MAJOR HAMZA AL-MUSTAPHA V. THE STATE
(2013)LCN/6405(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2013
CA/L/469A/2012
RATIO
BURDEN OF PROOF: WAYS BY WHICH A PROSECUTION MAY PRIVE HIS CASE AGAINST AN ACCUSED IN A CRIMINAL TRIAL
There are basically three ways by which the prosecution proves its case against the accused. The prosecution proves its case against an accused by all or any of the following means:
(a) evidence of an eyewitness(es) 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 accused person 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; ILODIGIWE V. STATE (2012) 18 NWLR Pt. 1331, 1 @ 29 paragraphs f-g. PER RITA NOSAKHARE PEMU, J.C.A.
CORROBORATION: WHETHER EVIDENCE OF A WITNESS REQUIRING CORROBORATION MAY BE USED TO CORROBORATE THE EVIDENCE OF ANOTHER WITNESS
Corroboration is not meant to give credence to evidence which is deficient, suspect, or incredible. It is required to support the evidence which is sufficient, satisfactory and credible.
A witness cannot corroborate himself. Evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness. It must be independent evidence outside what obtained from contested confessional statements – OBI v. STATE (1972) 1 S.C. 1 at page 11; JAMES GWANGWAN V. STATE (2012) Vol. 1 WRN. 57 at 85. PER RITA NOSAKHARE PEMU, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
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. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
MAJOR HAMZA AL-MUSTAPHA Appellant(s)
AND
THE STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The Appellant, in a 326 pages Judgment of the High Court of Justice, Lagos State in Charge No ID/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 Superintendent 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 the 4th of June, 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 2 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 the 11th of July, 2002, on the ground of non culpability. The charge metamorphosed into the present Charge No ID/37C/2003.
Noteworthy is that the crime, subject matter of this appeal was initially 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 Abdulsalami. The accused persons were absolved of any involvement by the SIP and the Agbaje Panel in the death of the deceased.
On the 4th of June, 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 No 1 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 conducted 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.
PW1 – 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 orthopedic surgeon thought he could help. He then saw Alhaja Kudirat Abiola slumped on the back of the car and the driver also shot. He recognized 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 advised 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 Barnabas Jubila 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 7th of January, 1987, and trained as a parachooter Antitank Commander, strike Security Force, an antiterrorist 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 Presidential 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 eliminate her because she was doing some bad thing against the State.
When she came back from Burkina Faso, the Appellant gave them the order to move in and provided logistics 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 Shofolahan 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 white 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.
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, 000, but later increased to N20,000. The money got to her through SSS.
Anytime the authorities visited him in the SSS cell where he was detained, they gave him money. Chief Bola Ige gave him N100, 000.00, 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, an 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 on the day the deceased was killed. That his colleagues would bear him out that 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 Armourer registers your name and gives 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 remember what he said but he did what they wanted him to do.
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 re-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 1995, 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 Alhaji Lati, the 3rd 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 the people “we got am” but he did not know who was being referred 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-examination, 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 translation. However, he signed it after the English translation was read to him and he said yes. He does not know if he wrote Cherokee jeep, but he did not ride a Cherokee jeep. It was a day before 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 the 1st of October, 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 CID 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 CID 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.
On the 4th of July, 2011, the Appellant Major Hamza Al Mustapha testified on his behalf as DW1. 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 have kept him in detention.
He was Chief Security Officer to the former Head of State General Sanni Abacha since the 17th 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 for gun running and he was cleared.
(3) Allegation for Abacha’s personal properties of which he was cleared.
(4) Allegation of staging a coup against the government of General Abdulsalam Abubakar – He was cleared.
(5) Agbaje panel of which he was cleared.
Then General Olusegun Obasanjo established a special investigation panel that brought him before the Courts of Law.
Each soldier is married to a rifle. This is because a serving personnel remains inseparable from his weapon. The make number and numbers that are initiated by the unit are now allocated to the name and particulars of service number of that particular personnel. It is kept in the Armoury and it is only issued when the higher authority has issued the need for it to be carried on primary routine assignment or on national emergency as the case may be.
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 on first a direct part one orders or part two orders. There is however a form in the army called “NIGERIAN ARMY FORM V.295” which is regarded 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 illegal and is punishable by military law.
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 “in the likely event of any problem, the pass is to be extended to the nearest formation for extension or decision”. There are not exceptions to this.
That in Nigeria, Security Department is structured as follows: First is the C.S.O. who has a secretariat headed by S.S.S. officer called the SLO (i.e. Security Liaising Officer). There is also an administrative officer from the army and there is a secretariat with staff room for all the intelligence 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, second was operations; third was electronic intelligence and management and four was training. Under intelligence, they had attachments of SSS, NIA, DIS, DMI and Air Intelligence.
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.
He knows PW2, Barnabas Jubila 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 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 liaising 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.
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 are 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 handing 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 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 of 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 an extremely hot day, the sum of Two Hundred Million Dollars ($200,000,000) was withdrawn in cash, Seventy-Five Million Pounds (75,000,000 Pounds) 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 very 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.
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, PW1 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 he it was who took him away to another location in the Barracks. He kept one Iklamar, 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 PW1 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.
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 23rd September, 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.
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 2000, he was brought before Human Right Violation Investigation Commission Oputa panel.
(8) In 2002, NJC constituted a panel that sat 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 Lawal 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. One’s 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 Abuja. On that day he reported for work between 9 and 10am in the morning. He knows PW2. On that day PW2 and himself were together when they came to sign 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 Alumu 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 he 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 left 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 4th of June, 1996 when the deceased was murdered in Lagos.
