IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 18TH DAY OF MARCH 1983

SC 69/1972

BETWEEN

THE STATE ............................................... APPELLANT

AND

SALIHU MOHAMMED GWONTO ............................................. RESPONDENT

BEFORE: Fatai-Williams, C.J.N.; Bello, Idigbe, Obaseki, Eso, Nnamani, Uwais; JJ.S.C.

The respondents as accused were charged with other persons with various offences against sections 229(1) 85 and 97 of the Penal Code (Cap. 89 Laws of Northern Nigeria, 1963) in the High Court. The respondents were convicted of the said offences and sentenced, having been found guilty as charged. They appealed to the Federal Court of Appeal each contending that he had not had a fair trial as, in the case of the first respondent he had been tried jointly with persons who made their statements to the police in Hausa and gave evidence in the court in Hausa yet such evidence was not interpreted into English, and in the case of the others, that the proceedings had been conducted in English and were not to interpreted to them in Hausa. The contention was that section 33(6)(e) of the 1979 Constitution and sections 241 and 242 of the criminal procedure Code of Northern Nigeria had been infringed. There was also the contention that there was duplicity in the charges. The Federal Court of Appeal allowed the appeal and set aside the convictions and sentences.

The State appealed against the judgment in the Supreme Court contending in the main that if a party did not understand the language of the court it was his duty to say so at the first opportunity. Failure to do so would entitled the court to assume his understanding of the language.

HELD:

(1) An appellate court will not interfere on an issue of duplicity if it is clear from the proceedings that the accused knew what charge he was to face and was neither embarrassed nor precluded thereby.

(2) The record of proceedings of the trial Court indicated that the first accused respondent knew that charge he was to face.

(3) The right to an interpreter which is provided for by section 33(6)(c) of the 1979 Constitution avails an accused person only “if he cannot understand the language used at the trial of the offence.

(4) There was no evidence that the respondents indicated to the court that they did not understand Hausa or English as the case may be their Counsel also did not so inform the court.

(5) If neither the accused persons nor their Counsel demanded the formers’ right to interpretation nor objected to the absence of an interpreter the right is lost for all time and cannot be invoked on appeal.

(6) The provisions of sections 24(1) as were as section 242(1) and (2) of the Criminal Procedure Code to the effect that where evidence is given in a language not understood by the accused the accused shall be entitled to an interpreter and the record of proceedings shall state the name of same, the languages from which and to which he interprets and that he has been bound on oath to interpret must be strictly complied with.

(7) Non compliance with section 232(2–of the criminal procedure Code as in this case will not ipso facto by virtue of section 383 of the criminal procedure code, warrant an appellate court to overturn a trial Court’s decision unless a failure of justice was occasioned by such non-compliance.

(8) The burden of proving such failure of Justice occasioned by absence of interpretation at their trial when there was need for same which rested on the respondents was not discharged.

(9) In accordance with judicial precedents and section 131(1)(a) of the Evidence law Cap. 40 Laws of Northern Nigeria 1963 the Federal Court of Appeal should have asked the respondents to adduce oral evidence to establish the occurrence of a failure of justice as occasioned by the absence of interpretation at their trial.

Appeal allowed.

Cases referred to:–

(1) Ajayi and another v. Zaria N.A. (1964) NNLR 61.

(2) Arab v. Bauchi N.A. (1965) NMLR 48.

(3) D.P.B. v. A. Kazor (1962) 1 All NLR 235.

(4) Edun and others v. I.G.P. (1966) 1 All NLR 17.

(5) Locknan and others v. The State (1972) 5 SC 22.

(6) Mbi v. Numan N.A. (1959) NRNL R.11

(7) Mraz v. The Queen (1954-56) 93 C.L.R. 493.

(8) Nafiu Rabiu v. The State (1980) 8-11 SC 130.

(9) Noma v. Zaria N.A. (1963) NNLR 97.

(10) R v. Berkeley (1969) 2 BQ 446.

