Verity, C.J., Nigeria. In this case the appellants were convicted of being present at or taking part in an unlawful trial contrary to section 209 of the Criminal Code. They appealed to the Supreme Court and from the decision of that Court dismissing their appeals they have now appealed to this Court.
The grounds of appeal argued relate to the interpretation of certain words in section 207 in which an unlawful ordeal is defined. The relevant words are “any ordeal which is likely to result in “bodily injury to any party to the proceeding”.
It is submitted on behalf of the appellants that it must be shown firstly that the nature of the trial is such as to be likely in itself to result in bodily injury and, secondly, that such injury is, in the words of the learned Judge in the Appeal Court, some “discernible bodily injury”.
In the present case the learned trial Magistrate found as a fact that some substance unknown was applied to the eyes of the victim of the ordeal which caused his eyes to water, great pain and temporary blindness lasting fifteen minutes. The person who applied the substance declared that it was no more than water but this the learned Magistrate disbelieved. The victim did not know what it was. The learned Magistrate drew the inference from the fact that the substance actually caused what he held to be bodily injury that it was likely to cause such injury. The learned Judge accepted the view and so do we. We do not think that it is necessary to prove the nature of the substance if it may reasonably be inferred from the evidence that it was such that its application is likely to cause bodily injury. In the present case we think that inference might reasonably be drawn from the facts.
As to the second submission the learned Judge held that by “bodily injury” is meant some discernible injury, by which we understand him to mean some visible injury, for he refers to the eyes becoming blood-shot or swollen. He upheld the conviction on the ground that if the substance applied caused watering. pain and blindness it was an inescapable inference that the injury using these effects must have been discernible in some such manner.
We think that in this the learned Judge erred for we are not of the opinion at this inference is inescapable. It may be a possible inference but on the her hand it is equally possible that there might in such circumstances be no reddening or swelling of the eye or any part thereof even though there was watering pain and temporary blindness. We consider, however, that it is not on1y unnecessary to add the word “discernible” in order to arrive at the meaning the words” bodily injury but that even if the use of that word is helpful in determining that meaning it need not be limited to that which can be discerned r the sense of vision. Pain is not a bodily injury. It is the means whereby the existence of that injury is discerned by the sufferer. A normal eye, if it be injured, does not give pain, nor water, nor lose the sense of sight even temporarily. If an eye otherwise normal upon the application of some substance develops these abnormal symptoms it is clear to us that it has been injured and that the person has suffered bodily injury. As we have already held that the application of such a subs1;ance as a means of ordeal was likely to result in such bodily injury it is clear that the ordeal in this case was an unlawful ordeal and tat the appellants were rightly convicted.
The appeals are therefore dismissed.
Appeals dismissed.