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Why Appeal Court freed Al-Mustapha & Co(3)

HE knows PW2, Barnabas Jabila a.k.a. Sergeant Rogers. PW2 was serving in Jaji infanty centre and school, worked with the former head of state, Brigadier General Abdulsalam Abubakar closely, and this informed his nomination, that brought him to be a member of strike force into the Presidency.

PW2 was Brigadier General Abdulsalam Abubakar’s personal confidential person outside routine military duty, that is to say regarding his personal life, he was into issues that had to do with the spiritual state of Brigadier General Abdulsalam Abubakar.

That when PW2 testified that the Appellant called him on radio and that Rabo Lawal led him to his office where he gave him instructions to kill the deceased, (a statement which he later retracted), this cannot be true because Rabo Lawal was at the material time in Libya as he was nominated for a course, cleared by the presidency office’s National Security Adviser, signed and endorsed by the Police Office of the Inspector General of Police.

It was not possible that Rabo Lawal was in Libya and at the Villa at the same time. Again, the walkie-talkie used by the police and that used by the strike force are different. A general radio call cannot fetch everybody. Again if Rabo Lawal were to be in Nigeria, he would have been commanding his own wing.

He was a commander of presidential escort mobile police and if there is anybody to bring him to him, it could have been for those in the headquarters or could have been any of the following that were there with him namely his two IC- it could be the administrative officer, security liasing officer or the duty officer of the day. Any of these people could have brought PW2 to him and not Rabo Lawal who was then in Libya.

That PW2 could not have been called that very day the deceased was shot in the morning, and that same day liaise with Lateef  Shofolahan, and that same morning do surveillance and that same morning they shot her, as stated in PW2’s statement. This could not have been possible from Libya to Lagos and all these actions in the morning.

*Al-Mustapha
*Al-Mustapha

The Appellant testifies that it is not possible for him to have given PW2 a rifle or any other weapon for that matter to kill the deceased with, and this is because everyone of them is issued his own rifle, in his name; make number, brought number and under the care and supervision and routine counting. It is called arms condition return. Every month, the state of arms in the presidency is accounted for. He testified that where one is missing, the President must note it and search at the routines. Where a bullet is missing, the entire department must account for an Army, Navy or Air Force through brigade of guards) and the supervising entire department until it is found.

That he could not have handed over his rifle to a relatively new person that came to the department in 1995. That he could not have given PW2 arms without a note handing and taking over and it is not possible to take arms from Abuja to Lagos without documenting it in a pass.

He denied telling PW2 that the deceased must be eliminated. Neither did he make a statement like “There are enemies of the country, they must be eliminated.” That this statement is not even contained in PW2’s statement.

That after the murder of General Abacha, when he went through handling and taking over processes with General Abdulsalam Abubakar, he was told by General Abdulsalam Abubakar to assist him in preparing the presidency for his occupation. Before then, he was staying in the Barrack next to brigade of Guards. It was in the cause of doing this that he was separated from late Chief M.K.O. Abiola, leading into numerous activity that led to his murder at Aguda house.

That the tape at the scene of where he was murdered is still a major issue between General Abdulsalam Abubakar and himself. This informed the fact that as soon as he was arrested on the 21st of October 1998, the first thing they did was to ransack and pack all he had and that is why he urged his counsel to beg Court to force them to bring the items they took away from him in order to help him present his case in Court.

That a day after the murder of Late Chief M.K.O. Abiola, something happened between Abuja and South West leader, between the seat of Government, Presidency and Central Bank  which he has documentary evidence and tape. Money was given in large sum in his presence. He recorded what happened. A day after the murder of Chief M.K.O. Abiola, which was extremely hot day, the sum of Two hundred million dollars ($200,000,000) was withdrawn in cash, seventy-five million pounds (£75,000,000) and five hundred million naira (N500,000,000). That is how the matter was initially doused and that was the first withdrawal from Central Bank and pictures were printed to South West particularly against him.

