Last Friday, the Court of Appeal, Lagos quashed the death
sentence which Justice Mojisola Dada of the Lagos High Court handed
Major Hamza Al-Mustapha and Alhaji Lateef Shofolahan over the death of
Alhaja Kudirat Abiola. The appellate court said that the court below
convicted the duo at all cost despite the prosecution’s failure to prove
its case beyond reasonable doubt.
Below is the judgment as delivered by the appellate court.
IN THE COURT OF APPEAL OF NIGERIA, LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
ON FRIDAY THE 12TH DAY OF JULY, 2013 , BEFORE THEIR LORDSHIPS
AMINA ADAMU AUGIE,
RITA NOSAKHARE PEMU, FATIMO OMORO AKINBAMI,
JUSTICES, COURT OF APPEAL.
APPEAL NO.CA/L/469A/2012
DELIVERED BY RITA NOSAKHARE PEMU
THE
Appellant, in a 326 pages Judgment of the High Court of Justice, Lagos
State in Charge No 10/37C/03 Coram Moji Dada J. was convicted for the
offences of conspiracy to murder and murder of Alhaja Kudirat Abiola.
The Charge initially included Chief Superident of Police Mohammed Rabo
Lawal, but he was discharged on a no-case submission made on behalf of
the Defendants.
FACTS OF THE CASE
The case of the Prosecution
is that the Appellant conspired with another to murder and allegedly did
murder Alhaja Kudirat Abiola on June 4, 1996, along Lagos-Ibadan
expressway opposite Cargo Vision, Ikeja Area of Lagos State.
The
Prosecution called four witnesses, namely: Dr. Ore Falomo (PW1),
Barnabas Jabila, a.k.a. Sgt. Rogers (PW2), Mohammed Abdul a.k.a. Katako
(PW3) and D.C. Yusuf (PW4), while the Appellant called two witnesses and
testified himself.
The facts leading to this appeal can aptly be
put as follows. This trial started at the Lagos State High Court as
ID/43C/99 in which the present Appellant with Mohammed Abacha, Rabo
Lawal and one Mohammed Abdul were charged with conspiracy and murder.
Mohammed Abacha was eventually discharged by the Supreme Court on July
11, 2002, on the ground of non culpability. The charge metamorphosed
into the present Charge No ID/37C/2003.
No eyewitness on record
Noteworthy
is that the crime, subject matter of this appeal was innitially
investigated by the Nigerian Police Force at Panti in 1996, a Special
Investigative Panel, SIP, and the Agbaje Panel set up in 1998 by the
Government of General Abubakar Abdusalami. The accused persons were
absolved of any involvement by the SIP and the Agbaje Panel in the death
of the deceased.
On June 4, 1996, the deceased was shot dead.
There was no eyewitness on record to the actual crime, but one Dr. Mark
Adesina whose statement is recorded at pages 10-18 of Vol. 1 of the
Record of Appeal and whose name is listed as number one in the list of
witnesses at the back of the information but was never called as a
witness.PW1-Dr Ore Falomo witnessed the removal of a white bullet which
was taken by the police. He testified that the deceased died after a
head surgery and after her second cardiac arrest. Autopsy was conductyed
on the deceased. After the commission of the crime, some members of the
Abiola household were suspected of the commission of the crime. At the
trial, the prosecution called four (4) witnesses, PW1, PW2, PW3, and PW4
respectively, while the Appellant called two (2) witnesses.
Al-Mustapha
PWl
– Dr. Oreoluwa Falomo testified that he was going to Ikosi on the 4th
of June 1996 when he saw people running in front and thought it was an
accident. He, as an orthopaedic surgeon thought he could help. he then
saw Alhaja Kudirat Abiola slumped on the back of the car and the driver
also shot. He recognised them as he had known these victims before. He
arranged for a vehicle to rush them to the hospital. The deceased had
been shot on the forehead and was bleeding from that spot. The driver
had also been shot, but his condition was not as bad as that of the
deceased.
One Dr. Ogunbanjo, informed him that the victims were in
Eko Hospital. He went there and saw the deceased and a consultant who
advices an urgent surgery. Two neurosurgeons agreed to work together.
Alhaja Kudirat Abiola was still unconscious and bleeding.
, She
was operated on and a special bullet that was not commonly seen was
extracted from her skull. The operation lasted about two to three hours.
