BILLE v. THE STATE

 

NWALI SYLVESTER NGWUTA, J.S.C. (Delivering the Leading Judgment):
The two Count Information laid against the appellant before the High Court of Justice, Cross River State, in the Obudu Judicial Division, shorn of the statements of offences reads:
“Count 1: Unlawful possession of fire arms contrary to Section 3(1) of the Robbery and Firearms Act (Special Provisions) Act Cap R 11 Vol. 4 Laws of the Federation of Nigeria, 2004.
Count II: Grievous harm contrary to section 335 of the Criminal Code Cap C16 Vol. 3 Laws of Cross River State of Nigeria 2004”
The offences were alleged to have been committed by the appellant on the 11th day of September, 2010 at Kakwe village, Bishiri, in the Obanliku Local Government Area of Cross River State in the Obudu Judicial Division.
On 6/4/2011 the two Count Information was read to the appellant and he pleaded not guilty to each Count.
Briefly, the facts leading to the charge are as follows. On 11th day of September, 2010 there was a bye-election in the Bishiri South Council Ward of the Obaniliku Local Government Area. It was alleged that while voting was in progress the appellant snatched the ballot box and attempted to run away with it. As voters rushed to stop him he pulled a pistol from his back pocket and threatened to shoot anyone who would venture to go near him. As appellant started running away with the ballot box he fired a shot from the pistol. The shot hit one Godwin Annang on his right leg. One Felix Ipua ran to the appellant, held him and recovered the pistol. Appellant and his pistol were handed over to the Police men who were on election duty.
To prove its case, the prosecution called a total of five (5) witnesses. At the close of the prosecution’s case appellant through his Counsel elected to make a no-case submission urging the trial Court to hold that the prosecution did not, by the evidence on record, make out a prima facie case to warrant calling on the appellant to enter upon hrs defence.
In its ruling delivered on 16th November, 2011 over-ruling the no-case submission, the trial court concluded thus:
“I shall therefore call on the accused person to enter his defence in this case as a prima facie case of unlawful possession of firearms and causing grievous harm has been established.”
Appellant testified on his behalf and called one other witness and rested his case, Learned Counsel for the parties filed written addresses and adopted same on 19th November, 2012.
In its judgment delivered on 30th March, 2012 the trial Court concluded that:
“From the totality of the evidence adduced by the prosecution in this case, I find and hold that the ingredients of the offences of unlawful possession of firearm and causing grievous harm by the accused person have been proved and upon which the accused person could be convicted as such and sentenced accordingly.”
The trial Court convicted the appellant as charged and sentenced him to seven years imprisonment with hard labour without an option of fine in Count l and to five years imprisonment with hard labour with option of a fine of N50,000.00 in Count. The Court ordered that the sentences are to run concurrently (if the appellant does not pay fine in Count II).
On 13/4/2012 appellant filed a Notice of Appeal in the Court of Appeal, Calabar Judicial Division.
On 3rd day of July, 2013 the Lower Court, in a well reasoned judgment of Otisi, JCA in which Garba and Ndukwe-Anyanwu, JJCA concurred/dismissed the appeal as devoid of merit and affirmed the conviction of, and sentence imposed on the appellant by the trial Court.
Aggrieved by the judgment of the Lower Court dismissing his appeal appellant on 29th July 2013, appealed to this court on three grounds. The three grounds, shorn of their particulars, are reproduced hereunder:
“Ground 1: The learned justices of the Court of Appeal erred in law when they held that the ingredients to establish the offence of unlawful possession of firearms were proved by the respondent contrary to section 3 (1) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Volume 4 Laws of the federation of Nigeria, 2004.
Ground 2: The learned Justices of the Court of Appeal erred in law when they held that Ballistic report of the state of Exhibit A is not ‘required ingredient to establish the offence of unlawful possession of firearms.’
Ground 3: The learned Justices of the Court of Appeal erred in law when they held that ‘although there was no medical report or medical evidence, I do not see that this is fatal or that any doubt has been created thereby as to the extent of injuries.”
In compliance with the rules of this Court and practice the parties, through their respective Counsel, filed and exchanged briefs of argument.
In his brief of argument learned Counsel for the appellant formulated the following issues for determination:
“3.01 Whether or not the learned Justices of the Court of Appeal were right when they held that the respondent proved the ingredients to establish the offence of unlawful possession of firearm contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Volume 4 Laws of the Federation of Nigeria, 2004. (Formulated from Grounds l and 2 of the Grounds of Appeal).
3.02 Whether or not the learned Justices of the Court of Appeal were right when they held that ‘although there was no medical report or medical evidence that was not fatal to prove the extent of injuries or that any doubt has been created thereby as to the extent of injuries.” (Formulated from Ground 1 of the Grounds of Appeal).
In his own brief of argument, learned Counsel for the respondent formulated a single issue which reads:
”Whether on the evidence on record the court below was in error in upholding the conviction and sentence of the appellant for the offences of unlawful possession of firearm and causing grievous harm?”
I pause here to sanitise the grounds of appeal vis-a-vis appellants formulation of issues for determination. Appellant filed three Grounds of Appeal reproduced earlier in the judgment. In his brief of argument he framed issues from Grounds 1 and 2. No issue was raised from Ground 3 in the Notice of Appeal. Appellant has failed or neglected to follow up Ground 3 by not raising an issue therefrom and proffering in respect of same.
It is therefore abandoned and liable to be struck out and I hereby strike out appellant’s Grounds in the Notice of Appeal. See Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416; Chakwuogo v. Obiora (1987) 3 NWLR (Pt. 66) 454.
Appellant’s formulation of issues is bedeviled with another fundamental defect. Issue 1 was formulated from Grounds 1 and 2 of the Grounds of Appeal. This is in accord with the principle of formulation of issues. A single issue is formulated from

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one or a combination of Grounds of Appeal. See Labiyi v. Anretiola (1992) 10 SCNJ 1at 2.
Issue 2 was raised from Ground 1 of the Grounds of Appeal. In other words, issues 1 and 2 were formulated from Ground 1. This is a violation of the principle of appellate practice that on no account should issues for determination be more in number than the Grounds of Appeal from which they were raised. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.
Appellant has raised two issues (issues 1 and 2) from one Ground of Appeal. It is a proliferation of issues in an appeal which should be avoided. See Nwaigwe & 2 ors v. Okere (2005) 5-6 SC (Pt. 11) 93; Inegbedion v. Selo-Ojemen & Anor (2013) 1-2 SC (Pt. 11) 59; Ugo v. Obiekwe (1989) 2 SC (Pt. 11) 41.
In the circumstances, issue 2 which purported to be the second issue drawn from ground 1 is hereby struck out for having been raised in violation of the principle of formulation of issues in an appeal.
