It is not yet uhuru for Major Hamza Al-
Mustapha, former Chief Security Officer, CSO,
to late Head of State, Gen Sani Abacha, over
his acquittal by the Court of Appeal as Lagos
State government on Monday, filed an appeal
at the Supreme Court to challenge the court’s
decision that set him and Alhaji Lateef
Shofolahan free over the murder of Alhaja
Kudirat Abiola. Shofolahan was Kudirat’s aide.
The Attorney General and Commissioner for
Justice, Mr. Ade Ipaye, who disclosed this, said
the state government took the decision after
one month of thorough evaluation of the
judgment and found out “there are enough and
very good grounds for appeal.”
Maj. Al-Mustapha left, with former Kirikiri
Prison Controller, Mr. Lorbee Ihiagh in
Makurdi
Ipaye told journalists in Lagos: “The step by the
state government was to ensure that all issues
were fully and well articulated and that the
victim’s family, the defendants and the society
were not deprived of the last window of
opportunity provided by the constitution for
the resolution of the case”. He added,
“Government was committed to ensuring that
law abiding residents and visitors continued to
live, work and pursue their various aspirations
in a safe and secure environment in the state.”
The Commissioner argued that the state would
be encouraging impunity by not challenging
the judgment of the Appeal Court, especially
when it stated that the delay in the criminal
trial of Al-Mustapha, Sofolahan and others
earlier freed were deliberately ochestrated to
frustrate their trial.
He said: “I can report that we have indeed
appealed the judgments, one in respect of Al-
Mustapha and the other in respect of Lateef
Shofolahan. Both have been studied closely
and we came to the conclusion that there were
good grounds for appeal and we have since
filed all the necessary papers. We did that
yesterday (Monday).
Officially, we have put in our indication that
we want to contest the judgment of the Court
of Appeal at the Supreme Court.
“This step will also ensure that all issues are
fully articulated and the victim’s family, the
defendants and the society are not deprived of
the last window of opportunity provided by
the Constitution for the
resolution of the case.”
Loopholes
Answering question on the admissibility of
loopholes in a paid advert, Ipaye denied this,
but stated, “What we said was that the accused
persons deliberately delayed the trial and this
may have affected the case, because justice
delayed is justice denied.
This is one of the major reasons we are
challenging the judgment of the Honorable
Justices of the Appeal Court. It will discourage
sense of impunity that if someone can
deliberately delayed his own case, he may
eventually escape justice. This will not be good
for justice delivery,
our democracy and the nation.”
Also, the Commissioner addressed several
issues including the controversial relocation of
some Igbo
indigenes from Lagos State, detention of some
minors in Kirikiri prisons and the Amnesty
International’s report on Badia area of Lagos
State. Kudirat Abiola was murdered on June 4,
1996 by gunmen suspected to be government’s
agents following which Al-Mustapha and
Shofolahan were charged.
Three other persons-Mr James Danbaba, an ex-
Lagos police boss, Lt Col. Jibrin Bala Yakubu,
former military administrator of Zamfara State
and commander of Mopol in the Presidential
Villa, and CSP Mohammed Rabo Lawal also
stood trial in the case before they were freed.
In the appeal, Lagos State government
formulated14 issues before the Supreme Court
to justify why the apex court should set aside
the decision of the Appeal Court.In separate
motions on notice filed against the judgement
of the appellate court, the state formulated
eight and six issues against Shofolahan and Al-
Mustapha respectively. The motion was
brought pursuant to section 233(3) of the
Constitution of the Federal Republic of Nigeria,
1999 (as amended), Section 27(2 and 3) of the
Supreme Court Act, Cap S15, Laws of the
Federation of Nigeria, 2004, Order 7 Rule 1 of
the Court of Appeal Rules 2011 and under the
inherent jurisdiction of the court.
It prayed the apex court to set aside the
judgement of the Appeal court, which upturned
the conviction of the respondents by a lower
court presided by Justice Mojisola Dada of the
Lagos High Court on January 30, 2012. The
lower court sentenced Al-Mustapha and
Shofolahan to death by hanging for the murder
of Kudirat.
Evidence
The state argued that the appellate court erred
in law by discharging and acquitting the two
men when the evidence linking them to the
crime was not materially challenged.