She suffered a cardiac arrest. She appeared stabilized, but she
suffered another cardiac arrest and she passed on.
A post mortem
examination was performed on her body by one Dr. Alimi, who issued a
report. He took part in moving the body to her house for burial. He made
statement to the Police.
He told Police that it was a 5th
Columnist in the Government that killed the deceased, going by the look
of the bullet. The Police took the bullet away and never released it to
them after the post mortem examination. He had told the Police that the
bullet belonged to the family of the deceased in mediolegal term.
He
had known the Abiola family and indeed was the personal physician and
friend to the late Chief M.K.O. Abiola. He was very very close to the
family.
Under cross-examination he said he had not trained as a
ballistician, but he described what he observed as a doctor. He did say
that the Police took away the spent bullet by force and said they needed
it for investigation. The Police were picking and choosing what they
wanted him to write in his statement. He had made many statements, about
four, but he is surprised that he is shown only one.
He testified
that he had met the Appellant before, and indeed he facilitated his
visit to Late Chief M.K.O. Abiola when he was in detention at Aso Rock
Villa. He was not shown Exhibit “A1″ before he came to court. It was his
first time of seeing the document since he made it.
PW2 is
Barbarnas Jabila alias Sgt.Rogers.He is a soldier of the rank of a
Sergeant. He worked with the strike force in the Presidential villa in
Abuja, before joining the Nigeria Army on the ih of January 1987, and
trained as a parachooter Antitank Commander, Strike Security Force, an
antiterrist outfit and attended a special course in North Korea. He
knows the Appellant as the Chief Security Officer to Late General Sanni
Abacha. Rabo Lawal was the officer in charge of Mobile Police in the
Presidental villa. The Appellant used to send him and Rabo Lawal on
assignment, and Rabo Lawal used to lead them when on assignment. His
duty is to provide security as assigned by the Appellant as Special
Anti- terrorist outfit and other special assignments. One Lateef
Shofolahan used to give them information.
He knows the deceased,
and the Appellant gave them order to elimnate her because she was doing
some bad things against the state. When she came back from Burkina Faso,
the Appellant gave them the order to move in and provided logisitics
that they should stay at Dodan Barrack.
O/C Mopol took them to
Alhaji Lati who in turn took them to Abiola’s home. That Alhaji Lati
gave them information that the deceased would soon move out. As soon as
the deceased came out, he opened fire. That one Rabo Lawal gave money to
Lateef Shofolahand to give them. The date in which he opened fire on
the deceased was the 4th of June 1996. He returned the arm to the
Appellant through his orderly Karo who confirmed receipt. The gun looked
like MP5.
He was shocked that the secret leaked. It was not
supposed to leak, as he was doing his job. The Appellant told him to
keep quiet and that he should deny everything. At that time, Abacha had
died.
On the day of the incident, they drove a 504 station wagon
given to them by Dodan Barracks. The deceased was in a while Mercedes
Benz. As she drove out of her premise, they trailed the Mercedes Benz to
one round about, where the people in the Mercedes Benz dropped one
small girl. The vehicle moved towards Alausa Secretariat and they
trailed it until they got to an express road. They went closer and he
opened fire at the car directly. After that he told Katako to drive him
back to Dodan Baracks,
Foreign posting
Under
cross-examination, he did testify that all he had said in
examination-in-chief concerning the alleged involvement of the Appellant
were things he was told to say by the Federal Government and the Lagos
State Government. And that there are certain things which the Lagos
State Government does not know.
The Attorney General of Lagos
State, Yemi Osibanjo and the Solicitor General of Lagos State, and many
others of Lagos State visited him when the case was being investigated
by the SIP. The SS facilitated the visits of SSS because he was in their
cell. He was given a promise by the authorities for agreeing to be a
witness in this case. He was promised a house, job for himself and his
Wife, security for his family and a foreign posting. His wife was moved
to Abuja from Jaji where she was given an initial monthly allowance of
N15,OOO, but later increased to N20,OOO. The money got to her through
SSS.
Al- Mustapha s’ Lawyers Oluwalekan Ojo and Yinka Ojo at the Court of Appeal Lagos. Photo: Diran Oshe
Anytime
the authorities visited him in the SSS cell where he was detained, they
gave him money. Chief Bola Ige gave him N100,OOO.00. his handset and
link was given to him by the Attorney General of Lagos State. He agreed
to testify against the Appellant as part of his duties to the State. In
2005, inspite of the promises which the State made, he was being paid
half salary. The promises made to him were not fulfilled.
