BURAIMAH AJAYI JULANDE (APPELLANT)
ZARIA NATIVE AUTORITY (RESPONDENT)
(1963) All N.L.R. 168
Division: Federal Supreme Court
Date of Judgment: 25th March, 1963
Before: Ademola C.F.J.; De Lestang, Lagos; Brett, and Bairamian, F.J.J.
Appeal against conviction (FSC 113/1962)
Section 21(5) of the 1960 Constitution provides that if the accused person cannot understand the language used at the trial, he shall have an interpreter gratis.
Section 382 of the Criminal Procedure Code provides that a conviction shall not by set aside on appeal on the ground of some irregularity unless there was a failure of justice-
The appellants were Yorubas who did not understand Hausa. The trial in the Allidli's Court was in Hausa, and they were convicted; they complained that the interpreter-did not interpret into Yoruba sentence by sentence the evidence for the prosecution that only gave a summary; also that there were several interpreters and that they are not competent The High Court, although of the opinion that two of the interpreters were of doubtful ability, applying the test in section 382 of the Criminal Procedure Code, as not satisfied that there had been a failure of justice
On further appeal:-
If the burden lay on the appellants before the High Court it was discharged, as the High Court found that two of the interpreters were of doubtful ability.
Per Curiam: The burden is satisfied if it is shown that a reasonable person who was present at the trial might have supposed that the interpretation was defective to such an extent as to deny the appellants a fair trial.
Quaere: Whether section 382 of the Criminal Procedure Code can apply where a fundamental right enshrined in the Constitution has be denied or withheld.
Appeal allowed; conviction upheld sentence quashed.
Adan Haji Jama v. The King  A.C.225;
R. v. East Kerrier JJ. ex parte Mundy  2 Q.B. 225;
(Editor's Note: As the appellants had served two and a half years of a sentence of seven years, the Supreme Court declined to order a re-trial).
APPEAL from the High Court of Northern Nigeria sitting on appeal from the Alkali's Court.
Appellant absent and unrepresented.
K. C. Nadarajah, Crown Counsel, for the Respondent.
Brett, F.J. (delivering the judgment of the court):-The two appellants were convicted by the Chief Alkali of Zaria on a charge of voluntarily causing hurt in committing robbery, contrary to section 300 of the Penal Code of Northern Nigeria. Their appeal to the High Court was dismissed and they appealed to this Court.
'The appellants were neither present nor represented in this Court, but had submitted arguments in writing. Mr Nadarajah, Senior Crown Counsel, appeared for the respondent and informed the court that he felt unable to support the convictions in view of certain irregularities in the procedure adopted in the court of trial.
The most serious of these, and the only one which we need consider, relates to the interpretation of the evidence and other proceedings. The appellants are Yoruba speakers by upbringing and it is stated in the judgment of the High Court, before which they had argued their appeals in person, that they each speak and understand English, though not perfectly. The trial was conducted in Hausa, which they neither speak nor understand. The record of the proceedings in the trail Court is supplemented as to the methods adopted for the interpretation of the proceedings both by oral evidence given when the appeal was heard in the High Court and by affidavits produced in the High Court. The appellants allege that the police officer in charge of the prosecution acted as interpreter into "pidgin" English when they were called on to plead and asked if they consented to trial in the Chief Alkali's court, but the High Court accepted the evidence that this part of the proceedings was interpreted into English by one L.O. Ihekwereme, who admittedly interpreted the opening address for the prosecution and the evidence of the first prosecution witness. A.M. Hassan interpreted the evidence of the remaining six witnesses for the prosecution into Yoruba, and the evidence of the appellants themselves was interpreted at first by Manzuman Zangon Katab, a schoolboy, and then by one Muhammadu Lawal. Finally, one M.C. Okoro interpreted the equivalent of the allocutus into English. The record does not show who these persons were or how they came to be called on to interpret.
If the trial had been conducted in the High Court or a Magistrate's Court it would have been necessary for these interpreters to be sworn as such- under section 242 of the Criminal Procedure Code, but this is not one of the sections by which a Native Court is bound, and although it is agreed that the interpreters were not sworn that is not in itself a ground on which it would be necessary to set aside the convictions. What is essential is that this Court should be satisfied that the appellants had a fair opportunity to defend themselves, and in particular that they were accorded in full the right conferred by section 21(5)(e) of the Constitution of the Federation, which provides that:-
"Every person who is charged with a criminal offence shall be entitled-(e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence."
This requires that there shall be adequate interpretation to the accused person of anything said in a language which he does not understand, and equally that there shall be adequate interpretation to the court of anything said by the accused person in a language which the court does not understand.
