The applicant herein by a motion on notice dated and filed on
3rd January, 2008 prayed this court for four different reliefs.
Subsequently however on the date of moving the application, the
applicants counsel applied to withdraw the alternative relief in
prayer one and prayers three and four. Consequently, prayers 3, 4
and the alternative relief in prayer 1, are hereby struck out. The

application as presently constituted and argued is based on the
following two prayers namely:-
“1. An order granting leave to the Applicant
to furnish further evidence to wit, the
expert evidence of Emmanuel Nwoke
Kalu.
2. An order granting leave to the applicant
to argue fresh issue or point on appeal,
to wit, matters relating to the expert
evidence of Emmanuel Nwoke Kalu
that the subject matter fire was
not caused as described by the
prosecution per Exhibit 1 hereto”
The application is supported by a 9 paragraphs affidavit
deposed to by Chucks King of No. 1 CPA Base, Ajao Estate Isolo
Lagos, with a compendium of documents marked exhibits ‘1’ and
‘2’. In further support of the application is a further and better
affidavit of nine paragraphs deposed to by Samuel Akinboju, a
legal practitioner in the chambers of solicitors to the applicant. In
opposition to the application, the respondent on 28th April, 2008,
filed a 14 paragraphs counter affidavit deposed to by Obafemi
Adamson, a Senior State Counsel in the chambers of the Hon.
Attorney General and Commissioner for Justice Lagos State. A

preliminary objection as to the competence of the application was
also filed by the respondent on 15th April 2008, on the grounds that
the reliefs sought by the applicant are incompetent and not
maintainable in law and that the application constitutes an abuse of
court process. On realising the contentious nature of the
application, this court ordered for the filing of written addresses by
the parties.
The background facts relevant to this application can be
briefly stated thus. The applicant Chukwuemeka Ezeuko alias Dr.
Rev. King is the general overseer of the Christian Praying
Assembly, a religious organization headquartered at Ajao Estate in
Lagos. The applicant was on the 26th day of September, 2006
arraigned before the Ikeja Division of the High Court of Lagos
State presided by Hon. Justice J.O.K. Oyewole on a Six counts
charge of attempted murder and murder. The applicant pleaded
not guilty to the six counts. The facts as presented by the
prosecution, was that on 22nd July, 2006, the applicant ordered that
petrol be poured on six members of his church for having been
allegedly involved in acts of sexual immorality. Thereafter the
applicant was said to have lit a match and threw it on the six petrol
soaked church members from a close range, as a result of which
one of them got seriously burnt resulting in her death and the
others were lightly touched by the fire. At the conclusion of trial,

in its judgment delivered on 11th January, 2007 the court convicted
the applicant on all the counts and sentenced him to death on count
6 and 20 years imprisonment on each of the five other counts.
Having filed an appeal, the applicant sought to adduce further
evidence of an expert, to debunk the facts as adduced by the
prosecution as improbable considering the inflammable nature of
petrol, hence this application.
The applicants counsel filed in his written address on 26th
November, 2008 but the respondent did not file any written
address. Hence the application will be considered and determined
on its merit, based on the affidavit evidence and the address filed
by the applicant. As no address was filed by the respondent, there
was no argument canvassed in respect of the preliminary objection
earlier filed. Consequently and without much ado, the preliminary
objection is deemed abandoned and consequently struck out.
Despite the failure of the respondent to file his written address, the
applicant still has the onerous responsibility to satisfy the
requirements for the grant of the reliefs sought in his application.
The learned counsel for the applicant adopted his written
address and relied on same wherein the leave to call additional
evidence on appeal was fully argued and vigorously agitated and
urged this court to grant the prayers in his application. By way of
oral submission in adumbration on the written address, learned

counsel stated that the commissioning of the expert was not
brought to the attention of the lower court and the failure to do so
will not affect the powers of this court to grant the application. In
his written address, learned counsel for the applicant, identified
two issues as apt and germane for determination in this application
as follows:
Issue One
Whether or not the discretionary power of the
Honourable Court to receive further evidence
on appeal ought to be exercised in favour of
the Appellant/Applicant having regard to the
materials before the Honourable Court and
the circumstances of the Appellant/Applicants
case.
Issue two
If issue one is resolved in favour of the Appellant/
Applicant, whether or not the Appellant/Applicant
ought to be granted leave to argue fresh issue or
point arising from the expert evidence of Emmanuel
Nwoke Kalu as contained in exhibit 1 to the
affidavit in support of the Appellant/Applicant’s
motion filed on 3rd January, 2008.

