Joseph Bille V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
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 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.”
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:
“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 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 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.
SC.578/2013