Major Hamza Al-mustapha V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.