ADELAKUN & ANOR v. EFCC & ORS (2021)

ADELAKUN & ANOR v. EFCC & ORS

(2021)LCN/15173(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/L/452/2019(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

1. MR. JYDE ADELAKUN 2. TOF ENERGY COMPANY LIMITEDAPPELANT(S)

And

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. THE EXECUTIVE CHAIRMAN, ECONOMIC AND FINANCAL CRIMES COMMISSION 3. POLARIS BANKRESPONDENT(S)

RATIO

WHETHER A DOCUMENT ANNEXED TO A WRITTEN ADDRESS OF COUNSEL CAN AMOUNT TO EVIDENCE

I must point out that the Newspaper publication annexed to the 3rd Respondent’s written address is most incongruous and extraneous to this application. Address of Counsel, no matter how eloquent, does not and cannot amount to evidence; Oduwole & Ors v West (2010) LPELR-2263(SC); BFI Group Corporation v BPE (2012) LPELR-9339(SC). This is trite. A case is won on credible evidence, not on address of Counsel; Ogunsanya v The State (2011) LPELR-2349(SC). Therefore, a document annexed to a written address of Counsel does not in any way constitute evidence which the Court can take cognisance of or attach any weight to. Further consideration into whether or not the said document complied with the provisions of the Evidence Act, 2011 is, in my view, unnecessary and a waste of judicial energy. PER ONYEKACHI AJA OTISI, J.C.A.

CIRCUMSTANCES WHERE THE COURT OF APPEAL WILL RECEIVE ADDITIONAL OR FRESH EVIDENCE ON APPEAL

The jurisdiction of the Court of Appeal, which enables the admission of additional or fresh evidence on appeal, is not at large. Order 4 Rules 2 and 3 of the Court of Appeal Rules, 2016 provides: 2. The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commissioner as the Court may direct, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. 3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to Costs. Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said “It appears from the provisions of this rule that the Court is entitled to exercise its discretion where (a) the matter on appeal has not been heard on its merits in the trial Court, or (b) the appeal is from a judgment after trial or hearing on the merits. In the first case the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94. The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court however will exercise the power in all cases where the appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds.” His Lordship further held:
“Analysis of decided cases disclose that the Courts have relied on the following principles, where; First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC.119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period. Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745. Thirdly, if the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364. Fourthly, additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant, if it had been available at the trial Court- See Fawehinmi v. State (1990) 5 NWLR (Pt.148) 42. Fifthly, the evidence should be material and weighty even if not conclusive. Where evidence sought to be admitted is irrelevant and immaterial it will be Rejected, – See Nwokoro v. Nwosu (1990) 6 NWLR 679. Rinco Construction Co. v. Veepee Industries Ltd, (1990)6 NWLR (Pt. 158) 630, Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.” These conditions must all co-exist in an application seeking the exercise of this unusual discretion by the appellate Court; Chief Amadi-Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC); Adeyefa & Ors v. Bamgboye (2013) LPELR-19891(SC). Once these conditions are met, this Court, by Section 15 of the Court of Appeal Act, 2004, may exercise the powers of the lower Court and make an objective finding of fact thereon; Attorney General of Kwara State & Anor v. Lawal & Ors (2017) LPELR-42347(SC); Joseph v. Fajemilehin & Anor (2012) LPELR-9849(CA). PER ONYEKACHI AJA OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering The Leading Judgment): By Motion on Notice filed on 23/10/2019, the Appellants/Applicants sought the following Orders:
1. AN ORDER OF LEAVE to adduce the letter from the United States Secret Service dated 26th August, 2019 and addressed to the 1st Appellant, as additional and/or further evidence in this appeal.
2. AN ORDER OF LEAVE to adduce the ruling of the High Court of Sierra Leone delivered on 15th October, 2019 in Suit No. MISC APP. 07/19 delivered by Hon. Mr. Justice K. Kamanda-J, as additional and/or further evidence in this appeal.
3. AN ORDER OF LEAVE to adduce the affidavit of the South African Police deposed to by Sergeant Charlene De Klerk on 17th January, 2019, as additional and/or further evidence in this appeal.
4. AN ORDER abridging the time for the hearing of this appeal.
5. AN ORDER for accelerated hearing of this appeal.
And for such and other orders as this Honourable Court may deem fit to make in the circumstance.

