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Why Appeal Court freed Al-Mustapha & Co (4)

But assuming this is not so, the Prosecution has anyway failed to produce the bullet, that was extracted from the skull of the deceased. If made available, it would have needed a ballistician to certify, what kind of bullet it was. The Prosecution had not explained why they had failed to produce the bullet at the trial. This is fatal to their case.

It is obvious that the Prosecution witnesses fielded by the Prosecution have been so discredited even in cross-examination that no reasonable Court can convict on the evidence available. PW4 did not even avail himself of the opportunity to be cross-examined.

Now may I ask, why one Bello Sakwanga, who worked with the DG SSS. Lt. Col. Kayode Are, who allegedly gave some money to PW2 from the Appellant not called to testify?

It is foolhardy and indeed preposterous to say that the contradictions in the evidence of the Prosecution witnesses were not material, as the learned trial judge observed. They were very material and so I hold. Where evidence of witnesses are contradictory of each other, it is the duty of the judge to discountenance same and treat the entire evidence as unreliable. It is a duty in law, not one marked by discretion. See ONUBOGWU & ANOR V. STATE (1974) 9 S.C. 1 @ 19-20. But the contradiction must be material and against the very life issue of a case, and must go to the root of the Prosecution’s case. It must be on material facts.

DW2 Kyari Jidai Gadzama said he was in Abuja and he saw PW2 at the armoury on the fateful day i.e 4th June 1996 when he went to sign for arms – page 1142 of the Record of Appeal Vol. 3.

Frederick Fasehun and Major Hamza Al-Mustapha being received by a large crowd in Kano
File Photo: Frederick Fasehun and Major Hamza Al-Mustapha being received by a large crowd in Kano

It is the law that contradictions must be explained by the Prosecution AHMED V. STATE (1959) 5 SC. Pt 11 page 33. It is trite that a Court cannot speculate or imagine explanation for the contradictions, neither can it choose and pick which of the Prosecution witnesses to believe, in matters relating to contradictions.

It was incumbent that the lower Court expunges the evidence the evidence of PW2 and PW3 even that of PW4 but it did not, but instead relied on their evidence.

Curiously, the Prosecution agreed that the evidence of the Prosecution witnesses are unreliable. He however did not treat them as hostile witnesses. I wonder how the lower Court could have referred to these witnesses as reliable.

The failure of PW4 to make himself available for cross-examination had a lot of implications.They were by the very nature of their job, to find out the result of the initial investigation in1996 and the reason why all the investigative agencies did not produce statements taken from Sarkin Sha-Sha and members of Abiola family, to the Prosecution. Indeed they were duty bound to provide the Prosecution all the necessary exhibits and statements. They did not!

The Respondent had relied on Section 7 of the Criminal Code which talks about PRINCIPAL OFFENDERS. It is the view of the Respondent that the Appellant fails within the category. I shall reproduce the provisions of it.

“When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and now, be charged with actually committing it, that is to say –

(a)     every person who actually does the act or makes the omission which constitutes the offence.

(b)     every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

(c)     every person who aids another person in committing the offence.

(d)     any person who counsels or procures any other person to commit the offence”

The basis of the success of any charge is the ingredient in that charge, being established, coupled with credible and cogent evidence to buttress same. Where the offence charged lacks any of these, then it is not established and the accused person shall, of right, enjoy the benefit of this lacuna.

There is no evidence that the Appellant pulled the trigger which culminated in the death of the deceased on the 4th of June 1996.

There is nothing to show that the Appellant did, or omit to do any act for the purpose of enabling, or aiding another person, to commit the offence with which he is charged. There is no evidence that the Appellant counseled or procured any other person to commit the offence with which he was charged.

It is my view that all these facts remain unproven. Therefore Section 7 of the Criminal Code referred to by the Respondent is misconceived and I so hold.

It is apparent that the lower Court did not properly evaluate the evidence before it, or it would not have reached the decision which he did. Decidedly, pfoper evaluation of evidence postulates inter alia the following

(a)     What was the evidence before the trial Court?

(b)     Whether it accepted or rejected any evidence upon the correct perceptions.

(c)     Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it.

It is curious that the alleged “participes criminis” in this matter resiled from their potentially devastating evidence in the face of the Court. This is the view held by the Respondent and I must say that I share same view.

The Prosecution has been unable to provide direct, or circumstantial evidence pinning the Appellant to the commission of the crime of conspiracy to murder the deceased, Alhaja Kudirat Abiola. If there is anything to go by, it was PW2 who should have been charged with conspiracy to murder. At page 14 paragraph 4.2.3 of the Respondent’s brief, he conceded 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 he argues that, that would not detract from the fact that there was evidence before the Court as to who murdered Alhaja Kudirat Abiola. This is my view, is a contradiction in terms.

But with respect, if there is a challenge of credibility from contradiction, how then can this contradiction not affect the circumstantial evidence? Contradictions remain contradictions. The materiality of it is what matters. The contradictions in the evidence of PW2 and PW3 are devastatingly material and remain so, without any explanation, from the Prosecution.

Truly the trial Court is the master of the facts of evidence put before it. And it must master these facts prudently and objectively. Not erratically or with bias, in arriving at a just conclusion.

Therefore the inference it must deduce from these facts must make sense. Its evaluation of the facts must be fraught with equity and good conscience, and its assessment of them must not be perverse- see AKINBISADE V. STATE (2006) 17 NWLR (Pt. 1007) 184 @ 193 where the Supreme Court observed inter alia

“However such inference or assessment or evaluation of evidence must be properly based on the available evidence given before it and not outside it. It is also necessary to ensure that there are no co-existing circumstances which would weaken or destroy the inference evaluation or assessment.”

Therefore the litmus test is whether any circumstantial evidence is reasonable and supported by evidence, cogent and compelling, not conjecture.

The Respondent may have argued that PW2 and PW3 are accomplices by their evidence. See page 10 of Appellant’s brief. Indeed the learned trial judge treated them as accomplices. Worthy of note is that PW2 and PW3 were the star witnesses for the Prosecution in this case. At page 1838 of the Record of Appeal the learned trial judge observed

“in this case PW2 and PW3 are themselves accomplices in the commission of the offences herein preferred their evidence substantially corroborates the evidence of PW1 on the fact that Late Kudirat Abiola was shot near the Lagos end of the Old Toll gate going towards Lagos the uncommon bullet with which she was murdered was extracted from her head that same day of 4th June, 1996 by a Team of Medical experts including PW1 who participated in the surgical operation and who also confirmed her dead thereafter on the same day.”


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