That was why, after the incident, Genera Abdulsalam Abubakar and himself sat at the same Aguda house where later Chief M.K.O. Abiola was murdered. General Abdulsalam Abubakar posted him to Enugu and while he was rounding up the handing over with him, he declared him absent with leave from Enugu having sent him to Pakistan.

He testified that he had known late Chief M.K.O. Abiola as far back as when he was in the army headquarters in 1985. They were verv close in the sense that Chief M.K.O. Abiola used to call him whenever he has any engagement with any of the services army, navy, air force or ministry of defence, to facilitate his coming in and out of the place. Even after the annulment of June 12 election, when he used to consult General Abacha as a personal friend in trying to claim the mandate while Chief Ernest Shonekan was President, and General Abacha was Minister of Defence} he was the one assisting him to come in.

Personal confidence

A particular incident was when there was a national emergency meeting, Chief M.K.O. Abiola came in the evening and said it was too far for him to go. He came in a very long wheel Mercedez Limousine and obliged to stay with him. The meal he ate that day came from his kitchen – which was Amala. He stayed with him till 4a.m on personal confidence. That late Chief M.K.O. Abiola referred to him as a son, before Rev. Jesse Jackson and one time Ambassador to Nigeria Walter Carrington when he took them to see him, where he was under police custody at Zone 7, Abuja .

At a time when Chief M.K.O. Abiola’s feeding was poor, he took it upon himself, because of his previous relationship with him to be paying for his feeding from the resources of security department until his death. The Commissioner of Police then in Abuja, through the catering officer of police, who used to prepare his dishes are still alive. That the police officer who guarded late Chief M.K.O. Abiola can testify to this, as well as one Mr. Zando, a police officer who stayed with him till his death.

One of Late Chief M.K.O. Abiola’s numerous visitors when he was incarcerated was Dr. Ore Falomo, PWl his personal physician who also is his own personal Doctor at Maryland Hospital.

Late Chief M.K.O. Abiola was to have been killed the day General Abacha was killed, but,it was he who took him away to another location in the Barracks. He kept one Ikilamar, the commander of PW2 with the entire strike force in concealing him from those who wanted him shot. He is an enemy to those people till date. These people till date have been spending dollars sustaining this case, and spending money on the media. He also assisted the deceased, Kola Abiola, the lawyers and PWl to visit Late Chief M.K.O. Abiola.

He had made twenty eight statements and he was able to use his handcuff to count them on the wall by scratching the wall. He was confronted at the SIP meeting with PW2 and PW3 at SSS headquarters in the night, where they are being taught on how to face him. They call it “hardship boldness”. They were brought and confronted him by saying what they were told to face him with. They were well dressed in suits while he was on a singlet which he wore throughout the year. After they left, he was forced to make a statement without a date.

He was returned to force headquarters where he was initially kept. He met the two together at a sitting. He was also made to face Rabo Lawal, first as a witness and then as a co-accused. At the first headquarters SIP meeting, second floor, he was made to face Lateef Shofolahan whom he met laying on his back on the floor, groaning, with blood flowing out of his hands. He was later brought before the SIP to confront him and after the confrontation session, he was brought by one Mr. Ogeonum who gave him papers to copy as his statement.

He met Lateef Shofolahan for the 1st time in 1998 when two million man match was being prepared for in March. The two million man match was an occasion whereby youth had a rally in Abuja and youths from all over Nigeria gathered state by state in 1998.

Exhibit A2, statement of PW2 of the 29th of September 1999 was never shown to him at the SIP. He never sent N50, 000.00 through one Sukwanga Bello from Abuja to PW2 and others in Lagos. Moreso the said Sukwanga was working with the DG, SSS Lt. Colonel Kayode Are. Bello Sukwanga was a friend to PW2 Lieutenant Colonel Kayode Are was DG SSS from 1999-2007.

He denied that any arms were returned to him after the assignment through his orderly, because he gave out no arms in the first place. He could not have sent a messenger to PW2 to deny the commission of the crime because he had lost his liberty since 24th October 1998 and had had no access to anybody.

