Officer, CSO, to late Head of State, Gen Sani Abacha, over his
acquittal by the Court of Appeal as Lagos State government on Monday,
filed an appeal at the Supreme Court to challenge the court's decision
that set him and Alhaji Lateef Shofolahan free over the murder of
AlhajaKudirat Abiola. Shofolahan was Kudirat's aide.
The Attorney General and Commissioner for Justice, Mr. Ade Ipaye, who
disclosed this, said the state government took the decision after one
month of thorough evaluation ofthe judgment and found out "there are
enough and very good grounds for appeal."
Ipaye told journalists in Lagos: "The step by the state government was
to ensure that all issues were fully and well articulated and that the
victim's family, the defendantsand the society were not deprived of
the last window of opportunity provided by the constitution for the
resolution of the case". He added, "Government was committed to
ensuring that law abiding residents and visitors continuedto live,
work and pursue their various aspirations in a safe and secure
environment in the state."
The Commissioner argued that the state would be encouraging impunity
by not challenging the judgment of the Appeal Court, especially when
it stated that the delay in the criminal trial of Al-Mustapha,
Sofolahan and others earlier freed were deliberately ochestrated to
frustrate their trial.
He said: "I can report that we have indeed appealed the judgments, one
in respect of Al-Mustapha and the other in respect of Lateef
Shofolahan. Both have been studied closely and we came to the
conclusion that there were good grounds for appeal and we have since
filed all the necessary papers. We did that yesterday (Monday).
Officially, we have put in our indication that we want to contest the
judgment of the Court of Appeal at the Supreme Court.
"This step will also ensure that all issues are fully articulated and
the victim's family, the defendants and the society are not deprived
of the last window of opportunity provided by the Constitution for
the
resolution of the case."
Loopholes
Answering question on the admissibility of loopholes in a paid advert,
Ipaye denied this, but stated, "What we said was that the accused
persons deliberately delayed the trial and this may have affected the
case, because justice delayed is justice denied.
This is one of the major reasons we are challenging the judgment of
the Honorable Justices of the Appeal Court. It will discourage sense
of impunity that if someone can deliberately delayed his own case, he
may eventually escape justice. This will not be good for justice
delivery,
our democracy and the nation."
Also, the Commissioner addressed several issues including the
controversial relocation of some Igbo
indigenes from Lagos State, detention of some minors in Kirikiri
prisons and the Amnesty International's report on Badia area of Lagos
State. Kudirat Abiola was murdered on June 4, 1996 by gunmen suspected
to be government's agents following which Al-Mustapha and Shofolahan
were charged.
Three other persons-Mr James Danbaba, an ex-Lagos police boss, Lt Col.
Jibrin Bala Yakubu, former military administrator of Zamfara State and
commander of Mopol in the Presidential Villa, and CSP Mohammed Rabo
Lawalalso stood trial in the case before they were freed.
In the appeal, Lagos State government formulated14 issuesbefore the
Supreme Court to justify why the apex court should set aside the
decision of the Appeal Court.In separate motions on notice filed
against the judgement of the appellate court, the state formulated
eight and six issues against Shofolahan and Al-Mustapha respectively.
The motion was brought pursuant to section 233(3) of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended), Section 27(2
and 3) of the Supreme Court Act, Cap S15, Laws of the Federation of
Nigeria, 2004, Order 7 Rule 1 of the Court of Appeal Rules 2011 and
under the inherent jurisdiction of the court.
It prayed the apex court to set aside the judgement of the Appeal
court, which upturned the conviction of the respondents by a lower
court presided by Justice Mojisola Dada of the Lagos High Court on
January 30, 2012. The lower court sentenced Al-Mustapha and Shofolahan
to death by hanging for the murder of Kudirat.
Evidence
The state argued that the appellate court erred in law by discharging
and acquitting the two men when the evidencelinking them to the crime
was not materially challenged.