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 1998 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 Abiola’s 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 8th 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 Lawal.
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 saw Muhammed Katako in 1999 for the first time through this trial. Before then, he never met him. He never gave PW2 information and he had 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 the charges against him.
He does not know any Major Ado. Everything in the statement of the 8th of October 1999 is a lie. Except his name, date of birth and his address.
Under cross examination, he did say that his statement was given to his to copy and was not read to him. Papers were given to him to copy the 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 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 the proceedings, the learned trial Judge found the Appellant guilty of conspiracy to murder and murder and was sentenced to 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.
The Appellant is dissatisfied with the Judgment and has appealed it. Pursuant to the Practice Direction of this Honourable Court, the Appellant filed and relied on the Notice of Appeal of the 27th of April, 2012 encapsulating seven (7) Grounds of Appeal – pages 1877 to 1894 of the Record of Appeal Vol. 4.
The Appellant filed his brief of argument on the 15th of February, 2013 with two issues for determination which are:
(1) “Whether the trial Lagos State High Court per Hon. M. A. Dada J. was not in grave fundamental error when in its Judgment it convicted the 1st Appellant of the offence of conspiracy to murder the Late Alhaja Kudirat Abiola on the discredited and unreliable evidence presented by the prosecution”? (distilled from Grounds 2, 3 and 6 of the Appellants’ Notice of Appeal)
(2) “Whether the conviction of the 1st Appellant by the Hon. Justice M. A. Dada J. of the Lagos State High Court for murder of Kudirat Abiola was not in the face of the available discredited and unreliable evidence, perverse, unreasonable, unwarranted and unsupportable and if answered in the affirmative, sentence of death on the Appellants should not be set aside”? (distilled from Grounds 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 in the Appellants’ Notice of Appeal)
The Appellants’ brief of argument is settled by J.B. Daudu SAN.
On his part the Respondent’s brief of argument was filed on the 29th of April 2013. It has two issues for determination which are
(1) “Whether having regard to the evidence before the Court, the learned trial Judge was right to have found the Appellant guilty of the offence of conspiracy to commit a felony and to have sentenced him to 14 years imprisonment”
(2) “Whether having regard to the available circumstantial evidence, the learned trial Judge was right to have found the Appellant guilty of the offence of murder of Alhaja Kudirat Abiola and to have sentenced him to death.”
It is settled by Lawal Pedro SAN Solicitor-General of Lagos State.
Pertinent to note is that the Appellant had hitherto filed four separate notices of appeals, but he relies on that filed on the 27th of April, 2012 for the prosecution of the present appeal.
The Appellant filed a reply brief on the 13th of May, 2013.
On the 10th of June, 2013, learned counsel for the respective parties adopted their respective briefs of argument.
While the Appellant urges Court to allow the appeal, and set aside the conviction and sentence of the Appellant, the Respondent urges Court to dismiss the appeal.
ISSUE NO 1
“Whether the trial Lagos State High Court per Hon. M. A. Dada J. was not in grave fundamental error when in its Judgment it convicted the 1st Appellant of the offence of conspiracy to murder the late Alhaja Kudirat Abiola on the discredited and unreliable evidence presented by the prosecution?
While issue No 2 is
“Whether the conviction of the 1st Appellant by the Hon. M. A. Dada J. of the Lagos State High Court for murder of Kudirat Abiola was not in the face of the available discredited and unreliable evidence, perverse, unreasonable, unwarranted and unsupportable and if answered in the affirmative, whether the conviction and sentence of death on the Appellant should not be set aside”? This is distilled from Grounds 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17.
He submits that he would argue the two issues together. It is his contention that the Prosecution placed great reliance on the evidence of PW2 – Barnabas Jabila a.k.a. Sgt. Rogers and PW3, Mohammed Abdul a.k.a. Katako who contradicted their respective testimony made during examination in chief.
That the Prosecution at Pg. 1511 of the Record of Appeal conceded that the contradiction in the evidence of their witnesses rendered them unreliable, but that there existed evidence outside the testimonies of these witnesses to sustain the offences charged.
He submits that where a witness or witnesses contradict themselves substantially, as PW2 and PW3 had done, the Court is obliged to treat the entire evidence as unreliable, but that the Court must first ascertain the substantiality or materiality of the contradiction – citing AGBO V. STATE (2006) NWLR PT. 977 PG. 545; SELE V. STATE (1993) 1 NWLR (PT. 269) pg. 13 – 14 paragraphs e-a.
It is his submission that the contradiction here strikes at the root of the Prosecution’s case
That the witnesses said consistently that all they said in Court was what they were told to say by the authorities. That they were not eyewitness to the crime. They were not even in Lagos, but Abuja (FCT) and Azare (Bauchi State) respectively.
He submits that the learned trial Judge not only disagreed with the prosecution, but went ahead to offer reasons why in the face of the obviously shocking revelation, their evidence should be accepted and acted upon. By this, the learned trial Judge descended into the arena. He should have expunged the evidence of PW2 and PW3.
He submits that the evidence of PW1, Dr. Ore Falomo has no relevance to the offences charged, as his evidence was essentially hearsay. That the learned trial Judge’s reference to the bullet extracted from the deceased head, which he held was one of the incriminating factors against the Appellants is a non-starter. This is because the bullet was not tendered in evidence by the Prosecution neither was a ballistician called to testify. He submits that their failure to call one brings Section 149(d) of the evidence Act into focus.