Appellant is left with issue 1 which questions whether or not the prosecution proved the ingredients of the offence of unlawful possession of firearms under Section 3 (1) of the Robbery and Firearms (Special Provisions) Act (supra).
Respondent’s sole issue is on the propriety vel non of the Court below upholding the conviction and sentence for the offences of unlawful possession of firearm and causing grievous harm unlike the appellant’s surviving issues dealing with only one of the two counts of the information.
Respondent’s issue embraces the two counts. I will therefore determine the appeal on the respondents issue. However, respondent’s single issue runs through the three Grounds of Appeal, including Ground 3 which was deemed abandoned. Ground 3, though deemed abandoned, is not inherently defective or incompetent, so that the principle of an issue drawn from incompetent Ground of Appeal rendering other issues from a valid ground of appeal with which it was argued incompetent does not apply herein. And since a respondent cannot raise any issue for determination from a ground of appeal abandoned by the appellant, I hereby strike out Ground 3 as a source or one of the sources of the respondents issue. I do this in over all interest of justice.
In his argument on issue 1 (and now his only issue) learned Counsel for the appellant argued that the essential ingredients of the offence of unlawful possession were not proved in that the appellant was not found with the firearm admitted in evidence as Exhibit A. He further argued that there was no evidence that the firearm was in good working order as such evidence could only come from a ballistician and none was called at the trial. He also impugned the Lower Courts’ decision on the ground that the prosecution failed to prove the appellant was not legally authorised to bear arms.
Learned Counsel reproduced Sections 3 (1) and (II) of the act and argued that from the provisions the ingredients of illegal possession of firearms are as follows:
“(a) Physical possession of firearm.
(b) The fact that the item so possessed is a firearm under the Act.
(c) That the said arm in possession of the accused was in good working order.
(d) That the prosecution must tender the said firearm found in possession (sic) the accused and not any other one.
(e) That the accused person has no license to possess the forearm.
He argued that none of the ingredients was proved. He returned to, and relied on Olatunji v. State (2001) FWLR (Pt. 30) pages 2633 in which it was held that:
“Despite the fact that trial was before a Military Tribunal, there ought to have been proof that a hand grenade can, when operated, discharge missile, shot or bullet.”
and COP v. Ukechukwu Ekwegiariri (175) (sic) ECSLR 30 wherein it was held that:
“That a person in possession of a disused gun which could not be used to fire shots, bullet or other missiles and which therefore was a mere metal having the scope of a gun would not be said to be firearm…”
Learned Counsel referred to a finding of fact by the trial Court to the effect that:
“One Felix Iqua was the person that pursued, accosted and retrieved the locally made short gun from the accused and handed same over to the police on the day of incident;”
and submitted that the gun Exhibit A was recovered from one Felix Iqua and not from the appellant. He added that the prosecution failed to tender the exact gun allegedly recovered from the appellant and that the gun could only be tendered through the person who recovered same. He reminded the Court that one Felix Iqua said to have recovered Exhibit A from the appellant was not called as a witness nor was the Police Officer who was at the scene of crime called to identify Exhibit A.
He relied on Usutu v. State (2008) All FWLR (Pt.405) 1731 at 1752 and argued that failure to call Iqua who allegedly recovered Exhibit A from the appellant and the police Officer to whom he allegedly handed the gun was fatal to the case of the respondent. He also submitted that the failure of the respondent to prove that the appellant did not possess a licence granted by the appropriate authority in accordance with Section 3 (1) of the Act (supra) was fatal to the prosecution’s case.
He relied on Section 135 (2) of the Evidence Act 2011 as amended for the burden on the prosecution in criminal cases. He relied on Benson Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612 at 677; Shande v. The State (2005) SC (Pt. 11) 1 at 12; Udesen v. State (2007) 1 SCNJ 482 at 495; Akpugo v. State (2005) SC 207 at 220 and Ofeki v. State (1986) All NLR 371 and urged the Court to resolve the issue in favour of the appellant.
He urged the Court to allow the appeal, set aside the judgment of the Court of Appeal and discharge and acquit the appellant.
Arguing his lone issue, learned Counsel for the respondent submitted generally that the respondent proved the case against the appellant beyond all reasonable doubt. On the charge of unlawful possession he reproduced Section 3 (1) of the Act. He relied on the case of State v. Yemi Oladotun (2011) 10 NWLR (pt. 1256) 542 at 560 G-H for the three ingredients of the offence which he enumerated:
“(a) That the accused was found in possession of firearms.
(b) That the firearms were within the meaning of the Act, and
(c) That the accused person has no licence to possess the firearms.”

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On the count of causing grievous harm, learned Counsel reproduced Section 335 of the Criminal Code (supra) and Section 1 (1) of the Criminal Code for the definition of grievous harm. He submitted that the two count charge against the appellant was proved beyond reasonable doubt and affirmed by the Court below.
He referred to the evidence before the Court particularly the evidence of PW1 which he said was corroborated by the evidence of PW2 to PW5. He said that the evidence of PW2 to PW3 was uncontested and that appellant did not impeach the testimony of PW1. He submitted that uncontradicted evidence of PW1-PW5 which is not incredible has to be accepted by the Court.
He relied on Bello v. Eweka (1981) 1SC 101; Azeez v. The State (1986) 2 NWLR (Pt. 23) 54. He referred to and relied on a finding of fact, against which there was no appeal, to the effect that the appellant paid a fine of one goat and one carton of beer for wounding a fellow villager. This shooting, he argued, constitute proof of the offences charged. He argued that the findings of fact made by the trial Judge were affirmed by the Court below and that the appellant did not show there was a miscarriage of justice or violation of some principle of law or procedure.
He relied on Okosun v. AG Bendel State (1985) 3 NWLR (Pt. 12) 283 at 289-290 H-A; Onwudiwe v. FRN (2006) 10 NWLR (Pt.988) 382 at 415 D-G. He urged the Court to follow its earlier decision in the case of Omoshola v. COP (1977) NSCC 158 and hold that in spite of the absence of a ballisticians evidence the evidence of PW1-PW2 amply proved the case against the appellant. He emphasised that throughout the trial in the High Court the identity of the gun was not in doubt, adding that the gun was admitted in evidence without objection.
Learned Counsel relied on Nsefik v. Muna (2007) 10 NWLR (Pt.1043) 502 at 514 D-F and Sections 139 (1) and 140 of the Evidence Act 2011 and argued that the appellant had the burden to prove that he had authority to carry the gun, Exhibit A and he failed to discharge the burden.