According to the state, the contradictions in the testimonies of the
prosecution's star witnesses, Barnabas Jabila (Sgt. Rogers) and Abdul
Mohammed (Katako), were not sufficiently substantial to warrant the
acquittal of both Al-Mustapha and Shofolahan, arguing that the
testimonies of PW2 (Jabila) and PW3 ( Mohammed), were detailed,
graphic and consistent.
It contended that there was evidence on the record of appealthat the
second prosecution witness (Jabila) explained the immaterial
differences in his evidence made under examination-in-chief and under
cross-examination.
The state added: "PW2 (Rogers) gave detailed and consistent evuidence
of the consipracy to murder; and murder of the deceased. These
detailed facts were not materially controverted even under
cross-examination. "There was evidence on record of Appeal that PW2
explained the immaterial differences in his evidence made under
examination-in-chief and confirmed under cross-examination and in
spite of the detailed consistent evidence of PW2 and the detasiled
explanation of the immaterial differences, the Court below still went
ahead to impeach and disregard the whole evidence."
On the second ground, the government stated that the court erred in
law when it held that there were material contradictions that
rendered the testimony of the third prosecution witness, (Abdul
Katako) unreliable and asserted that the witness gave graphic and
detailed evidence of conspiracy to and murder of Alhaja Kudirat
Abiola, adding that his testimony was neither denied nor discredited
in cross-examination.
It said: "Section seven of the Criminal Code identifies circumstances
where a person may be held liable for commission of offence", adding,
"there was concrete evidence (both oral and documentary) before the
trial court indicating the participation of the second and third
prosecution witnesses and the respondent in the alleged crimes."
The government further stated that both witnesses had testified how
they participated in the killing of Kudirat under the instruction
given by Al-Mustapha with Shofolahan's assistance as an informant but
later denied and recanted the incriminating testimonies during
cross-examination.
It stated: "The Court of Appeal gave overriding credence to a
statement made under-cross examination by PW3 that hewas in Azare on
June 4, 1996 (day Kudirat was murdered) when the Defence did not show
through the witness that even if the accusation was true, he could not
have committed the offence and then proceeded to Azare, Bauchi State."
It added: "DW1 (Al-Mustapha) provided the logistics for killing the
deceased in Lagos. PW3 (Mohammed) was assigned as driver to PW2
(Jabila) because of his knowledge of Lagos and PW3 gave graphic
evidence of how he drove PW2 to the scene of the crime and how PW2
shot the deceased severally.
Conspiracy
On conspiracy, the stated government stated: "PW2 (prosecution
witness) admitted meeting DW2 (Shofolahan)and the killing of the
deceased and testified that DW2 tookthem to the deceased's house and
provided information about the identification and movement of the
deceased. "The statements of PW2, PW3 and even DW1 tendered
andadmitted by the trial court showed that these three witnesses
indeed met and had common intention to commit a crime.
It was an undisputed fact that Alhaja Kudirat Abiola wasshot and died
on June 4, 1996. PW2 (Rogers) admitted he severally shot the deceased
on June 4, 1996. "It was unchallenged that DW1 gave his gun to PW2 for
killing the deceased and the insistence of PW2 that he would be
surprised that he used 5.6mm gun instead of 9mm to kill the deceased.
There was circumstantial evidence establishing the fact that DW1 and
DW2 participated and aided the elimination of Alhaja Kudirat Abiola."
Ipaye, in the appeal notices, saidthe contradictions were immaterial
and urged the Supreme Court to affirm the death penalty.
On ground four of the appeal, the state argued: "The Court below erred
in law by substituting its own assessment and evaluation of the
evidence with that of the Trial Court in its judgment in
circumstances of this case, when it held that there was no creduible
and reliable evidence in the entire record to justify the conviction
of the Respondents."
It pointed out that the the Appeal Court "did not properly evaluate
the evidence on the printed record which the Trial Court considered in
arriving at its conclusion before settingaside the conviction of the
Respondents.
"In the circumstances of this case where the Court below could not
assess the witnesses, consider their demeanour, the nuances of the
process before the court, including specific conducts, or attitudes of
the witnesses in relation to specific, critical, vital; and material
evidence, oral or otherwise; the Court did not disclose sufficient
reasons for substituting its own views for those of the Trial Court",
it added.