PW4 did not conclude his testimony he argues. This is because he disappeared after examination in chief and did not come back to be cross-examined. He submits that cross-examination is a powerful adjustment to the right to fair hearing, and the inability of the defence to cross-examine PW4 was a fundamental flaw which rendered the evidence liable to be expunged including the Exhibits he tendered A5 and B1. It was wrong, he submits for the learned trial Judge to go into those exhibits.
He wonders why there was no evidence of the extent and scope of Police investigation in this case. That agencies outside the Police tried to detect who committed the offence in this case. That the Police abdicated their duties to SIP and Agbaje Panel who dictated statement to the Appellant, and PW4 and took statements from the Appellant. There is nothing to show that the Police made a conscious effort to investigate this case.
He submits that there is evidence from PW1 that the Police at Adeniji Adele Police Station had conducted their investigation in which members of the Abiola family were prime suspects.
The Appellant queries if there is any evidence outside the testimony of the Prosecution witnesses that can sustain the charge. He submits that the Prosecution has failed to point to any admissible evidence outside the testimony of these witnesses that would prove conspiracy to commit murder or murder. The Prosecution only lavishly served a potpourri of NADECO and Anti-Abacha politics. Therefore the Prosecution mistook politics for evidence. That there is no evidence to sustain the charges before Court.
The Exhibit D1-5, A6 and B1 were unlawfully introduced on the proceedings. Exhibit D1-5 is the Appellant’s statement of 13th October, 1999. It is not confessional and do not represent the truth of its contents Exhibit D1-5 was tendered with the leave of Court during cross – examination of the Appellant. It is submitted that it can only be but to impeach the credibility of the witness.
He submits that nothing can be deduced from the statement that it is confessional, and that proves, any of the ingredients of conspiracy to murder and murder of Mrs. Kudirat Abiola. That the learned trial Judge misapplied the law when she relied on the case of KASA V. THE STATE (1994) 5 NWLR PT. 344 pg. 269 @ 286.
That Exhibit A6 is statement alluded to Lateef Shofolahan which contains damming admission against his interest. He denied the statement in the course of his defence Exhibit A6 was tendered anyhow by PW4 who was not cross-examined.
That to use suspicious documents i.e. Exhibits D1-5 and A6 as corroborating one another when they emanated from the same illegal and suspicious source i.e. the SIP, is an anathema.
That the Prosecution has failed to prove the count of conspiracy to murder.
That the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences – citing ABACHA (supra) @ pg. 78-79.
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 the charges against the Appellant beyond reasonable doubt.
The Respondent’s 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.
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 was 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 the 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 circumstantial evidence before Court which the Court was obliged 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 4th of June, 1996.
(II) In 1996, General Sanni Abacha was the Head of State and Commander-In-Chief of the Nigerian, Armed Forces.
(III) The 1st Defendant 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 the 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 PW2 and whispered instruction to his ears.
(VI) The deceased was assassinated during the struggle for the actualization of the June 12 election and opposition to the government of General Sanni Abacha.
Urges Court to take judicial notice of the above. That the fact that the Appellant admitted during cross-examination that he ordered surveillance 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 Criminal 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 omission 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 determination, 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 other 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 NWLR (PT. 1346) PG. 366 at 391-392; OYEDIRAN V. REPUBLIC (1966) 5 SCNLR 173; STATE V. SALAWU (2011) 8 NWLR (PT. 1279) 580; ERIM V. STATE (1994) 5 NWLR (PT. 346) 522.
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 the 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}
(10) D.S.P. Gabriel Haruna}
(11) D.S.P. Samuel Ojehomon}
(12 C.S.P. Agbafe} To give evidence of investigation and tender necessary exhibits.
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.
List of Exhibits are seen at page 6 of the Record of Appeal Vol. 1, but none was tendered, except the statement of the Appellant – Exhibits A3 and A4.
PW1 did say in his statement to the Police Exhibit A1, that he was told to identify the corpse of the deceased before post mortem examination which he did. He did say that one Dr. Gbolahan Adebule came to him with blood soaked hands. He said it was the blood of the deceased. However, these two piece of evidence was not told to Court by way of evidence. Why did PW1 not testify to these facts in Court?
PW2 in his testimony said it was a 504 station wagon given by Dodan Barracks that was used on that fateful day. PW3 M. Abdul alias Katako, a driver, said he drove the car on the day of the murder, and that it was PW2 that pulled the trigger.
Conspiracy cannot be established from mere conjecture, elicited from inadmissible statements.Evidence of Keyano Gadzama was consistent with the fact that the Appellant did not commit the crime, and could not have, for that matter.
PW2 and PW3 both said they were coerced into making their respective statements. The statements were allegedly dictated to them.
The direct oral evidence of PW2 and PW3, the statements in Exhibits 43 and D1-5, the uncompleted testimony of PW4 leaves much to be desired.
This is because to prove conspiracy, which is a criminal offence, the onus of proof remains, and indeed the degree of it. It is one that must be proved beyond reasonable doubt. There must be a chain of causation which must not be broken.
Now, PW1 did say that the bullet extracted from the deceased head was taken away by the Police. It was never tendered in Court. It was a special bullet. No ballistician report as to the type of bullet was produced. Was it a special bullet or a regular one? These questions are yet left unanswered by the Prosecution.
At page 849 of the Record of Appeal Vol. 2, PW3, Mohammed Abdul alias Katako, a soldier testified thus inter alia
“…Yes I know Sgt. Jabila Rogers. In 1996, I was told by late Oga Ibrahim Abacha that there are some people coming from Abuja to Lagos that I should drive them. Between January and June 1996, when they came, so we went to National theatre, that was where I saw Alhaji Lati, the 3rd 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. Mercedez car came out of the house Rogers said we should follow the car. They 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.”
