Details Of Ruling That Set Free Al-mustapha

Appeal Court quashes death sentence

By Davidson Iriepken and Chiemelie Ezeobi                                          

For many who had swarmed the premises of the Court of Appeal in Lagos it was largely an ambivalent feeling. But it was wild jubilation for supporters and kinsmen of Major Hamza al-Mustapha, former chief security officer to General Sani Abacha and Lateef Shofolahan, a former protocol officer to the late Chief MKO Abiola, as they were both discharged and acquitted for the murder of Alhaja Kudirat Abiola by the Lagos Division of the Court of Appeal.

Yesterday's judgement came after both had spent 14 years in detention and later jail.
The appellate court in a unanimous decision quashed the death sentence handed the two appellants by Justice Mojisola Dada of the Lagos High Court on January 30, 2012.

In the lead judgment delivered by Justice Rita Pemu and supported by the presiding judge, Justice Amina Augie and Justice F. O. Akinbami respectively, the court held that the prosecution failed to prove its case beyond reasonable doubt, and that there was no nexus between the appellants and the murder of Alhaja Kudirat Abiola on June 4, 1993.

The Augie led all-female appeal panel had taken over the case from Justice Ibrahim Saulawa, who withdrew on April 29, for personal reasons.

When THISDAY initially contacted the public relations officer of the Lagos State Prison Command, Biyi Jeje, to confirm if al-Mustapha and Shofolahan had been released from prison, he said although both persons have been discharged and acquitted, the Nigerian Prison Service was yet to receive any legal document to authenticate their release.

He said: "We are waiting for court orders and a valid warrant of discharge from the court but that is after we have confirmed and ascertained that it is authentic. We are just custodians of inmates who work according to court judgements."

But at about 5.00pm, the gates of Kirikiri Maximum Prison were thrown open and the major was driven out amid heavy security offered by officers of Operation Mesa, a joint security outfit comprising the Nigerian Navy, Air Force and Army.

When contacted later, Jeje confirmed the release but could not say where Al Mustapha was driven to by the security details attached to his convoy.

Justice Pemu in setting aside the judgment of the lower court, held that the prosecution failed to establish the charge of conspiracy and murder against the appellants and that it was foolhardy and unreasonable for the lower court to have so swiftly convicted the appellants, when it was very evident that the prosecution had a bad case.

Pemu ruled that there still exist a huge shadow of doubt in the case of the prosecution, which ought to be resolved in favour of the appellants.

Resolving all the three issues raised against the prosecution, Justice Pemu held that there existed a huge shadow of doubt in the case of the prosecution, which ought to be resolved in favour of the appellants.

She submitted that the testimonies of all the prosecution witnesses were worthless and could not sustain the offence of conspiracy or murder for which the appellants were convicted.

The appellate court lampooned the lower court, saying that the 326-page judgment delivered by the trial judge was needless and an indication that the trial judge was finding a way round the doubts created by the prosecution.

The court said that none of the prosecution witnesses added any value to the case adding that “the 326-page judgment could not provide evidence where none existed," noting that ‘’the prosecution has failed to produce the bullet that was extracted from the skull of the deceased (Kudirat). If the bullet was made available it would have needed a ballistician to verify what kind of bullet it was. The prosecution failed to say why the bullet was not produced at the trial. This is fatal to their case.’

"In a criminal trial the burden of proof is beyound reasonable doubt and this is a chain that cannot be broken.

"The prosecution listed four witnesses PW 9, 10, 11 and 12 as witnesses 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 inconclusive testimony.

"PW 2 (Sgt. Rogers) and PW 3( Mohammedd Abdul) in their confessional statement to the police,  said they were enjoined by the first appellant, to murder Kudirat, but this statement was later retracted by them in court.

"PW 2 and 3 retracting their earlier statement 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.

Justice Pemu held “It is obvious that the prosecution witnesses fielded by the prosecution at the trial have been so discredited even in cross examination that no reasonable court can convict the appellants based on the available evidence placed before the court.’’

