Major Hamza Al-Mustapha
Major Hamza Al-Mustapha, former Chief Security Officer (CSO) to the late Head of State, General Sani Abacha, Wednesday lost his bid to stop the admission of a vital document which could nail him.
The prosecution wants to contradict him with questions based on the statement he made on October 13, 1999 at the Special Investigation Panel (SIP).
Delivering a short ruling on the contention between the two counsel – Mr. Lawal Pedro (SAN), and Mr. Olalekan Ojo – the trial judge, Justice Mojisola Dada, said the prosecution was at liberty to cross-examine the accused on any issue relating to the case.
Al-Mustapha is standing trial for the murder of Alhaja Kudirat Abiola, wife of the acclaimed winner of the annulled June 12 presidential election, Chief MKO Abiola.
Al-Mustapha’s counsel, Ojo, fearing that cross-examining Al-Mustapha could jeopardise the case of his client, had objected to an attempt by the prosecution, led by Pedro, to contradict the former CSO with portions of a statement he made, marked exhibit ID2 at the SIP, which he, Mustapha, alleged was set up by the then Director of the State Security Service (SSS) Col. Kayode Are (rtd.).
Justice Dada noted that Al-Mustapha had testified before the court that he made about 28 statements but only one, marked exhibit A3, was tendered by the prosecution.
Citing a Supreme Court decision in the case of Sambo Vs State delivered in 1993, the judge said: “I hold that the principle at Sambo Vs the State is still the same here and leave is hereby granted the prosecution to confront the first defendant with portion which is considered contradiction and I so hold.”
She held that the document under contention had been identified by the 1st defendant (Al-Mustapha) as a statement he made under serious torture like every other statements he made.
“The Supreme Court in Sambo Vs the State 1993 7NWLR, part 300, page 417, paragraph D, held that where a witness’s previous witness is intended to be used by counsel during prosecution to contradict his evidence in court, his attention must first be drawn to the contradictory portion of his previous statement so as to give him the opportunity to explain same if possible.
“In section 209 of the Evidence Act, the prosecution is at liberty to draw attention to the statement on what is the alleged contradictory fact since the 1st defendant has identified it as a statement allegedly made under torture even though it is not confessional in nature. It does not amount to an exhibit yet but therefore it is premature to comment beyond this at this state.”
On whether the statement sought to be tendered is a confessional statement on the murder of Kudirat, Justice Dada said it was not.
Pedro had argued that any previous statement made by the former CSO could be used with a view to contradicting him on his oral statement made in the witness box.
He submitted that cross-examining the witness on his previous statement would not be pre-judicial to the defence because the defendant raised the issue in his evidence-in-chief.
He said that there was no law that prescribed any time limit to tender relevant documents in a proceeding.
He revealed that there were exceptions to the provisions of Section 209 of the Evidence Act, which stipulate that any extra-judicial statement of a witness may not be admitted in evidence.
He also said Section 27(2) of the Evidence Act constitutes one of such exceptions.
Pedro referred the court to Sections 199, 209 of the Evidence Act and argued that a witness might be cross-examined on a statement previously made by him either in writing or reduced into writing as relevant to the matter in question.
He further argued that if the document was intended to contradict him on his previous statement then his attention must first be drawn to the part of the statement which might be used for the purpose of contradicting him.
He cited several Supreme Court cases such as Kwaghshir Vs the State, 1995 and the case of Sambo Vs State, 1993 and argued that the court on its own discretion might require the statement and make use of it in the best interest of justice in the matter.
He said the court should be an unbiased umpire and that substantial justice should be done as against technical justice. He urged the court to allow the prosecution to make use of the statement.
But the defence counsel, Ojo, in his submission, argued that the cases cited and relied upon by the prosecution were totally irrelevant because the witnesses in question in the cited cases were prosecution witnesses and not a defence witnesses which informed the decision of the Supreme Court.
He further submitted that the two cases cited by the prosecution were not applicable and cited the decision of the Supreme Court in Adegoke Motors Limited Vs Adesanya and others.
Ojo argued that a legal practitioner should acquaint himself of a giving case before relying on it, adding that the decision in the case cited by the prosecution had nothing to do with the present case.
He submitted that the case that is apposite was the decision of the Supreme Court in the case of Adekanbi vs Attorney-General of the Western Region.
He submitted that the defendant should not be confronted with an extra-judicial statement made by him more especially when such statement was not placed before the court by the prosecution when they had the opportunity to do so.
He argued that to allow the 1st defendant to be confronted with the statement would amount to introducing an unprecedented absurdity into law practice in Nigeria.
“I am not aware of any decision of any court where a defendant witness is cross-examined by an extra-judicial statement that was never tendered in evidence,” he said.
He accused the prosecution of attempting to get through the back door what he failed to get through the front door, adding that the conduct of the prosecution was like setting a trap for the defence.
He added that the prosecution ought to have tendered the statement before the close of its case, adding that the prosecution having failed to do so at the appropriate time could not do so now.
However, an elated Pedro said he could not go on with the cross-examination and asked that the matter be adjourned due to the stuffy condition of the court room.
But Ojo was opposed to the request for adjournment and submitted that if, for any reason, due to the hot weather; the silk could not go on, other counsel in his team should take over from him.
He urged the court to refuse the application for an adjournment because no cogent reason was given by the prosecution, saying the purpose of accelerated hearing granted by the court would be defeated by the request.
Pedro’s request was later granted by the court and the matter was adjourned to Friday.
In another development, Mustapha disclosed that the late Head of State General Sani Abacha was murdered by some highly placed individuals.
The former Chief Security Officer Major said in Lagos Wenesday. Al-Mustapha said he was not around when Abacha died but that he saw him around 2am on that day in company of some ministers and ambassadors.
He however told the court that he was around when MKO Abiola died. He said, “I was technically present when MKO Abiola died but I did not give him the tea that killed him. By my position in the presidency at the time, I was present there with him by the video recordings, but physically I was not there.”
Al-Mustapha who told the court that they agreed that all detainees were to be set free and that the decision was carried out in relation to other detainees, wondered why Abiola was kept behind bars. According to him the failure of former Head of State General Abdulsalami Abubakar to appear before the Oputa Panel stemmed from some sensitive issues raised at the panel.