But for the intervention of Police Commissioner Okiro, he would have been killed.

Statements on daily basis

At the first headquarters where he was being kept, he made statements on a daily basis which he counted to be 28 on the wall. He was tailored to accept the script and incriminate himself to tow the line of what PW2 said.

He was aware that PW2 complained against the convening authority of the SIP – Colonel Kayode Are for failing to meet up the promises promised him. Even PW2’s wife protested against PW2’s condition and not meeting up his demand to ameliorate the condition in which he was kept. Specifically, the way PW2 was kept in detention, the job promised to his wife which was not met. PW2’s wife complained openly at the presidency, the monetary reward to him which was supposed to be routine was not met. The SIP discussed this about PW2 with him directly.

He made his statement of September 23,1999 – Exhibit A3, before the SIP, and he made it while his hands and legs were chained. He was deprived of food. He was injured, deprived of medical attention even when he sustained injuries. This is because he was injured by the members of the SIP. He was deprived of sleep. They poured cold water on him during the cold season in Abuja. They used office pin on his head.

In all, he testified that he became a victim of the political class right from the death of General Abacha. As somebody who should be done away with for many reasons. When he changed places for Late Chief M.K.O. Abiola, due to threat to his life, this did not go down well with some people, highly respected people in the society.

He was invited to be a witness against the Federal Government when the family of Chief M.K.O Abiola filed a suit against the Federal Government for damages. He refused and that did not go down well. Two years after in 2004, 1st of March he was alleged to be staging a coup against President Obasanjo. A script after four years of torture, he was exonerated and apologized to.

Conspiracy and murder

When he says it is a script, it meant that he was particularly earmarked for this punishment, to be blackmailed by people in high places with mischievous intentions. Under cross-examination, he did say that SIP was instituted in 1999 by the Federal Government after other panels to investigate the allegation of the charges of conspiracy and murder against him. He faced a total of ten panels. They are:

{1}     In 1998 October he was brought to Abuja to face a panel instituted by the office of Chief of General Staff on the recovery of General Diya’s coupist castled properties – He was cleared and indeed commended.

(2)     Soon after he returned to Enugu, he was arrested for being in possession of General Abacha’s money and he was cleared in Abuja.

(3)     He was accused of being in possession of General Abacha”s personal properties and was cleared.

(4)     He was accused for gun running that from Libya, he was collecting bombs to overthrow General Abdulsalam Abubakar.

(5)     He was charged for staging a coup against General Abdusalam Abubakar – He was cleared.

(6)     He was made to face Agbaje panel who investigated this matter while they were on SIP was also convened and they left Agbaje’s panel to the SIP. This makes 7 panels.

(7) In 20001 he was brought before Human Right Violation Investigation Commission Oputa Panel.

(8) In 2002, NJC constituted a panel that sat at the Magistrate Court at Kirikiri opposite the prison.

(9) The tenth panel was convened in the year 2004 to investigate him for staging a coup.

He was cleared of all these: It is the same people that have been after him that are prosecuting this case. Apart from the Special Investigation Panel (SIP) that sat in the Force Headquarters Abuja, that investigated this particular allegation before this Court, the Agbaje panel also investigated this matter to conclusion in writing and on video. He was transferred from Agbaje panel to SIP, when SIP was set up. At the conclusion of Agbaje panel, Rabo Lawal and himself had been cleared.

That he became an enemy to some eyes who wanted Abacha removed.

The SIP did not allow him to date his statements, but shortly before he was brought, he was made to date the first on the 20th, to make it dated on the 23rd of September 1999, then the one they call visa is the one of the 13th of October 1999. He never made any statement voluntarily. Exhibit A3 was not made voluntarily, but he stated facts therein. Anytime he made a statement, he is tortured.

Rabo LawaI was not in the country when this incident happened.