His
statement of September 29th 1999 was made during the S.I.P, and that was
the time that they discussed what they would give him. The statement
was a response to the promise. During the S.I.P, and SSS officer
prostrated to him and said he would be told to go and on the way he
would be killed.
He was afraid and cooperated.
Under
cross-examination, he said on the 4th of June 1996, he was in Lagos. He
heard about the deceased assassination in the news. He heard it on .the
radio in Abuja. He also heard the news on that day he was in Lagos.
In his statement of 27th May, 1999, Exhibit DI-1 he said he was in Abuja.
He
said he told one Okoloba that it is not the schedule of duty of the
Appellant to issue out arms and ammunition as they have armourer. The
Armourere registers your name and give you the arm and ammunition. He
testified that as a government official his role was to carry out what
he was told, not to make findings. He cannot remeber what he said but he
did what they wanted him to do.
Cross examination
Exhibit
A2 – his statement of 29th of September 1999 was produced by him and the
Government official. That if Katako said it was a Cherokee jeep they
rode on that date, he would be surprised. Under cross examination, PW2
testified that he justified his involvement in the murder of the
deceased. He said what he was told by the authority. The authorities
promised not to bring them to court, but they reneged.
PW3-Mohammed
Abdul alias Katako, a soldier who joined the Nigerian Army in 1998. In
1996, he was told by Late Ibrahim Abacha that there are some people
coming from Abuja to Lagos, whom he should drive. Hear him:
“Between
January and June 1996, when they came, so we went to National Theatre,
that was where I saw Alhajj Lati, the 3,d Defendant, we went to Ikeja
with him and went back to his house in Surulere, and we left him there
and left the next day. Rogers said we should go to Ikeja to the same
house we went with Lati. Mercedes car came out of the house, Rogers said
we should follow the car. He stopped somewhere and dropped somebody and
continued to lagos-Ibadan Expressway around seven-up. Rogers said I
should drive close to the car and he fired and then said I should drive
back to Dodan Barracks”.
That the house they went to, he was later
informed was late Chief M.K.O. Abiola’s house. There were about 3 or 4
people in the Mercedes Benz car. They dropped a woman on the way. That
when they got back to Dodan Barracks, Roger told people “we got am” but
he did not know who was being refferd to. Later on he heard that it was
the deceased. The people with whom we went were Skongama Bello and Late
Samaila Shaibu.
Under Cross examinations, he said the shooting
took place after the toll gate on the way going to Lagos. He made a
statement in Abuja. He is aware that his statement was later translated
into English Language, but he does not know who did the transaltion.
However, he signed it after the English transaltion was read to him and
he said yes. He does not know if he wrote Cherokee jeep, bur he did not
ride a Cherokee jeep.It was a daybefore the day of the incident that
they used a grand Cherokee jeep. He was offered promises including the
gift of a house-in 1999 around September or October. These promises
were made by officials he was with.
Officials of Lagos State
Ministry of Justice visited him many times in Abuja while he was
detained, including the Attorney General and Solicitor General of Lagos
State. The Federal Attorney General Bola Ige visited him. He was given a
house in Jos. They said that they would take care of him and his
family. Promises were made to him before he wrote his statement. The
promises were made to him on the 18th of September (the witness cried at
this stage). His statement of the 19th of September was as a result of
the promises of the 18th of September.
He said that on the 4th of June 1996, he had his first marriage at Azare in Bauchi State.
Under cross-examination, he said that he was in his village at Azare on the fateful day.
PW4
– Ahmed Fari Yusuf, was a police officer, now retired after 35 years of
service. He retired as Commissioner of Police in charge of Budget
Section, Nigeria Police on October 1, 2009.
He last served at the Police Force Headquarters, Louis Edet House, Area II, Garki, Abuja.
In
1999, he was in Abuja Force Headquarters. Between September December
1999, he was in Force C1D Area 10, Abuja. ‘-’Between September-December
1999, he was in Force CID Area 10, Abuja as Assistant C.O.P.
He
knew the Appellant in September 1999, as he was brought to the Force C1D
in connection with an alleged offence by the then SIP, which offence
was for the alleged murder of Alhaja Kudirat, the burning of Guardian
House and’attempted murder of Alex Ibru.