According to the state, the contradictions in
the testimonies of the prosecution’s star
witnesses, Barnabas Jabila (Sgt. Rogers) and
Abdul Mohammed (Katako), were not
sufficiently substantial to warrant the acquittal
of both Al-Mustapha and Shofolahan, arguing
that the testimonies of PW2 (Jabila) and PW3
( Mohammed), were detailed, graphic and
consistent.
It contended that there was evidence on the
record of appeal that the second prosecution
witness (Jabila) explained the immaterial
differences in his evidence made under
examination-in-chief and under cross-
examination.
The state added: “PW2 (Rogers) gave detailed
and consistent evuidence of the consipracy to
murder; and murder of the deceased. These
detailed facts were not materially controverted
even under cross-examination. “There was
evidence on record of Appeal that PW2
explained the immaterial differences in his
evidence made under examination-in-chief and
confirmed under cross-examination and in
spite of the detailed consistent evidence of
PW2 and the detasiled explanation of the
immaterial differences, the Court below still
went ahead to impeach and disregard the
whole evidence.”
On the second ground, the government stated
that the court erred in law when it held that
there were material contradictions that
rendered the testimony of the third
prosecution witness, (Abdul Katako) unreliable
and asserted that the witness gave graphic and
detailed evidence of conspiracy to and murder
of Alhaja Kudirat Abiola, adding that his
testimony was neither denied nor discredited
in cross-examination.
It said: “Section seven of the Criminal Code
identifies circumstances where a person may
be held liable for commission of offence”,
adding, “there was concrete evidence (both
oral and documentary) before the trial court
indicating the participation of the second and
third prosecution witnesses and the
respondent in the alleged crimes.”
The government further stated that both
witnesses had testified how they participated
in the killing of Kudirat under the instruction
given by Al-Mustapha with Shofolahan’s
assistance as an informant but later denied
and recanted the incriminating testimonies
during cross-examination.
It stated: “The Court of Appeal gave overriding
credence to a statement made under-cross
examination by PW3 that he was in Azare on
June 4, 1996 (day Kudirat was murdered) when
the Defence did not show through the witness
that even if the accusation was true, he could
not have committed the offence and then
proceeded to Azare, Bauchi State.”
It added: “DW1 (Al-Mustapha) provided the
logistics for killing the deceased in Lagos.
PW3 (Mohammed) was assigned as driver to
PW2 (Jabila) because of his knowledge of
Lagos and PW3 gave graphic evidence of how
he drove PW2 to the scene of the crime and
how PW2 shot the deceased severally.
Conspiracy
On conspiracy, the stated government stated:
“PW2 (prosecution witness) admitted meeting
DW2 (Shofolahan) and the killing of the
deceased and testified that DW2 took them to
the deceased’s house and provided information
about the identification and movement of the
deceased. “The statements of PW2, PW3 and
even DW1 tendered and admitted by the trial
court showed that these three witnesses indeed
met and had common intention to commit a
crime.
It was an undisputed fact that Alhaja Kudirat
Abiola was shot and died on June 4, 1996.
PW2 (Rogers) admitted he severally shot the
deceased on June 4, 1996. “It was
unchallenged that DW1 gave his gun to PW2
for killing the deceased and the insistence of
PW2 that he would be surprised that he used
5.6mm gun instead of 9mm to kill the
deceased.
There was circumstantial evidence establishing
the fact that DW1 and DW2 participated and
aided the elimination of Alhaja Kudirat Abiola.”
Ipaye, in the appeal notices, said the
contradictions were immaterial and urged the
Supreme Court to affirm the death penalty.
On ground four of the appeal, the state
argued: “The Court below erred in law by
substituting its own assessment and evaluation
of the evidence with that of the Trial Court in
its judgment in circumstances of this case,
when it held that there was no creduible and
reliable evidence in the entire record to justify
the conviction of the Respondents.”
It pointed out that the the Appeal Court “did
not properly evaluate the evidence on the
printed record which the Trial Court
considered in arriving at its conclusion before
setting aside the conviction of the
Respondents.