Bribe, inducement
On the argument that Rogers was bribed or induced, Lagos State
government submitted: "The Court below erred in law by misconstruing
what the appellant characterised lawful "Witness Protection"measure as
"Promise" and on one hand ignored it but on the other hand attached so
muchweight to the Respondent's characterisation as promise."
Pointing on the error, the state said, "A court both trial and
appellate is not allowed to approbate and rebrobate at the same time;
PW2 confirmed that he had agreed before the "promise" to give evidence
against the defendants as part ofhis duties to the State ten years
before his oral testimony.
It said further: "In his later attempt to resile from his testimony,
PW2 (Rogers) categorically stated that it was human to react that way
because his family members wereattacked and the prosecution could not
help them.
The Court below, even in the face of credible and uncontroverted
testimony about witnesses' fear or concern, and aspiration for safety
for themselves and their families, failed to recognize the purpose and
value of such evidence inits assessment of the evidence before it."
It added that the Appeal Court ignored relevant materials and gave
weight to irrelevant materials and misconstrued the Witness Protection
programme for PW2 and PW3 as inducement and discredited their entire
evidence.
It concluded that there was no controverted evidence of PW2
(Rogers)concurrence of DW1 (Al-Mustapha) that he isthe leader of the
Strike Force constituted under the military regime of Late General
Sanni Abacha and that DW1 provided logistics for the killing of the
deceased (Kudirat) and that PW3 (Abdul) was assigned as driver to PW2
because of his knowledge of Lagos and he gave graphic evidence of how
he drove Rogers to the scene of the crime and how he shot the deceased
severally.
The state therefore prayed the apex court to allow the appeal as well
as setting "aside the judgment of the Court below delivered on 12th
July, 2013 which set aside the conviction ofthe Respondents for
offence of conspiracy to commit murder and murder."
The Court of Appeal in its judgment, had stated that there was a
"gaping hole" in the prosecution's case. Highlighting the default, the
appellate court said the prosecution first witness, Dr. Ore Falomo,
testified that the bullet extracted from Alhaja Kudirat Abiola's skull
was a "special bullet" that could have come "only" from the
Presidency.
The victim, according to the witness, died after a three-hoursurgery
to remove the bullet and after suffering a second heart attack. Falomo
said that the police took away the bullet "for investigation"and never
returned it.
The appellate court noted that the prosecution failed to state the
whereabouts of the bullet, get a ballistician to examine the bullet or
tender it as an exhibit before the court."The prosecution failed to
produce the bullet, and there was no explanation as to why it was not
available," the court held.
Again, Mr. Jabila, during his testimony, according to the court, gave
a vivid account of how they, acting on the orders of Al-Mustapha,
trailed their victim from her Ikeja home to Lagos-Ibadan expressway
where they sprayed her white Mercedes Benz with bullets.
However, under cross-examination, the witness said he was in Abuja on
June 4 but was asked to give such testimony as part of an agreement
with the Federal Government and Lagos State government. Jabila said
that he was promised a job, house, and security.
His wife had been on a N15, 000 monthly salary which waslater
increased to N20, 000. He also said that Professor Yemi Osibajo, the
then Lagos State Attorney General and the late Bola Ige, then Attorney
General of the Federation, paid himrepeated visits while in detention,
with the latter giving him N100,000 on one occasion.
Mr. Abdul, who had admitted being Mr. Jabila's driver when the murder
was committed, said he was made the same offers by the authorities
including a promise that he would not be brought to court – but they
reneged on their promise. When he recanted, Mr. Abdul said that he was
in Azare, Bauchi State, on the day of the murder.
"There was no explanation for this somersault," Justice Pemu who read
the judgment said. No date has been fixed for the hearing of the
case. However, the judgment of the Supreme Court will determine
whether or not the joy and the reunion of Al-Mustapha and Shofolahan
with their loved ones will endure.
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