The application was brought on the following grounds:
1. The Appellant’s application for enforcement for his fundamental rights against the Respondents was dismissed by the lower Court on 7th March, 2019, in Suit No FHC/L/CS/2040/18.

At the material time Suit No. FHC/L/CS/2040/18 was pending at the lower Court the letter from the United States Secret Service (hereinafter referred to as “USSS”) dated 26th August, 2019 which was relevant for the determination of the aforementioned suit was not available to the Appellants. The Appellants intended to use the document of the lower Court.
3. The Appellants could not obtain the said letter for use in Suit No. FHC/L/CS/2040/18 as it is a public document of the USSS. Prior to the hearing of the matter at the lower Court, the 1st Appellant submitted a Freedom of Information application to the USSS for the issuance of the letter. Unfortunately, USSS responded rather late via an email dated 26th August, 2019, after the lower Court had concluded hearing and well after this appeal had been filed and entered.
4. The Appellants also intend to adduce as additional and/or further on appeal the ruling of the High Court of Sierra Leone in Suit No. MSC. APP. 07/19 delivered on 15th October, 2019 by Hon. Mr.

Justice K Kamada-J., as the ruling was delivered after the determination of the suit that led to the instant appeal. The facts, events and transactions that formed the basis of the aforementioned action are exactly the same as those in this case.
5. Also germane to the determination of this appeal is the affidavit issued by the South African Police demonstrating that there is no element of crime detected against the Appellants in respect of the same set of facts and circumstances as in the case.
6. The documents if admitted in evidence by the Honourable Court would have an important effect on the judgment of the lower Court. It is fair, just and equitable for the documents to be admitted.
7. The letter dated 26th August 2019 was certified by the United States Department of State, the Consulate General of the United States of American, Cape Town, the Nigerian Embassy in Washington D.C. United States of America and licensed notaries public in the United States of America and the United Kingdom.
8. Furthermore, the ruling delivered by Hon. Mr. Justice Kamanda-J in Suit No MSC.APP.07/19 was certified by the High Court of Sierra Leone.

The affidavit issued by the South African Police deposed to by Sergeant Charlene De Klerk on 26th January, 2019 was certified by a licensed notary public practicing in Cape Town, South Africa.
10. The document sought to be tendered by the Appellants are genuine and capable of being believed.
11. Had the documents been available at the lower Court in Suit No FHC/L/CS/2040/18, they would have influenced the judgment delivered on 7th March, 2019 in favour of the Appellants.
12. The documents are material, weighty and pivotal for the effective and effectual determination of the instant appeal.
13. Order 4 Rule 1 of the Rules of the Honourable Court vests this Honourable Court with the power to receive further evidence, by affidavit, as to matters which have occurred after the date of trial or hearing.
14. It is also pertinent to abridge the time for hearing of the instant appeal as it affects the fundamental rights of the Appellants, particularly the 1st Appellant, to property, personal liberty, freedom of movement and personal dignity which they have been denied for over a year and which has prevented the 1st Appellant (a Nigerian

Citizen) from coming into his country.
15. It is in the interest of justice and equity to admit these documents in evidence.

In support of the application is an affidavit of 26 paragraphs with eleven annexures marked Exhibits WD1 – WD11, deposed to by Wisdom Diala, an employee in the law firm of Messrs Babalakin & Co, Counsel for the Appellants/Applicants.

