A Lagos High Court sitting at Tafa Belewa Square, on Monday dismissed an application seeking to discharge a Danish, Peter Nielsen, accused of killing his Nigerian wife and daughter.
Nielsen’s counsel, Mr Olasupo Shasore (SAN), had prayed the court to discharge him on the basis that an exhibit, his wife’s nightgown, was missing.
According to Shasore, the nightgown the woman wore the night she was allegedly killed, could no longer be found in the court’s record due to burning of the court by hoodlums who hijacked the October 2020 #EndSARS protest.
He submitted that substantial justice will not be done in the absence of the exhibit.
Nielsen, 54, is standing trial on a two-count charge of murder.
At the resumed hearing, Justice Bolanle Okikiolu-Ighile dismissed the defendant’s application after hearing arguments of both defence and prosecution.
Okikiolu-Ighile ruled that the submission of defence counsel was premature, though brilliant.
She held that both prosecution and defence had called witnesses and tendered exhibits which were not premised on the said exhibit.
Okikiolu-Ighile said: “Therefore, at the end of the proceedings, when all the evidence has been given and final written addresses adopted, the court will then adduce the totality of all the evidence before it.
“The submission of the learned silk is premature, the application sought and the consequential relief are hereby dismissed.”
NAN reports that defence counsel had filed an application seeking an order of the court to allow the defendant to conduct a DNA examination on the nightgown.
He had prayed the court for an order directing the court’s registrar to produce Exhibit PWN (the nightgown the deceased wore the night she was allegedly killed).
Shasore said that he had applied for a search on the court’s record but was told that Exhibit PWN could not be found due to the burning of the court on Oct. 21, 2020 during the #EndSARS protest.
He, therefore, submitted that by virture of Section 36 of the 1999 Constitution, the constitutional rights of the defendant has been violated.
“When we made our application, we did not know that Exhibit PWN would not be found. In the absence of Exhibit PWN, it means that the defendant’s constitutional rights has been violated.
“It also means that the court itself has been deprived of the opportunity to evaluate PWN.
“This is the nightgown the deceased was wearing at the time of her death and the DNA analysis was derived from it.
“The expert called by prosecution, in his testimony, based his entire evidence on Exhibit PWN,” Shasore said.
He told the court that Section 262 of the Administration of Criminal Justice Law of Lagos State empowered the court to adopt all measures to enable it do substantial justice to the case.
According to him, in the interest of substantial justice, Exhibit PWN must be produced
He submitted that substantial justice would not be done if Exhibit PWN would not be produced.
“I submit that your lordship should make an order that the defendant must be discharged on the grounds that this charge cannot be tried in accordance with the constitution,” Shasore said.
In response, prosecution counsel, Mr Jonathan Ogunsanya, urged the court to dismiss application.
He said that what happened on Oct. 21, 2020, was a fact known to the whole world, adding that what happened to Exhibit PWN was not the fault of the court, the prosecutor nor the defendant.
According to him, what should be done in the case has been spelt out by the law.
He said: “There are other evidence before the court for the determination of the charge.
“The denial of the constitutional right of the defendant is a non-issue in this case because it has been observed that the right of the defendant has not been violated in the course of this trial.
“We submit that the application and the prayer for consequential relief be dismissed for lacking merit.”
NAN reports that Lagos State Government had accused the defendant of smothering Zainab and their daughter to death at 3:45 a.m., at No. 4, Flat 17, Bella Vista Tower, Banana Island, Ikoyi.
Nielsen was arraigned on June 13, 2018, but he pleaded not guilty to a two-count of murder, contrary to Section 223 of the Criminal Law of Lagos State, 2015.
The case has been adjourned until Aug. 2 for continuation of trial. (NAN)