Daily Independent Online.
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Tuesday, July 06, 2004.
Mustapha seeks withdrawal of judge, prosecutor in murder
case
By Victor Efeizomor
Law
Reporter,
Lagos
Trial of suspects in the attempted
assassination of Mr. Alex Ibru, The Guardian publisher,
suffered another major setback on Monday as Hamza Al-Mustapha filed an application
asking the judge and the prosecutor to hands off the case.
At the last hearing, Justice J. Oyewale of
an Ikeja High Court had fixed Monday for the continuation of the trial proper
with the examination of witnesses by lead prosecution counsel Yemi Osibajo, who
is also Lagos State Attorney General and Commissioner for Justice.
But the trial could not proceed as
Mustapha, through his counsel Olalekan Ojo, brought two separate motions on
notice seeking an order that “the honourable court presided over by
Justice J.O.K Oyewale should decline jurisdiction to continue with the trial of
the third accused/applicant in the charge No. LCD/108/99 upon the grounds of
bias or likelihood of bias”.
The second motion, directed at the state
prosecution, asked for “an order of the court restraining Professor Yemi
Osibajo (SAN) from further personally conducting the prosecution of the case
against the 3rd accused/applicant herein upon the ground that the said
Professor Yemi Osibajo cannot conduct the prosecution of the 3rd accused fairly
by reason of his personal prejudice and or bias against the 3rd accused
applicant”.
Earlier, Oyewale had drawn the
court’s attention to a letter from Rickkey Tafa, the defence counsel to
the first accused Ishaya Bamaiyi, which explained why he (Tafa) was not in
court. He said he had other matters at the election petition tribunal to attend
to and urged the court to adjourn the case till when he will be in court.
All the defence counsels agreed with Tafa
for an adjournment but Osibajo opted out. He argued that Tafa is well aware of
the court’s position to give the trial an accelerated hearing by dealing
with it on a daily basis.
The case has seen frequent adjournments and
series of applications since it was instituted five years ago.
Mustapha argued in the motion that the
grounds upon which it is brought is based on his legal right to a fair trial
and that “it is a constitutional requirement that a court seized of a
case should be manifestly seen to be free from bias or partiality in the discharge
of is judicial duties.”
He alleged that the trial judge has
continuously demonstrated bias or likelihood of bias either against him and or
in favour of the prosecution by reason of which his impartiality cannot be
guaranteed or is in grave doubt.
“The impartiality of the trial
judge”, according to Mustapha, “constitutes or is likely to
occasion breach of his right to fair hearing and that a party whose right to
fair hearing in any case is breached or is likely to be breached by the trial
judge is entitled to complain against the breach or threatened breach”.
An affidavit in support of the second
motion restraining Osibajo from the case, sworn to by one Tunde Famuyiwa,
stated that in August 2002, in a Christian magazine known as Charisma and
Christian Life, Osibajo at page 44
said: “The church feels responsible for bringing down Abacha’s
regime. The amount of prayer going up for Nigeria was unprecedented. Our prayer
was that there would be a political change without blood shed”.
The affidavit stated that Mustapha, during
the proceedings before Justice Ade Alabi, accused Osibajo of “collecting
huge sums of money from Abuja and sharing it in Lagos” to ensure a speedy
conviction at all costs and that going by this pronouncement, Osibajo has vowed
to get Mustapha convicted.
At the resumed hearing on Monday, all the
accused persons - Ishaya Bamaiyi, former Chief of Army Staff, James
Danbaba, former Lagos State Police Commissioner, Mustapha, Jubril Balla Yakubu,
former Zamfara Military Administrator and Muhammadu Rabo Lawal, Superintendent
of Police - were present in court.
The judge fixed July 11 for the next hearing and argument of
the motion brought by Mustapha.
