By BARTHOLOMEW MADUKWE
The Lagos Division of the Court of Appeal yesterday overruled the death sentence handed to Major Hamza Al-Mustapha and Alhaji Lateef Shofolahan on January 30, 2012, by Justice Mojisola Dada of the Lagos High Court in Igbosere.
According to the presiding judge, Justice Rita Pemu “the lower court stroked to secure a conviction by all means.” The appellate court therefore discharged and acquitted the duo of conspiracy and murder of Alhaja Kudirat Abiola, 45, who was shot in Lagos on June 4, 1996.
The three female appellate court justices that discharged and acquitted Al-Mustapha and Shofolahan are Justice Rita Pemu (presiding), Justice Amina Adamu Augie and Justice F. O. Akinbami. Justice Augie was drafted into the panel following the decision of Justice Ibrahim Saulawa who disqualified himself from hearing the appeal.
Al-Mustapha, a former Chief Security Officer (CSO) to the late Head of State, General Sani Abacha, and Shofolahan, a former Personal Assistant to late Kudirat, were both convicted by the lower court for the conspiracy and murder preferred against them by Lagos State.
The duo separately filed their appeals 24-hours after they were convicted, contending that the death sentence handed them was unwarranted, unreasonable and a manifest miscarriage of justice.
Al-Mustapha and Shofolahan also contended that the trial judge erred in law by arriving at the conclusion that they conspired to kill Alhaja Kudirat on June 4, 1996, and faulted the court’s reliance on the testimony of Dr. Ore Falomo on the bullet extracted from the late Kudirat.
Counsel to Al-Mustapha, Mr. Joseph Daudu (SAN), adopting his address, urged the court to allow the appeal and set aside the judgment of the lower court. He argued that the trial court erred in law to have based its judgment on the testimonies of PW1 (Sgt Rogers) and PW2 (Katako), which were contradictory.
”The testimonies of PW1 and 2 were inconclusive and contradictory. The court drew inferences from these contradictory statements, to establish the guilty of the appellants. It is my submission that those inferences, upon which the court based its judgment, were merely political evidence formulated by the respondent, and which the trial court ought not to have considered. I therefore urge the court to allow this appeal, and quash the judgment of the lower court,” Daudu argued.
Counsel to Shofolahan, Mr. Olalekan Ojo, also aligned himself with the submission of Daudu, saying that the prosecution called four witnesses and two of the witnesses were presumed to be star witnesses.
The appellants counsel submitted that the lower court relied on conjectures and inferences to support the conviction of the Al-Mustapha and Shofolahan, which did not form part of the evidence presented before the court, saying “the constitution did not support the conviction. The testimonies of PW1 (Sgt Rogers) and PW2 (Katako) are not strong enough to warrant the conviction of the appellant.”
In his response, counsel to the respondent, Mr. Lawal Pedro (SAN), urged the court to dismiss the appeal for lack of merit and uphold the judgment of the lower court. He argued that apart from the evidence of PW1 and 2, there were other evidence from the defendants, which supports the counts of conspiracy and murder.
How Justice Mojisala Dada sentenced Al-Mustapha and Shofolahan to death by hanging
After many years of waiting to know who the court deemed to have masterminded the assassination of late Kudirat, wife of the acclaimed winner of the June 12, 1993 presidential election, late Chief MKO Abiola, Justice Mojisala Dada of Lagos High Court sitting in Igbosere delivered the judgment on a Monday afternoon of January 30, 2012.
Clad in a white robe and a prayer cap, Al-Mustapha watched as Justice Dada reads her judgment which lasted several hours. Not left in wonder, Shofolahan, however broke down in tears when it became clear that they have been convicted and sentenced to death by hanging.
Justice Dada ruled: “Evidence proves Al-Mustapha, Shofolahan killed Kudiratu Abiola. Evidence was manifestedly heavy that they killed Kudiratu Abiola. In view of this, they are guilty of conspiracy and murder.” Dada said in her ruling which lasted several hours.The prosecution has proved its case beyond all reasonable doubt. In view of this, they should be hanged.”
The judge described Shofolahan as a viper, saying “he acted like Judas Iscariot. He was friend to the Abiola family in the open and enemy in secret. He sacrificed his master (Abiola) because of his personal greed. He was a viper.”
The Appeal Court’s judgement yesterday read:
“In a criminal trial, the burden is to prove beyond reasonable doubt and this is a chain that cannot be broken. The prosecution listed four witnesses- PW 9, 10, 11 and 12 with 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 an inconclusive testimony. PW 2 (Sgt.Barnabas Jabila Mshelia, a.k.a. Sgt. Rogers) and PW 3( Mohammedd Abdul) in their confessional statements to the Police, said they were enjoined by the first appellant, (Al-Mustapha) to murder Kudirat, but this statement was later retracted by them in court. PW 2 and 3 in retracting their earlier statements 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. This is a contradiction in the testimonies of the witnesses; it raises doubt in the case of the prosecution, and it is unimaginable that the lower court did not expunge this evidence.
“For an offence like murder, I wonder why the Nigerian Police did not do a proper investigation. Jabila who was initially arrested as co-defendant, was later called prosecution witness; witnesses who ought
to be called were never called, the bullet extracted was never tendered before the court. Once there is doubt in the case of the prosecution, as in the instant case, it must be resolved in favour of the accused, and this doubt is accordingly resolved in favour of the appellants.
“One thing is clear, Kudirat was shot, but the big question is: who pulled the trigger? I find nothing in this case which sufficiently links the appellants with the commission of the offence. It is preposterous that in a 326-page judgment, the lower court was only concerned with securing a conviction at all costs. Just as God is no respecter of persons, so also is this court. I hereby order that the appellants be discharged and acquitted while the conviction and sentence of the lower court, is hereby discharged.”