Daily Independent Online.
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Wednesday, July 21, 2004.
Ibori: Gani loses Round One
•CJ need not testify, Judge rules
By Rotimi Fadeyi
Senior
Correspondent, Abuja
An Abuja High Court
ruled on Tuesday that Chief Judge of the Federal Capital Territory (FCT),
Justice Lawal Gummi, need not be invited to testify in the case against Delta
State Governor James Ibori, filed by Goodnews Agbi and Anthony Alabi.
The issue had been
hotly contested by counsels to both sides, with Gani Fawehinmi, leading counsel
for the plaintiffs, presenting a 44-page written submission and arguing on his
feet for over an hour, on how important it was to his case and to law that
Gummi be allowed to testify in person. He had cited a plethora of cases from
the 1960s to present day and from the Supreme Court to the lower ones.
As the essence of
Mukhtar’s ruling was sinking in, Fawhenhimi beckoned on Turner Ogboru,
the younger brother of Great, Ibori’s political opponent and governorship
candidate of Alliance for Democracy (AD).
As Turner walked back
to his chair, Fawhenhimi stood up and announced: “It is true that we issued
several subpoenas on INEC (Independent National Electoral Commission), NPC
(National Population Commission) and a host of others. At this stage, what is
next is the identity of the person convicted. The plaintiffs are therefore
closing their case. The report of the Chief Judge has identified who was
convicted. Yusuf has testified too. The defence takes over”.
The coast is clear for
Ibori’s lead counsel Paul Milton Ohwovoriole to open his defence next
week Tuesday.
Even when Fawenhinmi
was presenting plaintiffs’ case, Ohwovoriole contested every inch with
him. From next week, it would be Ibori’s turn to present his own side of
the story and call in the witnesses.
Mukhtar, in his
ruling, said that the subpoena duces tecum ad testificandum (to testify and give evidence)
issued on Gummi was not necessary since the only reason for his subpoena was to
tender a document, which is his report on the investigation he conducted into
the case, as directed by Justice Muhammadu Lawal Uwais on the orders of
President Olusegun Obasanjo following the petition to Obasanjo by Ibori that
court records of the Bwari Upper Area Court were falsified to indict him as an
ex-convict.
The judge said since
the report that Gummi was being invited to court to tender was already in possession
of the plaintiffs’ lawyer (Fawehinmi), such document could be tendered
from the bar without necessarily inviting the Chief Judge to do so.
Said Murhtar: “One wonders why the Chief Judge
should be subpoenaed to tender document which is already a public document
already in possession of the applicant. The Chief Judge is only involved in the
matter because of the report submitted to the Chief Justice of Nigeria, which
report is a public document, if such report is in the plaintiffs’
possession, it could be tendered from the bar if other counsel in the matter
had conceded to the report being tendered from the bar”.
He declared that the subpoena issued on
Gummi is discountenanced and the report be tendered from the bar to enhance the
quick dispensation of justice, adding that the report would be considered when
he delivers ruling on the substantive case.
Murhtar also clarified
whether Gummi was a competent and compellable witness, stressing that from the
provisions of section 229 of the Evidence Act the Chief Judge is a competent
witness and equally compellable since he enjoys no immunity - there is
nothing in law that stops service of subpoena on the Chief Judge and any other
judicial officer.
Saying that leave of
court was not required to issue and serve subpoena on Gummi since he
“lives and works within jurisdiction”, Murhtar explained that where
a judicial officer conducted investigation outside court matters, there is need
to give reasons why he is needed.
He said: “But in
the absence of any reason given in an application for subpoena, the court has
to look at the applicant for the court to be convinced of such reasons”
and noted that the reasons for the subpoena issued on the Chief Judge was
stated in paragraph 9 of the plaintiff’s statement of claim and paragraph
2 of their reply to the statement of defence, which was for him to tender
report of his investigation on the matter.
On whether a witness could be stopped
from testifying in court for any party in court, Murktar said nobody has the
right to pick and choose witnesses for the plaintiffs.
With the consent of counsel in the
matter and without any objection from the legal team of Ibori, Gummi’s
report was tendered by Fawehinmi which the court admitted in evidence as
Exhibit F.
It follows the earlier
admission of the judgment of the Supreme Court as Exhibit A; the entire record
of the case from the high court through the Appeal Court to the Supreme Court
as Exhibit B; the Bwari Upper area Court Criminal Complaint Book (Exhibit C);
the Bwari Upper Area Court Criminal Record Book as Exhibit D; the two separate
statements of Justice Awwal Yusuf of the Bwari Upper Area Court as Exhibit E1
and E2.
The court also gave the nod to the
defence team to amend their statement of defence.
Reacting to the ruling,
Ohwovoriole said its import is that the judiciary has been saved from
embarrassment. “We have said that the report could be tendered from the
bar instead of bringing dignitaries like the chief judge of the Federal Capital
Territory to court for publicity stunts”.
Ohwovoriole said he would not disclose the import of the
first round victory yet. But Delta State Attorney General Amos Utuama described
the ruling is a major victory, adding: “Come Tuesday, we will open our
defence, you will know the truth”.
