The Federal High Court in Abuja has ordered the Chairman of the National Drug Law Enforcement Agency (NDLEA) to produce the list of agency personnel who were on duty at the Akanu Ibiam International Airport, Enugu, on January 19, 2022, in the ongoing trial involving suspended police officer, Abba Kyari, and four others.
Justice Emeka Nwite made the order after counsel to Kyari and Inspector Simon Agirgba, Julius Mba, informed the court that the defence had obtained a subpoena duces tecum requiring the NDLEA boss to produce the document.
Mba raised the issue on Monday while seeking an adjournment following the absence of John Nwonke, the second defence witness (DW-2), who was expected to continue his testimony.
Kyari, former head of the defunct Police Intelligence Response Team (IRT), is standing trial alongside ACP Sunday J. Ubua, ASP Bawa James, Inspector Simon Agirgba and Inspector John Nuhu.
The NDLEA had accused the officers of tampering with cocaine recovered from Chibunna Umeibe and Emeka Ezenwanne, who were arrested at the airport.
Umeibe and Ezenwanne, listed as the sixth and seventh defendants, pleaded guilty to the charges, while Kyari and the four police officers pleaded not guilty.
When the matter was called on Monday, NDLEA counsel, Joseph Sunday, told the court that the prosecution was ready to proceed with the hearing.
He said the case was scheduled for continuation and that the prosecution was ready to proceed “subject to the convenience of the court.”
Mba, however, said the defence was expected to continue the evidence of Nwonke but had received a letter informing the court that the witness was ill.
He said the letter, dated October 2, was addressed to the Deputy Chief Registrar and copied to lead defence counsel, Onyechi Ikpeazu, SAN.
“The lawyer told the court Nwonke was ill at the moment and we were only praying that he gets well to continue and conclude his evidence,” Mba said.
“On that note, we may not be able to put in a witness today because this is a criminal trial and a very serious one at that matter.”
Mba further told the court that the defence had also filed a subpoena duces tecum requiring the NDLEA chairman to produce records relating to personnel who were on duty at the Enugu airport on the date in question.
He said the subpoena was filed on September 30 and signed by Justice Nwite on October 2.
According to him, the defence received the document on Monday.
“But we only received this, this morning my lord,” he said.
Mba explained that the subpoena required the NDLEA, through its chairman, to produce “the certified true copy of all the list of personnel of the agency who were on duty on 19th day of January, 2022, at Akanu Ibiam International Airport, Enugu State for proper consideration and for the defence of 1st and 4th defendants sir.”
Opposing the adjournment, Sunday said he had only seen the witness’ letter in court and complained that the prosecution had not been informed earlier.
“We have been here since morning and there is no courtesy at all to show us the letter and tell us the position of the witness,” he said.
“In any case, we will be opposing the application for adjournment.”
Sunday argued that the defence application was “in bad taste” and capable of frustrating the administration of criminal justice.
He recalled that at the previous sitting, another counsel for Kyari, A.A. Akas, had informed the court that Nwonke was outside the country on official duty.
Sunday said the court had consequently ordered that the witness be present on Monday.
He quoted the court as warning that the witness should “be present in court today so that the case could proceed with the warning that any unseriousness will warrant the foreclosure of the defence.”
According to Sunday, Akas was absent from Monday’s proceedings while the defence instead presented a letter from the witness.
He said the letter did not disclose the nature of Nwonke’s illness or the hospital where he was receiving treatment.
“The DW-2 has turned himself into a medical doctor and is taking the position of God to determine that the sickness will be for exactly two weeks,” Sunday said.
“I don’t think we can base any adjournment on this matter.”
He also opposed the subpoena, saying the prosecution had not been served.
“We don’t conduct trials by ambush. We are not aware of any subpoena my lord,” he said.
Sunday urged the court to order the defence to proceed with its next witness and foreclose Nwonke’s evidence.
He further prayed the court to treat Nwonke as having given evidence that had not been subjected to cross-examination.
Mba, however, rejected the prosecution’s allegations, particularly the suggestion that the defence had deliberately circumvented the court’s order.
“My Lord, I cannot stand here and be insulted by my learned brother,” he said.
“This is not my letter; a letter is not coming from me, and for my learned brother to say I circumvented the order of court, I take exception to this sir.”
He said the defence’s application was based on the need to ensure that the case was determined fairly.
“It is not a matter of sentiment my lord,” Mba said.
He explained that the information previously given to the court was that Nwonke was on official assignment and that this had not changed until the witness returned and informed the court that he was indisposed.
Mba also maintained that although the defence had applied for the subpoena earlier, he only received it on Monday after it had been signed by the judge on October 2.
Justice Nwite, in his ruling, held that the letter from Nwonke was not convincing enough to justify the requested adjournment.
The judge, however, adjourned the matter until October 7 for continuation of the witness’ testimony and cross-examination in the interest of justice.
“Failure of the witness to appear on the said date means that his testimony will be foreclosed,” Justice Nwite ruled.
The judge also directed counsel to the first to fifth defendants to submit the names of the witnesses they intend to call before the next adjourned date.
Speaking after the proceedings, defence counsel Lord Michael Mbanefo expressed concern about the development, saying the defence was conscious of the need to avoid making statements that could prejudice the pending proceedings.
He described the situation as “sweet and sour,” saying the case had previously been adjourned indefinitely by the trial judge.
“This case was adjourned sine die by the trial judge, who said that it would be elevated to the Court of Appeal and therefore he would not entertain the matter any further,” Mbanefo said.
He said the defence subsequently received a hearing notice indicating that the case would resume.
“Suddenly, sometime last week, we received a hearing notice that the matter, we were to have a meeting with the judge in progress to commencement of the case again,” he said.
Mbanefo also raised concerns about the length of time the defendants had spent in custody.
“But the sad thing is that this defendant, first, second, third, fourth and fifth defendant, has been in custody now on record for seven calendar years without a bail, though intermittently bail was granted,” he said.
He added that the defendants had not violated the conditions of bail when granted.
“They never jumped the bail. They still came back, but all the same they were sent back to prison,” he said.
Mbanefo said the defence would not cast aspersions on the judge but would rely on the appellate process where necessary.
“We as lawyers of the temple of justice cannot sit and cast aspersion to the judge. Whatever the judge does, as far as he’s concerned, as far as Nigerian jurisprudence is concerned, is right. If you don’t like it, you go to an appeal,” he said.
He also argued that the continued detention of the defendants should be reconsidered in light of the constitutional right to fair hearing.
“Even if they end up convicting them tomorrow, I don’t want to, without prejudice, this is more of a persecution than prosecution,” Mbanefo said.
“Justice must be seen to be done according to law. Justice must be seen according to justice and not justice according to law.”
He referred to Section 36 of the Constitution, saying, “you are innocent until proven guilty.”
On the courtroom exchange between the prosecution and defence, a member of the defence team, Abdussamad Ibrahim said the judge’s intervention was within the court’s authority.
“The intervention of the judge is not something that is out of place. It’s just to ensure the sanctity of the court,” he said.
He maintained that the defence was not seeking to frustrate the prosecution but wanted the defendants to have an opportunity to present their case.
“The prosecution should just concentrate in doing their work, which they have closed their case long ago,” Mbanefo said.
He added that the defence expected adequate time to prepare after the case resumed following the earlier indefinite adjournment.
“We expected that the court should give a reasonable time for the defendant to prepare for the trial,” he said.
Ibrahim said the defence would continue to pursue the matter within the legal process.
“We will also not undermine the position of the court, because the court is wise in every decision it makes,” he said.
“But we are pleading, we hope, that equity will aver the guise and legality.”
