Why Appeal Court freed Al-Mustapha & Co

Last Friday, the Court of Appeal, Lagos quashed the death sentence which Justice Mojisola Dada of the Lagos High Court handed Major Hamza Al-Mustapha and Alhaji Lateef Shofolahan over the death of Alhaja Kudirat Abiola. The appellate court said that the court below convicted the duo at all cost despite the prosecution’s failure to prove its case beyond reasonable doubt.

Below is the judgment as delivered by the  appellate court.

IN THE COURT OF APPEAL OF NIGERIA,  LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
ON FRIDAY THE 12TH DAY OF JULY, 2013 , BEFORE THEIR LORDSHIPS
AMINA ADAMU AUGIE,
RITA NOSAKHARE PEMU,  FATIMO OMORO AKINBAMI,
JUSTICES, COURT OF APPEAL.

APPEAL NO.CA/L/469A/2012
DELIVERED BY RITA NOSAKHARE PEMU

THE Appellant, in a 326 pages Judgment of the High Court of Justice, Lagos State in Charge No 10/37C/03 Coram Moji Dada J. was convicted for the offences of conspiracy to murder and murder of Alhaja Kudirat Abiola. The Charge initially included Chief Superident of Police Mohammed Rabo Lawal, but he was discharged on a no-case submission made on behalf of the Defendants.

FACTS OF THE CASE
The case of the Prosecution is that the Appellant conspired with another to murder and allegedly did murder Alhaja Kudirat Abiola on June 4, 1996, along Lagos-Ibadan expressway opposite Cargo Vision, Ikeja Area of Lagos State.

The Prosecution called four  witnesses, namely: Dr. Ore Falomo (PW1), Barnabas Jabila, a.k.a. Sgt. Rogers (PW2), Mohammed Abdul a.k.a. Katako (PW3) and D.C. Yusuf (PW4), while the Appellant called two witnesses and testified himself.

The facts leading to this appeal can aptly be put as follows. This trial started at the Lagos State High Court as ID/43C/99 in which the present Appellant with Mohammed Abacha, Rabo Lawal and one Mohammed Abdul were charged with conspiracy and murder. Mohammed Abacha was eventually discharged by the Supreme Court on July 11, 2002, on the ground of non culpability. The charge metamorphosed into the present Charge No ID/37C/2003.

No eyewitness on record

Noteworthy is that the crime, subject matter of this appeal was innitially investigated by the Nigerian Police Force at Panti in 1996, a Special Investigative Panel, SIP, and the Agbaje Panel set up in 1998 by the Government of General Abubakar Abdusalami. The accused persons were absolved of any involvement by the SIP and the Agbaje Panel in the death of the deceased.

On June 4, 1996,  the deceased was shot dead. There was no eyewitness on record to the actual crime, but one Dr. Mark Adesina whose statement is recorded at pages 10-18 of Vol. 1 of the Record of Appeal and whose name is listed as number one in the list of witnesses at the back of the information but was never called as a witness.PW1-Dr Ore Falomo witnessed the removal of a white bullet which was taken by the police. He testified that the deceased died after a head surgery and after her second cardiac arrest. Autopsy was conductyed on the deceased. After the commission of the crime, some members of the Abiola household were suspected of the commission of the crime. At the trial, the prosecution called four (4) witnesses, PW1, PW2, PW3, and PW4 respectively, while the Appellant called two (2) witnesses.

PWl – Dr. Oreoluwa Falomo testified that he was going to Ikosi on the 4th of June 1996 when he saw people running in front and thought it was an accident. He, as an orthopaedic surgeon thought he could help. he then saw Alhaja Kudirat Abiola slumped on the back of the car and the driver also shot. He recognised them as he had known these victims before. He arranged for a vehicle to rush them to the hospital. The deceased had been shot on the forehead and was bleeding from that spot. The driver had also been shot, but his condition was not as bad as that of the deceased.

One Dr. Ogunbanjo, informed him that the victims were in Eko Hospital. He went there and saw the deceased and a consultant who advices an urgent surgery. Two neurosurgeons agreed to work together. Alhaja Kudirat Abiola was still unconscious and bleeding.

