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.”
