Justice Usman Musale of an Abuja High Court sitting in Kubwa has fixed Friday 26 July 2013 to rule on whether or not it will stay proceedings in the matter of an alleged forgery of presidential directive bromide published in LEADERSHIP newspaper of April 3, 2013.
The federal government had on 27 June 2013 re-arraigned the Group News Editor, Tony Amokeodo and Senior Correspondent, Chibuzo Ukaibe, both of the LEADERSHIP newspaper on an alleged 11 counts bordering on conspiracy and forgery.
But the journalists through their lawyer Femi Falana is asking for an order of the court to suspend further proceedings in the matter indefinitely to await the end of the term of President Goodluck Jonathan to enable him to testify as a witness for the accused persons/applicants.
At the resumed hearing of the application on Tuesday, Mr Falana premised his motion on the grounds that the fundamental right of the accused persons to fair hearing cannot be observed by the trial court as their application for the issuance and service of subpoena ad testificandum on President Jonathan has not been granted by the court.
Mr Falana said, “By virtue of section 308 of the 1999 CFRN, as amended, this honourable court lacks the vires to issue and caused to be served, a subpoena ad testificandum on the president and commander-in-chief of the armed forces of the federal republic of Nigeria, Dr. Goodluck Jonathan, GCFR to testify as a witness for the accused persons in this case.
“The accused persons are inhibited from obtaining the attendance of the president and commander-in-chief of the armed forces of the federal republic of Nigeria, Dr. Goodluck Jonathan to testify as a witness for the accused persons in this case.”
He stressed that by the virtue of section 308, the accused persons/applicants are constitutionally disabled to summon Jonathan to give evidence in this case and he cannot do that until he leaves office.
“There is a conflict between sections 36 and 308 of the constitution. We urged the court to take a judicial notice of the fact that in the hierarchy of superiority of the provision of the constitution, section 36 takes precedence. This is because chapter 4 of the constitution can only be amended by 4/5 majority, while section 308 can be amended by a 2/3 majority.
Therefore, the rights of the accused applicants enshrined in section 36 cannot be sacrificed at the altar of section 308”.
On the issue of subpoena to the president, Mr Falana admitted that he applied in error and was equally issued in error and therefore argued the court to set it aside.
“We pray the court to set aside the subpoena while we wait the end of tenure of President Jonathan to enable him come and testify in this case. We urged the court to grant our application in the interest of justice and fair hearing”.
But the lead prosecuting lawyer for the federal government, Adegboyega Awomolo had opposed the application in an 11-paragraph counter –affidavit and argued that the journalists did not place sufficient grounds before the court to warrant it to grant the request.
He said, “The application is seeking my lord’s discretion and that discretion must be exercised judiciary and judiciously. In this case, the court is not to speculate or guess or anticipate or act on mere emotions. There must be a strong ground or fact, verifiable fact, which the court can perceive itself. In this case, there is no fact at all to justify the court to call Jonathan. They are relaying on mere demand.
The law looks at what you desire not what you want. It is not shown in the affidavit that Jonathan gave them the forged documents; therefore the court must have core evidence on record. The complainant is the federal government and not Jonathan”.
Anchoring his argument on ground 8 of the counter-affidavit, Mr Awomolo argued that fundamental rights under chapter 4 of the constitution are not absolute.
According to him, “It is circumscribed by other provisions of the constitution and other
enactments. Moreover, section 308(1) takes away every right under section 36 because it says notwithstanding anything. It is not also a law that any section of the constitution is superior to the other but where latter is inconsistent with the earlier provision, the law presumes that the latter prevails”.
On reason 9 of his counter, the prosecutor argued that there is no conflict between the interest of an individual and conflict with the right of the state to prosecute criminal offences created by the status.
“The right of individual must give way because the corporate entity call Nigeria is bigger and more obligatory than that of an individual. The duty of this court to proceed with the criminal trial exemplified the corporate existence of the federal republic of Nigeria which individual cannot stop because it overrides personal interest”.
He therefore urged the court to dismiss the journalists’ application for stay of proceedings.