In reaction to the appellant’s argument that there was no medical evidence to prove the extent of the injury inflicted by the appellant on the PW1 he referred to Solomon Maren v. The State (2013) 3 NWLR (Pt.1181) 254 for the ingredients of grievous harm:
(a) that the accused by his act caused bodily pain, disease or infirmity to the complainant, and
(b) that he did so intentionally with the knowledge that it was likely to cause harm or hurt.
He contended that the said ingredients were proved in this case.
He urged the Court to dismiss the appeal and affirm the judgment of the court below. Issue on grievous harm was deemed abandoned by appellant due to the fault of his Counsel. I will consider the respondent’s submission on it for justices sake.
The two count charge against the appellant has been reproduced earlier in this judgment. He joined issue with the State on each count.
The State in proof of its case fielded five witnesses. The appellant testified on his own behalf end called one other witness.
There are three ways of proving a crime in Court. These are:
(1) Direct evidence.
(2) Confessional statement/statements made by the accused, and
(3) Circumstantial evidence.
See Adeyemo v. State (2015) 4 SC (pt. 11) 112 at 129 paras 30-35. If the accused pleads guilty and admits the facts as laid the prosecution has no duty to prove what has been admitted.
As stated earlier, the appellant pleaded not guilty before the trial Court. The prosecution adduced and relied on direct evidence in attempt to sustain the two count charge.
In paragraph 4.05 of his brief, learned Counsel for the appellant listed the ingredients constituting illegal possession of firearms under Section 3 (1) of the Act as follows:
“(a) Physical possession of firearms.
(b) The item so possessed is a firearm under the Act.
(c) It is in good working condition.
(d) The firearm found in possession of the accused, and no other, must be tendered in Court.
(d) The accused has no licence to firearm.”
Perhaps learned Counsel for the appellant is of the view that the ingredients which he said the prosecution must prove to secure a conviction under Section 3 (1) of the Act are so well established and trite that case law on the point has become a surplusage.
On the contrary, learned Counsel for the respondent relying on the decision of this Court in State v. Femi Oladotun (2011) 10 NWLR (Pt. 1256) 542 at 560 G-H limited the ingredients to three. In the said case this Court held:
“To prove the offence of unlawful possession of firearms against an accused person, the law requires the prosecution to establish the following three essential ingredients:
(a) That the accused was found in possession of the firearms.
(b) That the firearms were within the meaning of the Act.
(c) That the accused has no licence to possess firearms.”
Rather than follow the figment of learned appellant Counsel’s fertile imagination as expressed in paragraph 4.05 of his brief, I am bound by the time-revered doctrine of precedent. I will therefore adopt the three ingredients established by this Court and relied in by the learned Counsel for the respondent. I will deal with the ingredients seriatim.
(a) That the accused (appellant) was found in possession of the firearm. What is the evidence on this point? PW1, Elder Matthew Urung, swore inter alia:
“€¦He released one shot as he ran and shot Godwin Annang on his right leg. One man Felix Iqua ran and held him and collected the gun and Save it to the Police Officer who was there. He ran away.
The short cross-examination of the PW1 by Counsel for the appellant, if anything, reinforced and gave more bite to the already damning evidence of PW1. For emphasis I reproduce the short cross-examination hereunder:

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“CROSS-EXAMINATION BY YAKUBU
Q: What is your name?
A: I am Elder Matthew Urung.
Q: What is your work?
A: I am business man, I trade and sell yams.
Q: Mr. Matthew, on that fateful day where were you?
A: I was there at the polling booth.
Q: Of those who chased accused who among you caught him?
A: Felix Iqua caught him and collected the pistol and gave it to the Police Officer who was there.
Yakubu – That would be all.
In my view, appellant would have fared better without the cross-examination reproduced above. The uncontradicted evidence of PW1, which the trial Court found credible, is enough proof of the two count charge against the appellant.
This notwithstanding, PW2, Jown Ushie, stated on oath, inter alia, that:
€so Joseph Bille from nowhere came and I saw him in front of me where the ballot box was… He left the ballot box and pulled a gun saying that he would shoot… As he ran I heard a gun short (sic) and one boy told me it was my brother that has been shot… He was taken to Busi for treatment and later to Hospital.
Permit me, my Lords, to reproduce the cross-examination of the PW2:
“CROSS EXAMINATION BY YAKUBU
Q: What are your names and what do you do?
A: I am John Ushie and I do farming.
Q: Where were you on 11/9/10 (sic)?
A: I was in our village where we were doing bye-election.
Q: You were where he fired the shot?
A: No.
Q: As accused shot how did you know he did?
A: Those who were there when he did told me.
Q: You were not there when he shot him?
A: Yes but I saw him with the gun.
Q: Can you tell the Court how accused dressed on that day?
A: He wore a short black trouser and tied a red cloth on his hand.
Yakubu €“ Thats all.€
Rather than make a dent on the evidence of PW2 the cross-examination gave it more strength. In the cross-examination of PW1 the question “of those who chased accused who among you caught him” is a tacit admission by the cross-examiner that the appellant ran from the scene, that he was chased and later caught. In the same vein, the questions posed to PW2 in cross-examination tell their own tales in favour of the respondent. The two questions are:
Q: You were where he fired the shot? and, As accused shot him, how did you know he did?
Inherent in the above questions is a damning admission that the appellant fired a shot. He cannot fire a shot without being in possession of e gun. The question: “As accused shot him” is a clear admission not only that a shot was fired by the appellant, but that he shot the PW3.
PW3 in examination in chief gave a graphic account of the incident leading to a shot on his right leg. The learned trial Judge noted in the records: (see marks/scars of healed wound on the right leg of witness). Learned Counsel Ubua, Esq had taken over the conduct of the defence. His cross-examination of the witness spanned four pages of the record.
Learned Counsel extracted from PW3 the facts, inter alia, that “hunting is done in the farms by young men commonly in Kakwe€ and that Able bodied young men carry guns when they go hunting.€ The facts so elicited, though tending to support the respondents case – that appellant possessed a pistol, do not constitute a licence for the appellant to bear firearms.
Again, admitting by implication that appellant shot PW3, learned Counsel suggested that appellant shot the PW3 because he, PW3, ran after him; a suggestion the PW3 denied. Learned Counsel asked PW3 ”When he shot you the pain was so much you fell down crying for help€ and the PW3 answered in the positive. He, learned Counsel for the defence, led the PW3 wittingly or unwittingly, to provide the hitherto undisclosed information that “31 bullets” were extracted from his leg.
As if Counsel had not done enough damage to his case, he led the PW3 to disclose that he was uncorscious and was told later that the gun with which the appellant shot him was a locally made pistol. Again the cross-examination, lengthy as it was, failed to impact negatively on the case against the appellant.
