Court Reserves Ruling on DSS DG’s Testimony in Sowore Trial
The Federal High Court sitting in Abuja has reserved ruling until October 6, 2026, on whether the Director-General of the Department of State Services (DSS), Mr. Tosin Ajayi, can be compelled to appear in person and testify as a defence witness in the trial of African Action Congress presidential candidate, Mr. Omoyele Sowore.
Justice Mohammed Umar fixed the date after hearing arguments from both parties over a subpoena issued at the instance of the defence and directed at the DSS Director-General.
Sowore is being prosecuted by the DSS over posts he published on X and Facebook in August 2025, in which he described President Bola Ahmed Tinubu as a “criminal” and accused him of lying about the level of corruption in the country.
Following an amended charge filed on December 5, 2025, Sowore was re-arraigned on two counts. He pleaded not guilty to the charges, after which the prosecution called its witnesses and tendered exhibits before closing its case on March 16, 2026.
The defence subsequently obtained an order of the court requiring the DSS Director-General to appear and testify.
Counsel to Sowore, Mr. Adeyinka Olumide-Fusika, SAN, told the court that the decision to subpoena Ajayi in his personal capacity was prompted by the evidence of the second defence witness, Mr. Uwem Davies, a DSS official.
According to the defence counsel, Davies repeatedly stated during his testimony that only the Director-General could answer some of the questions put to him.
The issue of the Director-General’s appearance had previously come before the court on July 28, 2026, when the Attorney-General of the Federation and Minister of Justice, Mr. Lateef Fagbemi, SAN, appeared in court and led the prosecution team.
Fagbemi argued that it was inappropriate for the defence to insist on the personal attendance of the DSS Director-General. Following discussions, the parties reached an understanding that an official of the DSS would be nominated to appear in his place.
However, the defence told the court that the understanding had broken down because no proper arrangement was made for the nominated witness to appear.
“I was informed that the service of hearing notice was effected on the DSS but I’ve not seen any sign that he is here this morning,” Olumide-Fusika said.
“At the last adjourned date, we had an understanding that rather than pursuing the DG to appear, we opted to go for any officer to appear. Since no witness is here, we are insisting now that the DG himself should come. The order of the court and the hearing notice was directed at him, so, he has to be in court.”
He further argued that the prosecution had repudiated the previous understanding between the parties.
“The prosecution repudiated the understanding we had, therefore, the DG has to come. The subpoena did not say any officer, it was directed to the DG, specifically,” he said.
Olumide-Fusika also argued that the Attorney-General had never filed any process in the case and that statements made by him during his appearance in court should therefore be discountenanced because he was not the person who filed the charge.
“It was the understanding we had with the AGF that made us to ask any officer to appear and the prosecution has repudiated it. For the Prosecution to come to court this morning and behave as if there was never any understanding, we must draw a line, we are tired of being tossed around,” he said.
However, prosecuting counsel, Mr. Akinlolu Kehinde, SAN, argued against the defence’s insistence on the personal attendance of the DSS Director-General.
Kehinde told the court that a DSS official had been designated to testify on behalf of the Director-General, was present in court and was ready to give evidence.
He relied on the Supreme Court’s decision in Ishaq v Soniyi (2002) ALL FWLR Part 498, page 347 at 373, which he said established that where a subpoena is directed to a named official, it would be absurd to insist that only the named officer must appear in compliance with it.
According to him, the DSS Director-General has no personal interest in the case and acted in his official capacity. He argued that requiring him to personally attend proceedings would be impractical, particularly because the DSS has cases before various divisions of the Federal High Court.
“On 28 July, 2026, the AGF led me when this issue came up. The DG of DSS’ name appears in the subpoena in his personal capacity and the AGF argued that where the name of a person, who is acting in a position in office appears in a subpoena, it will be absurd for the person to come to court because it’s not a personal matter,” Kehinde said.
“That is why an officer from that office is here to give evidence. He has no personal interest in this matter, therefore, if they are not willing to go on, the court should close their case because we must make progress in this matter. The witness from the DSS is available. It is not an act of charity that the prosecution agreed to send an officer.”
Kehinde also urged the court to consider the age of the case and the fact that the prosecution had already closed its case.
“This case is over a year old. The prosecution closed its case since March 16, 2026. It is not an act of charity on the part of the defence to argue that, at a point it agreed that an official of the DSS should come, but now it is insisting on the DG alone,” he said.
He maintained that the decision on who should appear in court rested with the court and not the defence.
“The decision as to who should attend court is at the discretion of the court, not that of the defence. An official of the DSS is competent to give evidence in place of the DG,” he said.
Justice Umar, after hearing the arguments from both sides, reserved ruling on the issue until October 6, 2026.