When he was brought, he
was cautioned and he made a statement in his own handwriting. He
witnessed the first statement made by him. Exhibit A-3 – statement made
on the 23rd of September 1999.
After Exhibit A-3, he is aware that
the Appellant was further interrogated by SIP detailed to carry out
investigation and that he made a further statement.
That one Lateef Shofolahan also made a statement on the 21st of September 1999 in his own handwriting.
After,
there was a trial within trial for twelve months, he disappeared into
thin air and was never cross-examined (from records).
He tendered
statements of the accused persons which were all admitted after trial
within trial and objections for their admissibility failed.
On the
23rd of November 2010, PW4 was absent from Court, when trial was to
have continued and the case was adjourned to the 20th of December 2010
(page 1060 of the Record of Appeal). After series of adjournments, the
Court foreclosed the prosecution on the 14th of March 2011.
Hamza al-Mustapha
On
the 4th of July 2011, the Appellant Major Hamza AI Mustapha testified
on his behalf as DWl. He testified that he was arrested in October 1998,
under an allegation that he was keeping the property of General Abacha.
When they could not establish anything against him, they changed the
allegation to gun running from Libya, then to overthrowing of the
government of Abdulsalam Abubakar. it was changed to securing the
property of the culprit of 1997 and later when all there were cleared,
he was alleged to plan coup plotting to remove Abdulsalam Abubakar from
government. He was cleared and when the government handed over to
General Obasanjo, this created yet another allegation under a script
called YAKASI says Prison Note.
He was investigated by the Police,
and later to the Homicide case that brought him to Court on the 14th of
October 1999. That Yakasi prison note was a script written by the
Government of General Abdulsalam Abubakar in order to continue to keep
him in detention having been cleared by numerous panels he established
in 1998 and 1999. He was further subjected to interrogations and
investigations by reason of that prison note of Lieutenant Colonel
Yakasi, because of the events that happened from the murder of General
Abacha to the murder of Late M.K.O. Abiola, and the subsequent event
that happened right in his presence in the presidency. For fear of him
divulging these, he has been persecuted and theY,pave keep him in
detention.
He was Chief Security Officer to the former head of
state General Sanni Abacha since the lih of November 1993. His career is
that of Intelligence for Nigeria. What has to do with intelligence
management for the Army and for the country is where he belongs. His
primary and secondary assignments begin and end with:
(1) Security to the late head of State and Commander-in-Chief
(2) Security to members of the first family and
(3) Their property and seat of government
The various panels he faced from 21st October 1998 include :
(1)CHQ
Panel on the investigation of the personal belongings of culprit of
1997, initiated by the office of CJS in the presidency- He was cleared
and returned to Enugu-He was in fact commended.
2. Panel chaired by Major General Yusuf from Arm of Coat, who investigated the allegation fro gun running and he was cleared.
(3) Allegation for Abacha’s personal properties of which he was cleared.
This
means that no one else irrespective of rank, position or situation,
should use another soldier’s rifle. That is Military Law. The Armourer
is the officer in the arm who has the custody and control of weapons.
Military officers or non commission officers are only authorized to
move from one location to the other or between one town to the other as
military pass. By this, every movement must be on the basis of the data
provided in that form. Any movement without that pass or the content and
the authority and stamp in that pass is considered iliegal and is
punishable by military law.
Major Hamza Al-Mustapha being received by a large crowd in Kano
On
the PASS, it contains the name of the officer, or the non- commission
officer who is authorized to go on pass, his initials, rank, his service
number, purpose for which the pass is issued, jurisdiction for the
pass, location that the pass is intended, the nearest military formation
to that location that the person is authorized to go to and the nearest
police military formation, it also bears the signature and name of the
authorizing officer, that is the commanding officer and the stamp of the
unit.
It bears a note underneath that says if in the likely event
of any is the C.S.O. who has a secretariat headed by a S.S.S officer
called the 5LO (i.e Security Liaising Officer). There is also an
administrative officer from services in the country. Then there is the
office of the 2nd in command, who is from the Army Military Intelligence
with his own staff. The department had four different branches, first
was Intelligence wing,
The strike force” came to being in 1995.
The National Security and Joint Intelligence Bureau came up with the
idea of a small force that was to protect the seat of government, and it
is comprised of 75 serving personnel from all agencies in the country.
He had unfettered access to PRS, Council of State, the Executive Council by virtue of his schedule of duties.
Monteith had been dating his co-star Lea Michele for more than a year
