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Pragmatic, reserved and a deep thinker who loves family, sports especially football where am married to two wives: the first, AC Milan who has my loyalty and the second wife, Manchester United who has all my undying love and pampering, lifestyle and society parties. Need I say the law is more than a profession but a lifestyle for me.

Adekanye Adeyinka Olajide.

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You are here: Home / CRIMINAL PROSECUTING EVIDENCES: HOPE FOR JUSTICE IN THE EYE OF THE LAW.

CRIMINAL PROSECUTING EVIDENCES: HOPE FOR JUSTICE IN THE EYE OF THE LAW.

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Facts about the acquittal of: Al-Mustapha.

Al-Mustapha the appellant and others namely Mohammed Abacha, Rabo Lawal and one Mohammed Abdul were charged and arraigned at the High Court of Lagos for the offences of conspiracy to murder and murder of Alhaja Kudirat Abiola on 4th June 1996, along Lagos-Ibadan Expressway. At the shooting of the deceased, there was no eye witness to the crime except for one Dr. Mark Adesina who was not called as a witness. After trial, Al-Mustapha was therefore convicted of conspiracy to murder.

On appeal, the learned Justice stressed that the standard of proof is to prove beyond reasonable doubt; which lies on the prosecution. The appellant was charged for conspiracy to murder for he had not pulled the trigger though he only allegedly ordered it be pulled. So why is the basis of the trial over the death of the deceased on conspiracy? Why is it that the person who shot the deceased seen to give evidence to the effect of conspiracy of the appellant and not charged for murder? He should have been charged for conspiracy and then, the witness who shot Kudirat, joined in the suit for murder itself. The whole thing was now based on Mustapha conspiring to murder the deceased alone.

The above opinion led to the watery evidence against Al-Mustapha. More so the high court judge got stuck in the conflicting, confusing evidence as well as witnesses retracting already given evidences which led into giving 300+ pages of judgement that that did not hit the main issues, which are: who killed Kudirat, who sent the killers? Yet, found him guilty of the charges that were brought before him following his arraignment in 2003. Subsequent to this judgement, he appealed. At the Court of Appeal, while checking through evidences before it, it was discovered that in the bid to nail the accused down, the court of trial lost track of the purpose of conviction. You need to be able to pin the accused with the evidence. In this case where are the evidences? They were too confusing to be relied on especially in a matter as crucial as a murder case.

The justice system in Nigeria especially in criminal law procedures, provide that when a person is arraigned, it is in the prerogative interest of the prosecution to gather all facts and bring all necessary evidence; while leaving no stone unturned that will nail the accused before the court of law. The loopholes in this case were too rife; consequently, fatal to efficiently prove beyond reasonable doubt that he was guilty for murder. The loopholes are as follows:
1.      The person who perpetrated the heinous crime was used as a witness without charging him.
2.      The witnesses that were brought against him contradicted their own evidence with inconsistency by retracting their testimonies.
3.      PW1 was one Dr Falomo, a personal physician to the late Chief MKO Abiola, whose evidence has no strength in nailing the appellant.
4.      The bullet extracted from the skull of the deceased was never tendered.
5.      There was no ballistic expert on the deceased – people who will identify that the bullet and ascertain that oh yes, this bullet was used on the victim and has not been doctored.
6.      The police officer who carried out all investigations disappeared after his examination in chief skipping cross examination.

Now, let us get talking:

From the above shortcomings, No court will find such an accused guilty in the light of inconsistent evidence. Although the brilliant judges pointed out in their judgement that considering a court can convict on the basis of circumstantial evidence where it is strong, cogent and leads to the irresistible conclusion that the accused person committed the crime he is accused of. We must know that only proven direct evidences will be considered.

Deprived of any sense of conclusion, Al-Mustapha without doubt might have had a hand in Kudirat’s death being the chief security officer to Abacha but thanks to the careless prosecutors, we will never know that for sure. It was thorny to pin him down due to lack of proper evidence as the witnesses had confusing statements. In one breathe they said he asked them to kill her, in another they said they had only said all that because of the promise of the good life assured them. At the same time, the bullet extracted from Kudirat’s skull was never tendered as evidence. The Evidence act clearly states that all material evidence must be tendered to prosecute a case. The bullet was not tendered and no evidence to identify that the bullet is a special bullet that could only be traced to the corridor of powers in this case the army or that only three people had access to such gun/bullet.

