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Why Appeal Court freed Al-Mustapha & Co (5)

(a) Evidence of an eyewitnessness of the crime

(b) Confession or admission voluntarily made by the accused and

(C)circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.

It is trite that the Court can convict an accusedperson on the basis of circumstantial evidence where it is strong, cogent and leads to the irresistible conclusion that the accused person committed the crime he is accused of- STATE V. UZUAGWU (1972) 2 ESCLR (Pt. 2) 429; STATE V. EDEBOR (1975) 9-11 SC 69; STATE V. OKORIE (1982) 1 NCR 187; NJOKU V. STATE ( 1992) 8 NWLR (Pt. 262) 714. This is where there is no direct evidence.

The burden, and standard of proof in criminal cases, that the prosecution shall prove the guilt of an accused beyond reasonable doubt never shifts except of course in few cases where the law has placed on the accused, the onus of proving matters which are peculiarly within his personal knowledge. And in such cases, the burden on the accused is discharged on the balance of probability. R.V ADAMU (1944) 10. NACA 161; ILODIGWE V. STATE (2012) 18 NWLR Pt. 1331, 1@ 29 paragraphs f-g.

The Appellant is charged also with the murder of a woman of note in this society, Alhaja Kudirat Abiola, wife of Chief M.K.O. Abiola. She stood out as a porcupine by way of popularity and charm.

The deceased was cut down brutally in her prime of life on the 4th of June 1996 in Lagos. This was by a single bullet to her head. She was rushed to Eko Hospital, where a bullet was extracted from her skull. PW1 testified that he was one of those that took her body to her house for burial. It is therefore not in doubt that the deceased died. No autopsy report was tendered though, by the Prosecution.

Alhaji Shofolahan, Late Alhaja Kudirat Abiola and  Major  Hamazat Al-Mustapha
Alhaji Shofolahan, Late Alhaja Kudirat Abiola and Major Hamazat Al-Mustapha

The question now is, was the death of the deceased the result of the act or omission of the Appellant?

There is no evidence, whether direct or circumstantial which points the commission of the crime of the murder of the deceased to the Appellant. This is because, as observed in my treatment of Issue No 1, couched by me, the Prosecution witnesses fielded by the Prosecution were not reliable, and the evidence elicited by them, as well as the documentary evidence tendered by PW4 leaves much to be desired. No cogent or compelling evidence was adduced by the Prosecution.

Apart from the unreliable witnesses fielded, whose evidence was fraught with contradictions which was no explained, there is nothing to show that the crime was investigated properly anyway. This is because the bullet allegedly expended and was extracted from the deceased head was never tendered. There is evidence that the crime was also investigated by a Special Investigation Panel and Agbaje Panel.

This is alien to our administration of justice system in this country. For an offence such as murder, I wonder why the Nigerian Police did not promptly and wholly investigate this matter. There is no autopsy report as to the cause of death. Witnesses who should have been called were not called while PW2 who initially purported to have confessed to the shooting of the deceased was fielded as a prosecution witness instead of being charged with murder.

This case is a novelty. This is because from what I know in our system of administration of justice, when a crime is committed, it is the Nigeria Police that moves into investigate. It is a Constitutional duty and the Constitution of the Federal Republic of Nigeria is the Grundnorm- the organic instrument of this revered Country. Section 214 of the Constitution of the Federal Republic of Nigeria, and Section 3 of the Police Act 2004 establish the Nigeria Police Force.

Section 4 of the Police Act-CP 19 Laws of the Federation of Nigeria 2004 specifies the General Duties of the Police, I shall reproduce same verbatim.

“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of the law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged them by, or under the authority of this or any other Act.”

The concept of SIP- Special Investigative Panel and Agbaje Panel, to investigate a serious crime as murder, the most grievous kind of homicide is novel. This constituted a lacuna in the case of the prosecution, indeed in their proper investigation of the case and same is regrettable.

Specifically, when PW2 testified, he alleged that it was through one Karo that the arm was returned to the Appellant. Why was this Karo not called to testify?

Directly, or by circumstantial evidence, there is nothing connecting the Appellant to the commission of the murder.

There is nothing to show that the Appellant intended to murder the deceased. He said he had cordial relationship with the Abiola family and could not have conspired to murder or murder the deceased. Evidence which was not controverted, by the Respondent.

