At Last ,Al-Mustapaha Loses bid to truncate admission of Supreme Court judgment

By Ayokunle Oloye    Newsdiaryonline Tues Aug 16,2011

Justice  Mojisola Dada of a Lagos High Court sitting in Igbosere on Monday admitted as  exhibit, the Supreme Court Judgment on a prima facie application filed by  Mohammed Abacha, son of late military ruler, General Sani Abacha.  The  prosecution led by the Lagos State Solicitor General, Lawal Pedro (SAN) had  sought to tender the judgment as exhibit but the defence counsel, Olalekan Ojo  objected on the ground that it was not part of the proceedings of the  court.

Ruling on the objection, Justice Dada noted that al-Mustapha had under  oath and stated in the court that he knew Mohammed Abacha as the son of late  Sani Abacha and that they were initially charged together for the death of  Kudirat Abiola.

The court held that the judgment sought to be tendered is a  public document and by the provisions of Section 112 of the Evidence Act, a  Certified True Copy of it is admissible in law. Besides, Justice Dada held  that all the arguments proffered against the admissibility of the document were  of no moment.

“Ordinarily the court is bound to take judicial notice of the  Judgment of the Supreme Court and act where it is appropriate.

"The  objection is overruled, the Certified True Copy of the judgement of the Supreme  Court delivered in July 11, 2002 and signed by Justice Alfa Belgore admitted in  evidence and marked exhibit D16.”

In the said judgment, the Supreme Court had  quoted Mohammed Abacha's testimony where he said he was in al-Mustapha‘s office  when Sgt Roggers entered and was shown two bags containing machine guns and that  he Roggers was to be sent on an assignment.

Ojo had challenged the  admissibility of the judgment as exhibit and the cross examinations of his  client by the prosecution.

Ojo who based  his opposition on three  grounds argued that the witness was not part of the proceedings in the previous  trial and that the witness did not give any evidence in the judgment.

He also  argued that the issue of using the judgment against his client does not arise  and that where a judgment sought to be relied upon as subsisting evidence in the  subsequent criminal trial, the procedure is to tender the judgment through the  registrar of the court from which the judgment emanated, and who would be in the  witness box to read the charges in the previous trial and also tender the  previous depositions.

Ojo further urged the court to discountenance the  judgment, as it was not part of the Proof of Evidence front loaded by the  prosecution as required in section 255(1) of the administration of criminal  justice law of Lagos state.

But Pedro in his submission argued that the issue  of the document being apart of the Proof of Evidence was misconstrued by the  defence as the matter was at the cross-examination stage.

He also submitted  that since the document is a public document, it is admissible in law by its

mere production even from the bar and that the registrar of the court needs not  to tender it. But the judge in admitting the judgment, marked exhibit D16  over ruled the objection of the defence counsel, saying that it is trite  principle of law that there is no limit in admitting evidence before the court  in a criminal proceedings.

The document sought to be tendered according to  the judge was to test the accuracy and veracity of the witness  prosecution.

Justice Dada said, “The witness is under oath and has stated  during cross examination in August 2011 that," Mohammed Abacha was charged with  me."

 The Judge went on to say: “ therefore the objection of the learned  defence counsel to the document is overruled and the certified copy of the  Supreme Court in Suit N0 SC/290/2001 delivered on July 11, 2002 and signed by  Justice SM Belgore as he was then was is hereby admitted in evidence and marked  exhibit D16”.

Al-Mustapha also lost his bid to defend himself on the SIP  statement already admitted in evidence by the court, when Ojo sought the court's  permission to re–examine him on the said statement.

Ojo in his argument said,  the application was to take a gamble in case the court decided to look at the  statement, which his client said was SIP statement, and which he alleged was

made under duress. But Pedro in opposition said re-examining the witness  would lead to no end in trial, a position, the judge upheld and over ruled the  defence on the matter.

Al-Mustapha in the statement, which he alleged was  made to the SIP under duress, said he might have given Sergeant Barnabas Jabila  (aka Sgt Rogers) order “to clean his arms” and “not to kill  Kudirat.”

Al-Mustapha insisted that the statement he allegedly made at the  instance of the SIP was not “confessionary,” the panel deliberately did it in  “alignment” with the statements of other co-accused. He was also directed by  the prosecution to read the content of the disputed statement he denied making  on October 13, 1999.

After he read it, the accused said: “I made it under  duress, physical and serious torture. This is an SIP statement, not my own. I  only made it to save my family, life and that of my younger brother. I made 28  statements including this one under severe torture. I had to give up and succumb  to the dictation of the SIP."

Al-Mustapha also told the court that he ordered  Ogboru (jnr) to be beaten  publicly because he Ogboru was responsible for the killing  of children in the Ojo Barracks where he gave heroine to military officers. He  said if he had not ordered him to be whipped publicly, relations of those that  died in the attempted coup would have lynched him.

Besides, al-Mustapha also  told the court how he was beaten at the SIP in the presence of sgt Roggers  describing it as the worst humiliation he had ever received.

“In the case of  Roggers, dictations were done, I as his commander was beaten before him for not  accepting to copy a dictation by the Special Investigation Panel (SIP), in the  military profession, it is morally wrong and that is the worst thing you can do  to a superior before his subordinate. I was humiliated before him and tortured  severely and was made to copy while Roger acts as superior to me.

"That was  the kind of confrontation I had with Riggers.”

Also, al-Mustapha recounted  how he was subjected to psychological torture when members of his immediate  family were allegedly made to stand in the rain adding that he had no choice but  comply with the SIP’s directive in order to safe their life.

“Capacity to  endure differs from person to a person. For me they brought by wife and father  under rain and four children and rain will be beating them.

"My brother  Hadi  al-Mustapha was arrested nine times.

"If I am a man I am to fight for  them to have peace and I can sacrifice myself, I subjected myself. I can die for  my parents, no two ways about that. I can die for them; it was part of my  weakness.”

“Major Ado- was an infantry officer sent by the Nigerian Army to  be a guard commander in the presidency. I was a witness to the torture brought  upon him. What happened to him and I was unprintable. Office pin was used to  torture us until it get broken, that officer was almost a mental  person.

"What they used to do was to reduce your hair where they were dropping  the pin, and then be adding cold water in drops. It is better to  (set) fire on you  than to subject you to that kind of a thing in 30 minutes. I have not seen the  endurance in a person who can take for an hour.

"That must be the reason why  Major Ado went crazy.”

Meanwhile, hearing on the matter continues Tuesday, with  the calling of the second witness by the defence team.

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