uspended DCP Abba Kyari on Thursday told a Federal High Court, Abuja that the Attorney-General of the Federation (AGF)’s response to his counter-affidavit was an abuse of court process.
Kyari, in a notice of preliminary objection marked: FHC/ABJ/CS/249/2022 dated and filed on May 19 by Chief Kanu Agabi, SAN, before Justice Inyang Ekwo, said the AGF’s reply was filed out of time and without leave of court first sought and obtained.
According to Agabi, Order 4 Rule 3 of the Extradition Act (Modification Order, 2014 & Federal High Court (Extradition Proceedings) Rules, 2015 specify that “..upon being served with the counter affidavit of the fugitive, the applicant may file a reply on point of law within 48 hours.’’
The senior lawyer argued that the AGF, who was the applicant, did not file a reply; but a further and better affidavit.
“The applicant’s further and better affidavit has no iota of law supporting it.
“The further and better affidavit filed by the applicant is incompetent and ought to be struck out,” he said.
In a written address in support, Agabi stressed that the AGF defied the rules of the court by not filing their response within stipulated time,
He said: “By the counter-affidavit dated the 6th April, 2022 filed by the respondent (Kyari), the applicant (AGF) ought to have filed their reply on point of law on the 8th April, 2022 as provided by the rules but the applicant went extra miles to wait until 19th April, 2022 before they filed their further and better affidavit.
“Consequently, the further and better affidavit having no backing of law, constitute an abuse of court process and liable to be dismissed,” citing previous cases to back the submission.
When the matter was called on Thursday, Nureni Jimoh, SAN, who appeared for Kyari, informed that he had an application seeking for leave to file a further affidavit to the AGF’s response to their preliminary objection which they had earlier countered.
Jimoh said a copy of the further affidavit had been served on Pius Akutah, counsel for the AGF.
Akutah, who acknowledged the service of the further affidavit on him, opposed Jimoh’s move to seek court leave to allow him filed the further affidavit.
He described the action as an attempt to attack their own counter affidavit filed against the motion.
But Justice Ekwo ordered Kyari’s lawyer to move the application.
Moving the motion, Jimoh said he filed an application on May 19 for leave to file a further affidavit, urging the court to grant the request.
But Akutah opposed the application, saying a counter-affidavit dated May 26 and served on the respondent had been filed in the regard.
“We equally have a written address dated May 25 and filed May 26,” he said, urging the court to refuse the application.
Ruling, the judge held that granting an application was at the discretion of the court.
“I am minded that this application be granted on its merit so that the matter could be heard and moved forward,” he said, granting all Kyari’s prayers.
After the ruling, Akutah indicated his intention to respond to the further affidavit.
Justice Ekwo adjourned the matter until June 3 (Friday) to allow the AGF’s lawyer filed a reply to Kyari’s preliminary objection, ordering all processes to be filed and served for all the applications to be heard on the adjourned date.
Justice Ekwo had, on April 27, fixed today for hearing of all the applications.
The Federal Government had sought for Kyari’s extradition to the United States (U.S) to answer a case over his alleged linked with the fraudster, Ramon Abbas, aka Hushpuppi.
The Federal Government, through the Office of the AGF, had filed the application marked: FHC/ABJ/CS/249/2022.
The suit, titled: “Application for the Extradition of Abba Kyari to the U.S.,” was dated and filed March 2.
While the AGF is the applicant, Kyari is the respondent in the application.
Kyari was formerly the head of Inspector-General of Police special Intelligence Response Team (IRT).
The application was filed under the Extradition Act, as part of Nigerian government’s approval of the request by the U. S. for Kyari’s extradition.
Kyari and six others are currently facing a separate trial on allegations bordering on drug trafficking before a sister court presided over by Justice Emeka Nwite.