The facts leading to this application, as deposed to by the Appellants/Applicants are: The Appellants, on 6/12/2018, brought an originating application before the lower Court in Suit No. FHC/L/CS/2040/18, which culminated in this appeal, seeking inter alia declarations that the acts of the Respondents in freezing the bank accounts of the Appellants without an order of Court and the other acts of the Respondents constituted an infringement of the Appellants’ constitutional rights to own movable property, freedom of movement, personal liberty and personal dignity. The Appellants’ bank accounts with the 3rd Respondent had been frozen and the 1st and 2nd Respondents had given a directive for the arrest of the 1st Appellant for alleged fraud in the United States of America,

as well as for receiving the proceeds of the alleged crime in the accounts of the Appellants/Applicants with the 3rd Respondent. At the material time that Suit No FHC/L/CS/2040/18 was pending in the lower Court, material documents relevant for the determination of the said suit were not available to the Appellants. The said documents were public documents of the United States of America Department of Homeland Security Secret Service (herein after referred to as “USSS”); High Court of Sierra Leone and South African Police respectively.

Following the freezing of the Appellants/Applicants’ accounts with the 3rd Respondent, the 1st Appellant/Applicant submitted to the USSS a Freedom of Information request under the United States Freedom of Information Act, by email dated 5/11/2018. Exhibit WD1 was the said email and subsequent follow up emails. The USSS responded to the Appellants’ request by its email dated 26/8/2019, Exhibit WD2, long after the lower Court had concluded hearing and after this appeal had been lodged and entered. Along with Exhibit WD2, the USSS forwarded its “Final Official Response” dated 26/8/2019 on the

allegations that prompted the Respondents to freeze the Appellants’ account and direct the arrest of the 1st Appellant/Applicant. The “Final Official Response”, Exhibit WD3, stated that there were no records of the allegation of the nature against the Appellants in the United States and there was no ongoing investigation commenced with it.

Based on the same set of facts, events and allegations and pursuant to a petition by the same complainant as in this appeal, the Director, Financial Intelligence Unit, Sierra Leone instituted Suit No. MSC APP.07/19, pursuant to Sections 84 and 94 of the Sierra Leone Anti-Money Laundering and Combating of Financing of Terrorism Act 2012 against the 1st Appellant/Applicant and one of his companies, Touch of Fame Trading EZE, seeking restraining orders in respect of the sum of $1,049,975.00 belonging to the 1st Appellant/Applicant alleging that the said fund was fraudulently transferred to Sierra Leone from the United States of America through illegal means. The High Court of Sierra Leone in a ruling delivered on 15/10/2019 in Suit No MSC APP.07/19 stated, among other things, that there was no

prosecution and conviction against the 1st Appellant/Applicant and his Company, Touch of Fame Trading EZE, that would warrant the grant of the restraining reliefs sought by the Director, Financial Intelligence Unit, Sierra Leone and that there was no communication by the United States regarding the alleged crime against the 1st Appellant/Applicant. The High Court of Sierra Leone then refused the reliefs sought. Exhibit WD4 was the certified true copy of the Ruling, which was delivered after the matter before the lower Court had been concluded hearing and this appeal lodged.

The 1st and 2nd Respondents had alleged in their counter affidavit before the lower Court that the Appellants transferred the alleged proceeds of fraud to bank accounts in other countries including Nigeria, Dubai, South Africa, United Kingdom and the United States of America which led Worldpay LLC to petition the law enforcement agencies in South Africa alleging that the Appellants had committed the crime of financial fraud. But that the South African Police carried out an investigation and confirmed by an affidavit, Exhibit WD5, deposed by Sergeant Charlene De Klerk on 171/2019, duly

certified by Nashreen Talip, Exhibit WD6, a licensed notary public practicing in Cape Town, South Africa, that there was no element of crime detected against the Appellants/Applicants and that the case against them had been closed. The Appellants/Applicants were only able to secure Exhibits WD5 and WD6 after the completion of the suit at the lower Court. It was stated that Exhibits WD3, WD4 and WD5 were germane and material to debunk the petition written by certain entities alleging that the Appellants/Applicants had committed the crime of fraud in the United States of America, as a result of which the Appellants/Applicants were presently being prosecuted and denied their right to their financial assets in the custody of the 3rd Respondent as well as the right to freedom of movement of the 1st Appellant/Applicant.