, She was operated on and a special bullet that was not commonly seen was extracted from her skull. The operation lasted about two to three hours. She suffered a cardiac arrest. She appeared stabilized, but she suffered another cardiac arrest and she passed on.
A post mortem examination was performed on her body by one Dr. Alimi, who issued a report. He took part in moving the body to her house for burial. He made statement to the Police.

He told Police that it was a 5th Columnist in the Government that killed the deceased, going by the look of the bullet. The Police took the bullet away and never released it to them after the post mortem examination. He had told the Police that the bullet belonged to the family of the deceased in mediolegal term.

He had known the Abiola family and indeed was the personal physician and friend to the late Chief M.K.O. Abiola. He was very very close to the family.

Under cross-examination he said he had not trained as a ballistician, but he described what he observed as a doctor. He did say that the Police took away the spent bullet by force and said they needed it for investigation. The Police were picking and choosing what they wanted him to write in his statement. He had made many statements, about four, but he is surprised that he is shown only one.

He testified that he had met the Appellant before, and indeed he facilitated his visit to Late Chief M.K.O. Abiola when he was in detention at Aso Rock Villa. He was not shown Exhibit “A1″ before he came to court. It was his first time of seeing the document since he made it.

PW2 is Barbarnas Jabila alias Sgt.Rogers.He is a soldier of the rank of a Sergeant. He worked with the strike force in the Presidential villa in Abuja, before joining the Nigeria Army on the ih of January 1987, and trained as a parachooter Antitank Commander, Strike Security Force, an antiterrist outfit and attended a special course in North Korea. He knows the Appellant as the Chief Security Officer to Late General Sanni Abacha. Rabo Lawal was the officer in charge of Mobile Police in the Presidental villa. The Appellant used to send him and Rabo Lawal on assignment, and Rabo Lawal used to lead them when on assignment. His duty is to provide security as assigned by the Appellant as Special Anti- terrorist outfit and other special assignments. One Lateef Shofolahan used to give them information.

He knows the deceased, and the Appellant gave them order to elimnate her because she was doing some bad things against the state. When she came back from Burkina Faso, the Appellant gave them the order to move in and provided logisitics that they should stay at Dodan Barrack.

O/C Mopol took them to Alhaji Lati who in turn took them to  Abiola’s home. That Alhaji Lati gave them information that the deceased would soon move out. As soon as the deceased came out, he opened fire. That one Rabo Lawal gave money to Lateef Shofolahand to give them. The date in which he opened fire on the deceased was the 4th of June 1996. He returned the arm to the Appellant through his orderly Karo who confirmed receipt. The gun looked like MP5.

He was shocked that the secret leaked. It was not supposed to leak, as he was doing his job. The Appellant told him to keep quiet and that he should deny everything. At that time, Abacha had died.

On the day of the incident, they drove a 504 station wagon given to them by Dodan Barracks. The deceased was in a while Mercedes Benz. As she drove out of her premise, they trailed the Mercedes Benz to one round about, where the people in the Mercedes Benz dropped one small girl. The vehicle moved towards Alausa Secretariat and they trailed it until they got to an express road. They went closer and he opened fire at the car directly. After that he told Katako to drive him back to Dodan Baracks,

Foreign posting

Under cross-examination, he did testify that all he had said in examination-in-chief concerning the alleged involvement of the Appellant were things he was told to say by the Federal Government and the Lagos State Government. And that there are certain things which the Lagos State Government does not know.

The Attorney General of Lagos State, Yemi Osibanjo and the Solicitor General of Lagos State, and many others of Lagos State visited him when the case was being investigated by the SIP. The SS facilitated the visits of SSS because he was in their cell. He was given a promise by the authorities for agreeing to be a witness in this case. He was promised a house, job for himself and his Wife, security for his family and a foreign posting. His wife was moved to Abuja from Jaji where she was given an initial monthly allowance of N15,OOO, but later increased to N20,OOO. The money got to her through SSS.

Anytime the authorities visited him in the SSS cell where he was detained, they gave him money. Chief Bola Ige gave him N100,OOO.00. his handset and link was given to him by the Attorney General of Lagos State. He agreed to testify against the Appellant as part of his duties to the State. In 2005, inspite of the promises which the State made, he was being paid half salary. The promises made to him were not fulfilled.