The court held that “where evidence of witnesses are contradictory, it is the duty of the judge to discountenance same, and treat the entire evidence as unreliable, it a duty in law and not discretion. I found nothing in this charge to necessitate their being convicted. For anyone who has been incarcerated since 1999, a period of about 14 years, this is unfortunate.’’

The court pointed out that the investigation into the murder of Alhaja Kudirat was shoddy, saying “there was no proper police investigation, no reliable exhibits, no circumstantial evidence, nothing. The result is that all the issues are resolved in favour of the appellants and against the respondent who has failed to prove the charges against the appellants beyond reasonable doubt.

‘’The inference it deduce from the evidence must accord with commonsense and good judgment. Its evaluation of same must be fraught with equity and its assessment of them must not be perverse. A judge should eschew reliance on sentiments which may present itself in a subtle form in the determination of every dispute before it and in the performance of the sacred duty of the due administration of justice.

‘’The appeals succeed and allowed and I hereby make an order that the appellants who were convicted on the offence of conspiracy to murder and murder of Alhaja Kudirat Abiola on the 4th of June 1996 in a judgments of Justice M. A. Dada delivered on January 30, 2012 are hereby discharged and acquitted, while the conviction and sentences are hereby set aside.’’

"For someone who has been incarcerated since 1998 on a baseless indictment, it is so unfortunate," Pemu said.

The appellants  were arraigned in October 1999 on a four-count charge bordering on conspiracy and involvement in the 1996 murder of Kudirat abiola along the Lagos-Ibadan highway.

Justice Dada had found them guilty of the offence and had, accordingly, convicted and sentenced them to death by hanging.

Counsel to the appellants Mr. Joseph Daudu (SAN) and Mr. Olalekan Ojo,  however appealed 24 hours after their sentence to challenge the lower court's verdict. The  appellants counsel had both adopted their written addresses before the appellate court on June 10, urging the court to allow the appeal and set aside the judgment of the lower court.

In his response, counsel to the respondent, Mr. Lawal Pedro (SAN) had urged the court to dismiss the appeal and uphold the judgment of the lower court, arguing that the appeal lacked merit. He had argued that apart from the evidence of PW1 and 2, there were other evidence from the defendants themselves, which supports the counts of conspiracy and murder.

Al-Mustapha's appeal was premised on four grounds, while that of his co-convict (Shofolahan) was hinged on five grounds.

The judgment drew jubilation from the Hausa community but disappointment in some others including the leader of the O’odua People’s Congress (OPC), Dr. Frederick Fasheun, who was in the court as early as 8.00a.m. to listen to the verdict.

Reacting to the verdict, Fasheun said: “ You all heard what the justices of the Appeal Court said about the decision of the lower court. It was shameful. I expect that Justice Dada should immediately resign,” he said.

From the verdict, it is not certain what step the Lagos State Government which had been prosecuting the case will take next, whether it will proceed to the Supreme Court or end it at this level.

To many analysts, if it decides to end the case at this level, it has done its best so far.
Reacting to allegations that during the major's stay, the prison had experienced a few attempted prison breaks, the prisons spokesman said nothing of such happened as the prisons in Lagos Command are heavily fortified with security personnel and apparatus.
"The prisons in Lagos command are fortified with the physical presence of security personnel. We also have a good synergy with our sister agencies who support our already well-formed security formation."

TIMELINE:
November 1993
Appointed Chief Security Officer by Gen. Sani Abacha

Late 1999
Arrested and detained. Murder trial begins.

April 1, 2004
Accused of being involved in a plot to overthrow the Obasanjo government. 

December 21, 2010
Acquitted along with co-defendants of most charges. The charge for the alleged murder of Kudirat Abiola however remains.

May 2011
Rumours that he had been murdered at the Kirikiri Maximum Security Prisons emerge in the media.

January 30, 2012
Lagos High Court convicts him for alleged murder of Kudirat Abiola. Death sentence pronounced.