It was further stated that after receiving the “Final Official Response” of USSS, Exhibit WD3, the Appellants/Applicants took steps to get the document certified as a true copy by the United State Department of State, the Consular General of the United States of America, Cape Town, the Nigerian Embassy in Washington D.C, United

States of America, Barbara Dominique, Esq., Notary Public in the United States of America, and Madhubala Colwil, a Notary Public of England and Wales. The said documents certifying Exhibit WD3 were Exhibits WD7, WD8, WD9, WD10 and WD11 respectively.

The Appellants intended to adduce Exhibits WD3, WD4, and WD5 as further and additional evidence in this appeal, on the premise that if the documents been available at the lower Court in Suit No. FHC/L/CS/2040/18, it would have influenced the judgment delivered by the lower Court on 7/3/2019, now on appeal, in their favour.

The 3rd Respondent, through Oluwatoyin Demuren Fajemisin, legal practitioner in the Chambers of Lanre Ogunlesi, SAN & Co., deposed to a Counter Affidavit on 25/11/2019. They stated that the documents annexed to the supporting Affidavit of the Appellants/Applicants were not admissible under our law, and even if admissible, would not have influenced the judgment at the lower Court in favour of the Appellants/Applicants. That the said documents are irrelevant, immaterial and would not have caused the lower Court to restrain the 1st and 2nd Respondents from investigation of the allegation of crime and or from prosecuting the Appellants/Applicants.

The parties filed written addresses as ordered by the Court. The Appellants/Applicants’ written address was filed on 5/6/2020. The 3rd Respondent filed a written address on 17/06/2020, to which was attached a photocopy of a newspaper publication from South Africa titled, Back to earth for cyber trickster, published in News Justice, without the date of the said publication displayed thereon. The Appellants/Applicants, in response, deposed to a Further Affidavit on 29/6/2020 to which was annexed as Exhibits 1 and 2, the receipt for fees paid for authenticated copy of Exhibit WD3 and email correspondence between the 1st Appellant/Applicant and the US Authentication Services. The Appellants/Applicants also filed a Reply on points of law on 29/6/2020.

On 13/1/2021, K. Daudu, Esq. who appeared for the Appellants/Applicants, and T. Taiwo, Esq., who appeared for the 3rd Respondent, adopted their respective written addresses. The 1st and 2nd Respondents, who were duly notified of the hearing of the application by Hearing Notice served on their Counsel on 2/12/2020, filed no written address, did not appear, and were not represented by Counsel.

The Appellants/Applicants formulated the following issue for determination:
Whether from the relevant facts and circumstances this Honourable Court ought to exercise its discretion in favour of the Applicants by granting their application.

For the 3rd Respondent, the issue for determination was framed this way:
Whether this Honourable Court can grant the Applicant’s application to adduce fresh evidence on appeal in the circumstances of this case?
The issue as framed by both parties seek, in effect, the same resolution. I shall adopt the issue as formulated by the Appellants/Applicants.

Arguments
The Appellants/Applicants submitted that by Order 4 Rules 2 and 3 of the Court of Appeal Rules, 2016, this Court is empowered to receive further evidence on appeal, under stated conditions. It is within the Court’s discretion to decide whether or not to do so, with the discretion exercised judiciously and judicially. The cases of Edet v Nigerian Army & Ors (2018) LPELR-44363(CA); White Diamonds Property Development Co Ltd v Trade Wheels Ltd (2018)

LPELR-44572(CA). On the conditions that must be present and co-exist for the grant of leave to adduce additional evidence, the case of Statoil (Nig) Ltd v Inducon (Nig) Ltd & Anor (2018) LPELR-44387(SC) was cited and relied on. Counsel for the Appellants/Applicants submitted that they had satisfied these conditions and urged the Court to grant the application.