In his evidence in chief, the PW4 tendered, among others, Exhibit A, one locally made pistol and B, one empty shell cartridge both recovered from the appellant by “one Felix who made a statement to the Police.” This piece of evidence elicited in cross-examination reinforced the chain of evidence linking Exhibits A (and B) from the appellant to the PW4 through Felix Iqua. It is an unbroken chain.
PW5 was one Peter Kuyi Eneji. He corroborated the testimonies of PW1-PW4 and added that the community imposed a fine of one goat and one carton of bear for having shot a fellow villager- PW3. In cross-examination, the witness said “He gave goat for the incident as custom demand”. A mere imposition of a fine on the appellant does not establish that he committed the act for which the fine was imposed.
However, the payment of one goat as a fine is conclusive evidence of the fact that appellant violated the rules of his community by shooting at PW3.
In his defence appellant called one Ashang Peter Ulesh, who claimed that “I happened to be the presiding Officer of the election of that day.” He swore that the appellant:
“…did not do anything unusual. They all started beating him to the ground… the matter was calmed and the election went

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on freely and fairly. There was no problem and everything was free and fair. It was after the election I saw one Felix coming from a distance holding a pistol which he handed over to Jeremiah Ashang, the Paramount Rulers son.”
In cross-examination he was asked:
Q: You are not happy the accused has been in prison all this while?
A: I am happy.
Q: As a Christian, are you happy he has been so rendered?
A: The law was just they followed, so I have to be happy that the law is being done.”
The above testimony of the PW1 under cross-examination contradicts his assertion in his evidence in chief that the appellant did no wrong, No sane man will be happy when an innocent person is put in prison, There was enough trouble for the witness to run away from his duty post yet said he did not make a report to the relevant authority. He stated that the appellant was arrested and brought to court because he was accused of “the problem in the village” but he did not state the nature of the problem.
PW2 is the appellant himself. He said he went to vote for his candidate of choice but “They got me well beaten.” As he ran towards one Mr. Ashang’s compound “one Mrs Portia Ashang shouted that I should run fast or they would kill me.” This contradicts the evidence of DW1 who claimed he ran “to Gabriel Ajong’s compound 500 metres away.
It was the same Mr. Ashang. It sounds incredible that the appellant should run towards the home of Mr. Ashang when it was the same “one Mr. Ashang used his stick on my head.” Appellant did not deny the fact that his village imposed a fine on him for shooting a kinsman even though he denied he did not pay the fine.
Above all, in answer to the question: “Did you report to the Police the people who beat you since you know them?” He said I did not report to the Police but to my family”. His family is not a law enforcement agent.
From a review of the evidence on both sides, it is my considered view that while the prosecution’s evidence rings with the truth, defence evidence is a fruitless attempt by the appellant and his sole witness to wriggle out of a bad situation he created for himself in the furtherance of the political fortunes of his associates. Be that as it may, I will deal with some specific issues in learned Counsel’s briefs.
Possession of Firearm:
Did the prosecution prove possession, simpliciter, of firearms against the appellant? The answer to the question posed above is a matter of fact on which the trial Court is a better judge than an appellate Court. There was before the trial Court an unbroken chain of evidence of the firearm passing from the appellant to one Felix Iqua to the Police who tendered same in Court. The issue of identity of the gun or its proper custody was not raised when it was tendered and admitted and marked Exhibit A.
The evidence of possession found favour with the trial Court and was affirmed by the Court below. There is no evidence of perversity in the decisions of the two Lower Courts with regards to possession of the firearm. This Court cannot, in the circumstances, disturb the concurrent finding of facts of the two Courts below. See Njoku & Ors v. Eme & ors (1973) 5 SC 293 at 306; Kale v. Coker (1982) 2 SC 252 at 271.
There is no question that Exhibit A retrieved from appellant, is “firearm” within the meaning and intendment of Section 11 of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol.4 Laws of the Federation of Nigeria 2004.
Possession of firearm, without more, is not a crime. It becomes a crime when and if the possession is “without lawful excuse”, that is, without a valid licence issued by the appropriate authority. Appellants case is that the onus of proof that the appellant had no licence to possess the firearm was on the prosecution. This, in my view, is tantamount to subjecting the prosecution to proof of negative assertion. See Aiyetoro Comm. Trading Co Ltd v. NACB Ltd (2003) 12 NWLR (Pt. 834) 346 (ratio 6), ACB Ltd v. Yesufu (1996) 1 All NLR 328.
In any case, whether or not the appellant had a licence for the firearm in his possession is a matter peculiarly with his person knowledge. Contrary to the argument of learned counsel for the appellant and in conformity with the argument of learned Counsel for the respondent, the onus is on the appellant to justify in law his possession of firearm by positive proof that he has a licence issued by the appropriate authority.
This failure to discharge the said onus shows that his possession of Exhibit A was unlawful and in contravention of Section 3 (1) of the Act (supra). It is enough that the prosecution said that he had no authority to possess firearm. Once this is done he has to prove the contrary.
Learned Counsel for the appellant made heavy weather of the fact that no medical evidence was tendered in proof of the severity of the injury inflicted on the PW1. He relied heavily on Section 68 in his contention that only a medical report by a doctor could establish the severity of injury to sustain a charge under Section 335 of the Criminal Code (supra). The section reads:
“S.68 Evidence Act:
S.68 (1): When a Court has to form an opinion upon a point of foreign law, customary law or custom or of science or art or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law, customs, science or art, or questions as to the identity of handwriting or finger impressions are admissible.
(2) Persons so specially skilled as mentioned in subsection (1) of this section are called experts.
With respect to learned Counsel, he misinterpreted the provisions of Section 68 of the Evidence Act. The section reproduced above makes expert evidence on the matters enumerated therein admissible but not indispensable in proof of the matters in question. In any case, even in the proof of the matters enumerated in Section 68 of the Evidence Act, the Court is not bound to accept and act on expert evidence. See Elijah Okoh v. State (1971) NMLR 140, R v. Mason (1911) 7 CR App R.67.
Learned Counsel for the appellant argued with considerable heat that:
We submit that a medical report from a qualified medical practitioner is required to ascertain the nature of the injury sustained by the victim… No reason was offered by the prosecution why the medical report which was issued by

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the Police was not tendered in Court.
Undercross-examination PW4 stated thus: Since he did not return the medical report issued to him I dont know the name of the doctor.” A portion of the cross-examination of PW4 on page 76 of the record on which learned Counsel relied for his outright misrepresentation of facts is reproduced hereunder:
Q: What was the doctors name?
A: Since he did not return a medical form I issued to him I do not know the name of the doctor.
Q: You dont know his name?
