The judge said Mr Malami was responsible for the failure of the case by instituting the extradition proceedings despite the pending criminal case against Mr Kyari in Nigeria.
The Federal High Court in Abuja, on Monday, dismissed the Attorney-General of the Federation and Minister of Justice, Abubakar Malami's extradition suit seeking to surrender Abba Kyari to the United States of America to face fraud charges.
The judge, Inyang Ekwo, said Mr Malami was responsible for the failure of the case by instituting the extradition proceedings despite the pending criminal case against Mr Kyari in Nigeria.
Mr Kyari, a suspended deputy commissioner of police, is wanted by the American government over pending fraud charges filed against him and others at the United States District Court of Central District of California.
U.S. prosecutors accuse Mr Kyari of complicity in the $1.1million international fraud spearheaded by Abbas Ramon, popularly known as Hushpuppi.
Hushpuppi is a former Nigerian Instagram celebrity, who awaits sentencing in September after pleading guilty to the scam and other criminal activities.
Earlier this year, the American government request the extradition of Mr Kyari to face charges filed against him and other co-defendants in the US last year.
Judgement
Delivering judgement in the case, on Monday, the judge, Mr Ekwo, held that there is a subsisting criminal case against Mr Kyari at the Federal High Court in Abuja.
"I find that this application was brought in bad faith," the judge said, before dismissing the Attorney-General's suit.
Mr Ekwo said the AGF was aware of the pendency of Mr Kyari's trial by the National Drug Law Enforcement Agency (NDLEA) in a 25kg cocaine deal earlier this year.
Referring to Mr Kyari's criminal suit before another of the same court in Abuja, Emeka Nwite, Mr Ekwo held, "The consequence of the Extradition Act is that the respondent (Mr Kyari) shall not be surrendered until such a time that he has been discharged or convicted at the conclusion of trial."
Relying on the provisions of Section 3 of the Extradition Act, the judge said the law "preserves the integrity of the municipal laws of the country from which a request is made for the surrendering of a fugitive criminal."
"The legislature intended the preservation of the municipal laws of Nigeria.
"The applicant, being the Attorney-General of the Federation, is in a position to know that Mr Kyari is standing trial on offences bordering on the provisions of the NDLEA Act, and ought not to have brought this (extradition) application.
"This application is in breach of Section 3 (6) of the Extradition Act, and by that Act it is incompetent. I make an order dismissing this application," the judge said.
'Extradition suit aimed at persecuting Kyari'
During closing arguments before the judge, Mr Kyari's lawyer, Nureni Jimoh, asked the court to refuse the extradition request on the grounds that he committed no offence to warrant the Nigerian government to surrender him to the US.
Mr Jimoh, a Senior Advocate of Nigeria (SAN), informed the judge that more than a year before Mr Kyari's arrest, he had written the Attorney General of the Federation and the Inspector General of Police, notifying them that he had opened a channel of communication with a suspected Internet fraudster, Ramon Abass.
In the two separate letters tendered in court, the defence lawyer explained that the purpose of opening the communication line with Hushpuppi was to give confidence to the suspected fraudster and lure him to come to Nigeria where an ambush was already laid for a sting operation by Mr Kyari's strike force.
"The request for the extradition is not supported by any document or verifiable evidence," the lawyer argued.
"The request is directed to undermine the crackdown on various crime gangs by the respondent in Nigeria and internationally and has political undertone.
"The request is for purposes of persecuting or punishing the respondent on account of his defence for the country.
"The Respondent is confronted with series of charges to break him down because of his achievements and various National honours. A copy of the charge framed against the Respondent by the NDLEA, is herewith attached as Exhibit 2.
"The offences are trumped up and the respondent is seriously committed to defending himself.
"The Application for extradition processes clearly shows allegation of crimes committed on Nigeria soil. A copy of the alleged charge framed against the respondent by the US Government is herewith attached as Exhibit 3.
"The Respondent has undergone administrative inquiry, which is still ongoing and has not been completed to date on the same matter."
Mr Jimoh informed the court that American authorities once commended his client (Mr Kyari) for the zeal and professionalism he was exhibiting in the battle against internet related crimes.