For the 3rd Respondent, it was argued that the documents, Exhibits WD1 – WD11 were not admissible in law. They failed to comply with the provisions of Section 104 of the Evidence Act, 2011 on the need for certification of a public document by a public officer, who is in custody of the documents, upon payment of legal fees. That Exhibits WD1 and WD2 in particular, did not comply with the provisions of Section 84 of the Evidence Act, 2011. It was also contended that the documents, if tendered before the lower Court, would not have influenced the judgment of the lower Court in favour of the Appellants/Applicants. No special grounds had been shown, relying on Adegbite v Amosu (2016) 15 NWLR (PT 1536) 405 at 422-423. Counsel also referred to the undated publication from an unstated Newspaper in

South Africa, annexed to the 3rd Respondent’s written address, which showed that there was a pending matter in the Court in South Africa against the Appellants, where it was alleged that they were being investigated for fraud. The Court was urged to dismiss the application.

In their Reply on points of law, the Appellants/Applicants cited Sections 145 (1), (3) and 168 of the Evidence Act, 2011 to submit that the Appellants/Applicants having provided certified true copies of the exhibits they seek to adduce, it was conclusive proof and it can be presumed that they had paid whatever legal fees that would have been prescribed to obtain the said exhibits they now wish to adduce as additional evidence, relying on Nduka v Sule (2013) LPELR-23629(CA); Tabik Investment Ltd & Anor v GTB Plc (2011) LPELR-3131(SC) at 24.

It was further submitted that the only admissible secondary evidence of a public document is a certified true copy of same. The fact that a public document was printed from a computer does not change its nature or characteristic as a public document, citing Kubor v Dickson & Ors (2012) LPELR-9817(SC) at page 51. Counsel also

submitted that the Newspaper article attached to the 3rd Respondent’s written address was not an exhibit and did not comply with Section 84 of the Evidence Act. The Court was urged to discountenance the same, and to allow the application as all conditions for its grant were met.

Resolution
As a preliminary issue, I must point out that the Newspaper publication annexed to the 3rd Respondent’s written address is most incongruous and extraneous to this application. Address of Counsel, no matter how eloquent, does not and cannot amount to evidence; Oduwole & Ors v West (2010) LPELR-2263(SC); BFI Group Corporation v BPE (2012) LPELR-9339(SC). This is trite. A case is won on credible evidence, not on address of Counsel; Ogunsanya v The State (2011) LPELR-2349(SC). Therefore, a document annexed to a written address of Counsel does not in any way constitute evidence which the Court can take cognisance of or attach any weight to. Further consideration into whether or not the said document complied with the provisions of the Evidence Act, 2011 is, in my view, unnecessary and a waste of judicial energy. The said undated, unidentified, uncertified and unverified Newspaper publication was not evidence to be reckoned with and shall therefore be discountenanced.

Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said
“It appears from the provisions of this rule that the Court is entitled to exercise its discretion where
(a) the matter on appeal has not been heard on its merits in the trial Court, or
(b) the appeal is from a judgment after trial or hearing on the merits.
In the first case the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94.
The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court however will exercise the power in all cases where the

appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds.”
His Lordship further held:
“Analysis of decided cases disclose that the Courts have relied on the following principles, where;
First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC.119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period.
Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745.
Thirdly, if the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364.

Fourthly, additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant, if it had been available at the trial Court- See Fawehinmi v. State (1990) 5 NWLR (Pt.148) 42.
Fifthly, the evidence should be material and weighty even if not conclusive. Where evidence sought to be admitted is irrelevant and immaterial it will be Rejected, – See Nwokoro v. Nwosu (1990) 6 NWLR 679. Rinco Construction Co. v. Veepee Industries Ltd, (1990)6 NWLR (Pt. 158) 630, Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.”
These conditions must all co-exist in an application seeking the exercise of this unusual discretion by the appellate Court; Chief Amadi-Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC); Adeyefa & Ors v. Bamgboye (2013) LPELR-19891(SC). Once these conditions are met, this Court, by Section 15 of the Court of Appeal Act, 2004, may exercise the powers of the lower Court and make an objective finding of fact thereon; Attorney General of Kwara State & Anor v. Lawal & Ors (2017) LPELR-42347(SC); Joseph v. Fajemilehin & Anor (2012) LPELR-9849(CA).