(11) R v. Furlong (1950) 1 All ER 636

(12) R v. Kahiski (1967) 2 All ER 398.

(13) R v. Lee Kun (1916) 1 KB 337.

(14) Rex v. Peter Kalle (1937) 3 WACA 197.

(15) Shinfida v. C.O.P. (1970) NNLR 13.

(16) The Queen v. Eguabor (1962) 1 All NLR 289.

Statutes referred to:–

(1) Constitutional of the Federal Republic of Nigeria 1979.

(2) Nigeria (Constitution) Order-in-Council 1960, Constitution of the Federation.

(3) Criminal Procedure Code (Cap 39) Laws of Northern Nigeria 1963.

(4) Evidence Law (Cap 40) Laws of Northern Nigeria 1963.

G.O. K. Ajayi S.A.N. (with Messrs A. K. Dabi, D. Segun, S. O. Shonibare and Miss A. Ogunsola) for the Appellant.

Gally Brown Peterside S.A.N. (with Messrs J. O. Edremoda and J. C. Azinge) for the Respondents.

Nnamani, J.S.C. On 8th July, 1980, 23 accused persons were arraigned before OBI–OKOYE, C.J. sitting at the Langtang High Court, Plateau State charged with various offences against sections 229(1), 85 and 97 of the Penal Code (Cap. 89 Laws of Northern Nigeria, 1963). These offences arose out of an incident on 18th July 1979 at BASHAR WASE, Local Government area of Plateau State in which ALHAJI ABDULKADIR ZAKARI who had just been elected a Member of the House of Representatives was attacked with knives horns, stones and sticks allegedly by members of a rival political party. The 1st respondent Alhaji Salihu Mohammed Gwonto was Alhaji Abdulkadir’s opponent in the said election. At the end of a trial in which 9 witnesses testified, the learned trial Chief Judge discharged seven of the accused persons, convicted the rest and sentenced them to various terms of imprisonment (or in some cases fines). The 1st, 2nd, 3rd, 4th and 6th accused persons, who are respondents in this appeal, were each sentenced to seven years I.H.L. and six months I.H.L. on the two heads of charges brought against them.

The respondents appealed to the Federal Court of Appeal (hereinafter referred to as the Court of Appeal) each mainly contending that he had not had a fair trial in that, in the case of the 1st respondent, he had been tried jointly with persons who made their statements to the police in Hausa and gave evidence in court in Hausa yet such evidence was not interpreted into English, and in the case of the 2nd, 3rd, 4th, and 5th respondents, that the proceedings had been conducted in English and these had not been interpreted to them in Hausa. The respondents contended that section 33(6)(e) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) and sections 241 and 242 of the Criminal Procedure Code of Northern Nigeria had been infringed. On 15th July 1981, the Federal Court of Appeal (D.O. Coker, Umaru Maidama and A. G. Karib-White JJ.C.A.) allowed the respondents’ appeal and set aside their convictions and sentences. It is against this judgment that the State (i.e. Plateau State) has appealed to this Court.

Three grounds of appeal were originally filed by the appellant. By leave of this Court, learned Counsel to the appellant, Mr G. O. K. Ajayi, S.A.N., withdrew them and filed 9 additional grounds of appeal. Although I am persuaded by the arguments of Mr Ajayi in his very detailed brief of argument with respect to the decision of the Court of Appeal on the question of duplicity and on want of credible evidence and would have equally allowed the appeal on those grounds, I would wish in this judgment to limit myself to the question of the alleged violation of the fundamental rights of the respondents (section 33(6)(e) of the 1979 Constitution and sections 241 and 242 of the Criminal Procedure Code) which questions were really the ones on which the decision of the Court of Appeal complained of turned. That the Court of Appeal regarded them as the central issues on which the appeal before them could be decided is clearly borne out by a passage in the lead judgment of Karibi-Whyte, J.C.A. with which Coker and Maidama JJ.C.A. concurred. The learned Justice said:

“I think I have endeavoured to do justice to the industry and ingenuity of Counsel in reproducing at considerable length and detail, the salient aspects of the contentions urged on us on this ground. I must however point out here that considering the importance, relevance and strategic nature of this ground, which in my opinion could determine this appeal in limine, I have decided to consider the arguments in full. In my view the ground of appeal rests substantially on the correct interpretation of the provisions of section 33(6)(e) of the Constitution 1979, section 242(2) and section 382 of the Criminal Procedures Code.”

