How prosecution’s case against Al-Mustapha failed

At the close of the proceedings, the learned trial judge found the appellant guilty of conspiracy to 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.The appellant is dissatisfied with the judgment and has appealed it. […]

At the close of the proceedings, the learned trial judge found the appellant guilty of conspiracy to 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.
The appellant is dissatisfied with the judgment and has appealed it.  
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 – 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 14 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 or the ground 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, 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.”
Given this background, can it be said, given the facts before the lower court, that the appellant is guilty of conspiracy?
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. Roger’s)  (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) DSP Gabriel Haruna (11) DSP Samuel Ojehomon (12) C.S. P. Agbafe
But the prosecution called only four of these witnesses. Others for some  unexplained reasons, they were not called.
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.
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. More so, 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 exhibit 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.  
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  I,  couched by me, the prosecution witnesses fielded by the prosecution  were not reliable, and the evidence elicited by then 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’s 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 Nigeria 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 grund norm – the organic instrument of this revered  country. Section 214 of the Constitution of the Federal Republic of Nigeria, and Section 3 of the Police Act 2004 establish the Nigeria Police Force.  Section 4 of the Police Act – CP 19 Laws of the Federation of Nigeria 2004 specifies the general duties of the police.
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.
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 Gadzama, 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 cables in furtherance of this.  PW2, PW3, the appellant and his witness had vividly and graphically told of how government officials and the security agents of this country had coerced them to implicate the appellant. Promises were made to PW 2 and PW 3 in that regard which were not fulfilled to their chagrin.  The totality of the prosecution witnesses story (at least PW2 and PW3 and indeed the appellant) is that this case is being fuelled by factions sympathetic to the cause of Abdulsalami  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!

To be continued