A: I do not know his name because he did not fill the medical form I issued”
In his unethical attempt to distort the facts he elicited in his cross-examination of PW4, learned Counsel for the appellant got himself confounded. Learned Counsel knew of ought to have known that medical reports are not issued by the police. In his own understanding of the evidence, medical report was issued but was withheld by the prosecution. In another breath, he complained that the medical report which was issued by the police was not tendered in Court.€
An honest and diligent Counsel, who is not out for mischief, would have recorded faithfully what a witness said in Court. If he failed to do that he should have relied on the record of the Court served on him.
PW4 did not say the Police issued a medical report he said he issued a medical form for the doctor to fill. It is only an intention to mislead this Court that can account for the argument of learned Counsel on the medical report.
“Grievous harm” as defined in Section 1 of the Criminal Code Cap C 16 Vol. 3 Laws of Cross River State of Nigeria 2004 does not require medical report to establish. And if I may be of help to learned Counsel, “Interpretation Act Cap C 16 Criminal Code of Cross-River State” is not contained in any statute book in Nigeria. A gun shot is likely to injure a person’s health or cause disfigurement or permanent injury. The trial Court saw the scars of the healed wound. Above all, in his cross examination of the PW3, learned Counsel for the appellant gratuitously elicited a fact which left no one, including learned Counsel himself, that appellant had inflicted a grievous harm on the PW3. He asked: How many bullets were removed from your leg? The reply: 31 bullets€.
Finally, the submission of learned Counsel for the appellant that the prosecution failed to prove its case beyond reasonable doubt is not borne out of the facts proved and law applicable to the case. There is a world of difference between proof beyond reasonable doubt and proof beyond a shadow of doubt. The former is a requirement of law. See Section 135 (1) of the Evidence Act, 2011. See also Obue v. The State (1976) 2 SC 141.
The latter would require the prosecution to prove all essential Ingredients/elements in a case to a mathematical certainty, an impossible task given the variables in human affairs. It would mean that no contested criminal case would ever be proved.
Election is defined as, inter alia, the act of choosing or selecting one or more from a greater number of persons, things, courses or rights.” See Black’s Law Dictionary Special Deluxe Fifth Edition page 464. The Oxford Advanced Learners Dictionary page 372 defines it as “the action or an instance of choosing by vote one or more of the candidates for a position especially a political office€.
Inherent in the definitions of the word election€ is the fact that out of many one will emerge winner. There has to be winner and loser.
The facts giving rise to this appeal are replications of incidents in past elections in the country and may be replicated in future elections unless Nigeria, particularly, the political class, learn to appreciate that defeat is inherent, and a decisive factor, in the process of election, and the winner learn to be magnanimous in victory. Bitter losers and vindictive winners constitute a threat to the electoral process.
As a result of the conduct of learned Counsel for the appellant in his brief, I need to sound a note of warning. Lawyers all over the world take sides for money. Though a lawyer owes a duty to the client who hires him, he must always bear in mind that he owes a higher duty to a cause higher than that of his client, the cause of justice. A lawyer who distorts or massages the facts in the record may win his clients case but such apparent victory would amount to a betrayal of justice.
The lone issue in this appeal is resolved against the appellant.
Consequently, I hold that the appeal is devoid of merit, and is hereby dismissed. I affirm the judgment of the Court below dismissing the appeal against the judgment of the trial court.
Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C:
I have had the advantage of reading in draft the leading judgment of my learned brother, Ngwuta, JSC. I agree with his lordships reasoning and conclusions, I intend to add a few words of my own.
In a charge of unlawful/illegal possession of firearms under section 3(1) of the Robbery and Firearms (Special Provisions) Act, the prosecution proves the case beyond reasonable doubt if the following three ingredients are established.
(a) that the accused person was found in possession of firearm;
(b) that the firearm is within the meaning of the Robbery and Firearms (Special Provisions) Act;
(c) that the accused person has no license to posses the firearm.
See. Momodu v. State 2008 ALL FWLR (Pt. 447) p. 67
State v. Oladotun (2011) 10 NWLR (pt. 1256) P.542
I must at this stage review evidence to see if (a) –
(c) were established. PW3 gave evidence on oath that he was shot on his leg by the appellant. PW1, PW2 and PW5 gave similar evidence which in effect corroborates the evidence of PW3. The appellant was overpowered by Felix Ipua who was able to hand the appellant and the gun over to the Police. This is clear evidence that the appellant was arrested in possession of a gun

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(firearm).
The gun was admitted without objection from the appellant or his counsel. This is conclusive evidence that the gun the appellant used to shoot PW3 was the gun that was tendered in court. The gun was thus a firearm within the meaning of the Robbery and Firearms Act.
Failure by the appellant to produced a licence in his defence is further and final evidence that the appellant did not have a licence to possess the gun.
In view of the fact that (a) – (c) above have been firmly established by compelling evidence, the trial court and the Court of Appeal were correct in concluding that the charge of unlawful possession of firearm was proved beyond reasonable doubt.
Finally, an appellate court should not upset finding of fact by a trial court where such findings is supported by evidence on record. The trial court’s finding that the appellant shot PW3 on his right leg on 11 September 2010 while elections were in progress cannot be faulted since it was supported by evidence on record.
For these brief reasons as well as those more fully given by Hon. Justice N.S. Ngwuta, JSC I would dismiss this appeal. Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.:
I am in total agreement with the judgment just delivered by my brother, Nwali Sylvester Ngwuta JSC and in support of the reasoning I shall make some comments.
The appellant was charged before the High Court of Cross River State of Nigeria sitting at Obudu on a two count charge of unlawful possession of firearms contrary to section 3(1) of the Robbery and Firearms (Special provisions) Act, Cap R11, Vol. 4 of the Laws of the Federation of Nigeria, 2004 and causing grievous harm contrary to section 335 of the Criminal Code, Cap.16, Vol. 3, Laws of Cross River State of Nigeria, 2004. Trial was conducted between 11th April, 2011 and 25th January, 2012 with the State calling 5 witnesses while the accused person testified for himself and called one witness.
At the conclusion of the trial the accused was found guilty of the two count and sentenced to seven years imprisonment and five years imprisonment with option of N50.000 respectively.
Dissatisfied with the judgment the appellant appealed to the Calabar Division of the Court of Appeal which affirmed the judgment, sentence and all the findings and on appeal to this court by the appellant who was aggrieved.
The background facts of this appeal are well captured in the lead judgment and no useful purpose would be served in repeating them.
On the 14th day April 2016, date of hearing, E. A.