We would draw attention here to the difficulty which faces an appellant who complains that the proceedings were not correctly interpreted. While he may be able, from a study of the record, to point to instances where what he himself said was wrongly or incompletely interpreted, it is almost impossible for him, in the absence of a contemporaneous record of the proceedings as interpreted to him, to establish conclusively that he did not receive the benefit of a full and accurate interpretation by reference to particular omissions or inaccuracies in the interpretation made to him. An appeal court must make such allowance as is reasonable for this situation.
Two specific complaints were made by the appellants. In the first place they complained that while their own evidence was interpreted to the court sentence by sentence the evidence-in-chief of the witnesses for the prosecution was not so interpreted to them, and that all they received was a summary of so much of the evidence as the interpreter remembered or thought important, and this does not appear to be disputed. Secondly, they both deny that they consented to trial in the Chief Alkali's court. They make the further general comment that the five persons used as interpreters were selected at random from among persons who happened to be available at the time, that none of them is an experienced interpreter, and that there must be serious doubt as to their ability to interpret satisfactorily.
The High Court rejected the allegation that the appellants did not consent to trial in the Chief Alkali's court. For the rest, while agreeing that the trial was irregular, the High Court held that the burden was on the appellants to show that the irregularity had led to a failure of justice and that they had failed to discharge that burden. The following extract from the judgment of the High Court shows its reasons for holding this view:-
"On the record, the conduct of the trial was irregular because of the use of a series of interpreters who were not bound by oath to interpret truly and whose ability to interpret satisfactorily may in at least two instances be questioned. But provided that the appellants did have the assistance of an interpreter or interpreters we cannot interfere on the ground that such assistance was given in an irregular way unless a failure of justice was occasioned. All the evidence was interpreted by the various inter preters in succession, and it is not suggested that they did not also interpret the proceedings other than evidence from the point where the prosecutor opened his case to the court. The appellants were unable to satisfy us that there was in fact any misinterpretation or any failure to interpret from that point onwards; they did not show us that anything was added or omitted or falsified in the process of interpretation. They did not establish that any failure of justice was occasioned because the proceedings were interpreted by the unsworn interpreters who appear on the record as having interpreted and whose qualifications or lack of them we have described."
In this passage the High Court was applying the test laid down in section 382 of the Criminal Procedure Code, which provides that:-
"Subject to the provisions hereinbefore contained, no findings, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal....on account of any error, omission or irregularity in the....proceedings before or during trial....unless the appeal court....thinks that a failure of justice has been occasioned by such error, omission or irregularity"
We do not dissent from the view that for the purpose of that test the burden is on an appellant to show that the irregularity has led to a failure of justice. However, while the point has not been argued before us, we are of the opinion that there is a failure of justice within the meaning of the section if the proceedings at the trial fall short of the requirement "not only that justice be done, but that it may be seen to be done", as that maxim has been applied by the Judicial Committee in Adan Haji Jama v. The King,  A.C. 225 and by the Queen's Bench Division in such cases as R. v. East Kerrier JJ. ex parte Mundy  2 Q.B. 719. We have already referred to the difficulties facing an appellant who seeks to establish that the interpretation was in fact incorrect or incomplete, and in view of those difficulties, we consider that if the burden rests on the appellants it will have been satisfied if it is shown that a reasonable person who was present at the trial might have supposed that the interpretation was defective to such an extent as to deny the appellants a fair trial. In our view the appellants satisfied that burden. Of the five persons who acted as interpreter at different stages of the trial only Ihekwereme gave evidence in the High Court, and on that Court's own finding that the ability of the interpreters to interpret satisfactorily "may in at least two instances be questioned" we are of the opinion that the correct decision would have been that the convictions should be set aside.
We reach this conclusion even on the assumption that the test laid down in section 382 of the Criminal Procedure Code is applicable, and it is unnecessary to consider whether that section can ever apply where one of the fundamental rights enshrined in the Constitution has been denied or withheld.
On this ground, and without considering the other matters of criticism to which Mr Nadaraja referred, we set aside the decision of the Native Court Mr Nadaraja has invited us to order a retrial, in accordance with section 67(1) (b)(ii) of the Native Courts Law, 1956, and section 30 of the Federal Supreme Court Act, 1960, and this is a case in which in the ordinary way we might well take such a course. However, it has taken so long for the two successive appeals to be heard that the appellants have already served nearly two-and-a-half years out of the sentences of seven years' imprisonment imposed on them, and without laying down any rule for the exercise of our discretion in the matter we do not propose in this case to order a retrial. The judgment of the court therefore is that the decision of the Native Court is set aside and the appellants are acquitted.