Justice Okon Abang of the Federal High Court in Abuja on Tuesday affirmed the order of subpoena compelling former President Goodluck Jonathan and a former National Security Adviser, Sambo Dasuki, to appear in court with respect to the trial of the National Publicity Secretary, Mr. Olisa Metuh, on Wednesday.

But challenging the subpoena summoning him to appear in court on Wednesday, Dasuki, through his lawyer, Mr. Ahmed Raji (SAN), told the court on Tuesday that it would be self-incriminating for him if he was made to testify in the case.

Justice Abang, after hearing Raji as well as the prosecution and the defence, both of whom opposed Dasuki’s application on Tuesday, fixed Wednesday for ruling.

But the judge insisted that despite Dasuki’s opposition to the motion, he (the ex-NSA) and Jonathan must appear in court on Wednesday.

The judge ruled, “The outcome of the ruling will determine which step to take about the first subpoena (the one issue on Dasuki), but the orders compelling His Excellency, former President Goodluck Jonathan, and Col. Sambo Dasuki (retd.), to appear in court on Wednesday, October 25, 2017 at the instance of the first defendant (Metuh) still stand.”

Justice Abang had issued separate subpoenas on Jonathan and Dasuki upon applications by Metuh, who had requested the two men to testify in his defence in his ongoing trial.

The Economic and Financial Crimes Commission is prosecuting Metuh and his company, Destra Investments Limited, on seven counts of money laundering involving alleged cash transaction of $2m and fraudulent receipt of N400m meant for procurement of arms from the Office of the NSA.

The prosecution alleged in the charges that Metuh and his firm used the N400m for the PDP’s campaign activities during the 2015 presidential election.

The sum of N400m was alleged to be “part of the proceeds of unlawful activities” of the immediate past NSA, Dasuki.

So far, most of the defence witnesses, including Mr. Ben Nwosu, who ended his testimony earlier on Monday, had insisted that the sum of N400m paid to the ex-spokesperson for the PDP from the Office of the NSA in November 2014, the money being part of the case against Metuh, was directly authorised by Jonathan.

The defence legal team had insisted that given the roles which Jonathan and Dasuki played in the N400m transaction, both men were needed as witnesses in the case.

Justice Abang, during the resumed hearing on Tuesday confirmed The PUNCH’s exclusive story published on Tuesday that he (the judge) had, in his chambers after the Monday’s proceedings, signed the subpoena to be served on Jonathan.

Confirming the issuance of the subpoena, Justice Abang said on Tuesday that he received Metuh’s application for the summons to be served on the ex-President at about 3.59pm on Monday.

The judge said, “Indeed, at the close of business yesterday (Monday) being October 23, 2017 precisely at about 3.59pm, the registrar forwarded to the court in chamber a subpoena to compel former President Goodluck Jonathan to appear in court to testify at the instance of the first defendant (Metuh).

“Therefore, in line with Section 241(1) of Administration of Criminal Justice Act 2015, and having regard to the subsisting judgment of the Court of Appeal in the appeal, CA/A/159C/2017, between Olisa Metuh and the Federal Republic of Nigeria dated September 29, 2017 to the effect that it will be tantamount to violating the right of the first defendant (Metuh) to fair hearing not to sign the subpoena, I have no option but to sign a subpoena to compel former President Goodluck Jonathan to appear in court on October 25, 2017 (Wednesday) to give evidence at the instance of the first defendant.”

But while being interrogated by the judge on Tuesday, a registrar of the court said the bailiff of the court had yet to serve the subpoena on Jonathan as of Tuesday morning.

The court official said the bailiff could not be reached after the judge signed the subpoena late on Monday.

He said the bailiff had therefore promised to pick up the subpoena for service on Jonathan on Tuesday.

Meanwhile, a source who confirmed the issuance of the subpoena to The PUNCH on Monday, had indicated that Jonathan’s court appearance on Wednesday would be dependent on whether or not the ex-President would be served with the subpoena on or before Tuesday.

However, arguing Dasuki’s application on Tuesday, his lawyer, Raji, prayed the court to set aside the subpoena served on the ex-NSA or suspend the execution of the court summon until he (Dasuki) was released from prison.

The application was opposed by both the prosecuting counsel, Mr. Sylvanus Tahir, and the two defence lawyers, Dr. Onyechi Ikpeazu (SAN) (for Metuh), and Chief Tochukwu Onwugbufor (SAN), (for Destra Investments).

In his argument in support of the motion, Raji contended that long unlawful detention in the custody of the Department of State Services since December 2015, had deprived Dasuki of ability to give meaningful evidence in the case.

He said the DSS continued to detain Dasuki despite being granted bail by three separate municipal courts and also to be released by the ECOWAS Court.

He said with his client’s continued detention, the ex-NSA had no access records that could enable him to give meaningful evidence.

Raji said, “In sum, my lord, up till this morning, all these facts are not controverted by the respondents. He was the National Security Adviser from 2012 to 2015, almost four years, and he treated many files, but he has been in detention for two years.

“Giving evidence is something that has to do with state of the mind and recollection of events. The detention is not lawful and all the circumstances combine to completely disorient him.Most importantly, my noble lord, he has no access to documents which he can make use of.

“He is willing and ready to assist the court but he is disabled and unable, that is why we are appealing in Prayer 2 that the court should sympathetically suspend the operation of this subpoena pending his release from detention.

The law does not and cannot command what is impossible.”

He also argued that from the nature of the charges instituted against Metuh, Dasuki could be said to be an alleged co-accomplice.

Raji argued that, therefore, the ex-NSA would “not be able to give evidence in the case without incriminating himself.”