The Augie led all-female appeal panel had taken over the case from Justice Ibrahim Saulawa, who withdrew on April 29, for personal reasons.
Justice Pemu in setting aside the judgment of the lower court, held that the prosecution failed to establish the charge of conspiracy and murder against the appellants and that it was foolhardy and unreasonable for the lower court to have so swiftly convicted the appellants, when it was very evident that the prosecution had a bad case.
Resolving all the three issues raised against the prosecution, Justice Pemu held that there existed a huge shadow of doubt in the case of the prosecution, which ought to be resolved in favour of the appellants.
She submitted that the testimonies of all the prosecution witnesses were worthless and could not sustain the offence of conspiracy or murder for which the appellants were convicted.
The appellate court lampooned the lower court, saying that the 326-page judgment delivered by the trial judge was needless and an indication that the trial judge was finding a way round the doubts created by the prosecution.
The court said that none of the prosecution witnesses added any value to the case adding that “the 326-page judgment could not provide evidence where none existed," noting that ‘’the prosecution has failed to produce the bullet that was extracted from the skull of the deceased (Kudirat).
If the bullet was made available it would have needed a ballistician to verify what kind of bullet it was. The prosecution failed to say why the bullet was not produced at the trial. This is fatal to their case.’
In a criminal trial the burden of proof is beyond reasonable doubt and this is a chain that cannot be broken.
"The prosecution listed four witnesses PW 9, 10, 11 and 12 as witnesses which it intended to call in the trial, but never called any of them.
"PW 1 (Dr Ore Falomo) testified before the lower court that the bullet extracted from the forehead of the deceased was white and of a special kind, but the prosecution failed to tender the bullet as exhibit and this is fatal to their case.
"The prosecution also called Pw 4 (Investigating Police officer) who investigated the death of the deceased, but this witness was never produced for cross examination by the defence, as he never showed up in court.
"This renders the evidence of the police officer inconclusive as it denied the defendants their right to fair hearing, and no reasonable court can safely make a conviction on such inconclusive testimony.
"PW 2 (Sgt. Rogers) and PW 3( Mohammedd Abdul) in their confessional statement to the police, said they were enjoined by the first appellant, to murder Kudirat, but this statement was later retracted by them in court.
"PW 2 and 3 retracting their earlier statement to the police told the court that they were cajoled by the prosecution to indict the appellant, with a promise to give them monetary compensation.
Justice Pemu held “It is obvious that the prosecution witnesses fielded by the prosecution at the trial have been so discredited even in cross examination that no reasonable court can convict the appellants based on the available evidence placed before the court.’’
The court held that “where evidence of witnesses are contradictory, it is the duty of the judge to discountenance same, and treat the entire evidence as unreliable, it a duty in law and not discretion.
I found nothing in this charge to necessitate their being convicted.
For anyone who has been incarcerated since 1999, a period of about 14 years, this is unfortunate.’’
The court pointed out that the investigation into the murder of Alhaja Kudirat was shoddy, saying “there was no proper police investigation, no reliable exhibits, no circumstantial evidence, nothing.
The result is that all the issues are resolved in favour of the appellants and against the respondent who has failed to prove the charges against the appellants beyond reasonable doubt.
‘’The inference it deduce from the evidence must accord with common sense and good judgment. Its evaluation of same must be fraught with equity and its assessment of them must not be perverse.
A judge should eschew reliance on sentiments which may present itself in a subtle form in the determination of every dispute before it and in the performance of the sacred duty of the due administration of justice.
‘’The appeals succeed and allowed and I hereby make an order that the appellants who were convicted on the offence of conspiracy to murder and murder of Alhaja Kudirat Abiola on the 4th of June 1996 in a judgments of Justice M. A. Dada delivered on January 30, 2012 are hereby discharged and acquitted, while the conviction and sentences are hereby set aside.’’
"For someone who has been incarcerated since 1998 on a baseless indictment, it is so unfortunate," Pemu said.
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