TWIST IN ABACHA CSO’sCASE: Why Al- Mustapha, Shofolahan should die – Lagos govt

It is not yet uhuru for Major Hamza Al-
Mustapha, former Chief Security 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 Alhaja Kudirat
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 of the judgment and found out
“there are enough and very good grounds
for appeal.”
Maj. Al-Mustapha left, with former Kirikiri
Prison Controller, Mr. Lorbee Ihiagh in
Makurdi
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 defendants and 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
continued to 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 Lawal
also stood trial in the case before they
were freed.
In the appeal, Lagos State government
formulated14 issues before 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 evidence linking
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 appeal that 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 he
was 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 took them 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 and admitted 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 was shot 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, said the 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 setting aside 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 much weight 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
of his 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 were attacked 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 in its
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 is the 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 of the 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-hour surgery 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 was later 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
him repeated 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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