fawehinmi is representing the plaintiffs, Goodnews Agbi and Anthony Alabi,
who are contending that the convict is Ohwovoriole further submitted that:
�the Chief Judge having produced the report, such a report can be tendered
from the bar, being a public document, if the conditions precedent have been
satisfied, it could have been a different thing if the Chief Judge could not
tender the report to them
�We humbly submit that our courts should not under any guise be turned into
a drama theatre where dignitaries are summoned for publicity stunts, such
a practice should be discouraged, � I submit that if all the Chief Judge is
being subpoenaed is to tender a report, and we are not opposed to its admission,
what is left is the weight to be attached to it, if it is later found to be
an inadmissible document, the court has power to expunge it.� the Delta State
Governor, Chief James Onanefe Ibori, while Ohwovoriole is representing the
governor, who is disputing their claim.
In his submissions, Fawehinmi told the court that Gumi had in a report to
the Chief Justice of the Federation, Justice Muhammadu Uwais, stated that
the governor was the one convicted by the Area Court for criminal breach of
trust and negligent conduct in 1995.
On whether Gumi was liable to be issued with a subpoena �duces tecum ad testificandum�
(to testify and produce documents), he said the particulars of the chief judge�s
report were not only relevant to the identity of the convict but that they
were explicitly pleaded in paragraph 9 of the plaintiffs� statement of claim.
According to him: �a petition was written by the 4th defendant, (Ibori) to
the President of the Federal Republic of Nigeria with regard to matters relating
to the conviction of the James Onanefe Ibori dated Monday January 27, 2003.
�The President sent the petition to the Chief Justice of Nigeria who is the
chairman of the National Judicial Council (NJC). The President did this pursuant
to the provision of the 1999 constitution as contained in the third schedule
part 1 items 20 and 21,� he added.
He further submitted that: �the CJN as the chairman of NJC sent a copy of
the petition to the Chief Judge of FCT, Abuja to investigate the matter. The
Chief Judge of the FCT High Court, Justice Lawal Hassan Gumi, conducted investigation
into the matter in February 2003 and came out with a report, which he submitted
to the Chief Justice of Nigeria.
�On the application by the plaintiffs� counsel, Chief Gani Fawehinmi (SAN),
to the Chief Judge of the High Court of the Federal Capital Territory, the
Chief Judge gave him a certified True Copy (CTC) of the report and certified
copies of the attachments to the report� he added.
Fawehinmi maintained that in the report, the Honourable Chief Judge concluded
thus:
�From all available evidence, it is clear that the Upper Area Court, Bwari,
tried and convicted James Onanefe Ibori for negligent conduct and criminal
breach of trust on September 28, 1995.
�Such evidence also points to the fact that the present Governor of Delta
State was the same James Onanefe Ibori that was tried and convicted on September
28, 1995 for the offences stated,� he added.
Fawehinmi further submitted that the report of the FCT Chief Judge is relevant
to the case before the court, adding that the sole issue before the court
as sent down by the Supreme Court in its judgment delivered on February 6,
2004 for determination is identify the James Onanefe Ibori convicted by the
Upper Area Court in 1995.
He said: �we submit that the report of the Chief Judge of the Federal Capital
Territory, Justice Lawal Hassan Gumi is relevant to the issue now before the
High court, that is the identity of the James Onanefe Ibori who was convicted
by the Upper Area Court in CR81/95 on September 28, 1995.�
On whether the Chief Judge can be subpoenaed to testify in the matter, Fawehinmi
submitted that under the 1999 Constitution, the Chief Judge enjoys no immunity
from civil process, noting that he can therefore be subpoenaed to testify
in a court of law.
Said he: �ordinarily, where Section 308 of the 1999 Constitution is applicable,
the chief Judge is not one of the public officers affected, consequently,
he is not immuned from any civil process. Even in respect of those who are
immune ordinarily that is the president, vice president, governor and deputy
governor, they are not so immune by the nature of the proceedings before this
court.�
He cited the case of Obi versus Mbakwe 1984, ISCNLR192, Alliance for Democracy
versus Fayose 2004 8 NWKR part 876 at 639.
Fawehinmi maintained that: �where the status of the governor is being challenged,
as in this case, then the said immunity is also questioned he has no immunity
against being sued and consequently he cannot be immuned from being subpoenaed.
