Tobi Soniyi in Abuja
Hearing on the appeal filed by the Lagos State Government to overturn the judgment of the Court of Appeal which on July 12, 2013 discharged and acquitted Major Hamza Al-Mustapha, in the murder case of the late Alhaja Kudirat Abiola, the wife of the presumed winner of the June 12, 1993 presidential election, Chief M.K.O Abiola, suffered a setback yesterday as a member of the panel disqualified himself.
Lagos is asking the apex court to uphold and restore the death sentence placed on the former Chief Security Officer (CSO) to the former dictator and late Head of State, General Sani Abacha by a Lagos High Court on January 30, 2012.
However, when the appeal was called yesterday and after counsel had announced appearance, one of the five-member panel of justices, Centus Chima Nweze asked to be excused out of the case.
Justice Nweze said he participated actively in some aspects of the matter at the Court of Appeal and would be morally wrong and improper of him to participate in the same matter at the apex court.
All counsel did not object. Justice Bode Rhodes-Vivour who presided consequently adjourned the matter till January 12 next year for a full panel to determine whether the court will allow the appeal to be heard, having been filed out of time.
Al-Mustapha and Lateef Shofolahan were arraigned before a Lagos High Court on a two-count charge of conspiracy to commit murder and the murder of the late Alhaja Kudirat Abiola on June 4, 1996 in Lagos State.
In the judgment of the high court delivered on January 30, 2012 by Justice Moji Dada, the accused persons were found guilty as charged and were sentenced to death by hanging.
However, at the Court of Appeal approached by Al-Mustapha on April 27, 2012 for the review of the trial and the conviction, the three-member appellate court justices in a unanimous judgment of July 12, 2013 voided the decision of the high court, set it aside and discharged and acquitted the accused on the ground that the evidence against them was not strong enough to warrant the death sentence.
But in the new move to re-open the case, the Lagos State government has filed a notice of appeal out of the time at the Supreme Court asking for the permission of the court to allow it to challenge the Appeal Court findings of Justices Amina Adamu Augie, Rita Nosakhare Pemu and Fatimo Omoro Akinbami on ground of mis-carriage of justice in the matter.
The state prayed the apex court to allow it to exercise its constitutional right to test the validity and correctness of the decision of the Appeal Court.
If the apex court grants the prayer, Mustapha’s fate hangs in the balance. The apex court might uphold the judgment of the Court of Appeal discharging him or may set aside the judgment and uphold the high court judgment which sentenced him to death by hanging. It may also order a re-trial
Similarly, another appeal was also filed against the decision of the Court of Appeal freeing Lateef Shofolahan, the driver to the late Kudirat who was also sentenced to death by the high court.
An affidavit of support deposed to by an Assistant Chief State Counsel at the Lagos State Ministry of Justice, Obafemi Adamson gave copious explanation for the delay in filing the appeal.
He said: “The appellant-applicant had demanded 30 days to file the application for leave to appeal on account of challenges it encountered in assembling and consulting the core members of the various teams that had worked on the case since its inception at the trial court in 2003, including three Attorneys-General, two Solicitors-General and two Directors of Public Prosecution, most of whom are no longer with the Lagos State Ministry of Justice and had extremely busy and conflicting schedules.”
He said although the application for leave to appeal was filed at the Court of Appeal within 30 days of the date of the decision of the Court of Appeal, the state was forced to withdraw the application on November 29, 2013 the date for the hearing of the application because the time prescribed to obtain leave had lapsed and the Court of Appeal no longer had the jurisdiction to entertain the application.
In the proposed notice of appeal, Lagos challenged the decision of the Court of Appeal on six grounds.
The state questioned the correctness of the Court of Appeal’s decision on the materiality or otherwise of the alleged contradictions in the testimony of prosecution witnesses 2 and 3 and the failure of the Court of Appeal to act on undisturbed factual findings of the trial court.
The state also said: “The proposed grounds of appeal raise arguable legal and factual issues challenging the validity and correctness of the decision of the Court of Appeal particularly on the question of whether there is any direct or circumstantial evidence establishing the guilt of the Al-Mustapha in the murder of Kkudirat Abiola.”
The state said it was set to argue the appeal once its applications for leave to appeal and for extension of time to appeal were granted.
It said that interest of substantial justice and equity demanded that the state be allowed to appeal against the judgment of the court of appeal.
It further said Mustapha and Shofolahan would not be prejudiced if the state was allowed to appeal the court of appeal judgment.