Court frees Bamaiyi after 9 years in detention

Akeem Nafiu, Lagos - 04.04.2008

FORMER Chief of Army Staff, Lieutenant General Ishaya Bamaiyi, secured his freedom at an Ikeja High Court on Thursday when he was discharged and acquitted of all the four-count charge of conspiracy to murder, attempted murder and causing of grievous bodily harm levelled against him by the Lagos State government.

In the judgment that lasted for more than two hours, Justice Kayode Oyewole held that the prosecution failed to link the accused to the alleged crimes.

In his opening remarks, the judge admitted that the case was a fall-out of military dictatorship, saying the sole issue for determination was whether the prosecution had proved beyond reasonable doubt that the accused was guilty of the crimes.

The judge, in dealing with the failure of the prosecution to call certain witnesses, agreed to an extent that the prosecution was not under any obligation to call all witnesses.

However, he said that in the prosecution of criminal cases, if the evidence of a witness was highly desired in the execution of a case, it was the duty of the prosecution to call the witness.

The other issue addressed by the judge was the failure of the prosecution to avail the accused of some documents, which, he said was vital to his defence.

The court believed that the prosecution might be pardoned for doing so if they were statements of the accused because it was expected that they would still be in the memory of the accused.

On the merit of the case, the judge classified the prosecution witnesses into two, namely accomplices and nonaccomplice witnesses. Belonging to the first set, according to the judge, were Sergeant Barnabas Jabila a.k.a Sgt. Rogers (PW1), Mohammed Abdul a.k.a Katako (PW3), Sunday Machibi (PW6) and Umar Mohammed Bature (PW7).

The second category was made up of David Udi (PW2), Dr.Ayo Shonibare (PW4) and Solomon Okah (PW5). The judge held that PW1 failed to name the accused in his extra-judicial statement with regard to count one, saying his admission that he could lie against the accused cast a big question mark on the credibility of his testimonies.

The court also held that there was a sharp difference between the evidences given by PW6 and PW7. Their testimonies were rejected and the first count dismissed by the court.

On counts 2 to 4, the judge held that PW1 never testified that the conversation between CP James Danbaba and the accused before the attack on Mr. Alex Ibru was held in conference and thus could not have been privy to it.

Also the testimonies of PW3 as to who he and his co-travellers reported to after the alleged crime was committed were also discredited by the court.

‘’The testimonies of PW2, PW4 and PW5 could not support the proposition that the accused person was involved in the commission of the alleged crime,” the judge said.

The judge held that; ”even if the accused person was inconsistent in his oral testimony before the court and the political fall-out which he claims in his testimony to be the basis of this prosecution emerged while he was Chief of Army Staff whereas the allegations here relate to his period of service as Commander, Lagos Garrison, when he must have been well favoured to have later emerged as Chief of Army Staff, it is not for the accused to prove his innocence. It is the duty of the prosecution to prove his guilt beyond reasonable doubt failing which he must be acquitted of the charge. This is the fulcrum of our criminal justice system.

“Therefore, I resolve the sole issue for determination against the prosecution. I find the accused person not guilty on each of the four-count alleged herein against him and I hereby discharge and acquit him on each of the said four counts.”

General Bamaiyi was prevented from speaking to journalists after the judgment by the retinue of soldiers and mobile policemen who guarded a black jeep numbered BB 799 AAA with which he was driven out of the court premises.

The new Lagos State DPP, Mrs. Olabisi Ogungbesan, in her reaction, said that the Attorney-General and Commissioner for Justice of the state, Mr. Olasupo Sashore, would have to peruse the judgment before coming up with the next line of action.