Issue 1
On this issue learned counsel submitted that by virtue of
Section 26(b) of the Court of Appeal Act 2004 and Order 4 Rule 2
of the Court of Appeal Rules 2007, this court has the statutory
jurisdiction to receive further evidence on appeal. Learned counsel
stated that the guiding principles for the exercise of the
discretionary power for allowing fresh evidence on appeal as
encapsulated in plethora of authorities are as follows:-
(a) The evidence sought to be adduced
must be such as could not have been
with reasonable diligence obtained for
use at the trial.
(b) The evidence should be such as if
admitted, would have an important
not necessarily crucial effect on the
whole case.
(c) The evidence must be such as apparently
credible in the sense that it is capable
of being believed and it need not to be
incontrovertible.
(d) It is in the interest of justice in the case
that the evidence be admitted.

In support of the above submission, learned counsel referred to the
following cases: Asaboro Vs Aruwaji & Anor (1974) 4SC 119,
Akanbi Vs Alao (1989) 2 NSCC Pt. 11 Vol. 20 Page 263 at 273,
FBN Plc Vs Jibo (2006) 9 NWLR (Pt. 985) Page 255 at 273 –
274 Abana Vs Obi (2004) 9 NWLR (Pt. 877) Page 1 at 10, Idiok
Vs State (2006) 12 NWLR (Pt. 993) Page 1 at Page 23, Amaechi
Vs INEC (2007) 18 NWLR (Pt. 1065) Page 70 at 192 – 193.
Learned counsel further submitted that the principle that
there should be some finality in litigation encapsulated in the
maxim ‘Interest reipublicae ut sit finis litium’ does not apply in the
same way in criminal case in which the principal aim is to see that
an innocent man is not convicted. In support of this submission
reference was made to page 15 of Cross and Taper on Evidence 9th
Edition and the following cases: R Vs Hamilton (1917) (118 LT
180), R Vs Warren (1919) 14 CAR 4, R Vs Itullelt (1922) 17
CAR 8, R Vs Allaway (1922) 17 CAR 15, and R Vs Nabarro
(1970) Crim. L.R. 92.
As to the first requirement above, learned counsel submitted
that the expert was commissioned in September 2006 to conduct an
analysis concerning the inflammability of petrol and answer certain
questions in the letter of instruction. Learned counsel further
submitted that the expert report could not be procured during the
trial because of the inability to pay the fees for the expert due to

incarceration of the applicant which affected his ability to raise
funds. Learned counsel further submitted that the concept of
reasonable diligence in relation to this requirement does not mean
the doing of everything possible. On this submission and the
definition of reasonable diligence, reference was made to page 468
of Blacks Law Dictionary, 7th Edition.
As to the second requirement, learned counsel submitted that
the purpose of the evidence sought to be adduced is to demonstrate
that:
(i) 12 litres of petrol will be required to get six
dressed persons soaked
(ii) where 12 litres of petrol is sprinkled in an
enclosed area of about 20 feet under atmospheric
situation and exposed to fire, it will result in
explosion that will destroy every thing within
the given space of 20 feet and the fatal effect
of the explosion shall extend to about 100 ft.
(iii) if the story of petrol sprinkling and setting
people on fire is true, the effect on ANN the
deceased victim and the appellant/applicant
would have been fatal and same.
Learned counsel submitted that the above is aimed at showing that
the story of the prosecution is untrue, incredible and highly