The same PW3 under cross examination, and indeed when re-examined did say that he was in Azare in Bauchi State on the date the murder was carried out – page 853 of the Record of Appeal Vol. 2.
The law is elementary, that where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exception from, or qualification to, the operation of the law creating the offence, with which he is charged is upon such person. Section 139 (i) of the Evidence Act 2011. The burden of proof placed by this part upon a Defendant charged with a criminal offence, shall be deemed to be discharged, if the Court is satisfied by evidence given by the prosecution whether on cross-examination or otherwise, that such circumstances in fact exist – Section 139(2) of the Evidence Act 2011.
The necessary implication of this provision, is that it is the duty of the Prosecution to prove its case and not for the defence. The degree of proof is that beyond reasonable doubt and nothing less.
I deem it pertinent to look at the evidence of the prosecution witnesses in trying to establish the charge of conspiracy.
PW1 – Dr. Ore Falomo said the deceased was operated upon after the shooting and a special bullet that was not commonly seen, half cylindric was extracted from her skull. That there was a post mortem examination carried out by one Dr. Alimi. He took part in carrying her body for burial in the house. According to him, the Police inferred she may have been shot through one of the other wives – pages 836-837 of the Record of Appeal Vol.2. He said he told Police that it was the 5th columnist in the Government that killed Kudi going by the look of the bullet. The Police took the bullet away and never released it to them after the post mortem. The bullet was handed over to the Police by Dr. Alimi
Above in essence is the testimony of PW1. He did not suggest any conspiracy with Appellant or anyone for that matter, to murder the deceased. He made statement to the Police on the 26th of October, 1999 – Exhibit “A1”.
PW2 – Barnabas Jabila alias Sgt. Rogers testified in Court that all he told the Court is what he was told to say by the authority. That Exhibit A2 his statement of 29/9/99 was produced by him and government officials. He had made one in May 1999 which is Exhibit DI-1. That one Lati who allegedly told PW2 the itinerary of the deceased was not called as a witness. In Exhibit A2 of 29/9/99, he said that the Appellant ordered that the deceased must be eliminated at all cost. He PW2 it was, that fired the shots at the deceased car on the fateful day.
In his evidence in Court PW2 had also said that the Appellant gave them orders that the deceased be eliminated. He opened fire on the deceased on the 4th of June, 1996. He then returned the arm to the Appellant through his orderly Karo and he confirmed receipt of same.
Under cross-examination PW2 said that Exhibit A2 was produced by him and Government officials – page 846 of the Record of Appeal Vol. 2. Hear the evidence of PW2.
“The Government brought to us at the SSS HQ and we wrote according to what we discoursed, what they asked us to write. Yes it was produced by me and the government officials…………In the statement of September 1999 is a voluntary statement.”
It is apparent that PW2, in one breath said that Exhibit A2 was made voluntarily and in another breath was made under duress – indeed was made by himself and Government authority. His evidence is self contradictory. It is a retraction of his statement of 29/9/1999 Exhibit A2. This renders his evidence not credible but questionable. The prosecution fail to explain his contradiction.
P.W.3 – Mohammed Abdul alias Katako in one breath did say that he drove the vehicle in company of PW2 on the fateful day and it was PW2 that pulled the trigger.
In another breath, that on the fateful date 4th June, 1996, he was in Azare Bauchi State. There is no explain for his somersault!
PW4 – Ahmed Fari Yussuf Police Officer tendered Exhibit A3, statement of the Appellant dated 23/9/99, B1 and A5. He was examined in Chief but was never cross-examined by the Appellant, because he did not make himself available for cross-examination. One would have expected that as an investigating police officer, who tendered these Exhibits particularly the statement of the Appellant, Exhibit A3, he would have, despite all odds, made himself available for cross-examination, but he did not. This was an infraction on the right of the Appellant to fair hearing.
Now in the face of all these, can it be said that the Prosecution has established beyond reasonable doubt, (the standard of proof required in criminal offences), the guilt of the Appellant with regard to the offence of conspiracy? The Appellant and DW2 – Kyari Jidai Gadzama had testified as to the procedure to be followed for the release of arms in the armoury. The Appellant had testified that protocol, in the army will never permit the movement of arms and ammunition and of military personnel and property of the Nigerian Army. There is a procedure for such movement, they said.
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 witness 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 was 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 I so 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.
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 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 was 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 in 1996 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 falls 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 ingredients 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, proper 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 in my view is a contradiction in terms.
But with respect, if there is 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 the 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.”
Section 198 of the Evidence Act has this to say
“An accomplice shall be a competent witness against a Defendant, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Provided that in cases when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the Defendant, the court shall due it itself that it is unsafe to convict any person upon such evidence.”
Corroboration is not meant to give credence to evidence which is deficient, suspect, or incredible. It is required to support the evidence which is sufficient, satisfactory and credible.
A witness cannot corroborate himself. Evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness. It must be independent evidence outside what obtained from contested confessional statements – OBI v. STATE (1972) 1 S.C. 1 at page 11; JAMES GWANGWAN V. STATE (2012) Vol. 1 WRN. 57 at 85.
Notably is that the learned trial judge observed, (wrongly in my view) that PW2 and PW3 as accomplices, their evidence substantially corroborate the evidence of PW1 (Dr. Ore Falomo) and PW1’s evidence that the bullet that was extracted from the head of the deceased was a special one that was not commonly seen corroborates the evidence of PW2, and that it was the Appellant that gave him (PW2) the gun that was used – pages 1839 and 1843 of the Record. This is the lower Courts’ view.