Oyebanji Esq. for the appellant adopted his Brief of Argument filed on the 31/1/14 and deemed filed on the 22/4/15 and in it crafted two issues for determination which are as follows:
1. Whether or not the learned Justices of the Court of Appeal were right when they held that the respondent proved the ingredients to establish the offence of unlawful possession of firearm contrary to Section 3(1) of the Robbery and Firearms (Special Provision) Act Cap. R.11 volume 4 Laws of the Federation of Nigeria 2004. (Grounds 1 and 2 of Grounds of Appeal).
2. Whether or not the learned Justices of the Court of Appeal were right when they held that although there was no medical report or medical evidence that was not fatal to prove the extent of injuries or that any doubt has been created thereby as to the extent of injuries. (Ground 1 of the Grounds of Appeal).
Godwin Omoaka of counsel for the respondent identified a single issue for determination which is thus:
Whether on the evidence on record, the court below was in error in upholding the conviction and sentence of the appellant for the offences of unlawful possession of firearm and causing grievous harm?
(Grounds 1 – 3)
To my mind, the sole issue of the respondent is apt and all embracing in the determination of the appeal and that is:
SOLE ISSUE
Whether on the evidence the Court of Appeal was in error in upholding the decision, conviction and sentence of the appellant for the offence of unlawful possession of firearm and causing grievous harm.
In tackling the issue above raised, learned counsel for the appellant referred to section 3(1) of Robbery and Firearms (Special Provisions) Act Cap R.11 vol. 4 Laws of the Federation of Nigerian, 2004. That from the provisions aforesaid the ingredients of illegal possession of firearms are thus:
1. Physical possession of firearms
2. That the item so possesses is so possessed is a firearm under the Act.
3. The said arm in possession of the accused was in good working order.
4. The prosecution must tender the said firearm found in possession of the accused.
5. That accused had no licence to possess the firearm.
Mr. Oyebanji of counsel contended that the respondent failed to prove the above ingredients of unlawful possession of firearms contrary to the law as Exhibit A, the firearm was not found with the appellant. Also that there was no evidence that the Exhibit A could discharge a shot or bullet or missile which evidence must come from a ballistician and such a report was not produced. He stated further that the exact gun allegedly recovered from the appellant was not tendered and Exhibit A might have been another gun altogether. That since the respondent failed to call the vital witness to identify Exhibit A, this was fatal to the case of the respondent. He cited Usufu v. State (2008) ALL FWLR (Pt.405) 173 at 1752: Olatunji v. State (2001) FWLR (Pt. 30) 2633.
Also that the respondent did not show that the appellant did not possess the licence granted by the proper authority to possess a firearm. It was contended that it is for the respondent to prove the guilt of the appellant and not for the appellant to prove his innocence. He referred to Benson Obiakor v. The State (2002) 10 NWLR (Pt.776) 612 627: Shande v.

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State (2005) SC (Pt. II) 1 at 12 etc.
For the appellant, E. A. Oyebanji Esq. contended that the conviction for offence of grievous bodily harm under section 335 of the Criminal Code depends on the extent and severity of the said injuries could only be proved by a medical report in accordance with section 68 of the Evidence Act 2011 (as amended).
He said the absence of this medical report is fatal to the Prosecution case as the doubt thereby thrown up has to be resolved in favour of the appellant. He referred to Adekoya V. The State (2012) 3 SC (III) 30 at 64 – 65; Madu v. State (2012) 6 SC (Pt.1) 80 at 141.
Mr. Godwin Omoaka, learned counsel for the respondent submitted that the offence of unlawful possession of firearms is properly and fully constituted by three ingredients which are that the accused was found in possession of the firearms which firearms were within the meaning of the Act and the accused had no licence to so possess the firearms. He cited State v Femi Oladotun (2011) 10 NWLR (Pt.1256) 542 at 560.
That the offence of causing grievous harm is provided for under section 335 of the Criminal Code and fully constituted once a person unlawfully does grievous harm to another person. He cited Solomon Maren v. The State (2010) 3 NWLR (Pt.1181) 254.
For the respondent, learned counsel submitted that PW2 and PW3 gave evidence which corroborated the evidence of PW1 who had testified to how appellant was arrested and the firearm recovered from him which weapon was admitted as Exhibit A and one empty shell (cartridge) recovered from the crime scene and admitted as Exhibit B without objection.
That since the evidence of the eye-witnesses PW1-PW3 and PW5 were not discredited and uncontradicted the trial Judge had no option but to accept then. He relied on Bello v Eweko (1981) 1 SC 101 Azeez v The State (1986) 2 NWLR (Pt. 23) 54.
Respondent’s counsel further contended that the concurrent findings of facts of the two Lower Courts should not be disturbed or interfered with, the appellant having not shown any miscarriage of justice or a violation of some principles of law or procedure. Reliance was passed on Okosun v. A. G. Bendel State (1985) 3 NWLR (Pt.988) 382 at 289 290; Onwudiwa v. FRN (2006) 10 NWLR (Pt.988) 382 at 415 etc.
Also contended for the respondent is that since there is sufficient legally admissible evidence to show that the firearm is within the prohibited category, a ballistician’s report is made irrelevant. He cited Omoshola v COP (1977) NSCC 158.
That the respondent satisfactorily discharged the legal burden placed on it to prove the ingredients of the offence beyond reasonable doubt against the appellant. Also that the respondent proved beyond reasonable doubt that the appellant intentionally and premeditatedly caused bodily pain to PW3, the complainant by shooting him on the right leg during the Councillorship Election Kakwe playground on the date in question. He cited Solomon Maren v The State (supra) 272.
In a nutshell the position of the appellant could be stated to be that the respondent foiled to prove the offence of unlawful possession of firearm beyond reasonable doubt against the appellant and the absence of the medical report to show the nature and extent of the harm or injury is fatal to the case of the prosecution as it casts a serious doubt on the guilt has to be resolved in favour of the appellant.
The opposing view of the respondent is that the judgment is based on concurrent findings of fact of the trial court and the court below and the appellant has failed to establish any ground why some should be set aside. That the respondent duly discharged the burden of proof placed on it by law by proving beyond reasonable doubt the guilt of the appellant on both counts of unlawful possession of firearms and causing grievous harm.
For the count of unlawful possession of firearm the appellant was charged under section 3(1) of the Robbery and Firearms (Special provision) Act Cap R. 11 volume 4 Laws of the Federation of Nigeria 2004. It provides as follows:
“Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order node there under shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand naira or to imprisonment for a period of not less than ten years, or to both” Section 11 of the Robbery and Firearms (Special provisions) Act Cap. R. 11 Volume 4 Laws of the Federation of Nigeria 2004 interprets firearms follows:
“Firearms” includes any cannon, gun, riffle, cartridge machine-gun, cap-gum flint lock, revolver, pistol, explosive or in detached pieces”.