He further averred that: �in so far as a witness is not covered by the immunity
clause in Section 308 of the constitution, and that person is not prevented
by any law of the land, such a person is a competent and compellable witness
to give evidence in the law courts. Competence of a witness is covered by
section 155 subsection 1 of the Evidence Act.
�Thus, in so far as there is nothing under the law that prevents the honourable
Chief Judge of FCT testifying in a law court, he is competent to testify and
give evidence in this suit. In the same vein, he is a compellable witness
because a subpoena can be issued on him.
Earlier, Ohwovoriole had told the court that the plaintiffs had placed no
materials before it to compel the attendance of the Chief Judge of FCT.
According to him: �unless the plaintiffs satisfies this court that such a
witness has a particular evidence in his custody to give, in respect of the
dispute,, necessary in the administration of justice, I am bound by the court�s
records that the Chief Judge has not been duly served.
�The Chief Judge having produced his report, such a report can be tendered
from the Bar, being a public document, if the conditions precedent have been
satisfied, it could have been a different thing if the Chief Judge cannot
tender the report to them� he added.
Ohwovoriole further averred that: �the fact that the subpoena has been issued
to a witness does not mean that he must automatically appear in court to testify
rather, the applicants must place before the court the type of evidence which
they seek the witness to give so as to enable the court to exercise its discretion
judicially and judiciously under section 229 of the Evidence Act.
�We submit that the Chief Judge of the FCT High Court is the head of the judiciary
in the territory, such important dignitaries should be shielded from honouring
such frivolous subpoena as the applicants have failed to show that he has
any other thing to do here other than tender the report. Such frivolous subpoena
should not be encouraged to preserve the integrity and reverence of the Judiciary,�
he added.
Ohwovoriole said: �Section 229 of the Evidence Act provides that the summons
or subpoena duces tecum testificandum, on a person or witness to produce documents
and testify can only be possible if the following provisions are satisfied:
· Proof that such a person is important to the interest of Justice,
in this instance there is no proof that the testimony of the person required
is attached;
· That the leave of court is obtained, there is nothing here to show
that the leave of this court has been obtained by the applicants.
· That the court imposes such terms as it deems fit and that the applicant
has satisfied same, but the applicants have failed to satisfy such. There
must also be evidence that personal service have been effected on the person
sought to be called as a witness.
�For a witness outside the Federal Capital Territory, like the fourth defendant
(Ibori) they must seek and obtain the leave of court to summon him but for
the Chief of the Federal Capital Territory, there are provisions for the service
of subpoena on him, the courts have always had inherent jurisdiction to summon
witnesses to give evidence or produce documents,� he added.
Ohwovoriole further submitted that: �under the inherent powers of this court,
section 6 (b) (a) of the constitution, the courts also have wide powers to
summon witnesses to give evidence and produce documents, under the rules of
the High Court in accordance with order 39 rule 28, the court cannot compel
a witness to testify unless the party at whose instance the witness is being
called has duly served the person sought to be summoned as a witness.
�I am bound by the court�s record that the Chief Judge of FCT has not been
duly served. The applicant must also satisfy the court that a person whose
testimony is being sought is important to the case, that such a witness has
a particular evidence in his custody to give in respect to the dispute necessary
for the adminis-tration of justice� he added.
He maintained that other than the averment in paragraph nine of the plaintiffs�
statement of claim, where they averred that the FCT Chief Judge produced a
report that there is nothing else throughout the statement that the Chief
Judge was said to have done, noting: �therefore he is not a necessary witness.�
Ohwovoriole further submitted that: �the Chief Judge having produced the report,
such a report can be tendered from the bar, being a public document, if the
conditions precedent have been satisfied, it could have been a different thing
if the Chief Judge could not tender the report to them.
�We humbly submit that our courts should not under any guise be turned into
a drama theatre where dignitaries are summoned for publicity stunts, such
a practice should be discouraged, � I submit that if all the Chief Judge is
being subpoenaed is to tender a report, and we are not opposed to its admission,
what is left is the weight to be attached to it, if it is later found to be
an inadmissible document, the court has power to expunge it.�
Tuesday, July 20, 1999