DW2 – Kyari Jieaid Gadzama – a retired military officer. Joined the Nigerian army in June 1993. He is orderly to the Appellant. He testified that strike force is a special force training. He undertook a course in it from late 1994 to 1995. He was appointed as orderly to the Appellant in 1994. He prepares the Appellant’s visitors list and takes his calls. He also reminds him of his calls. Ones names must be on the visitors list before he can see CSO for that day. If your name is not there, you will be denied access:’’At the end of each day, he hands over the daily visitors list to the P.A, for further references.

On the 4th of June 1996, he was in the Presidential villa Aso Rock in

morning. He knows PW2. On that day PW2 and himself were together when they came for arms at the armories at the headquarters in Aguda Home in the villa. He saw PW2 at about 10 to 11 in the morning on that day. One Garuba Alamu was with them on that day. He knows Kayode Are as Director General SSS during the regime of Olusegun Obasanjo.

That the procedure for the issuance of ammunitions in the military and the security department is that you go to armoury and sign in and at the end of your duty, you sign out. There are no exceptions.

That there are no transfers of arms to anybody because they are recorded in your name and are numbered. It has to be through the armoury.

He was brought before Agbaje panel and another panel where he saw PW2 who told him to do anything he is told to do. Later on he was given a statement of PW2 and was told to go through it. He went through the statement and could not understand it. He was kicked till he fell and became unconscious. He was told to write down that all PW2 wrote down was true. He refused. But they said he must know. They insisted he must write something.

He wrote something, but they tore it and began to dictate to him to write that he was given arms, that PW2 gave him arms to give back to Appellant but he refused because such a thing did not happen. He was arrested three times.

He does not know PW3. That PW2 told him as at the time he was in detention that he would soon be posted out and he would be Ieft behind if he does not co-operate with him to do what they say they should do. That as for him already, they will do something good for him.. That he has been given a house, he would soon be flying out and his visa is getting ready, and that if he co-operates to write, may be they could go together. He would soon be posted out on foreign assignment.

He does not know Lateef Shofolahan. He confirmed Exhibit A2.

The Appellant’s house was vandalized and his goods removed upon the instruction of the board and panel members.

He confirms that the Appellant was very close to Late Chief M.K.O. Abiola.

He was tortured in order to adopt what SLO Bashir and PW2 said but he refused, as he knows nothing about it.

He was cross examined. He emphasized that he was told to say that he knows what they were doing and he said it is not true. He maintained that PW2 was with him at the Armoury in Abuja on the 4rh of June 1996 when the deceased was murdered in Lagos.

Regular meetings

He testified that to his knowledge, PW2 had never visited the Appellant in his office except when he comes for CSO regular meetings which takes place at the parade ground.

Nobody comes to the Appellant’s office except on appointment.

DW2 is Alhaji Abdul Lateef Shofolahan – who later became co accused civilian, he was at the time at the maximum security prison Apapa Kirikiri facing the charge of conspiracy to murder, and murdering of Alhaja Kudirat Abiola in 1993, he worked at Hope 93, No 3 Opebi Road Ikeja, Lagos. Hope 93 is M.K.O. Abiola presidential campaign organization office. Upon closure of Hope 93, he went back to his business of beer distributor and he did that till when he was arrested in 1999. In 1999 he joined Olusegun Obasanjo presidential campaign. He knew the deceased when she used to come to Hope 93 to collect campaign materials. He also knows Dr. Doyin Abiola and Alhaja Bisi. He has never worked for the deceased.

He was never the deceased driver. He had begged Mrs. Ojonio of the Special Investigation Panel in Abuja to take him for identification to the Abiolas’ house if he ever worked for the deceased or in her household, but they did not accede to his request.

He remembers Exhibit A4 and a statement dated 9th of October 1999. He was tortured after his arrest on the 8th of October 1999 and told to copy the statement on the 9th of October 1999 and told to put the 8th of October 1999 on the statement. He was told to write whatever they told him to write and that is how he came about the statement where the said inter alia that he is the protocol officer to the deceased.

He never went on errands for the deceased as stated in the statement. He does not know any Seriki Sania. He never took Seriki Sania to the Appellant, neither did the Appellant introduce him to Rabo LawaI.