improbable thus casting a great doubt in the case for the
prosecution.
As for the third requirement, learned counsel referred to
exhibits 1 and 2 attached to the application and submitted that the
evidence sought to be adduced is credible having come from an
expert who has stated his qualification and the basis upon which
his opinion is predicated. On the last requirement, learned counsel
submitted that it is in the interest of justice to allow the applicant
adduce fresh evidence, as the criminal justice system attaches great
importance to securing justice for the accused, as well as the
society. Learned counsel further submitted that in the
circumstances of this case in which the trial judge based his
conclusion as to guilt of the applicant on his preference for the
evidence of the prosecution, the necessity of putting in all available
evidence becomes imperative in the furtherance of justice. In
support of this submission, reference was made to the following
cases: Kajubo Vs State (1988) 1 NSCC Pt. 1 Pg. 475 at 488, R
Vs Hardy (1988) Crim. L.R. 687 and Asaboro Vs Aruwaji &
Anor (Supra) Page. 214.
Learned counsel submitted that paragraph 13 of the counter
affidavit filed offends Sections 88 and 89 of the Evidence Act as
the paragraph contains an opinion, conclusion or legal argument.
In support of this submission, reliance was placed on the cases of

Nigerian LNG Ltd Vs ADIC (1995) 8 NWLR (Pt. 416) Pg. 677
and Bamaiyi. V. State (2001) 8 NWLR (Pt. 715) Pg. 270 at 287
– 289. In the alternative, learned counsel further submitted that the
deposition has not established the alleged prejudice granting the
application will occasion. On this submission, reference was made
to the case of Sentinel Assurance Co. Ltd Vs S.G.B. (Nig) Ltd
(1992) 2 NWLR Pt. 224 Pg 495.
In concluding on this issue, learned counsel urged the court
to hold that there are special grounds to justify the reception of the
evidence sought to be adduced and resolve the issue in favour of
the applicant by granting the first prayer.
This application calls for the exercise of the discretion of this
court for leave to adduce fresh evidence on appeal. The statutory
jurisdiction of this court to receive further evidence on appeal, as
rightly submitted by learned counsel for the applicant is contained
in Section 26(b) of the Court of Appeal Act 2004 and Order 4 Rule
2 of the Court of Appeal Rules 2007. The said provisions are
hereby reproduced thus:
Section 26(b) Court of Appeal Act 2004
“In the exercise of its jurisdiction, the Court
of Appeal may if it thinks it necessary or
expedient in the interest of justice -
(b) Order any witness who will have been

compellable witness at the trial to attend
and be examined before the Court of Appeal,
whether they were or were not called at the
trial, or order the examination of any such
witnesses to be conducted in a manner
provided by the rules of court, or, in the
absence of rules of court making provision
in that behalf, as it may direct, before any
Justice of the Court of Appeal or before any
officer of the Court of Appeal or other person
appointed by the Court of Appeal for the
purpose, and allow the admission of any
deposition so taken as evidence before the
Court of Appeal.”
Order 4 Rule 2 of the Court of Appeal Rules 2007
“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.”
By virtue of the above provisions, this court has the power to
receive further evidence. See Akanbi Vs Alao (1989) 3 NWLR
(Pt. 107) Pg. 118 at 137 – 139. It must however be added that it is
the duty of the trial court to take evidence and not that of the
appellate court. At the appellate level, the principle guiding the
exercise of appellate jurisdiction, is to find out whether on the
evidence and the applicable law, the trial court came to the right
decision. It will therefore be difficult to assess the correctness of
the decision of the trial court, where fresh evidence not tendered
before it is taken into consideration. This forms one of the reasons
why appellate courts are reluctant to admit fresh evidence except in
circumstances where the matter arose ex proviso which no human
ingenuity could foresee. R V. Dora Harris (1927) 28 Cox 432,
Obasi V Onwuka (supra) at page 370 and Adeleke V Aserifa
(supra) at page 111. It is therefore only in certain stringent
exceptional circumstances that fresh evidence could be taken on
appeal. In other words, there is therefore a duty placed on the
applicant to justify the necessity of such and why such was not
taken at the trial in the first place. In an application of this nature,