In considering this application, I will start with the last condition, which is whether the evidence sought to be adduced is relevant to the complaint of the Appellants/Applicants before the lower Court.

The Appellants/Applicants seeking to enforce their fundamental rights, claimed declaratory and injunctive orders, including a declaration that the act of the Respondents in freezing his accounts with the 3rd Respondent and without an order of Court was an infringement of their rights to moveable property and a declaration that the instruction of the 1st Respondent to the 3rd Respondent to arrest the 1st Appellant/Applicant was an infringement of his right to personal liberty. The Appellants/Applicants also sought, inter alia, an injunction prohibiting the 1st, 2nd and 3rd Respondents from infringing or further infringing their rights to freedom of movement, personal liberty and or dignity of the person. The application disclosed that the directive of the 1st and 2nd Respondents to the 3rd Respondent to arrest the 1st Appellant/Applicant was premised on some petitions received against the 1st Appellant/Applicant by Fifth Third Bank and Worldpay AP Ltd (UK).

The 1st and 2nd Respondents, as well as the 3rd Respondent filed Counter Affidavits in opposition. The lower Court heard the parties and in refusing the application, the learned trial Judge found and held, page 346 of the Record of Appeal:
“In my opinion, these powers of the EFCC to investigate allegations of economic and financial crimes against persons is statutorily safeguarded. They cannot be interfered with even by the Courts. From the averments of the 1st and 2nd Respondents which have earlier reproduced, it is clear to me that the 1st and 2nd Respondents are investigating a suspected act of crime by the Applicant. The investigation is ongoing until the institution of this action.
As I said earlier, I do not think it is within the powers of this Court to interfere with the statutory functions of the 1st and 2nd Respondents to investigate suspected cases of crimes as long as there is due observance of the law in the conduct of the investigations.
(Emphasis mine).
In dismissing the application, the learned trial Judge then concluded, page 347:
“In view of the averments, I think the issues have gone beyond mere

suspicion. They are serious allegations which in my view the 1st Applicant should present himself for investigation. He cannot laid (sic) under the cover of fear to refuse to present himself for investigations.
On the whole therefore, I find no merit in this action, it is accordingly dismissed.”
I think it is important to note the finding of the lower Court that the allegations against the Appellants/Applicants were serious in nature and that investigation into these said serious allegations was ongoing. An allegation that is still being investigated has not yet been concluded. Any information that is relevant to the investigation, in favour of the person being investigated or against him, ought to be made available to the investigating body for a balanced report. A trial Court lacks the capacity to make a finding one way or the other on a matter that is still under investigation. This is simply because the entire picture has not yet been put together by the investigator for presentation before the trial Court. At this stage, all relevant information ought to be presented before the investigators.

I have studied Exhibits WD1 – WD11, sought to be adduced as additional evidence before this Court. I am of the considered view that these documents were not relevant to the matter before the lower Court. The documents could not have affected the decision of the lower Court in favour of the Appellants/Applicants for the reason that investigation in the matter was still ongoing and the exhibits were documents that ought to be presented to the 1st and 2nd Respondents, who were the investigators. These are documents that would enable the investigators make the informed decision of whether to proceed to prosecute the Appellants/Applicants or to drop any or every charge against them.
Significantly, in paragraph 3.6 of their Reply on points of law, the Appellants/Applicants submitted that the exhibits sought to be adduce(sic) will aid the 1st Respondent’s investigation. In other words, the Appellants/Applicants acknowledge or concede that the exhibits were relevant material for the 1st and 2nd Respondents as investigators. The trial Court is not an investigation venue or ground. It is a place for the trial of a person suspected of committing a crime or crimes, upon due investigation by the

law enforcement agencies. The Exhibits WD1 – WD11, therefore, do not fit in as additional evidence in this case. Prayers 1, 2 and 3 are therefore, hereby refused.