He knows one IPO who tortured him and anytime he sees him, he used to call him “my torturer.”

He saw PW2 for the first time at the Special Investigation Panel.

He met Muhammed Katako in 1999 for the first time through this trial. Before then, he never met him.

He was told to copy a person described as AVM Idi Musa. He came across that name from SIP. He had to copy the names into his statement because of the torture on him. He never met Katako at the National theatre. He never took Katako to Abiola’s house in Ikeja.

He met Rabo Lawal for the 1st time on the 9th of October 1999 at the Special Investigation Panel, Police Headquarters, Abuja. He denies le charges against him.

He does not know any Major Ado. Everything in the statement of le 8th of October 1999 is a lie. Except his name, date of birth and his ddress.

Under cross examination, he did say that his statement was given to him to copy and was not read to him. Papers were given to him to copy he contents in the statement. The torturer told him to sign.

He wrote more than twenty statements. By this, he means that when he copies the contents of a paper given to him, they would say that is not what they want; remove this.

They did not tell him to say he killed the deceased. He has never lived in a barrack before. He lived with Obasanjo before, but not in the barracks.

He Shodolahan was not re-examined.

The prosecution tendered A1, A2, A3, A4, A5, B1, DI-1, DI-2, DI-3, DI-4, DI-5, and DI-6 respectively.

At the close of proceedings, the learned trial judge found the Appellant guilty of conspiracy to murder and murder and was sentenced death vide Judgment delivered on the 30th of January 2012 by Hon. Justice M.A. dada (Mrs) of the High Court of Lagos State- pages 1545-1866 of the Record of Appeal Vol. 4.

HE submits that it is irregular to charge the offence of conspiracy with the substantive charge. There is no direct or circumstantial evidence on conspiracy.

That PW1’s evidence had no relevance to the charge of conspiracy. PW2 and PW3’s evidence amounted unreliable and discredited evidence while PW4’s evidence was inchoate and inconclusive. For these reasons, the charge of conspiracy cannot stand, he argues.

The count of murder must be proved beyond reasonable doubt, he argues. Submits that none of the Prosecution’s witnesses gave credible or reliable evidence. The entire trial was a persecution. He urges Court that the Prosecution failed to prove’ he charges against the Appellant beyond reasonable doubt.

The Respondents Issue No 1 can safely be subsumed into the two issues of the Appellant, save their issue No 2 which talks about , circumstantial evidence. It would be right to say that Issue No 1 in the Respondent’s issues for determination is same as that canvassed by the Appellant.

Arguing Issue No 1, the Respondent submits that conspiracy as an offence has not been defined by the Criminal Code Law. But their conspiracy at Common Law is an agreement of two or more persons to do.

an act which is an offence to agree to do. He submits that the very plot is an act in itself. Referring to Archbold 37th Edition paragraph 4051, he submits that conspiracy is agreement to do an act which it is an offence to agree to do, and this is what constitutes the offence under the Criminal Code Law, citing HARUNA V. THE STATE (1972) 8-9 SC 108.

He submits that to prove conspiracy, it is not necessary to prove direct communication between each conspirator and every other. All that needs to be established is that the criminal design alleged is common to all of them. Proof of how they connected with or amongst themselves or that the connection was made is not necessary – cites ERIM V. THE STATE (1994) 5 NWLR (pt. 346) 522 at 533.

Circumstantial evidence

He submits that conspiracy can be proved either by direct or circumstantial evidence.

Here there is direct evidence of PW2 and PW3 who are accomplices to the offences tried in this case. That the direct evidence of how PW2 and PW3 planned and executed the plan to murder the deceased is consistent with their extra-judicial statement during investigation.

He submits that when a witness, like in the present case, has a good explanation for the inconsistency in his evidence in Court, this may fail to discredit his entire testimony, particularly where there are other evidence.