With respect, the evidence of PW2 and PW3 could not have constituted corroboration of evidence of PW1, whose evidence does not require corroboration. This is because PW1 has not been treated as an accomplice.
The Appellant had said that he was very close to the Abiola family, and indeed had helped Late Chief M. K. O. Abiola when he was incarcerated.
The Appellant in his defence had denied conspiring to murder the deceased. He had put up a three tiered defence.
(1) He denied conspiring with the 2nd Appellant or any other person whatsoever to murder the deceased.
(2) That PW2 and PW3 had been induced with gifts and mouth watering promises to give false evidence against him by the authority and some influential Nigerians.
(3) The case against him had been fabricated to put him out of circulation because of his knowledge of certain secrets of National importance including the murder of M. K. O. Abiola.
Interestingly PW2 had confirmed that promises were made to him and his family which made him make the statements he did, but that when the promises were not fulfilled he had to speak out.
But, with respect, this Honourable Court is not interested in whatever politics is behind all these.
This does not remove from the Respondent the legal duty to prove his case beyond reasonable doubt and he was obliged to so do.
I cannot see any common intention established against the Appellant, to conspire with another or others to murder the deceased. He did say that he had always maintained a cordial relationship with the Late Chief M. K. O. Abiola, husband to the deceased. He therefore had no reason to conspire to murder the deceased.
The Respondent has been unable to falter the evidence of the Appellant and DW2 as to how arms are moved from the Armoury. Everywhere I look in the prosecution’s case, same is fraught with gaping loopholes which the prosecution could not fill. There are more questions than answers! It is the law that where doubts obtain in the case of the prosecution, same shall, and must be resolved in favour of the accused.
I must reiterate that PW4, Ahmed Fari Yussuf testified from the 13th of October, 2009 – page 854 of the Record of Appeal Vol. 2. He tendered Exhibit “A3” which is the 1st statement made by the Appellant and brought to him. It is dated 23rd September, 1999. The Statement from records was made at FCID Abuja. At page 855 of the Record of Appeal, Volume 2, Exhibit A3 was tendered during Examination-In-Chief of PW4. He also tendered Exhibit A4 – statement of Lateef Shofolahan – made at FCID of 21/9/99. Exhibit A5, Police Force Admission/Confession Form of 3rd Defendant dated 12/10/99.
PW4 said he was aware that the Appellant was further interrogated by the SIP i.e. the team detailed to carry out further investigation and that he made further statements. The statements were brought and filed in the case file. These statements were never tendered by the Prosecution. No explanation was given.
According to the submission of the Appellant at page 7 of his brief of argument filed on the 15th of February, 2013, he says that it is from these disjointed and disconnected documents that the trial Court admitted the following utterly tainted documents i.e. statement dated 23rd September, 1999 made by the Defendant and admitted as Exhibit A3.
PW4 went through trial within trial from 11th October, 2009 which lasted for 13 months. He never re-surfaced for cross-examination at the main trial. Indeed the Respondent failed to produce PW4 for cross-examination
What is the effect of this in law? It is that this rendered (as argued by the Appellant) his evidence and the statements tendered by him for that matter, inconclusive, inchoate and ineffective. Moreso, failure to avail himself for purposes of cross-examination; deprived the Appellant of his constitutional right to fair hearing, as PW4 would have been subjected to cross-examination by the Appellant. This rendered PW4’s evidence and the attendant exhibits tendered by him of no relevance to the Court and same must be discountenanced. The necessary implication is that there was no evidence before Court of PW4. The exhibit which he tendered Exhibit A3, A4 and A5 and indeed every other exhibits which he tendered are therefore of no moment.
The totality of the evidence led by the prosecution in proof of the charge of conspiracy to murder is unreliable, and has been so discredited, and I so hold.
Issue No. 1 couched by me is therefore answered in the negative and same is resolved in favour of the Appellant.
On Issue No 2.
The offence of murder, to be established, must possess these ingredients.
(a) That the deceased is dead.
(b) That the death of the deceased was the result of the act or omission of the accused, and
(c) That the act of omission of the accused which caused was intentional with full knowledge that death or grievous body harm as its probable consequence.
ILODIGINE V. STATE (2012) 18 NWLR PT.1331 page 1 @ 29
Indeed a plethora of cases have supported this proposition of law. It is trite.
There are basically three ways by which the prosecution proves its case against the accused. The prosecution proves its case against an accused by all or any of the following means:
(a) evidence of an eyewitness(es) 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 accused person 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; ILODIGIWE 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.
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 not 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 the administration of Justice, when a crime is committed, it is the Nigeria Police that moves in to 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 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, of 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 PW2 and PW3 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. Yes 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 latter 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 Defendant Exhibits A3 and D1-5 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 divest the prosecution of its duty, albeit 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.
The Respondent has been unable to provide any evidence outside the evidence provided by the Prosecution witnesses to establish his case. He did not even establish his case from what he presented, by way of direct evidence.
In paragraph 4.1.11 of the Respondent’s Brief of Argument, he had postulated compelling facts and circumstances from which conspiracy was rightly inferred by the Court below, which all have to do with matters relating to the Appellant being the Chief Security Officer of the Late General Sanni Abacha, 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. Late Alhaja Kudirat Abiola being a prominent member and financier of NADECO and wife of the said M.K.O. Abiola and a host of other factors. The Respondent had urged this Honourable Court to take Judicial Notice of these facts referring to Section 124 of the Evidence Act 2011.