His statement of September 29th 1999 was made during the S.I.P, and that was the time that they discussed what they  would give him. The statement was a response to the promise. During the S.I.P, and SSS officer  prostrated to him and said he would be told to go and on the way he would be killed.

He was afraid and cooperated.

Under cross-examination, he said on the 4th of June 1996, he was in Lagos. He heard about the deceased assassination in the news. He heard it on .the radio in Abuja. He also heard the news on that day he was in Lagos.

In his statement of 27th May, 1999, Exhibit DI-1 he said he was in Abuja.

He said he told one Okoloba that it is not the schedule of duty of the Appellant to issue out arms and ammunition as they have armourer. The Armourere registers your name and give you the arm and ammunition. He testified that as a government official his role was to carry out what he was told, not to make findings. He cannot remeber what he said but he did what they wanted him to do.

Cross examination

Exhibit A2 – his statement of 29th of September 1999 was produced by him and the Government official. That if Katako said it was a Cherokee jeep they rode on that date, he would be surprised. Under cross examination, PW2 testified that he justified his involvement in the murder of the deceased. He said what he was told by the authority. The authorities promised not to bring them to court, but they reneged.

PW3-Mohammed Abdul alias Katako, a soldier who joined the Nigerian Army in 1998. In 1996, he was told by Late Ibrahim Abacha that there are some people  coming from Abuja to Lagos, whom he should drive. Hear him:

“Between January and June 1996, when they came, so we went to National Theatre, that was where I saw Alhajj Lati, the 3,d Defendant, we went to Ikeja with him and went back to his house in Surulere, and we left him there and left the next day. Rogers said we should go to Ikeja to the same house we went with Lati. Mercedes car came out of the house, Rogers said we should follow the car. He stopped somewhere and dropped somebody and continued to lagos-Ibadan Expressway around seven-up. Rogers said I should drive close to the car and he fired and then said I should drive back to Dodan Barracks”.

That the house they went to, he was later informed was late Chief M.K.O. Abiola’s house. There were about 3 or 4 people in the Mercedes Benz car. They dropped a woman on the way. That when they got back to Dodan Barracks, Roger told people “we got am” but he did not know who was being refferd to. Later on he heard that it was the deceased. The people with whom we went were Skongama Bello and Late Samaila Shaibu.

Under Cross examinations, he said the shooting took place after the toll gate on the way going to Lagos. He made a statement in Abuja. He is aware that his statement was later translated into English Language, but he does not know who did the transaltion. However, he signed it after the English transaltion was read to him and he said yes. He does not know if he wrote Cherokee jeep, bur he did not ride a Cherokee jeep.It was a daybefore the day of the incident that they used a grand Cherokee jeep. He was offered promises including the gift of a house-in 1999   around September or October. These promises were made by officials he was with.

Officials of Lagos State Ministry of Justice visited him many times in Abuja while he was detained, including the Attorney General and Solicitor General of Lagos State. The Federal Attorney General Bola Ige visited him. He was given a house in Jos. They said that they would take care of him and his family. Promises were made to him before he wrote his statement. The promises were made to him on the 18th of September (the witness cried at this stage). His statement of the 19th of September was as a result of the promises of the 18th of September.

He said that on the 4th of June 1996, he had his first marriage at Azare in Bauchi State.
Under cross-examination, he said that he was in his village at Azare on the fateful day.

PW4 – Ahmed Fari Yusuf, was a police officer, now retired after 35 years of service. He retired as Commissioner of Police in charge of Budget Section, Nigeria Police on October 1, 2009.

He last served at the Police Force Headquarters, Louis Edet House, Area II, Garki, Abuja.

In 1999, he was in Abuja Force Headquarters. Between September December 1999, he was in Force C1D Area 10, Abuja. ‘-’Between September-December 1999, he was in Force CID Area 10, Abuja as Assistant C.O.P.

He knew the Appellant in September 1999, as he was brought to the Force C1D in connection with an alleged offence by the then SIP, which offence was for the alleged murder of Alhaja Kudirat, the burning of Guardian House and’attempted murder of Alex Ibru.

