The Federal High Court in Abuja has directed the Chairman of the National Drug Law Enforcement Agency (NDLEA) to produce before the court the certified list of agency personnel who were on duty at the Akanu Ibiam International Airport, Enugu, on January 19, 2022, as the trial of suspended Deputy Commissioner of Police Abba Kyari and other former members of the Police Intelligence Response Team continued on Monday.
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Justice Emeka Nwite also gave a subpoenaed defence witness, John Nwonke, until October 7 to return to court to continue and conclude his testimony, warning that his evidence would be foreclosed if he failed to appear.
The developments followed arguments between counsel for the defence and the NDLEA after Nwonke, the second defence witness, failed to appear for continuation of his evidence.
When the matter was called, NDLEA counsel, Joseph Sunday, informed the court that the case was fixed for continuation of hearing and said the prosecution was ready to proceed, subject to the convenience of the court.
Julius Mba, appearing for Kyari and another defendant, however, informed the court that the scheduled witness could not attend because he was ill.
According to Mba, a letter dated October 2 had been addressed to the Deputy Chief Registrar of the Federal High Court explaining Nwonke’s condition, with lead defence counsel Onyechi Ikpeazu, SAN, copied.
Mba said the defence could not proceed with the witness in the circumstances and urged the court to grant an adjournment.
“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 told the court.
The defence counsel also disclosed that a subpoena duces tecum had been filed on September 30 seeking documents from the NDLEA and was signed by Justice Nwite on October 2.
Mba said the defence only received the signed subpoena on Monday morning.
He explained that the order required the NDLEA Chairman to produce before the court, for inspection and use in the proceedings, certified true copies of the list of NDLEA personnel who were on duty at the Akanu Ibiam International Airport on January 19, 2022.
A subpoena duces tecum is a court process compelling a person or organisation to produce specified documents or other evidence relevant to proceedings before a court.
The request for the airport duty roster relates to the allegations at the centre of the criminal trial involving Kyari and other former IRT officers.
Kyari, formerly head of the now-defunct Intelligence Response Team, was charged alongside ACP Sunday J. Ubua, ASP Bawa James, Inspector Simon Agirgba and Inspector John Nuhu.
Two alleged drug traffickers, Chibunna Umeibe and Emeka Ezenwanne, were also originally charged in the case. They pleaded guilty and were subsequently convicted, while Kyari and the police officers denied the allegations against them.
The NDLEA accused the police officers, among other allegations contained in the charge, of tampering with cocaine recovered following the arrest of the drug traffickers at the Enugu airport.
At Monday’s proceedings, however, the prosecution strongly opposed the defence request for an adjournment.
Sunday told the court that he was seeing Nwonke’s letter for the first time, complaining that the prosecution had been in court since morning without being informed that the witness would not attend.
“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.
The prosecutor argued that the application for adjournment should not be granted, alleging that it was capable of frustrating the progress of the criminal trial.
He recalled that at the previous sitting, another lawyer for Kyari had informed the court that Nwonke was outside the country on official assignment.
According to Sunday, the court had consequently directed that the witness must be present at Monday’s proceedings and warned that further failure to proceed could result in the defence being foreclosed.
The prosecution therefore questioned the fresh explanation that Nwonke was now ill.
Mba objected to the manner in which the prosecution characterised the development, telling the court that he had not authored the letter and should not be accused of circumventing its orders.
“My Lord, I cannot stand here and be insulted by my learned brother,” Mba 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.”
Following the judge’s intervention, the NDLEA counsel formally urged the court to foreclose Nwonke’s evidence.
Sunday argued that the letter relied upon by the defence did not disclose the nature of the witness’s illness or identify the hospital where he was receiving treatment.
He also questioned the period indicated in the letter, arguing that there was no sufficient medical basis before the court to establish how long the witness would remain unavailable.
“I don’t think we can base any adjournment on this matter,” he submitted.
On the subpoena directed at the NDLEA, Sunday said members of the prosecution team had not been served with it before Monday’s proceedings.
“We don’t conduct trial by ambush. We are not aware of any subpoena, my lord,” he said.
He consequently urged the court to direct the defence to proceed with another witness and to treat Nwonke’s testimony as having been left incomplete and not subjected to cross-examination.
Mba opposed the application, maintaining that the defence was seeking an opportunity for the case to be fully determined on its merits and in accordance with the requirements of justice and fair hearing.
“It is not a matter of sentiment, my lord,” he said.
He explained that the information available to the defence at the previous sitting was that Nwonke was away on an official assignment and maintained that this was correct at the time.
According to him, the witness returned but subsequently became indisposed and informed the court accordingly.
Mba also reiterated that although the defence had applied for the subpoena several days earlier, the signed process was only received on Monday after Justice Nwite approved it on October 2.
In his ruling, Justice Nwite agreed that the letter explaining Nwonke’s absence was not sufficiently convincing to justify the adjournment sought by the defence.
The judge nevertheless declined the prosecution’s request to immediately foreclose the witness’s testimony.
Instead, Justice Nwite held that, in the interest of justice, Nwonke should be given one final opportunity to return to court.
He consequently adjourned the case until October 7, 2026, for continuation of Nwonke’s testimony and his cross-examination by the prosecution.
The judge made it clear that there would be consequences if the witness failed to attend the next sitting.
“Failure of the witness to appear on the said date means that his testimony will be foreclosed,” Justice Nwite ruled.
The court also directed counsel representing the first to fifth defendants to submit, before the next adjourned date, the names of all other witnesses they intend to call in their defence.
The trial is therefore expected to resume on October 7, with the court awaiting Nwonke for continuation of his evidence and the NDLEA required, pursuant to the subpoena, to produce the requested records concerning personnel on duty at the Enugu airport on January 19, 2022.
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