Accordingly, I intend to deal with grounds 1, 2, 3, 4, 8 and 9. I am reinforced in my resolve to adopt this approach first, by the fact that on want of credible evidence the Court of Appeal rested its decision on its conclusion that since section 33(6)(e) of the 1979 Constitution and section 242(2) of the Criminal Procedure Code were violated all the evidence accepted by the learned trial Chief Judge–evidence of prosecution witnesses who testified in English etc.–was not in fact evidence and that there was no evidence on which respondents could have been convicted. The correctness or otherwise of that view would of course depend on the conclusions arrived at in this case on the violation or not of those provisions of the Constitution and the Criminal Procedure Code. Secondly, and this relates to the complaint of duplicity, even if one accepted the contentions of the respondents before the Court of Appeal, which contentions I do not accept, it is well settled that a Court of Appeal will not interfere on an issue of duplicity if it is clear from the records of proceedings that the accused knew what charge he was to face, was neither embarrassed nor prejudiced and there is no miscarriage of justice. See Rex v. Peter Kalle (1937) 3 WACA 197. In my view of the mention of the offences of 2nd, 3rd, 4th and 5th respondents in that second head of charge was only to indicate what 1st respondent was said to have abetted. The 2nd head of charge read as follows:

“That you Nuhu Ubangari, Musa Tukga, Sule Nuhu Maimagunta, Iliyasu Abdullahi, and Kwambe Haruna on or about the 18th day of July, 1979 at Bashar within Wase Local Government Area committed the offence of attempt to commit culpable homicide punishable under section 229(1) of the Penal Code, and that you, Alhaji Salihu Mohammed Gwonto abetted the said Nuhu Ubangari, Musa Tukga, Sule Nuhu Maimagunta, Iliyasu Abdullahi and Kwambe Haruna in the commission of the said offence of attempt to commit culpable homicide punishable under section 229(1) of the Penal Code which was committed in consequence of your abetment and that you have hereby committed an offence punishable under sections 85 and 229(1) of the Penal Code.”

The records of proceedings of the High Court show that 1st respondent knew what charge he had to defend and was neither embarrassed nor prejudiced.

To return to the grounds of appeal that I intend to consider herein, grounds 1, 2, 3, and 4 generally complain of the interpretation which the Court of Appeal placed on section 33(6)(e) of the 1979 Constitution and sections 242 and 382 of the Criminal Procedure Code while grounds 8 and 9 complain of the failure of the Court of Appeal to resolve the conflicts in the Affidavits filed by the parties as to whether there was in fact interpretation or any proper interpretation of the proceedings. The appellant also complained of the assumption by the Court of Appeal that there was no interpretation from English to Hausa and vice versa merely because there was no indication of it on the face of the record of proceedings.

In his submission, Mr Ajayi for the appellant relied on his brief of argument, but by way of emphasis, referred to the positions taken by the Federal Supreme Court and the Supreme Court respectively in the case of Queen v. Imadebhor Eguabor (1962) 1 All NLR 287 and Locknan and another v. The State (1972) 1 All NLR Part 2 at 62.

He submitted that where in a criminal trial an accused person is represented by Counsel, if objection is not taken to any irregularity with respect to the issue of interpretation, such accused person cannot later on complain of his right to have the proceedings interpreted to him in a language he understands. He thought this position was justified on the ground that if a party does not understand the language of the court it is his duty to say so to the court at the first opportunity. If he does not do so, the court, he thought, would be entitled to assume that there is no need for an interpreter.

