LEGAL OPINION : LESSONS FROM ABBA KYARI’S CASE FOR NIGERIA CRIMINAL JUSTICE SYSTEM

THE BURDEN OF PROOF AS A CONSTITUTIONAL BULWARK: LESSONS FROM THE KYARI CASE FOR NIGERIA’S CRIMINAL JUSTICE SYSTEM

*PROLOGUE: A CASE FOR THE AGES*

On 5th March 2026, *Justice James Kolawole Omotosho* of the Federal High Court, Abuja, delivered an 94-page judgment that will resonate through Nigerian jurisprudence for generations. In *FRN v. DCP Abba Kyari & Ors*, he discharged and acquitted all three defendants on all 23 counts of a charge spanning asset declaration offences, money laundering, and conspiracy.¹ The judgment was not merely a vindication of the defendants; it was a powerful reaffirmation of the foundational principles of criminal justice – the presumption of innocence, the burden of proof, and the requirement of proof beyond reasonable doubt.

This article distils the enduring lessons of the Kyari case for Nigeria’s criminal justice system. It argues that the burden of proof is not a technicality to be circumvented but a constitutional bulwark against the overreach of state power. It examines the case’s implications for prosecutors, defence counsel, and the judiciary, and offers a vision for a justice system worthy of public confidence.

*THE BURDEN OF PROOF: A CONSTITUTIONAL IMPERATIVE*

Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 provides that “[e]very person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”² This is not an aspirational statement; it is a justiciable right of the highest order. It imposes upon the prosecution the burden of proving every ingredient of every offence beyond reasonable doubt – a burden that never shifts to the accused.³

In the Kyari case, the prosecution failed to discharge this burden on all 23 counts. It failed to prove that the 1st Defendant owned the properties alleged in Counts 1-10.⁴ It failed to prove that any inaccuracies in his asset declaration were “knowingly” made.⁵ It failed to prove that the funds in his accounts were proceeds of unlawful activity.⁶ It failed to prove any agreement among the defendants to commit an unlawful act.⁷ On each count, the prosecution’s evidence fell short, and because it fell short, the defendants were entitled to be acquitted.

The lesson is fundamental: the burden of proof is not a technicality to be overcome but a right to be honoured. It protects every citizen from the overreach of state power and ensures that convictions are based on evidence, not suspicion.

*OWNERSHIP MUST BE PROVED, NOT PRESUMED*

The Kyari case establishes that the prosecution cannot simply allege that a defendant owns property; it must prove it. The five notorious modes of proof from IDUNDUN v. OKUMAGBA provide the framework for such proof: traditional history, document of title, acts of ownership, long possession, or possession of connected land.⁸

In the Kyari case, the prosecution proved none of these. Count 1 alleged that the 1st Defendant failed to disclose Plot 1927 Blue Fountain Estate. Yet the evidence from PW3 established that the property was purchased by Ramatu Abba, the 1st Defendant’s wife.⁹ All documents of title were in her name. The prosecution had no evidence linking the 1st Defendant to the property, and the count failed.¹⁰

Counts 2 and 10 alleged ownership of an estate in Asokoro and a plaza in Guzape. The prosecution tendered no evidence whatsoever – no documents of title, no acts of ownership, no traditional evidence.¹¹ The counts rested on bare allegation, unsupported by proof, and they failed.

The lesson is clear: ownership must be proved by credible evidence. Allegation is not proof; suspicion is not evidence.

*FAMILY PROPERTY IS NOT INDIVIDUAL PROPERTY*

The Kyari case clarifies the treatment of family property in asset declaration proceedings. Property inherited from a deceased ancestor and held collectively by the family without partition is family property, not the personal asset of any individual family member.¹² Such property need not be declared in an asset declaration form, and a person cannot be convicted for failing to declare it.

The 1st Defendant testified, unchallenged, that the Maiduguri properties in Counts 3-7 belonged to his late father and were inherited by him and his approximately thirty siblings.¹³ The properties had not been partitioned; no individual could claim exclusive ownership. PW9 admitted that under Islamic custom, all surviving children inherit equally.¹⁴ The prosecution adduced no evidence of partition, and the family property defence succeeded.

The lesson is that the prosecution must prove partition before it can treat family property as individual property. Until partition occurs, the property belongs to the family, not to any individual member.

*THE MENTAL ELEMENT MUST BE PROVED*

The offence under *section 35(3)(a) of the NDLEA Act* requires proof that the defendant “knowingly” failed to make full disclosure.¹⁵ The prosecution must prove knowledge – that the defendant was aware of the omitted asset and deliberately chose not to disclose it, or that he was aware that his disclosure was incomplete and deliberately failed to correct it.

In the Kyari case, the 1st Defendant’s unchallenged evidence established that he was denied access to his phone to verify his bank balances, that he was instructed to complete the form immediately with estimated figures, and that he believed the Sterling Bank account had been closed.¹⁶ This evidence negated any inference of knowledge. The prosecution failed to prove the mental element, and the counts failed.¹⁷

The lesson is that the mental element is essential and must be proved. Circumstances that negate knowledge – denial of access to information, coercion to complete forms immediately, honest mistake – provide a complete defence.