In dealing with the evidence before in context with the law that is section 3(1) of the Robbery and Firearms (Special Provisions) Act aforesaid the court below held thus:
“I am of the firm view however that it is for the appellant, who was well aware of the charge against him, to justify his possession of Exhibits A and B. Private Persons have no authority under our laws to possess firearms without licence. The onus is therefore on accused to show that he possesses a licence granted by the appropriate authority. The appellant failed to show any such licence or authorization to carry firearms of any sort. See also State v Oladotun (supra)”
The court had in the case of State v Femi Olodotun (2011) 10 NWLR (Pt.1256) 542 of 560 in o similar charge of unlawful possession of firearm contrary to section 3(1) of the said Act held as follows:
“To prove the offence of unlawful possession of firearms against an accused person, the law requires the prosecution to establish the following three ingredients:
(a) That the accused was found in possession of the firearms
(b) That the firearms were within the meaning of the Act.
(c) That the accused person has no licence to possess the firearms”
The court below in its finding stated thus per Otisi JCA as follows:
In summary, their evidence is that the appellant attempted to carry away a ballot box, as has been, most unfortunately, found to be the political norm in our clime. In order to achieve this arm, he went to the election ground armed with a locally manufactured pistol.
The evidence of PW1, PW2, and PW3 is that when the appellant was confronted by some of the persons who were there to cast their votes, he threatened to shoot. Although he was finally compelled to drop the ballot box, he succeeded in carrying out this threat.
Although the offence of being in unlawful possession of firearms does not require the need to prove criminal intent or mens rea, the ill motive of the appellant is very clear. He had no business carrying firearms of any sort to or election ground. More so when it is not in evidence that he is a law enforcement agent who had been assigned to duty thereat. The offence of being in unlawful possession of firearms is one of strict liability”.
The learned Justices of the Court of Appeal further held thus at page 206 of the Record:

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“It is in evidence that what was found in possession of the appellant was a locally manufactured pistol. While testifying in chief, PW4, the IPO, tendered the gun, which was described as “the gun that accused used in shooting the victim”. The said gun and empty shell were tendered and admitted in evidence, without any objection, as Exhibit A and B respectively.
PW4 had admitted under cross examination that he did not test the gun. And, there is no ballistic report on the state of the gun. However, contrary to the contention of learned counsel for the appellant, this is not a
required ingredient to establish the offence of unlawful possession of firearms. Learned counsel for the
appellant had relied on the case of State v Oladotun (supra).”
Again at page 207 of the Record the court below stated as follows:
“The Firearm, Exhibit A, and the empty cartridge, Exhibit B, are clearly firearms within the meaning of the Section 11 of the Robbery and Firearms Act supra: as well as under section 2 of the Firearm Act, supra. This ingredient is thus established.
The third ingredient is whether the appellant had a valid licence to possess the firearms. Learned counsel for the appellant had submitted that the prosecution had not testified that the appellant was not authorized to hold firearms; and, that the appellant was presumed innocent until proven guilty.
In my understanding, what the position of the appellant translates to is that the prosecution must attest to the fact that the appellant had no licence.
I am of the firm view however that it is for the appellant, who was well aware of the charge against him, to justify his possession of Exhibits A and B. Private Persons have no authority under our laws to Possess firearms without licence. The onus is therefore on the accused to show that he possess a licence granted by the appropriate authority. The appellant failed to show any such licence or authorization to carry firearms of any sort. See also State v Oladotun (supra).
The ingredients to establish the offence of unlawful possession of firearms were therefore proved by the prosecution.”
At the Court of Trial the learned trial Judge had stated at pages 119 – 120 of the Record as follows:
“The defence has argued that the prosecution must prove that the accused possessed the firearms for the purpose of armed robbery, for the offence of unlawful possession of firearms to be grounded. But a perusal of the provisions of section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, shows that there is no qualification to the possession of the firearms as to make it an offence under the said Law except that it be unlawfully borne. The section does not say expressly or by implication, that the firearms must be possessed by any one for any specific purpose but that if at all it is possessed by someone who is not authorized. The possession does not have to be linked to any specific purpose for it to be unlawful under the said law. All that is necessary to ground the offence under this law is that the person possessing the firearms, has not been authorized to have it in his possession. I therefore do not buy the arguments of the defence that for the possession of the firearms to be unlawful under this law, it trust be meant for robbery. Interpreted in that way would mean reading into the law what is not contained therein. Courts of law do not expand the law but only expound same as it is.
Also, the defence has argued that there is no evidence that the said firearms were serviceable i.e. functional. There is nothing in the said law which suggests that the arms must be proven to be serviceable or functional, for the offence to be grounded. It merely says that if the person possessing the firearms is not authorized to bear it, then his possessing or bearing it as such, is unlawful and he commits on offence thereby. There is a difference between a toy gun and real gun. The gun shown to have been possessed by the accused person in this case is not a toy or an unserviceable gun. As a matter of fact, section 2 (3) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 does not distinguish between a toy and real gun it states:
“Anybody found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possess, on of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 1 of this Act or under the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years”.
Thus and from the provisions of the Act, the gun may be a fake or genuine but the consequences for possessing it are the same. The accused person has not been charged in this case with an offence relating to robbery to bring the charge under the provisions of section 1 of the Robbery and Firearms Act. The offence charge here is under section 3 of the Robbery and Firearms Act and under this section, no reference whatsoever is mode to section 1 of the Act. If the intention of the Legislature was to link the offence under section 3 to robbery in section 1, it would have said so. It is not for the court to speculate. Reference is made in section 3(1) of the Robbery and Firearms Act Cap. R. 11, to the firearms Act Cap F
28 and not section I of the Robbery and Firearms Act. Possession that is made an offence here is possession simpliciter and not one linked with any particular purpose.
The gun that was used here is locally fabricated and was actually used to fire on the day in question. These two arms of the arguments of the defence to invalidate the evidence adduced in this case are therefore and with due respect to learned counsel, B. Mohammed Esq., most untenable and thus rejected. He has shown good scholarship, but it remains only academic.”
Taking the two positions side by side, that is, the court below in it’s findings and conclusion and those of the trial court, no distinction can be made as they ore materially concurrent findings of facts based clearly from the evidence before the court juxtaposed with the Firearms Act with the relevant Section 3 in view. Nothing the appellant has put forward has eroded the strength of the position of the two courts below and this court cannot just interfere or upset those findings just for the heck of it without reason since appellant has not displayed any miscarriage of justice or a violation of some principle of law or procedure. In keeping with this policy this court must decline the invitation by

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the appellant to review for the third time the evidence earlier proffered. See Okosun v A. G. Bendel State (1985) 3 NWLR (Pt. 12) 283 at 289 – 290: Onwudiwe v FRN (2006) 10 NWLR (Pt. 988) 382 at 415; Amuso v State (2003) 4 NWLR (Pt. 811) 595 at 606; Adekinde v State (2006) 14 NWLR (Pt.1000) 717 at 739 750.
