Alleged Cocaine Deal: Court rejects Abba Kyari, others’ fresh bail application

The Federal High Court, Abuja, on Wednesday, refused to grant bail to Abba Kyari, a suspended deputy commissioner of police, and four other police officers facing drug trafficking charges.
The News Agency of Nigeria (NAN) reports that other defendants charged in the case marked FHC/ABJ/57/2022 are four members of the disbanded Police Intelligence Response Team (IRT) – Sunday J. Ubia, Bawa James, Simon Agirigba and John Nuhu.
Trial judge Emeka Nwite, in a ruling, held that the defendants had not placed sufficient materials before the court to warrant granting the request.

Mr Nwite said that granting bail to a defendant was at the discretion of the court, which must be exercised judicially and judiciously.

NAN reports that the suspended Mr Kyari was detained following his arrest on 14 February 2022 by the National Drug Law Enforcement Agency (NDLEA) for alleged involvement in a cocaine deal.

Mr Kyari and four suspended officers were arraigned on 7 March 2022.
Two suspected drug traffickers, Chibunna Umeibe and Emeka Ezenwanne, who were arrested at Akanu Ibiam International Airport in Enugu, were also charged.

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While Mr Kyari and the IRT members pleaded not guilty, Messrs Umeibe and Ezenwanne pleaded guilty and were convicted.
Meanwhile, in May, the court granted Mr Kyari, who is standing trial from detention, temporary bail for two weeks to attend his mother’s final burial rites.
The court granted him bail in the sum of N50 million with two sureties in like sum.

Fresh bail application
But in his fresh bail application, Mr Kyari said he had spent two years in pre-trial detention by 7 March, far more than one year which the Administration of Criminal Justice Act (ACJA), 2015 deemed as exceptional circumstances even for a person charged with a capital offence.
Citing section 161(2)(b) and (c) of ACJA, Mr Kyari, through his lawyer, argued that this development was a core consideration for the exercise of the court’s discretion to either grant or refuse bail.
He also argued that the facts and circumstances stated in the earlier rulings of the court necessitating the refusal of his bail applications no longer existed, as 15 out of 16 of the prosecution witnesses had already testified. He cited section 124(1)(b) of the Evidence Act, 2011.
He further argued that his continued detention violated his fundamental human rights.
Ruling on the bail application, Mr Nwite said the law empowered a judge to exercise discretion to meet each case’s merit and justice.
The judge said factors a judge had to consider in exercising discretion included ensuring that the defendant would always attend the trial and would not jump bail.
He added that the judge must also be sure that the defendant was not able to interfere with investigations or tamper with prosecution witnesses.

Mr Nwite added that the court must be satisfied that the defendant would not undermine the administration of criminal justice and would not threaten society’s well-being by committing similar or other offences.
“The question begging for an answer at this juncture is, having addressed these issues in the court rulings of 28 March 2022 and 30 August 2022, what has changed to distort my findings in the two rulings?” he asked.
The judge noted Mr Kyari stated in his affidavit that the trial had lasted for two years and that the prosecution had called 15 out of its 16 witnesses.
However, the judge said that section 161 (2)(b)(c) cited by the applicant, only talked about offences publishable with the death penalty.
He said juxtaposing the referenced section with section 35(1) of the Nigerian constitution would show there was no breach of the provisions of said section 161(2)(b)(c) of ACJA.
“Section 35(1) (of the constitution) stated that a person who is charged with an offence and has been detained in lawful custody and awaiting trial shall not continue to be kept in such detention for a period higher than the maximum period of imprisonment.
“It is not in dispute that the offence which the 1st defendant/applicant is charged carried a maximum punishment of 25 years,” the judge noted.
According to him, the one year stipulated in section 161(2)(b) and (c) of ACJA, 2015 is of no moment given the provision of section 35(1) of the Nigerian constitution.
The judge said the constitution is supreme, and its provisions are binding on all authorities and persons.
Mr Nwite, therefore, held that, having addressed the issues in his earlier rulings, he believed that nothing had changed to distort his findings.
The judge, who refused the bail application for Mr Kyari and other suspended police officers, sustained his earlier order on accelerated hearing.

In a ruling the judge delivered on 22 March 2023, the court dismissed an application by Mr Kyari challenging the validity of the charges.
NDLEA prosecutors accused Mr Kyari and the four suspended IRT members of dealing in 21.35kg of cocaine between 19 and 25 January 2022, thereby committing an offence contrary to and punishable under section 11(c) of the NDLEA Act.
In one of the charges, the anti-narcotic agency alleged that Mr Kyari and the four IRT operatives tampered with 21.35kg of cocaine by removing 17.55 kg of it and “substituting same with some other substance”.

The offence is contrary to and punishable under section 14(b) of the NDLEA Act.
The prosecutors also accused Mr Kyari, in a count which features only him as the sole defendant, of attempting to obstruct the NDLEA and its authorised officers by offering $61,400 to a senior anti-narcotics operative as an inducement to prevent the testing of the 17.55kg of cocaine.
In three of the counts, Messrs Umeibe and Ezenwanne were accused of importing 21.35kg of cocaine into Nigeria via the Akanu Ibiam International Airport, Enugu, Enugu State, on 19 January 2022.
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