“In the circumstances of this case where the
Court below could not assess the witnesses,
consider their demeanour, the nuances of the
process before the court, including specific
conducts, or attitudes of the witnesses in
relation to specific, critical, vital; and material
evidence, oral or otherwise; the Court did not
disclose sufficient reasons for substituting its
own views for those of the Trial Court”, it
added.
Bribe, inducement
On the argument that Rogers was bribed or
induced, Lagos State government submitted:
“The Court below erred in law by misconstruing
what the appellant characterised lawful
“Witness Protection”measure as “Promise” and
on one hand ignored it but on the other hand
attached so much weight to the Respondent’s
characterisation as promise.”
Pointing on the error, the state said, “A court
both trial and appellate is not allowed to
approbate and rebrobate at the same time;
PW2 confirmed that he had agreed before the
“promise” to give evidence against the
defendants as part of his duties to the State
ten years before his oral testimony.
It said further: “In his later attempt to resile
from his testimony, PW2 (Rogers) categorically
stated that it was human to react that way
because his family members were attacked and
the prosecution could not help them.
The Court below, even in the face of credible
and uncontroverted testimony about witnesses’
fear or concern, and aspiration for safety for
themselves and their families, failed to
recognize the purpose and value of such
evidence in its assessment of the evidence
before it.”
It added that the Appeal Court ignored
relevant materials and gave weight to
irrelevant materials and misconstrued the
Witness Protection programme for PW2 and
PW3 as inducement and discredited their
entire evidence.
It concluded that there was no controverted
evidence of PW2 (Rogers)concurrence of DW1
(Al-Mustapha) that he is the leader of the
Strike Force constituted under the military
regime of Late General Sanni Abacha and that
DW1 provided logistics for the killing of the
deceased (Kudirat) and that PW3 (Abdul) was
assigned as driver to PW2 because of his
knowledge of Lagos and he gave graphic
evidence of how he drove Rogers to the scene
of the crime and how he shot the deceased
severally.
The state therefore prayed the apex court to
allow the appeal as well as setting “aside the
judgment of the Court below delivered on 12th
July, 2013 which set aside the conviction of
the Respondents for offence of conspiracy to
commit murder and murder.”
The Court of Appeal in its judgment, had stated
that there was a “gaping hole” in the
prosecution’s case. Highlighting the default,
the appellate court said the prosecution first
witness, Dr. Ore Falomo, testified that the
bullet extracted from Alhaja Kudirat Abiola’s
skull was a “special bullet” that could have
come “only” from the Presidency.
The victim, according to the witness, died after
a three-hour surgery to remove the bullet and
after suffering a second heart attack. Falomo
said that the police took away the bullet “for
investigation”and never returned it.
The appellate court noted that the prosecution
failed to state the whereabouts of the bullet,
get a ballistician to examine the bullet or
tender it as an exhibit before the court.“The
prosecution failed to produce the bullet, and
there was no explanation as to why it was not
available,” the court held.
Again, Mr. Jabila, during his testimony,
according to the court, gave a vivid account of
how they, acting on the orders of Al-Mustapha,
trailed their victim from her Ikeja home to
Lagos-Ibadan expressway where they sprayed
her white Mercedes Benz with bullets.
However, under cross-examination, the witness
said he was in Abuja on June 4 but was asked
to give such testimony as part of an agreement
with the Federal Government and Lagos State
government. Jabila said that he was promised a
job, house, and security.
His wife had been on a N15, 000 monthly
salary which was later increased to N20, 000.
He also said that Professor Yemi Osibajo, the
then Lagos State Attorney General and the late
Bola Ige, then Attorney General of the
Federation, paid him repeated visits while in
detention, with the latter giving him N100,000
on one occasion.
Mr. Abdul, who had admitted being Mr. Jabila’s
driver when the murder was committed, said
he was made the same offers by the authorities
including a promise that he would not be
brought to court – but they reneged on their
promise. When he recanted, Mr. Abdul said
that he was in Azare, Bauchi State, on the day
of the murder.
“There was no explanation for this somersault,”
Justice Pemu who read the judgment said. No
date has been fixed for the hearing of the
case. However, the judgment of the Supreme
Court will determine whether or not the joy
and the reunion of Al-Mustapha and
Shofolahan with their loved ones will endure.
0 100000:
Post a Comment