The Appellants/Applicants also seek orders abridging the time for hearing of this appeal and for accelerated hearing. I must point out that the parties had all filed their briefs of argument in this appeal, and barring any housekeeping applications, the appeal ought to have proceeded to hearing. However, the instant application, which completely lacks merit, even from the Appellants/Applicants own showing, has delayed the hearing of the appeal. The orders sought by the Appellants/Applicants in prayers 4 and 5 were therefore unnecessary and are hereby refused.

The application is totally unmeritorious and is hereby dismissed. The Appellants/Applicants shall pay costs of N50,000.00 to the 3rd Respondent.
This appeal is hereby adjourned to 28/4/2021 for hearing.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the opportunity to read, in draft, the lead ruling delivered by my learned brother: Onyekachi Aja Otisi, JCA l, totally, agree with the reasoning and conclusion in it.

An application to adduce further/additional evidence is an uncommon invitation in appeal proceeding. It is not granted as a matter of course/routine. A fulfillment of the conjoined conditions, which are displayed in the leading ruling, is sine qua non for grant. The appellants/applicants failed to meet those conditions so as to fetch the discretion of this Court in their favour. In the glaring absence of those conditions-precedent, their application was disabled from its birth. It cannot fly.

Flowing from the foregoing, in addition to the elaborate reasons chronicled in the elegant lead ruling, l too, dismiss the application.
I abide by the consequential orders decreed therein.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the Ruling of my lord ONYEKACHI AJA OTISI, JCA and I agree completely with the reasoning of my lord that the present application has no merit. The applicant before us seeks leave to adduce further evidence on appeal on the premise that at the time its application for the enforcement of its fundamental rights was considered and dismissed by the lower Court,

the evidence now sought to be adduced were not available. It is the applicant’s view that had the evidence been available to the lower Court, the outcome of its application before that Court would have been different. In the said application before the lower Court, the applicant had among other reliefs, sought a declaration that the act of the 1st and 2nd respondents in freezing its bank accounts without an order of Court, constituted a violation of its fundamental rights. The applicant’s bank accounts had been frozen on allegations of fraud in the United States of America. The evidence now sought to be adduced by the present application are (1) a letter from the United States Secret Service; (2) a Ruling of the High Court of Sierra Leone; and (3) an affidavit of 26/1/2019 deposed to by one Sergeant Charlene De Klerk of the South African Police. The lower Court in its decision, held that the 1st and 2nd Respondents were investigating a suspected crime by the applicant and that the investigation is ongoing. Now, the 1st and 2nd Respondents, it cannot be disputed, have power to investigate crime. That the applicant may have been given a clean bill of heath by

the United States Secret Service, or a judgment of the High Court in Sierra Leone, or as indicated in an affidavit of a policeman in South Africa, cannot mean that the applicant is entitled not to be subjected to investigation of crime by the 1st and 2nd Respondents. I therefore do not see how the evidence sought to be adduced could have made any difference to the decision of the lower Court. The basic principle is that the person in whose favor a matter is decided is entitled to the benefit of the judgment and is entitled not to be deprived of the benefit without solid and incontrovertible grounds. See per Karibi-Whyte JSC in the case of NWANEZIE V IDRIS & ANOR (1993) LPELR-2104 (SC) 11-12. For this reason and the fuller and more detailed reasons given by my lord in the lead Ruling, I find no merit in the application and therefore also dismiss it.
I abide by the consequential order made by my lord.

Appearances:

Daudu, Esq. For Appellant(s)

Taiwo, Esq.- for 3rd Respondent For Respondent(s)