However, in the society we are in, with clear picture in our minds of the infamous tyrant: #Abacha who went to any length to scatter #Hope93, it is only a certainty that nothing is impossible especially with Al-Mustapha being his right hand man cum chief security officer. He may have been the tool used to affect this conspiracy to murder; as he and his cohorts were the brains behind countless extra judicial killings and intimidations that regime was known for – Ken Sarowiwa comes to mind and General Adisa relaying his ordeal in the hands of #Al-Mustapha. But where are the evidence against him? In the eye of the law, only evidences substantially established are weighed. So where proper evidences are lacking due to the prosecution not strenuously paying attention to details; the resultant consequence is a flawed attempt to seeking justice regardless of the accused being conspicuously responsible for such act. In this case, it is no doubt that all proofs are lacking for a court of jurisdiction to sentence a man who evidences exonerate him from this crime.

It is sad that sometimes a chronic criminal who should not have been released to the public are often set free, thus going home. Reason is not far fetched: the Courts/Justices are bound by the rules and provisions of the court and any attempt to act contrary, is tantamount to flouting the law. While an innocent man, who has been wrongly arraigned can end up behind bars all his life where he is unable to engage a competent, diligent lawyer to defend and prove his case. Thus where there is a prosecution with lack of dedication, a relentless criminal will be set free.

We must not forget that this was about democracy; Late Chief Mushood Kashimawo Olawale Abiola had successfully won the freest and fairest election Nigeria has EVER seen. His mandate was denied; he was incarcerated and deprived of his right. This was the reason Kudirat became so active trying to restore her husband’s mandate, fighting and struggling to have her husband’s agitation delivered to the world. She became a torn in the flesh. Thus, a threat to the then sitting military junta who did not hide their desperation to shut her up and they did so by putting a bullet to her skull.

It was about Kudirat and the quest for justice - which was sort so vigorously by the family she left behind – not only delayed but ending with a brutal denial of it. I mean will her children be happy after such a lengthy trial that dragged itself to court after three years of her killing only to end this way? Is it not said that justice delayed is justice denied? Yet, it took seventeen arduous years of seeking futile justice. Of what significance would it be for a child of 10 years in 1996 when his/her mother was shot and after 17 years - now 27 years old who has grown during those tormenting times and gotten their lives to a certain level unaided, to still have the only suspect free due to unforeseeable mishaps of improper prosecution. What a waste!!!

Yes, I know eventually we now have a sham democracy following the death of the one man we all clamoured for. But is it not true that it was handed to us at the choice of a selected few? This is what we should have had since 93. They traded it and gave us an arranged government through #Obasanjo in 1999. What then is the hope of the ordinary man in the eye of the law if justice cannot be counted on? Apparently, in this case, the law does not seem to be ambiguous on punishment for murder; but then those who are saddled with the responsibility of ensuring that justice is done fairly are incompetent! It becomes clear therefore that politics cannot be separated from the law. As a matter of fact in the interest of political balancing and manoeuvring, it is succinct to say that the law though difficult to manipulate, is tinkered with by ensuring that its provisions are not met. Indeed, the law can be deployed to set a murderer free and enforce its full weight on another depending on the brilliance of the law.

Is it not true that the Constitution, rules of courts and indeed the Judiciary exists to favour us? In reality however, they do not! The powers that be might always provide a snag outside the confines of the court. Just like Cecilia Ibru who was sentenced to 6months on each of the charges totalling 18 months which will run concurrently for grievous financial misappropriations but wriggled her way round to spend 5 of those months in a luxurious hospital bed although she forfeited 150 billion in cash and asset to the government after pleading guilty to counts 14, 17 and 23 of the charges before Justice Daniel Abutu. Am sure we all also remember how former #PDP South West Chairman Chief Olabode George was with all guile sentenced to one year imprisonment for not les than 14 count charges. Whereas, I used to think before then that stealing a chicken will fetch the offender a year sentence. Still, he was graciously welcomed back amidst a triumphant celebration for completing his term.  Who does that? Only the mighty in Nigeria; where a criminal with big money bag will twist the very hands of the law abetted by their brilliant lawyers. I cannot help but be flustered when our same procedures will put a man in jail for 8 years because he has stolen seven thousand, Naira. I tell you even me as a lawyer; laughs at the mediocrity of the law and its agents!

It is worthy of note that truly, a court will only do justice to a given mater by evaluating the materials before it, and draw its inferences from such to arrive at a reasonable conclusion.

Above all, this divulges the sheer incapability of the Nigerian Police and its shambolic investigative procedures. It is no secret that we have an under equipped and incompetent Police force who would rather engage in corruption than protection of human lives and properties. Our system lacks forensic departments and is not equipped to combat the evolving modern day crimes. That is why we are in a worrying time grappling with the insurgency of Boko Haram who have proven they have the wherewithal and effrontery to attack the headquarters of the Nigerian Police which is the heart of that body. With countless ambushes of security operatives; showing that they have the competence to disintegrate the security system we claim to have.

- ADEKANYE ADEYINKA OLAJIDE and BARRISTER OLUYEMISI BAMGBADE.