Prosecuting counsel in the trial of Omoyele Sowore has asked the Federal High Court in Abuja to reject the defence’s insistence that the Director-General of the Department of State Services (DSS), Oluwatosin Ajayi, must personally appear to testify as a defence witness.

The argument arose during Friday’s resumed hearing before Justice Mohammed Umar, as the court considered whether Ajayi should be compelled to appear in person following a subpoena issued to him.

The prosecution’s position, as reported from the hearing, is that another authorised DSS official can give evidence concerning actions taken by the agency.

Prosecution cites Supreme Court decision

Prosecution counsel Akinlolu Kehinde, SAN, argued that requiring the named head of an institution to personally attend every proceeding involving that institution would be impractical.

He relied on the Supreme Court decision in Ishaq v. Soniyi (2002), which he said supports the position that a subpoena directed to a named public officer does not necessarily mean that only that individual can appear where the evidence concerns official institutional actions.

Kehinde told the court that the DSS had designated an official to represent the Director-General and that the official was available to testify.

He also argued that Ajayi had no personal interest in the proceedings and was being called because of his official position.

The prosecution further maintained that the DSS handles cases in several divisions of the Federal High Court, making it impractical for its Director-General to personally attend every proceeding.

Defence insists Ajayi should appear

Sowore’s lead counsel, Adeyinka Olumide-Fusika, SAN, took a different position.

The defence argued that the subpoena and hearing notice specifically named the DSS Director-General. Consequently, it maintained that Ajayi should personally appear before the court.

According to the defence, the subpoena was issued after a DSS witness, Uwem Davies, indicated during his testimony that certain questions could only be answered by the Director-General.

The defence also complained that an earlier understanding that another DSS official could represent Ajayi had not been honoured because the designated official was allegedly not produced at the previous sitting.

The dispute therefore centres on whether the court can require the DSS Director-General personally to give evidence or accept another official as a substitute.

Court reserves ruling

Justice Mohammed Umar subsequently adjourned the proceedings until October 6, when the court is expected to rule on whether Ajayi can be compelled to appear personally and testify.

The ruling will determine how the defence proceeds with that aspect of its case.

Background to the Sowore case

Sowore, publisher of Sahara Reporters and a presidential candidate of the African Action Congress (AAC), is being prosecuted by the DSS over social-media publications concerning President Bola Tinubu.

The prosecution alleges that posts published by Sowore in August 2025 constituted offences under Nigeria’s cybercrime laws. Reports on the proceedings have described the case using terms including cybercrime, cyberbullying and cyberstalking.

The defence has disputed aspects of the prosecution’s case and has sought evidence from DSS officials as part of its defence.

Why the DSS Director-General’s testimony matters

The dispute over Ajayi’s appearance is not simply about who occupies the witness box.

It concerns a broader evidentiary question:

When a government agency is involved in a criminal case, must its head personally testify about institutional actions, or can another authorised officer provide the relevant evidence?

The answer will depend on the court’s interpretation of the subpoena, the nature of the evidence sought and the applicable rules of evidence and procedure.

The issue has previously surfaced in the proceedings. In July, the Attorney-General of the Federation, Lateef Fagbemi, SAN, appeared during proceedings concerning the subpoena to Ajayi, after which discussions between the parties resulted in an arrangement for another DSS official to appear.

Previous developments in the case

The trial has generated several procedural disputes.

In August, the case returned to court amid disagreement concerning the appearance of the DSS Director-General and the role of the Attorney-General in the prosecution.

The DSS subsequently announced that it would suspend the prosecution until after the 2027 presidential election, a development that was criticised by Sowore’s lawyers, who said the defence had not been formally notified before the announcement.

Those developments are separate from the immediate question now before Justice Umar concerning the personal appearance of the DSS Director-General.

What happens on October 6?

The court’s ruling is expected to clarify: whether Ajayi must personally appear, whether another DSS official can testify on his behalf, how the subpoena should be interpreted, how the defence’s pending evidence will proceed.

Until Justice Umar delivers the ruling, neither the prosecution’s position nor the defence’s position on the personal appearance of the DSS Director-General has been judicially determined.