*MONEY LAUNDERING REQUIRES A PREDICATE OFFENCE*

The Kyari case reaffirms that money laundering charges require proof of a predicate offence – that the funds in question are proceeds of unlawful activity.¹⁸ Funds from legitimate sources cannot support money laundering convictions without evidence of misappropriation or other criminality.

In the Kyari case, the funds in the 1st Defendant’s accounts were traced to the Nigeria Police Force and the Central Bank of Nigeria – sources presumptively legitimate.¹⁹ The 1st Defendant explained, unchallenged, that these were operational funds for the IGP Intelligence Response Team, paid into his account to finance urgent security operations.²⁰ The prosecution adduced no evidence that these funds were misappropriated or used for personal purposes. The money laundering counts failed.²¹

The lesson is that the prosecution must prove that funds are proceeds of unlawful activity. Funds from government agencies, paid for operational purposes, are not proceeds of crime.

*UNCHALLENGED EVIDENCE IS DEEMED ADMITTED*

The doctrine of unchallenged evidence is a powerful weapon in the defence arsenal. Evidence given by a witness on a material point that is not challenged in cross-examination is deemed admitted and must be given weight by the court.²²

In the Kyari case, the 1st Defendant’s evidence on key points – denial of phone access, instruction to estimate, source of foreign currency, lack of access during detention, operational funding mechanism – was unchallenged.²³ It was therefore deemed admitted and formed the basis of the court’s findings.

The lesson for defence counsel is clear: ensure that the client testifies, present the evidence clearly, and if the prosecution fails to cross-examine on material points, rely on the doctrine of unchallenged evidence in final address.

*THE LINE BETWEEN PROSECUTION AND PERSECUTION*

The Kyari case demonstrates that the criminal process must not be used to persecute individuals for exercising their constitutional rights. The 2nd and 3rd Defendants were joined in the charge not because of evidence against them, but because they had removed unauthorised inscriptions from family properties and filed fundamental rights suits challenging the NDLEA’s actions.²⁴ As Justice Omotosho observed, this was “persecution masquerading as prosecution.”²⁵

The lesson is that the exercise of constitutional rights cannot be criminalised. Citizens who challenge unlawful state action are not conspirators; they are citizens doing exactly what the Constitution expects them to do.

*IMPLICATIONS FOR STAKEHOLDERS*

For prosecutors, the Kyari case is a warning: investigate thoroughly before charging, ensure that charges are supported by credible evidence, respect the rights of suspects, and be willing to withdraw unsustainable counts. The duty is to justice, not to convictions at any cost.

For defence counsel, the case is both a shield and a sword. Master the law of evidence, investigate the facts thoroughly, prepare clients to testify, cross-examine prosecution witnesses vigorously, and rely on unchallenged evidence and material contradictions in final address.

For the judiciary, the case is a model of judicial craftsmanship. Evaluate evidence meticulously, articulate legal principles clearly, apply precedent faithfully, and have the courage to do justice regardless of public opinion.

For the legal profession, the case demonstrates the importance of ethical conduct, rigorous advocacy, and unwavering commitment to the rule of law.

*CONCLUSION: THE BURDEN AS BULWARK*

The Kyari case reaffirms that the burden of proof is not a technicality to be overcome but a right to be honoured. It stands as the bulwark against tyranny, the shield that protects every citizen from the overreach of state power.²⁶

As we look to the future of criminal justice in Nigeria, let us remember the words of Justice Omotosho: “The presumption of innocence is not a technicality to be overcome, but a right to be honoured. It stands as the bulwark against tyranny, the shield that protects every citizen from the overreach of state power.”²⁷

Defend it. Always.

*E. Monjok Agom*. 

(For 2nd and 3rd Defendants in the trial)

7th March, 2026

FOOTNOTES

1. FRN v. DCP Abba Kyari & Ors (2026) FHC/ABJ/CR/408/2022, per Omotosho J.

2. Constitution of the Federal Republic of Nigeria 1999, s 36(5).

3. Okonkwo v. State (2022) LPELR-57126(SC) 18.

4. Kyari (n 1) 34-39.

5. ibid 46-47.

6. ibid 52-53.

7. ibid 48-49.

8. Idundun v. Okumagba (1976) 10 SC 277; Ogbebor v. Ihassee (2024) LPELR-62380(SC).

9. Kyari (n 1) 34-35.

10. ibid.

11. ibid 36-37.

12. Usoro v. Usoro (2024) LPELR-62188(SC); Ayorinde v. Kuforiji (2022) LPELR-56600(SC); Mafindi v. Saleh (2012) LPELR-22106(CA).

13. Kyari (n 1) 43.

14. ibid 27.

15. National Drug Law Enforcement Agency Act, Cap N30, LFN 2004, s 35(3)(a); Daniel v. FRN (2022) LPELR-57352(CA).

16. Kyari (n 1) 45-46.

17. ibid 47.

18. Dauda v. FRN (2018) 10 NWLR (Pt 1626) 169.

19. Kyari (n 1) 52-53.

20. ibid 44.

21. ibid 47.

22. Okonkwo v. State (2022) LPELR-57126(SC) 19.

23. Kyari (n 1) 44-46.

24. ibid 28.

25. ibid 86.

26. ibid.

27. ibid.