the court is not quick in granting same as a matter of course.
Rather it should be made with due consideration and caution
having regard to the circumstances. There must be special grounds
to justify the reception of fresh evidence after a trial on the merit.
This is so, because it involves the exercise of discretion which is
discretly done, with regard to the need to bring litigation to an end
(Interest reipublicae ut sit finis litium). The position in criminal
cases remains the same to the effect that courts lean against
hearing fresh evidence on appeal, contrary to the submissions of
learned counsel for the applicant. See R V Mason (1923) 17 CAR
160 and R V Rowland (1947) 32 CAR 29. The discretion to
grant leave to rely on further evidence is therefore sparingly
exercised. See UBA PLC Vs BTL Industries Ltd (2005) 10
NWLR (Pt. 944) 356 at 370, Obasi Vs Onwuka (1987) 3 NWLR
(Pt. 61) 364 at 370, Anatogu Vs Iweka (1995) 8 NWLR (Pt. 415)
547 at 587 – 566, Enekebe V. Enekebe (1964) NWLR 42, Att.
Gen. V. M.Alkali (1972) 12 SC 29, C.S.D. Anambra State V
Onuzulike (1991) 8 NWLR (Pt. 212) 706 Adeleke V Aserifa
(1990) 3 NWLR (Pt. 136) 94, Onibudo V Akibu (1982) 7 SC 60.
In an application of this nature, for an applicant to succeed,
he must place adequate materials constituting special grounds
before the court to warrant the exercise of the discretion in his
favour. The circumstances constituting special grounds have been

illustrated and adumbrated in a plethora of cases. See Asaboro V
Aruwaji (1974) 4 SC 119, Okoro V Egbuoh (2006) 15 NWLR
(Pt. 1001) 1 at 17-19, Esangbedo V State (1989) 4 NWLR (Pt.
571) at 66 – 67, Akanbi V Alao (1989) 3 NWLR (Pt. 108) 118,
FBN V Jibo (2006) 9 NWLR (Pt. 985) 255, Abana V Obi (2004)
9 NWLR (Pt. 877) 1 at 10, Idiok V State (2006) 12 NWLR Pt.
993 Pg 1 at 23, Amaechi V INEC (2007) 18 NWLR (Pt. 1065)
70 at 192 – 193, Iweka V. SCOA Nigeria Limited (2000) FWLR
(Pt (5) 2524 Skone V. Skone (1971) 2 AER 582 Ladd V.
Marshall (1954) 3 All ER 745 and Turnbull V Dural (1902) AC
429.
Now what is “fresh evidence” and in what circumstances can
it be given? A definition of the expression is given by Morris L.J.
in R V. Medical Appeal Tribunal (North Midland Region), Ex
parte Hubble (1959) 3 All ER 40-47 thus:
“Fresh evidence” it seems to me must
have the quality of newness, or the
feature of having become newly available
or obtainable.”
The special grounds to be satisfied for the reception of fresh
evidence as laid down by the cases and rightly submitted by
learned counsel for applicant are, thus:
(i) The evidence sought to be adduced must be

such as could not have been with reasonable
diligence, obtained for use at the trial or
is a matter that may have occurred after
the judgment in the trial court. See
Federal Board of Inland Revenue V.
Joseph Rezcallah & Sons (1962) 1 All
NLR 1.
(ii) The evidence must be such that if given
would have an important influence on the
result of the case although it needs not to
decisive. See Kraus V Bright Ordami (1963)
1 SCN LR 45.
(iii) The evidence must be such as apparently
credible in the sense that it is capable of
being believed and it need not to be
incontrovertible. See Roe V. R. McGregor
& Sons Ltd (1968) 1 WLR 925.
All the above conditions must co-exist. See Iweka V SCOA (Nig)
Ltd (Supra) and Esangbedo V State (1998) 7 SCNJ 16.
The basic question to be answered is, has the applicant
satisfied the above listed conditions to warrant the exercise of the
discretion in his favour. Before a consideration is made as to the
requirements, I wish to comment briefly albeit by way of