That direct positive evidence of proof of conspiracy between the conspirators is hardly capable of proof. Therefore the Courts usually find the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. That the bottom line is the meeting of the minds of the conspirators which need not be physical citing NWOSU V. THE STATE (2004) 15 NWLR (Pt. 897) 466; ODUNEYE V. STATE (2001) 13 WRN 88; OBIAKOR V. STATE (2002) 10 NWLR (Pt. 776) 612; DABOH V. STATE (1997) 5 Sc. 197; OMOTOLA V. STATE (2009) 2-3 SC (Pt. II) 196.

Conspiracy; he submits can be inferred from the conduct of the parties. He submits that the fact that there was no credible direct evidence of an agreement between the accused persons to commit the offence is not enough to hold that the prosecution has failed to establish the charge of conspiracy citing USUFU V. THE STATE (2007) 3 N.W.L.R Pt. 1020 at 94; ALARAPE V. THE STATE (2001) 5 NWLR Pt. 705 @ 79; OYAKHIRE V.  THE STATE (2006) 15 NWLR (Pt. 1001) at 157; NJOVENS V. THE STATE (1973) 5 S.C. at 17.

The Respondent submits that some compelling facts and circumstances exist from which conspiracy could be inferred in this case, which include facts of the murder of the deceased during the reign of terror of General Sanni Abacha as the Head of State of the Federal Republic of Nigeria. And the Appellant was the Chief Security Officer of Late General Sanni Abacha. Submitting further that there was opposition to the government of Late General Sanni Abacha led by NADECO, who wanted the detained winner of the 1993 June 12 election, M.K.O. Abiola released.

The deceased was a prominent member and financier of NADECO and wife of Chief M.K.O. Abiola. Prominent members of NADECO like Alex Ibru and Senator Abraham Adesanya, Late Alhaja Adeniyi who was assassinated were members or sympathizers of NADECO and this took place during the regime of General Sanni Abacha.

He submits that he has been able to lay direct and circumstantial evidence before the Court, and been able to prove the charge of conspiracy against the Appellant beyond reasonable doubt. It is not beyond any shadow of doubt, he argues.

He submits that the degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. That once he ingredients of the particular offence the accused is charged with, are proved, that will constitute proof beyond reasonable doubt.

Submits that there are sufficient facts from which conspiracy between the Appellant, PW2 and PW3 can be inferred. That the trial Court was right to have convicted and sentenced the Appellant for the offence of conspiracy to murder the deceased.

On the Issue of circumstantial evidence, the Respondent submits that there was direct and circumstantial evidence which shows that the deceased was killed at the directive of the Appellant but that he concedes that the direct evidence of the prosecution against the Appellant has a challenge of credibility arising from the contradictory evidence of PW2 and PW3, but that would not detract from the fact that there was evidence before the Court as to who murdered the deceased.

That the Appellant’s extra-judicial statement admitted as Exhibit A6 and other circumstantial evidence adduced, led to the conclusion that although the Appellant did not by himself pull the trigger, he was a principal offender to the commission of the offence referring to Section 7 of the Criminal Code Law.

He submits that the circumtantial evidence before Court which the Court was pobliged to believe are:

(I) M.K.O. Abiola acclaimed winner of the June 12, 1993 election, the husband of the deceased was in detention when the deceased was assassinated on the 4thof June 1996.

(II) In 1996, Sanni Abacha was the Head of State and Commdnder-In-Chief of the Nigerian Armed Forces.

(III)  The 1st was the Chief Security Officer to General Sanni Abacha and very powerful.

(IV) The deceased was a member of NADECO and owner of Radio Kudirat, the foremost opposition to government of General Sanni Abacha.

(V) In the Supreme Court case, ABACHA V. STATE (Supra), it was found and held that Mohammed Abacha was in the Appellant’s office when he gave a bag containing weapons to and whispered instruction to ears.

(VI) The deceased was assassinated during the struggle for the actualization of the June 12  election and opposition to government of General Sanni Abacha.

Urges Court to take judicial notice of the above. That the fact that the Apellant admitted during cross-examination that he ordered surveilance of NADECO rally in Lagos shows that he is culpable.