Two preliminary issues–the competence of Counsel to sign appellant’s brief and the right of appeal of prosecutor–raised by learned Counsel to the respondents Mr Gally Brown-Peterside, S.A.N., were later abandoned by him his attention having been drawn to the decisions of this Court in D.P.P. v. Akazor (1962) 1 All NLR 235 and Nafiu Rabiu v. The State (1980) 8-1 SC 130. He too relied on his brief of argument. Both in his brief and his oral submission he agreed fully with the views of the Court of Appeal in the proper meaning, in the context of this case, of section 33(6)(e) of the 1979 Constitution and section 242(2) of the Criminal Procedure Code.

Before embarking on the interpretation of the sections in controversy in this suit (sections 33(6)(e) of the 1979 Constitution and sections 241, 242 and 382 of the Criminal Procedure Code), it seems to me useful to set down certain matters arising from the records which are not in controversy and which would be very relevant in any subsequent interpretation of the sections referred to above. These are as follows.:

(1) That throughout the proceedings in the High Court all the accused persons (i.e. including the respondents herein) were represented by one Counsel, Mr Ahinche.

(2) The court record of the evidence in Hausa of PW5 and PW6 contained this:

“official court interpreter interpreting.” Other than this there is nothing on the face of the records indicating that there was any interpretation of the proceedings from English to Hausa or Hausa to English.

(3) Equally there is nothing in the records of the High Court indicating that at any time during the proceedings in the High Court Counsel to the accused persons raised any objections as to lack of interpretation or any proper interpretation of the proceedings nor did any of the accused persons (including the respondents) make any request for an interpreter or indicate that he did not understand the language in which the proceedings were being conducted.

(4) The statements to the police of the 1st and 2nd respondents were made by them in English. This is particularly pertinent in relation to 2nd respondent whose complaint was that he did not understand English. He admitted in his evidence in Chief in the High Court making exhibit 2 (that was a statement recorded in English).

(5) There was no evidence in the High Court nor indeed in the Court of Appeal to indicate that the 1st respondent did not understand Hausa nor that 2nd respondent did not understand English.

Having got these matters which cannot really be contested assembled, I shall now first consider section 33(6)(e) of the 1979 Constitution since in any case it is the only section which really raises a constitutional issue. Section 33 of the 1979 Constitution deals with the fundamental right to a fair hearing and subsection 6 thereof provides as follows:

“(6) 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.”

Perhaps emphasis ought to be placed on the words if he cannot understand the language used at the trial of the offence. The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or Counsel acting on his behalf, to bring to the notice of the court the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise. In the instant case, as stated earlier, there is no evidence establishing affirmatively that the 1st respondent does not understand Hausa. On the contrary, there is evidence in the High Court records from which it can at least be inferred that he does. His only witness, Alhaji Abdul Kasai, testified in Hausa nd it would seem inconceivable to me that 1st respondent did not follow the testimony so given in support of his case and yet neither he nor his Counsel raised an objection. There is also evidence that 2nd respondent understood both Hausa and English. He gave evidence in Chief in the High Court in Hausa, and as I had mentioned earlier, he gave a statement to the police (exhibit 2) in English. In my view therefore, at least in relation to these two respondents, I cannot see how the question of the violation of their right to an interpreter guaranteed under section 33(6)(e) of the Constitution really arises. Not only were they able to speak the two languages–Hausa and English–in which the proceedings were conducted, but there is nothing to show that either of them (or their Counsel) indicated to the court that (i.e. 1st and 2nd respondent) could not understand the said two languages. This is quite apart from the question whether there was in fact any interpretation of the proceedings in the High Court, a matter I shall deal with later in this judgment. With respect, the error of their Lordships of the Court of Appeal was in assuming that since there was nothing on the face of the High Court records indicating that there was any interpretation, there was in fact no interpretation and consequently the rights of the respondents guaranteed under section 33(6)(e) of the Constitution 1979 were violated.