In the Appellant’s Reply Brief filed on the 13th of May, 2013, he (rightly, in my view) submits that the Respondent by this assertion pushed the boundary of acceptable legal evidence when he urged this Court in his brief of argument to affirm these facts which smacks of speculation and political gossip, as facts and admissible evidence, on which a man’s life could be taken away as punishment for murder.
I agree entirely with the submission of the Appellant in his reply brief that all criminal cases are not established by evidence sourced from the myths and fables held by a community posing as judicial notice, because a conviction of conspiracy to murder and murder places the proof on the Prosecution, and not on the beliefs of the South West Community in Nigeria or any other person or group. The standard of proof is one beyond reasonable doubt – Sections 135 and 139 of the Evidence Act 2011. This standard of proof and the degree of it cannot be compromised.
Even circumstantial evidence must be, as a matter of law, based on credible evidence- ARCHIBONG V. THE STATE (2006) 14 NWLR pt. 1000. P9. 349 at 376.
This issue is resolved in favour of the Appellant and against the Respondent.
At the Alpha of this Judgment, I had observed that the Judgment of the lower Court spanned 326 pages. This is to my dismay. For a Judgment of 326 pages, relating to a Notice of Appeal with 17 grounds of Appeal, and two issues each distilled from these grounds by the respective parties, and the matter being a criminal offence with two counts of conspiring to murder and murder respectively, it was foolhardy that the lower Court was so carried away and apparently strove to secure a conviction by all means.
The adversary system of Justice in Nigeria admits of the concept that no one party is more important than the other.
The learned trial Judge apparently forsook the trite principle of law, that is, that in a Criminal trial, proof beyond reasonable doubt is what is required. Once the essential ingredients of the offence is proved, then the accused person will pay for it, but once this is not proved, there exists a doubt which must be resolved in favour of the accused person as a matter of law. The Judge has no discretion in the matter. There was no need for the learned trial judge to consider the politics of any of the parties, as same was irrelevant in a criminal trial.
The learned trial Judge should have observed that the police investigation (if any) into this matter was wishy-washy and leaves much to be desired. It was fraught with needless loopholes.
Truly as observed earlier and at the expense of repetition, the trial Court is the master of the facts of evidence given before it. And it must master these facts prudently and objectively, not erratically or with bias. Therefore even at the expense of repetition and for good measure, the inference it deduces from these facts must accord with common sense 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 him, and in the performance of the sacred function of the due administration of Justice.
The learned trial Judge did not wonder why the bullet was not recovered, why PW4 absconded after examination in Chief. She allowed herself to be caught in the web of of the conflict, while the Police allowed itself to be caught in the web of Injustice or lack of proper investigation. The police who are supposed to be the custodian of the law and who are law enforcement agents left gaping loosed ends in their investigation (if they investigated at all). The Respondent left many questions unanswered, failed to call vital witnesses and tender relevant exhibits e.g. the bullet which was never tendered.
The prolixity and verbosity of the judgment made the lower Court leave the con of the matter, to pursue shadows that fade.
Assuming the culprit is at large, there is nothing hidden under the sun that will not be exposed. The Law of the Lord is perfect. His Judgments are true and righteous altogether – Psalm 19:7-9.
I find nothing in these charges against the Appellant to necessitate his being convicted, and for someone who has been incarcerated since 1999, a period of about fourteen years, this is unfortunate. There was no proper police investigation, no reliable witnesses, no reliable exhibits, no circumstantial evidence, nothing. The result is that all the Issues are resolved in favour of the Appellant and against the Respondent who has failed to prove the charges against the Appellant beyond reasonable doubt either by direct or circumstantial evidence.
The appeal succeeds and is allowed and I hereby make an order that the Appellant Major Hamza Al-Mustapha who was convicted of the offences of conspiracy to murder and murder of Alhaja Kudirat Abiola on the 4th of June 1996, in a Judgment of M.A. Dada (Mrs.) J. delivered on the 30th day of January, 2012 be and is hereby discharged and acquitted of those charges while the conviction and sentence is hereby set aside.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with his reasoning and conclusion. This case highlights the detachment that must be present between cold hard facts and sentiments, in the sense of “a feeling or opinion prevailing among a group of people” – see Encarta Dictionaries. Alhaja Kudirat Abiola, the wife of Chief M. K. O. Abiola, was assassinated on the 4th day of June, 1996, along Lagos-Ibadan Expressway.
In the aftermath of that monumental tragedy, the Respondent made a number of tactical errors in the investigation of the case and the prosecution of accused persons, who allegedly conspired to murder Alhaja Kudirat Abiola. The investigation, which is the prerogative of the Nigeria Police, was farmed out to other bodies that had no business taking statements from the accused or interfering in any way with the investigation of the case preparatory to trial.
What is even more disheartening is that the Respondent elected not to prosecute the said Barnabas Jabila (aka Sgt. Rogers), who actually confessed to pulling the trigger and shooting Kudirat Abiola in the forehead on that said day.
It decided to put all its eggs in one basket and concentrate on the Appellant, who was the Chief Security Officer to the then Head of State, General Abacha. This may have been seen as a very strategic move but trial finally commenced on the 10th of July, 2009, over 13 years after Kudirat Abiola was shot and killed; by that time, a lot of waters had passed under the bridge, and witnesses had recanted and changed their accounts of what actually transpired in this case.
The end result is that the Prosecution found itself with a very weak case that was riddled with holes because the nuts and bolts that should have been tightened during the investigation had become loose or fallen out completely, so the Prosecution was not able to prove its case beyond reasonable doubt.