digression, on the inelegant and shabby manner in which the
documents attached to the application were marked and numbered.
It leaves much to be desired, hence calls for improvement in the
future. The fresh evidence sought to be adduced in this application
is an expert analysis on the inflammability of petrol. In order to
succeed in bringing in fresh evidence on appeal, the first hurdle to
be crossed is that the applicant must show that the evidence sought
to be adduced was not available or could not be obtained even with
reasonable care and diligence.
As to the first requirement to be satisfied, the submissions of
counsel for the applicant is anchored on paragraphs 3 to 7 of the
affidavit of Chucks King and paragraph 7 of the further affidavit.
The relevant paragraphs of the two affidavits are reproduced
hereunder, in view of their importance to the application.
Paragraphs 3-6 of the affidavit of Chucks King:
“3. That Exhibit 1 and Exhibit 2 hereto are
documents disclosing emerging fact or
further facts in this matter of which the
oral and documentary evidence of Mr.
Kalu becomes relevant.
4. That Emmanuel Nwoke Kalu told me and
I verily believe him that his report was
not available till November 2007, that

if said report was available and tendered
during the trial of this matter at the
Lower Court that it would have been
favourable to the acquittal of the
accused/appellant; the analysis was
conducted and report made as at
27th of September 2006 but the report
was dated printed and issued when
Emefo Etudo & Co. paid for it in 2007
(underlining mine)
5. That the accused/appellant told me and
I verily believe him that the said expert
report was not known about or available
to him or his solicitor during the trial
at the Lower Court.
6. The respondents will not be prejudiced
in this matter as they have been served
with the said expert report and did not
respond, it is even the duty of the
prosecution to has (sic) furnished the said
expert analysis.”
Paragraph 7 of the Further Affidavit
“7. That the Appellant/Applicant informed me

at Kuje Prisons near Abuja on Friday 15th
November, 2008 and I verily believe him
as follows:
i) that he was remanded at the medium
security Prisons Ikoyi, Lagos through
out the period of the trial
ii) that the hearing of the case commenced
on 7/10/2006 while judgment was
delivered on the 11/01/2007.
iii) that he instructed the law firm of
Emefo Etodu & Co in September, 2006
to request MGI Inspections Ltd to carry
out the detailed scientific analysis of
petrol including inflammability and the
data contained in the letter of Emefo
Etudo & Co. of 26th September 2006.
iv) that his ability to source funds for the
payment of the legal fees of Emefu
Etudo & Co and the fees for the
Forensic analysis during the three
months period of trial was greatly
impaired by his remand at the Ikoyi
prison, Lagos throughout the period

of trial.
v) that due to his inability to effect payments
of the said legal fees and analysis fees,
the report was not made available to him
until after judgment.
vi) that he had to struggle to get part of the
legal fees of the Lawyers that represented
him at the trial paid.
vii) that the hearing of the case before the
lower Court took about three months.”
I find paragraphs 4-6 the counter affidavit germane and relevant to
this issue and are hereby reproduced thus:
“4. That the Respondent denies paragraphs
4, 6, & 7 of the affidavit in support of
this application and in response states
as follows:
(a). That the appellant/applicant was at the
trial court charged with a six (6) count
of attempted murder and murder respectively.
(b). That the appellant/applicant was duly
represented throughout the trial at the
lower court by the Law Firm of Messrs.
Okoye & Okoye Legal Practitioners.

(c). That at the trial court the prosecution
called altogether 12 (Twelve) witnesses,
some of whom in their testimonies gave
account how the appellant/applicant
caused petrol to be poured on them and
then, lit the match and threw at them
which resulted in the injury of some of
the victims and the death of another.
(d). That counsel to the appellant cross –
examined these witnesses trying to
elicit facts favourable to story narrated
by the defence.
(e). That the appellant/applicant called nine
(9) witnesses with the inclusion of the
appellant as DW9.
(f). That at the conclusion of trial both the
defence and prosecuting counsel
addressed the court respectively.
(g). That the court upon hearing the addresses
of both counsel adjourned for judgment,
and in its judgment found the appellant
guilty of all the count charge, convicted
him and sentenced him to death by hanging.

