By Abdulwahab Abdulah
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.”
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.”
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.
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.
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.
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.