By Taiye Agbaje
A Federal High Court (FHC), Abuja, on Monday, refused to grant the bail application of suspended Deputy Commissioner of Police (DCP) Abba Kyari. Justice Inyang Ekwo, in a ruling, said the application had been overtaken by events following an order of a sister court, granting the National Drug Law Enforcement Agency (NDLEA)’s prayers to detain Kyari for another 14 days to enable it conclude its investigation.
Justice Ekwo held that the sister court, which gave the order in favour of NDLEA on Feb. 22, was a court of coordinate jurisdiction. The judge, however, said he was inclined to hear Kyari’s fundamental enforcement rights suit with the urgency it deserves after the expiration of the 14-day court order.
He said that the application for bail, under the provisions of the constitution, was to be treated with urgency.Ekwo, who said that Kyari’s bail application was brought on Feb. 21, said he had perused the process, the averments in support and the documentary evidence.“The respondent (NDLEA) has filed a counter and I have perused the averments.“I find in paragraph 11 of the counter affidavit that this court has made an order concerning the applicant on February 22, 2022, as Exhibit NDLEA 4,” he said.
He said he found that the sister court granted the NDLEA’s prayer to have Kyari in custody for 14 days pending its investigation.“This order is an order of court of coordinate jurisdiction.“This court is not likely to make an order contrary to that.“This motion for bail, by that order, has been overtaken by events by the order,” he ruledThe judge, who ordered the NDLEA to allow Kyari have access to a verified medical personnel and medication of his choice, said “upon refusal of the bail application, the substantive suit before the court must be treated with urgency.”
He then adjourned until March 15 to hear Kyari’s application to demand for his fundamental right enforcement.Earlier at the resumed hearing, Cynthia Ikena, who was counsel for DCP Kyari, informed that she was served with the NDLEA’s counter affidavit to their motion on notice early in morning.“
That not withstanding, we are ready to take our motion this morning.,” she said.The NDLEA’s Director, Prosecution and Legal Services, Joseph Sunday, told the court that since the agency responded to the applicant’s substantive suit, he urged the court to disregard Ikena’s submission to take the bail motion.
But Justice Ekwo refused to grant Sunday’s request.“Mr Sunday, I have the direction I am going. The applicant (Kyari) has a motion for bail and I am going to take that now then other applications will follow,” he said.Sunday stated that Kyari’s application for bail had been overtaken by event.“That is your response. Let them move their motion,” the judge insisted.Ekwo, therefore, directed Ikena to take her motion.Moving the motion, Ikena said it was a motion on notice dated Feb. 21and filed same day.She said the applicant prayed for an order admitting Kyari to bail pending the determination of the substantive suit and an order of substituted service of the process on the respondent.
The lawyer said the application was supported by 10 paragraphs affidavit.She told the court that a case of prima facie was established against the NDLEA in paragraphs 2, 4, 5, 6, 7, 8 and 9 of the affidavit of urgency and the Exhibit 8 in support.She said that Kyari’s ill-health was enough reasons to be admitted on bail.Ikena also argued that Section 35 of the constitution provided that the applicant (Kyari) had a right to be admitted to bail in every case order than a capital offence.She further argued that going by the “Exhibit NDLEA 5” before the court on charges against her client, capital offence was not included, therefore, the offences, with which Kyari were being charged, were bailable ones as provided by the constitution.
She cited a case of “Olatunji Vs. Federal Republic of Nigeria, 2003, and Suleiman Vs. Commissioner of Police, 2008,” where it was held that it was the constitutional right of the applicants to be granted bail in offences other than capital offence, to back her argument.“I urge my lord to grant the application as prayed because it is the constitutional right of the applicant to be admitted to bail,” she prayed.
Besides, the lawyer said that Kyari was suffering from diabetes and that he was hypertensive, hence, his drugs and food had to be regulated.The lawyer, who also told the court that she was denied access to Kyari on Thursday when she tried to see him at the custody, stressed that since her client had been arrested on Feb. 12, he had not been on balance diet, considering his health challenge.She urged the court to use its discretion in admitting him on bail, pointing out that Kyari had a reliable surety and he would not jump bail.
Responding, the NDLEA’s lawyer disagreed with Ikena.Sunday said that in countering the application, the agency filed a 19-paragraph counter affidavit on Feb. 28 and attached with five exhibits.According to him, the first exhibit is the police investigation and the second exhibit is our application before the Federal High Court for an order to detain the applicant for 14 days.“
We also exhibited as Exhibit 4 the order of your learner brother granting the 14-day order,” he said.Sunday further said that “Exhibit 5” was the charge the agency filed before the court.“We rely on all the paragraphs and exhibits. We attached a written address which we adopt as our oral argument in this matter my lord,” he said.He said on Kyari’s ill-health, the agency had an excellent medical personnel that could handle any medical challenge he might be faced with..He said their paragraphs 13 and 14 which made the averments had not been controverted by the applicant.The NDLEA legal director informed that though the agency was done with the drug- related investigation, his office was still investigating Kyari on money laundering matter.
He said if granted bail, Kyari might interfere with the ongoing investigation.He said though there were grounds for making bail plea, the lawyer said Kyari had not met this.But Kyari’s lawyer disagreed with Sunday.She said based on their “Exhibit A,” Kyari was 46-year old with a known diabetic and hypertensive medical record for a three years’ period.
The lawyer, who said her client needed the attention of his medical officer, urged the court to admit him to bail. The News Agency of Nigeria (NAN) reports that Justice Zainab Abubakar of FHC sitting in Abuja had, on Deb. 22, granted the NDLEA’s application to have Kyari and six other suspects, linked to the alleged drug trafficking, detained for 14 more days to complete its investigation.
NAN also reports that Kyari, earlier through his lawyer, had, on Feb. 21, approached the court with an ex-parte motion and originating summons seeking for a bail and asking the court to enforce his fundamental human rights which he alleged had been breached by the unlawful arrest and detention. He alleged that the charges preferred against him were trump-up and baseless.
Kyari, in the main suit, urged the court to make an order directing the NDLEA to pay him N500 million for infringing on his rights. He also asked the court to direct the agency to tender a public apology in national dailies. Justice Ekwo fixed March 15 to take the application.(NAN)