Kyari Jidai Gadjama, a retired Military personnel, and orderly of the Appellant testified of how they attempted to compel or induce him to testify against the Appellant as PW2 and PW3 had attempted to do. He was mercilessly beaten up with wire cables in furtherance of this.

PW2, PW3, the Appellant and his witness had vividly and graphically told of how Government officials and the Security agents of this Country had coerced them to implicate the Appellant. Promises were made to PW 2 and Pw 3 in that regard which were not fulfilled to their chagrin.

The totality of the Prosecution witnesses story (at least PW2 and PW3 and indeed the Appellant) is that this case is being fuelled by factions sympathetic to the cause of Abdulsalam Abubakar. The Appellant became a security threat because of what he knows to be going on in the country which is inimical to it.

It is unimaginable that the lower Court did not expunge the evidence of PW2 and PW3 in the face of the contradictions in their testimony. Yet the lower Court reasoned that the contradictions were immaterial. But they were material!

There is allegation that the Appellant provided the logistics for the movement of people from Abuja to Lagos by flight, their accommodation at his Lagos official residence at Dodan Barracks, and linked them up with one Lateef Shofolahan. But where is the proof?

No matter the suspicion and its degree, no matter the grievance or grouse, no matter the height of conjecture, no matter the depth of hatred, even the strongest SUSPICION can never found a conviction in law. There is the duty, not discretion of the Prosecution to prove its case beyond reasonable doubt.

In paragraph 4.2.15 of the Respondent’s brief filed on the 29th of April 2013, the Respondent had argued (wrongly in my view) that there are other pieces of evidence at the trial that gave credence to the conclusion that the Appellant aided or procured the commission of the offence. They are:

(a) The 1st Defendant/Appellant is a Military Officer, he knew PW2 who initially denied but later confessed to killing the deceased on the instruction of the 1st Defendant and later denied the confession.

(b)  The 2nd Defendant was Protocol Officer of “Hope 93 Campaign Organization of MKO Abiola Presidential Election and later defected to work for General Olusegun Obasanjo who was against Abiola’s Presidency:

(c)     The 1st Defendant/Appellant admitted during cross examination that he ordered surveillance of NADECO rally in Lagos

(d)  Whereas the Appellant’s duty as Chief of Staff to the Head of State was protection of the Head of State and his family and not to do Police or SSS or DMI duties of controlling rallies and similar activities outside Abuja.

(e)  Statements of the 1st Defendants Exhibits A3 and Dl-5 the Statement of the 2nd Defendant Exhibit A6 and Certified True Copy (CTC) of the Supreme Court Judgment EXH D16 shows compelling circumstances that the Appellant procured and aided the assassination of the deceased; and

(f)  It is further submitted that there was a political motive for the murder of the deceased.

Yes, all these may be so, but does this divest the prosecution of its duty, albit legal duty, to prove its case against the Appellant beyond reasonable doubt as required by law? That is the question.

This Court is not interested in politics of a given situation and its attendant semantics.

Yes, someone very dear to the nation has been cut off and in such gruesome manner. She has paid a price, but the question is who pulled the trigger? Is it the Appellant? If not, is the person dead or alive? Could the person be present here, even in this Court lurking around? There is only one person who knows and sees the culprit. That person who looks down from heaven, and sees the whole earth at a glance! He alone is the Just God. And He will Judge. It is He that anoints Judges.

But from the facts and circumstances of the present case, subject of this appeal, it is certainly not the Appellant. Even as God is no respecter of persons, the law is no respecter of persons. The Court is not

.interested in sentiments

I am certainly not pontificating, but it is necessary in a situation such as thIs to bring to bear that whatever the situation, whatever the obstacles in the wheel of Justice, the truth is fixed, and must be expressed.

In IKOMI V.STATE (1986) LPELR – 1482 (SC), it was held inter-alia that there must be some evidence, which links the accused with the offence, but certainly, not suspicion or mere conjecture.

There must be evidence to meet all the essential elements of the offence. The Prosecution, having failed to prove the offence of murder of Alhaja Kudirat Abiola against the Appellant beyond reasonable doubt, the Appellant is entitled to be discharged and acquitted of the charges.

Issue No. 2 is answered in the negative and same is resolved in favour of the Appellant.

.Issue No.3, seems to me to have been addressed in Issue No.2, but I shall elucidate on it.


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