So much for submissions of learned counsel for the respective parties.

The Appellant was charged with conspiracy to commit murder contrary to Section 324 of the Criminal Code Law Cap. 32 Vol. II Laws of Lagos State 1994 and with murder respectively contrary to Section 319 (I) of the Crimnal Code Law Cap 32 Vol. II, Laws of Lagos State 1994- page 3 of the Record of Appeal Vol. 1.

Section 2 of the interpretation section of the Criminal Code defines an “offence” as an act or ommission which renders the person doing the act or making the omission liable to punishment, under this code or under any statute is called an offence.

By Section 324 of the Criminal Code of Lagos State, under which the Appellant is charged, it states

“Any person who conspires with any other person to kill any person, whether such person is in Nigeria or elsewhere, is guilty of a felony, and is liable to imprisonment for fourteen years.”

By this very definition, it portends that there is a definition of conspiracy to kill in our law.

As earlier observed in this judgment, before me is a 326 pages judgment of the lower court, coupled with a 7 Grounds of Appeal in the Notice of Appeal. But prudently, learned counsel for the respective parties had narrowed their issues for determmination, which in my view covers the field of the Grounds of Appeal. This is because in my view, there are three issues for determination in this matter which can aptly be put thus, and which in essence is an adoption of their respective issues for determination, earlier adumbrated in this judgment. They are

(1) “Whether the offence of conspiracy to murder has been established in this case against the Appellant, in view of the evidence before Court, direct or circumstantial.”

(2)    Whether there has been established against the Appellant the charge of murder of Late Alhaja Kudirat Abiola.”

(3) “Whether there is any evidence outside the evidence of PW1, PW2, PW3 and PW4 that suggests that the Appellant committed the crime.”

Decidedly, conspiracy may be formed in one of the following ways:

(a) “the conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design

(b)     there may be one person who is the hub around whom the others revolve, like the centre of a circle and the circumference.

(c)     a person may communicate with A and A with B, who in turn communicate with another and so on. This is what is called chain of conspiracy.”

OSUAGWU V. STATE (2013) 5 (Pt. 1346) . 366 at 391-392; OYEDIRANRAN V. REPUBLIC (1966) S SCNLR 173; V. SALAWU (2011) 8 NWLR (Pt. 1279) 580; ERIM V. STATE (1994) 5 NWLR (Pt. 346) 522.

Agreement by the conspirators

Conspiracy is complete upon an agreement by the conspirators, and in most cases, agreement is inferred or presumed. And there must be evidence of complicity of the accused person in the offence. Given this background, can it be said, given the facts before the lower court, that the Appellant is guilty of conspiracy?

This can be gleaned from the evidence of the Prosecution witnesses who testified at the lower court. They are PW1, PW2, PW3 and PW4.

The evidence of PW2, PW3, and PW4 are instructive in this regard.

Now when PW2 testified, he kept referring to the word “US”, which was never explained by the prosecution.

It was alleged that it was through Karo that the arm was returned to the Appellant. Why was this Karo not called to testify? From records the Prosecution had listed twelve (12) potential witnesses at the back of the information. They are:

(1) Dr. Mark Adesina

(2) Barnabas Jabila (a.k. a. Rogers)

(3) Mohammed Abdul (a.k.a. Katako)

(4) Dr. Atumie (Chief Consultant/Pathologist)

(5) C. Obono ASP (Ballistician)

(6) Dr. Oluwatamilore Falomo

(7) Major Sabiu Ado

(8) Sgt. Taminu Atumbi

(9) A.C.P. Bello-                 To give evidence of

(10) D.S.P. Gabriel Haruna

investigation and tender

(11) D.S.P. Samuel Ojehomon         necessary exhibits.

(12) C.S.P. Agbafe

See page 5 of the Record of Appeal Vol. 1

But the prosecution called only four of these witnesses. Indeed at page 6, potential witnesses 9, 10, 11 and 12 were listed to give evidence of their investigation and tender necessary exhibits, but for some unexplained reasons, they were not called.


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