For further emphasis I shall quote section 4 of the Firearms Act which stipulates as follows:
“No person shall have in his possession or under his control any firearm of one of the categories specified in part II of the schedule to this Act referred to as a “personal firearm” except in accordance with a licence granted in respect thereof by the Inspector General of Police, which licence shall be granted or refused in accordance with the principles decided by the President.”
In respect lo the argument pushed forth by the appellant on the absence of the ballistician’s report which absence should be considered fatal to the charge of unlawful possession of firearms. I am inclined to the position of the respondents counsel that in the face of the overwhelming eye witness accounts as to the functionality of Exhibit A related to the injury on that complainant’s (PW3) right leg which situation was taken note of by the court below in confirmation of what the trial court saw, the implication therefore is that a ballistician’s report on the viability of the firearm became irrelevant. See Omoshola COP (1977) NSCC 158 in consideration of section 3 and 9 of the Firearms Act Cap.69 of 1958 punishable under sections 28 (1)(a) (i) and 28 (i) (b) (ii) of the said Act (as amended) by the Firearms (Amendment) Decree No. 3l of 1966 in relation to a submachine gun Mark 1 No. 56951 and 14 rounds of ammunition with magazine and the accused had been convicted and sentenced accordingly by the Magistrate court and thereafter upon appeal to the High Court and finally the Supreme court, Udoma JSC at page 161stated as follows:
“We are of the opinion, having regard to the evidence of the superior Police Officers, who testified before the learned Magistrate, and the confessional statements of the appellant against which there has been no complaint, that the learned chief justice on appeal was right in his conclusion that there was undoubtedly ample evidence independent of the Ballistician’s report to ground the conviction of the appellant. This appeal therefore fails. It is dismissed.”
For a fact the ingredients of the offence of unlawful possession of firearms contrary to section 3(1) of the Firearms Act were properly established and proved beyond reasonable doubt and the concurrent findings by the two courts below in that regard cannot be faulted under any guise.
On the issue of causing grievous harm on the complainant for which the appellant was charged, convicted and sentenced of the trial court and affirmed by the court below. The appellant raised the argument that the two courts acted in error since there was no medical evidence on the extent of the injury so suffered by the complainant.
The Lower Court held at page 211 of the Record of Appeal thus:
“Although there was no medical report or medical evidence. I do not see that this is fatal or that any doubt has been created thereby as to the extent of injuries- There is no doubt that a gunshot or bullet wound is serious and one which may seriously or permanently injure one’s health or even terminates one’s life prematurely. A person who deliberately shoots at another definitely realizes that the injury likely to be cause will not be casual.”
The Lower Court concluded at page 213 of the Record of appeal by saying that “the trial court took note on the record of the scars of the healed wound on the right log of PW3, during proceedings on 3rd May, 2011.”
Section 335 of the Criminal Code Cap C. 16 vol. 3 Laws of Cross River State of Nigeria 2004 provides as follows:
“Any person who unlawfully does grievous bodily harm to another is guilty of a felony, and is liable to imprisonment for seven years.”
The respondent rejected that stance of the appellant on what needs to be done to establish the causing of grievous bodily harm for which a conviction would be grounded to be that the act of the accused so caused serious injury or bodily pain, disease or infirmity to the complainant and that he did so intentionally with the knowledge that it would cause the resultant injury or harm.
The stance of the respondent is difficult to resist following in the footsteps of the case of: Solomon Maren v. State (2010) 3 NWLR (Pt.1181) 258 at 272 thus:
As for causing grievous harm, the following ingredients must be proved:
(a) That the accused by his act caused bodily pain, disease or infirmity to the complainant: and
(b) That he did so intentionally with the knowledge that it was likely to cause the harm or hurt.
Going back in time, the court below towing the line of the learned trial Judge had stated thus at page 211 – 213 as follows:
“Although there was no medical report or medical evidence, I do not see that this is fatal or that any doubt has been created thereby as to the extent of injuries.
There is no doubt that a gunshot or bullet wound is serious and one which may seriously or permanently injure one’s health or even terminates one’s life prematurely. A person who deliberately shoots at another definitely realizes that the injury likely to be caused will not be counsel. In Ibikunle v State (2007) 1 SC (Pt. II) 32, the Supreme Court per Onu JSC said:
“It is trite knowledge that the result of shooting a person with a gun is either to cause the death of the victim or cause him grievous hurt.”
And in AMAYO V State LER (2001) SC 241/2000, the Supreme Court, per Uwaifo JSC said:
“But it is difficult to see how a man can fire a loaded pistol of another without intending to do him grievous bodily harm.”
It is trite that the law presumes that a non intends the natural and probable consequences of his acts And the test to be applied in such circumstances is the objective test namely, the test of what a reasonable non would contemplate as the probable result of his acts. See Eric Uyo v A. G. Bendel state (1986) l ALL NLR 106 at 112 and (2000) FWLR (Pt.24) 1448 at 1460″
The court below went on at page 213 to state as follows:
“The evidence before the trial court was that the victim PW3 was treated traditionally by a native doctor. PW3, under cross examination, was asked how many bullets were removed from his leg; and his response was 31 bullets. The trial court took note on record of the scars of the healed wound on the right leg of PW3, during proceedings on 3rd May, 2011.”
Indeed on this second leg of causing grievous harm on the complainant, the concurrent findings have effectively settled the matter on the culpability of the appellant and the respondent’s discharging the burden of proof beyond reasonable doubt and no useful purpose would be gained in revisiting what the two courts below did in their findings, conclusion and decision and in the light of the belter and more articulate reasoning in the lead judgment I resolve the issue against the appellant. I also dismiss the appeal as lacking in merit as I abide by the consequential orders made.
MUSA DATTIJO MUHAMMAD, J.S.C.:
I have read in draft the thorough lead judgment of my learned brother Ngwuta JSC. I adopt the judgment as mine in dismissing the appeal. I abide by the consequential orders made in the lead judgment as well.
AMIRU SANUSI, J.S.C.:
The judgment of my learned brother Nwali Sylvester Ngwuta JSC, was made available to me before now. I am at one with his reasoning and the conclusion arrived at that this appeal is devoid of any merit. I too hereby dismiss the appeal and affirm the decision of the court below which also dismissed the appellants appeal against the judgment of the trial court. Appeal is dismissed by me.