"The respondent (Mr Kyari) has equally been decorated by the U.S. Authorities.
"The Respondent is a Deputy Commissioner of Police in the employment of the Nigeria Police, who is highly decorated with meritorious service/excellent awards for outstanding service to the nation and has nowhere to run to."
He further told the court that the wire fraud charge brought against Mr Kyari by the American government is not known as an offence under Extradition Act and therefore, should not be allowed by the court to be used to extradite him.
Nigerian govt counters Mr Kyari's defence
In his closing arguments, the federal government's lawyer, Pius Akuta, urged the court to disregard Mr Kyari's arguments.
Mr Akuta said that conditions precedent for extradition had been met by the American government with the filing of charge against Mr Kyari and a formal application that he be brought to America to establish his guilt or innocence in his indictment for Internet fraud.
In a court document, the AGF said his office "was in receipt of Extradition request vide a diplomatic channel for the extradition of the respondent fugitive wanted to stand trial in the USA.
"That the AGF is satisfied that there is no bar to the extradition application."
The federal government's lawyer argued that Mr Kyari's separate, ongoing trial for drug trafficking in Nigeria would not stop the court from approving his extradition.
Mr Akuta explained that surrendering Mr Kyari to the U.S. government could be postponed by the AGF till the conclusion of his trial in Nigeria.
"In conclusion, this Honourable Court is respectfully urged to resolve that the Applicant has placed sufficient material before this Honouroble Court to grant the application for extradition order and the extradition of the fugitive and his remand to await the Surrender Order of the Honourable Attorney-General of the Federation at determination of the criminal charge against him," the court paper revealed.
Background
The case sought to extradite Mr Kyari at the request of the American government to face trial in his indictment in Internet fraud masterminded by Hushpuppi.
The suit, titled: "Application for the Extradition of Abba Kyari to the U.S.," was dated and filed on March 2.
Mr Kyari was the head of the Inspector-General of Police' Special Intelligence Response Team (IRT).
The application was filed under the Extradition Act, as part of the Nigerian government's approval of the request by the U. S. for Mr Kyari's extradition.
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Meanwhile, Mr Kyari, while on suspension over his alleged roles in the Hushpuppi case, was indicted by the National Drug Law Enforcement Agency (NDLEA) in a 25kg cocaine deal earlier this year.
The formerly celebrated police officer and four members of his police unit, who are being held at the Kuje Correctional Centre in Abuja, pleaded not guilty to the drug-related charges.
But two other men -Chibuna Umeibe and Emeka Ezenwanne- accused of importing the illegal drug into Nigeria through the Akanu Ibiam International Airport, Enugu, in January, have pleaded guilty.
On March 14, the judge, Emeka Nwite, also of the Federal High Court in Abuja, turned down the bail application filed by Mr Kyari and others.
U.S. extradition request
Earlier, the Diplomatic Representative of the U.S. Embassy in Abuja had, in its request to Mr Malami, noted that a warrant for Mr Kyari's arrest, issued by a U.S. District Court "remains valid and executable to apprehend Kyari.
According to the request, "On April 29, 2021, based on the indictment filed by the grand jury and with the approval of the United States District Court for the Central District of California, a deputy clerk of the court issued a warrant of arrest for Kyari.
"The arrest warrant remains valid and executable to apprehend Kyari for the crimes with which he is charged in the indictment.
"Kyari is wanted to stand trial in the United States for conspiracy to commit wire fraud and money laundering, and identity theft.
"Kyari is the subject of an indictment in case Number 2:21-cr-00203 (also referred to as 2:21-MJ-00760 and 2:21-CR-00203-RGK), filed April 29, 2021, in the United States District Court for the Central District of California."
Mr Kyari, along with five other defendants, face three charges of conspiracy to commit wire fraud, money laundering and identity theft.
U.S. Federal Bureau of Investigation (FBI) alleged that Mr Kyari and co-conspirators were part of a scheme spearheaded by Hushpuppi to defraud a businessperson in Qatar between November 2019 and April 2020.