AMINA ADAMU AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with his reasoning and conclusion. This case highlights the detachment that must be present between cold hard facts and sentiments, in the sense of “a feeling or opinion prevailing among o group of people” – see Encarta Dictionaries. Alhaja Kudirat Abiola, the wife of Chief M.K.O. Abiola, was assassinated on the 4th day of June, 1996, along Lagos-Ibadan Expressway.
In the aftermath of that monumental tragedy, the Respondent made a number of tactical errors in the investigation of the case and the prosecution of accused persons, who allegedly conspired to murder Alhaja Kudirat Abiola. The investigation, which is the prerogative of the Nigeria Police, was farmed out to other bodies that had no business taking statements from the accused or interfering in any way with the investigation of the case preparatory to trial.
What is even more disheartening is that the Respondent elected not to prosecute the said Barnabas Jabila (aka Sgt. Rogers), who actually confessed to pulling the trigger and shooting Kudirat Abiola in the forehead on that said day. It decided to put all its eggs in one basket and concentrate on the Appellant, who was the Chief Security Officer to the then Head of State, General Abacha. This may have been seen as a very strategic move but trial finally commenced on the 10th of July, 2009, over 13 years after Kudirat Abiola was shot and killed; by that time, a lot of waters had passed under the bridge, and witnesses had recanted and changed their accounts of what actually transpired in this case.
The end result is that the Prosecution found itself with a very weak case that was riddled with holes because the nuts and bolts that should have been tightened during the investigation had become loose or fallen out completely, so the Prosecution was not able to prove its case beyond reasonable doubt.
It is an elementary principle of criminal law that the Prosecution has a duty to prove its case “beyond reasonable doubt”, and reasonable doubt is the “doubt that prevents one from being firmly convinced of a Defendant’s guilt or the belief that there is a real possibility that the Defendant is not guilty” – see Black’s Law Dictionary 9th Ed., where it was further explained that –
“Reasonable doubt is a term often used, probably pretty well understood, but not easily defined. It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge” – per Lemuel Shaw, J., Commonwealth v. Webster 59 Mass. (5 Cush) 295, 320 (1850)
Beyond reasonable doubt is the standard used to determine whether an accused person is guilty; it stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice – see Bakare v. The State (1987) 3 S.C. 1, where the Supreme Court per Oputa, JSC, also held –
“To displace this presumption, the evidence of the Prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All E.R. 373:- “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence – ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”.
In this case, the learned trial Judge used 326 pages to arrive at its decision that the Appellant was guilty as charged, which raised a RED FLAG, because he did not need that number of pages to find out whether or not the evidence against the Appellant was so strong as to leave only a remote possibility in his favour.
It was the first sign I got that something was greatly amiss about his Judgment because strong evidence speaks for itself and a 325-paged Judgment suggests that he was trying to find a way around the doubts in the Prosecution’s case.
It is settled that a trial Court interprets a situation as per the cold facts before it – see Nwachukwu v. The State (2002) 2 NWLR (pt. 751) 366, and The State v. Aibangbee (1988) 3 NWLR (pt. 84) 548, wherein Eso, JSC, held that –
“… A Judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him not as per what he would have preferred the facts to be”.
The learned trial Judge fell far short of this standard because he closed his eyes to the cold facts before him and allowed himself to be swayed by sentiments and political insinuations in his own interpretation of the evidence before him. My learned brother has eloquently addressed this point in the lead Judgment, and I share his view that the learned trial Judge should not have relied on the evidence of the Prosecution witnesses to find the Appellant guilty as charged for conspiracy to commit murder and murder. The gist of the offence of conspiracy is the meeting of minds of the conspirators – see Patrick Njovens v. The state (1973) NNLR 76 and Osuagwu v. state (2013) 5 NWLR (pt.1347) 360, where the Supreme Court per Rhodes-Vivour, JSC, elaborated as follows –
In Oyediran v. Republic (1967) NMLR 122, (1966) 2 SCNLR 173, Coker JSC explained conspiracy as follows
1. 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 on agreement with a common design.
(b) There may be one person who is the hub around whom the others resolve, like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is what is called the chain conspiracy.
2. In order to establish conspiracy therefore, it is not necessary that the conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. See State v. Salawu vol. 408 NSCQLR p.290, (2011) 8 NWLR (pt. 1279) 580, Erim v. State (1994) 5 NWLR (pt. 346) p. 522, Oladejo v. State (1994) 6 NWLR (pt. 348) p.101.
Conspiracy is complete upon an agreement by the conspirators and in most cases agreement is inferred or presumed. In all cases of conspiracy, the Court must be satisfied with evidence of complicity of the accused person in the offence”.
In other words, there must be some link between each and every one of the conspirators in this case with the evil plan or plot to assassinate Kudirat Abiola.
PW1, Dr. Oluwatamilore Faloma, is out of it because his evidence added nothing to the case. His testimony about a special bullet that is not commonly seen goes to nothing because the bullet was not even produced in evidence. PW2, Sgt. Rogers, who confessed to shooting Kudirat Abiola, testified under cross-examination that all that he had said in his examination in chief was what he had been told to say by the authorities. He specifically stated as follows –
“During the visits by the government officials, they used to give us money. Sometime N20,000, N30,000, N50,000, it varies. Yes, the A.G. and S.G. also gave us monetary gifts. Yes, he was good to us. Yes Chief Bola Ige also gave us money during his visits. It is correct that he gave us N100,000. Yes, I had telephone conversations with the A.G. of Lagos State when this matter was being investigated, when the additional statements were being made. The handset was given to us by the Attorney General of Lagos State. The SSS would not do that. They saw us with the telephone. They were aware. The telephone line was an MTN but I can’t remember the number. His own number was an Econet line. He came with the line. I changed my statement during the SIP by the Federal Government officials but I cannot remember when the Lagos State officials visited. I think towards the end of the investigation. The authorities told me to say these things against the Defendants in Court during the SIP Investigation, I agreed before the promises to give evidence against the Defendants as part of my duties to the State. Yes I agreed to play my own part. – – In 2005, I was being paid half salary. The promises made “was” not fulfilled. The statement of September 1999, 29th was made during the SIP. It was during that time that we discussed what they would give me. It was a response to then promises made”.
