How prosecution’s case against Al-Mustapha failed

At the close of the proceedings, 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 […]

At the close of the proceedings, 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.
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 not respecter of persons, the law is no respecter of persons. The court is not interested in sentiments.  
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 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 Sani  Abacha, opposition to the government of Late General Sani 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 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 Pg. 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 count 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 count 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, 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.  
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 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 loose 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 proxility and verbosity of the judgment made the lower court leave the context 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 AI-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.
Rita Nosakhare Pemu, Justice, Court of Appeal
Appearances: Appellant’s Counsel – J.B. Daudu (SAN), Habeeb Oredola Esq, Adedayo Adedeji Esq, E. Yelwa (Miss) And A. Aina (Miss).
Respondent’s  counsel – Lawal Pedro (SAN), Femi Adamson (ACSC).