(h). That throughout the proceedings at the
lower court the use of petrol was
established and the defence counsel
at each point examined and cross
examined the witnesses who gave
such testimonies.
(i). That the appellant/applicant’s report
of the incident, that it was generator
explosion that led to the fire incident
was disbelieved by the lower court,
having seen the said generators as
exhibit before it.
(j). That at no time during trial did the
appellant/applicant or his counsel raise
the issue that he intends to call expert
evidence.
5. That I was informed by Margaret Asumah
(Mrs.) of counsel and I verily believe her
that since the appellant/applicant was
fully represented throughout the trial the
expert report referred to as Exhibit would
not amount to a fresh evidence.
6. That I have read the affidavit in support

of this application by Chucks King and
paragraph 4 depicts that analysis was
conducted and the report was made
as at 27th day of September, 2006
but was only printed in November 2007
when it was paid for by the Law firm
of Emefo Etudo & Co.”
The following facts can be elicited from the above averments
as contained in the three different affidavits namely:
(i). The trial of the applicant lasted about three
months i.e. from 7/10/06 to 11/01/07
when judgment was delivered .
(ii). That a request for expert scientific analysis
was made to MGI Inspections Ltd by the
law firm of Emeka Etudo & Co. vide their
letter dated 26/9/06.
(iii). The expert analysis was conducted and a report
made as at 27/9/06.
(iv). The report was dated, printed and issued when
the law firm of Emeka Etudo & Co. paid
for it in November 2007.
(v). During the trial, the issue of calling expert
evidence was neither raised by the applicant

nor his counsel at the lower court.
(vi). The failure to get the expert report was
due to non payment of the fees for the
analysis by the applicant.
It is clear from the foregoing facts that the report sought to be
adduced as fresh evidence was made as at 27/9/06, before the
commencement of trial, yet the report could not be procured due to
non payment of fees for the analysis. The applicant and the law
firm of Emeka Etudo & Co. that commissioned the expert did not
help matters in this case. The applicant averred in paragraph 6 of
the main affidavit, that it was the duty of the prosecution to have
furnished the expert report. That being the case, the applicant
owes a duty to notify the court, the prosecution and the law firm of
Okoye & Okoye, that represented him during trial about the
difficulties experienced in procuring same. This is with a view to
finding a solution to the predicament being encountered on the
issue of the expert report. This was not done. In the
circumstances of this application, can it be said that the fresh
evidence sought to be adduced could not “with reasonable
diligence” have been obtained for use at trial. Reasonable
diligence has been defined to mean:
“a fair degree of diligence expected from
some one of ordinary prudence under

circumstances like, those at issue”
while ‘Due diligence’ has also been defined to mean:
“The diligence reasonably expected from
and ordinarily exercised by a person who
seeks to satisfy a legal requirement or to
discharge an obligation”
See Blacks Law Dictionary 7th Edition, page 468. In the
circumstances of this application, can the applicant be said to have
employed reasonable diligence but failed to procure the evidence.
The answer obviously is no, as the failure to have taken in steps in
notifying the relevant parties about the expert evidence is in itself
indiligence on part of the applicant. See Anatogu V Iweka II
(1995) 8 NWLR (Pt. 415) 547 and Abatan V Awudu (2003) 10
NWLR (Pt. 829) 451.
Consequent upon the foregoing, in view of the existence of
the fresh evidence sought to be adduced before the commencement
of trial and the failure to raise it in the lower court makes the
fragrance of freshness in the fresh evidence sought to be adduced
fade into oblivion. Having failed to satisfy the first requirement, it
will be a wasteful exercise to consider the other two requirements,
because the three must co-exist. See Iweka V SCOA Nigeria Ltd
(Supra), Esangbedo V State (Supra) Asaboro V Aruwaji
(Supra) and Obasi V Onwuka (1987) 3 NWLR (Pt. 61) 364 at

370. Consequently issue one is hereby resolved against the
applicant, in favour of the respondent. Prayer one is accordingly
refused and hereby dismissed.
Issue Two
This issue is anchored on second prayer on the motion and it
relates to leave to raise fresh points by way of argument on the
evidence sought to be adduced. The second relief in the motion is
therefore ancillary, parasitic and consequential to the granting of
relief one. Having dismissed prayer one, it will be otiose and a
wasteful academic exercise to consider prayer two. Consequently
issue two is also resolved against the applicant and prayer two is
hereby dismissed.
On the whole the application is devoid of any merit and is
hereby dismissed in its entirety.