When he was re-examined, Sgt. Rogers re-affirmed what he said under cross-examination that what he had said was what he was told by the authorities. PW3, Mohammed Abdul (alias Katako), who confessed that he drove PW2 on the day of the shooting, also rejected his testimony under cross-examination, and divulged that he was given a house in Jos. His replies read as follows-
“- – I said I was offered promises including the gift of a house by the authorities. — The promises were offered to me in 1999. – – The authorities that I was with made the promises to me. The officials of the Lagos State Ministry of Justice also visited me in detention. – – The former Attorney General Lagos State and Solicitor General visited me. – – The Federal Attorney General too visited me. He is late, Chief Bola Ige – – This promise that was made, I was given o house in Jos. The authority I was staying with gave me the house. – – It was during the visits of the officials that the promise of the house gift was fulfilled. I was told at the time of my arrest that they were looking for money from Alhaji Mohammed. – – I was told that I would get a percentage of whatever could be recovered from Mohammed Abacha. – – They said 10%. The promises were made before I made my statement”.
Obviously, the testimony of PW2 and PW3 left room for more questions than answers, and yet, the Prosecution did not think to solicit that they be declared hostile witnesses. In addition to Section 230 and 231 of the Evidence Act, which deal with how far a party may discredit his own witness, and proof of contradictory statement of hostile witness, Section 210 of the same Act says –
“The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him –
(a) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
It is settled that an application to treat a witness as hostile should be made as soon as it is obvious that he is hostile or that his testimony will be adverse to the interest of the party. In this case, PW2 and PW3 made serious allegations against the “authorities”, which suggests that they were induced to tell lies against the Appellant but they later repented. PW3 further stated as follows –
“The people who made these promise to me before I made my statement were the Federal Government officials and the SSS authorities. The officials of the Federal Government who told me 10%, he is dead, the former Attorney-General and the former DG SSS. Yes former Attorney-General was the late Bola Ige, the former DG, SSS was Col. Kayode Are. There were others there. Sometimes they will be three. After the promises, yes, I was happy. The promises were made on the 18th of September. (At this stage, the witness broke down weeping profusely). Yes, my statement of 19th September was as a result of the promise of 18th September”.
Under re-examination, PW3 stood by all that he said during cross-examination, which is totally at variance with what he had said in his examination in chief, but the learned trial Judge did not see or refused to see anything wrong with the testimony of PW2 and PW3 and declared them to be reliable witness.
Then there is PW4, Ahmed Fari Yusuf, the Police Officer, who tendered statements of the accused person, and took part in the trial-within-a-trial that lasted for over a year, but disappeared before he could be cross-examined.
Obviously, the evidence of PW4 also amounts to nothing because
it is settled law that a Court cannot act on the evidence of a witness that cannot be produced or located for cross-examination after he had been examined in chief – see Isiaka v. The State (2011) All FWLR (pt. 583) 1966, wherein it was held –
“- – The platform on which the lower Court placed his reasoning for the conviction is weak and unjustifiable. A Court or Tribunal should never act on the evidence of a witness whom the other party wants to cross-examine, but cannot be reproduced or located for cross-examination after he must have been examined-in-chief.
The most honourable thing for the lower Court would have been that the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the Court or the lower court should not have attached any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross-examination should know that all his evidence goes to naught.”
See also the unreported Judgment of this Court delivered on 10/12/12 in Appeal No. CA/J/71C/2009 – Shehu Shegun v. The State, wherein it was held –
“The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined to also allow the cross-examining party the opportunity of stating or representing its case through the witness of its opponents. In ensuring that an accused person’s right to fair hearing is manifestly protected, such accused person must be given the opportunity to examine either in person or by his legal practitioner the witnesses called by the Prosecution. The entire trial process revolves around this art of cross-examination. The Evidence Act actually underscores the purposes of cross-examination in Section 200, which provides inter alia
“When a witness is cross-examined, he may in addition to the questions referred to be asked questions which tend –
(a) To rest his accuracy, veracity or credibility, or
(b) To discover who he is and what is his position in life, or
(c) To shake his credit by injuring his character.
To deprive an accused person of this opportunity amounts to gross violation of his constitutional right to fair hearing”. (Per Mshelia, JCA)
It is clear that none of the witnesses added anything to the Prosecution’s case, and a 326-paged Judgment cannot provide any evidence where there is none.
Therefore, I also allow the appeal and set aside the decision of the lower court.
I abide by the orders in the lead Judgment.
FATIMA OMORO AKINBAMI, J.C.A.: My learned brother, Pemu, JCA., afforded me the opportunity of reading in draft the judgment just delivered with which I agree and adopt as my judgment in the case with nothing useful to add.
Appearances
J.B. DAUDU (SAN), HABEEB OREDOLA ESQ, ADEDAYO ADEDEJI ESQ, E. YELWA (MISS) AND A. AINA (MISS)For Appellant
AND
LAWAL PEDRO (SAN), FEMI ADAMSON (ACSC)For Respondent