When he was brought, he was cautioned and he made a statement in his own handwriting. He witnessed the first statement made by him. Exhibit A-3 – statement made on the 23rd of September 1999.

After Exhibit A-3, he is aware that the Appellant was further interrogated by SIP detailed to carry out investigation and that he made a further statement.

That one Lateef Shofolahan also made a statement on the 21st of September 1999 in his own handwriting.

After, there was a trial within trial for twelve months, he disappeared into thin air and was never cross-examined (from records).

He tendered statements of the accused persons which were all admitted after trial within trial and objections for their admissibility failed.

On the 23rd of November 2010, PW4 was absent from Court, when trial was to have continued and the case was adjourned to the 20th of December 2010 (page 1060 of the Record of Appeal). After series of adjournments, the Court foreclosed the prosecution on the 14th of March 2011.

On the 4th of July 2011, the Appellant Major Hamza AI Mustapha testified on his behalf as DWl. He testified that he was arrested in October 1998, under an allegation that he was keeping the property of General Abacha. When they could not establish anything against him, they changed the allegation to gun running from Libya, then to overthrowing of the government of Abdulsalam Abubakar. it was changed to securing the property of the culprit of 1997 and later when all there were cleared, he was alleged to plan coup plotting to remove Abdulsalam Abubakar from government. He was cleared and when the government handed over to General Obasanjo, this created yet another allegation under a script called YAKASI says Prison Note.

He was investigated by the Police, and later to the Homicide case that brought him to Court on the 14th of October 1999. That Yakasi prison note was a script written by the Government of General Abdulsalam Abubakar in order to continue to keep him in detention having been cleared by numerous panels he established in 1998 and 1999. He was further subjected to interrogations and investigations by reason of that prison note of Lieutenant Colonel Yakasi, because of the events that happened from the murder of General Abacha to the murder of Late M.K.O. Abiola, and the subsequent event that happened right in his presence in the presidency. For fear of him divulging these, he has been persecuted and theY,pave keep him in detention.

He was Chief Security Officer to the former head of state General Sanni Abacha since the lih of November 1993. His career is that of Intelligence for Nigeria. What has to do with intelligence management for the Army and for the country is where he belongs. His primary and secondary assignments begin and end with:
(1) Security to the late head of State and Commander-in-Chief

(2) Security to members of the first family and

(3) Their property and seat of government

The various panels he faced from 21st October 1998 include :

(1)CHQ Panel on the investigation of the personal belongings of culprit of 1997, initiated by the office of CJS in the presidency- He was cleared and returned to Enugu-He was in fact commended.

2. Panel chaired by Major General Yusuf from Arm of Coat, who investigated the allegation fro gun running and he was cleared.
(3)          Allegation for Abacha’s personal properties of which he was cleared.

This means that no one else irrespective of rank, position or situation, should use another soldier’s rifle. That is Military Law. The Armourer is the officer in the arm who has the custody and control of weapons.
Military officers or non commission officers are only authorized to move from one location to the other or between one town to the other as military pass. By this, every movement must be on the basis of the data provided in that form. Any movement without that pass or the content and the authority and stamp in that pass is considered iliegal and is punishable by military law.

On the PASS, it contains the name of the officer, or the non- commission officer who is authorized to go on pass, his initials, rank, his service number, purpose for which the pass is issued, jurisdiction for the pass, location that the pass is intended, the nearest military formation to that location that the person is authorized to go to and the nearest police military formation, it also bears the signature and name of the authorizing officer, that is the commanding officer and the stamp of the unit.

It bears a note underneath that says if in the likely event of any is the C.S.O. who has a secretariat headed by a S.S.S officer called the 5LO (i.e Security Liaising Officer). There is also an administrative officer from services in the country. Then there is the office of the 2nd in command, who is from the Army Military Intelligence with his own staff. The department had four different branches, first was Intelligence wing,

The strike force” came to being in 1995. The National Security and Joint Intelligence Bureau came up with the idea of a small force that was to protect the seat of government, and it is comprised of 75 serving personnel from all agencies in the country.

He had unfettered access to PRS, Council of State, the Executive Council by virtue of his schedule of duties.

To be continued tomorrow

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