The Federal High Court in Abuja has directed the Chairman of the National Drug Law Enforcement Agency (NDLEA) to produce in court the list of the personnel who were on duty on Jan. 19, 2022 at the Akanu Ibiam International Airport, Enugu State.
Julius Mba, counsel to Abba Kyari and Insp. Simon Agirgba (1st and 3rd defendants), made this known on Monday before Justice Emeka Nwite while seeking an adjournment, following the absence of the defence witness in court.
Kyari, the former head of the defunct Police Intelligence Response Team (IRT), alongside four other suspended IRT officers, including the two now convicted drug traffickers, were initially being prosecuted by the NDLEA on an eight-count charge.
The agency accused Kyari and the officers of tampering with the cocaine the IRT officers recovered from the arrested drug traffickers at the airport.
The four officers are ACP Sunday J. Ubua; ASP Bawa James, Insp. Simon Agirgba and Insp. John Nuhu, named as 2nd to 5th defendants respectively.
Although the two convicted drug traffickers, Chibunna Umeibe and Emeka Ezenwanne, listed as 6th and 7th defendants, pleaded guilty to the counts, Kyari and his men pleaded not guilty to the counts against them.
When the case was called on Monday, NDLEA lawyer, Joseph Sunday, informed the court that the matter was scheduled for continuation of hearing.
He said the prosecution was ready to proceed, subject to the convenience of the court.
Responding, Mba said he confirmed that the case was slated for continuation of the evidence of the 2nd defence witness (DW-2), John Nwonke, who is a subpoenaed witness.
He, however, said unfortunately, there was a letter filed on behalf of the same witness, informing that he was illed.
He said the letter, dated Oct. 2, was addressed to the deputy chief registrar of the court and that the lead defence counsel, Onyechi Ikpeazu, SAN, was also copied.
The lawyer told the court Nwonke was illed at the moment and they were only praying that he gets well to continue and conclude his evidence.
“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,” he said.
Mba stated further that they had the instruction of Ikpeazu, who was representing Kyari and Agirgba, but unavoidably absent, to equally file a “subpoena duces tecum” to be served on the NDLEA boss.
He said the subpoena duces tecum was filed on Sept. 30 and graciously signed by Justice Nwite on Oct. 2.
“But we only received this, this morning my lord,” he said.
According to him, the subpoena duces tecum is requiring the NDLEA, through the DG, to produce before this court for inspection and use of this honourable court, 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.
A subpoena duces tecum is a legal court order that commands a person or business to bring specific physical or digital evidence to a legal proceeding.
Responding, the NDLEA lawyer said he was just seeing Nwonke’s letter.
“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.
“In any case, we will be opposing the application for adjournment,” Sunday said.
The lawyer argued that the his objection was predicated on the fact that the application was in bad taste which was calculated to subvert the administration of criminal practice.
He said contrary to Mba’s submission, on the last adjourned date, a lawyer (A.A. Akas) who appeared for Kyari notified the court that the DW-2 (Nwonke) was on official duty outside the country.
Sunday recalled that the court, before the adjournment, ordered that Nwonke 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 him, interestingly today, Akas Esq. is not present in court and the counsel in court has totally circumvented the specific orders of my lord.
Sunday alleged that Mba came up with a letter from a purportedly sick witness.
But Mba disagreed with Sunday’s use of words.
“My Lord, I cannot stand here and be insulted by my learner brother.
“This is not my letter; a letter is not coming from me, and for my learner brother to say I circumvented the order of courr, I take exception to this sir,” Mba said.
After the judge’s intervention, Sunday moved an oral application seeking an order foreclosing the evidence of the DW-2.
The NDLEA argued that the letter did not disclose the withess’ nature of sickness and the hospital he was receiving treatment.
Besides, he said “the DW-2 has turned himself into a medical doctor and taking the position of God to determine that the sickness will be for exactly two weeks.”
Sunday submitted that this was not a letter the can could consider.
“I don’t think we can base any adjournment on this matter,” he argued.
Resoonding to the issue of subpoena, the NDLEA lawyer said none of the prosecution team had been served with the letter.
“We don’t conduct trial by ambush. We are not aware of any subpoena my lord,” he said.
The lawyer, who urged the Court to order the defence to proceed on their next witness, prayed the court to foreclose Nwonke’s evidence “and treat him as having given a testimony that was not subjected to cross-examination.”
But Mba disagreed with Sunday’s argument.
He stated that his application was predicated upon fair, just and full determination of their defence on the merit and in the interest of justice, equity and fairness.
“It is not a matter of sentiment my lord,” he said.
He clarified that the information available to Akas, as at the last adjourned date, was that the witness was on official assignment.
“That has not changed,” he said, adding that upon his arrival, he wrote to court that he was indisposed.
He also restated that though they had applied for the subpoena lettter some day’s ago, he only received it on Monday after it was signed by the judge on Oct. 2.
Delivering the ruling, Justice Nwite held that Nwonke (DW-2)’s letter was not convincing enough for the court to grant the request for an adjournment.
The judge, however, held that in the interest of justice, the case would be adjourned until Oct. 7 for the continuation of the witness’ testimony and cross-examination.
“Failure of the witness to appear on the said date means that his testimony will be foreclosed,” he ruled.
The judge also ordered lawyers to the 1st to 5th defendants to submit to the court the names of the witnesses they intend to call before the next adjourned date. (NAN)
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