Femi Falana, Tony Amokeodo and Chibuzo Ukaibe of LEADERSHIP By SaharaReporters, New York An Abuja High Court sitting will on Friday rule on whether to suspend proceedings in the case of the alleged forgery of the bromide of a presidential directive that was published last April by LEADERSHIP newspaper. The conundrum concerns whether President Goodluck Jonathan should be invited to testify while he is still in office. It would be recalled that on June 27, the federal government re-arraigned Tony Amokeodo and Chibuzo Ukaibe of LEADERSHIP on 11 counts of conspiracy and forgery. The journalists, through their counsel, Femi Falana are seeking for an order of the court to suspend further proceedings in the matter indefinitely until the end of the term of President Jonathan to enable him to testify as a witness for the accused them. Yesterday, during the resumed hearing of the application, Mr. Falana argued that the fundamental rights of the accused persons to fair hearing cannot be observed by the trial court because their application for the issuance and service of subpoena ad testificandum on President Jonathan has yet to be granted by the court. “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,” he said. He drew the attention of the court to the fact that by the virtue of Section 308, the accused persons/applicants are constitutionally disabled in terms of summoning Jonathan to give evidence in this case until he leaves office. “There is a conflict between sections 36 and 308 of the constitution. We urge 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 2/3 majority, while section 308 can be amended by a simple 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, Falana admitted that he had applied in error and that it 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 the tenure of President Jonathan to enable him come and testify in this case. We urge 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, 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 judicially 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, Awomolo argued that fundamental rights under chapter 4 of the constitution are not absolute. “It is circumscribed by other provisions of the constitution and other enactments,” he said. “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 the 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. Continuing his argument against the journalists’ application for stay of proceedings, he said, “The right of the individual must give way because the corporate entity called 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 the individual cannot stop because it overrides personal interest”.
Posted on: Tue, 23 Jul 2013 20:42:38 +0000
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