Section 33(6)(e) of the 1979 Constitution is in pari materia with section 21(5)(e) of the Nigeria (Constitution) Order-in-Council 1960 Second Schedule, Constitution of the Federation which was construed by the Federal Supreme Court in The Queen v. Imadebhor Eguabor (supra). In that case, the appellant did not understand English and the record of proceedings in the High Court did not indicate whether the evidence of those witnesses who testified in English were interpreted to the appellant. The appellant was, as in the instant case, represented by Counsel. Delivering the judgment of the court, Brett F.J. (as he then was) enunciated the principles which have since guided courts in this country on this issue. These were contained in a passage at pages 290 and 291 and were as follows:—

“In the Northern Region, section 241 of the Criminal Procedure Code expressly requires that when any evidence is given in a language not understood by the accused, and the accused in present in court, it shall be interpreted to him in a language understood by him, but the Criminal Procedure Act, which is in force outside the Northern Region, contains no particular direction on the point. In our experience the practice usually adopted in the High Courts and Magistrates’ Courts where a witness is giving evidence in a language not understood by the accused and where no interpretation into a language understood by the accused is being made for the benefit of the court is for an interpreter to stand near the accused and tell him what the witness is saying. We consider that this should be the invariable practice where an accused person is not represented by Counsel (as we believe it already is), and that it should be followed also where the accused personally expresses a wish to dispense with the translation and the presiding judge or magistrate considers that the interests of justice will not be prejudiced by such a course; he should not permit it unless he is of the opinion that the accused substantially understands the case he has to meet. . . These views are in conformity with those expressed by the Court of Criminal Appeal in England in R. v. Lee Kun (1916) 1 KB 337 except that in Nigeria we consider that the waiver of a translation should be made by the accused himself. However in R. v. Lee Kun the Court of Criminal Appeal treated the matter as one of practice so that it would always be a question for the appeal court whether any substantial miscarriage of justice had resulted from a failure to follow correct practice. We consider that this is the position in Nigeria also in a case where an accused has not expressly asked for the assistance of an interpreter, and that an appellant who was represented by Counsel at the trial cannot invoke the right conferred by section 21(5)(e) of the Constitution as a ground for setting aside a conviction unless he claimed the right at the proper time and was denied it.” (Italics mine),

The Federal Supreme Court again had cause to consider section 21(5)(e) of the Constitution of the Federation in 1960 in Buraimah Ajay and Julande Jos v. Zaria Native Authority (1964) NNLR 61. In that case, however, the appellant were not represented by Counsel and there was interpretation although it was said to be incorrect or incomplete. The court emphasised the mutually beneficial nature of interpretation (both to the accused and the court) when it said as per Brett F.J. again:

“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. . . 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.”

More importantly, the court inserted a Quare whether section 382 of the Criminal Procedure Code (which does not really arise in this part of the case having regard to the circumstances of this case but which I intend to deal with fully when I consider section 242 of the Criminal Procedure Code) can ever apply where one of the fundamental rights enshrined in the Constitution has been denied or withheld.

The Supreme Court has not specially considered section 21(5)(e) of the 1960 Constitution but in Peter Locknan and another v. The State (1972) 5 SC 22 it endorsed the principles enunciated in Eguabor’s case and held these principles to be applicable to section 242(2) of the Criminal Procedure Code with which it was in fact concerned in that case.

Applying these principles to the instant case, the respondents ought to have failed in the Court of Appeal in their contention that their rights under section 33(6)(e) of the 1979 Constitution were violated. The respondents were throughout the proceedings in the High Court represented by Counsel, Mr Ahinche. There is nothing in the records of the High Court (and no further evidence was led on the issue in the Court of Appeal) to show that the respondents or Counsel on their behalf requested for an interpreter and that that request was rejected. Nor is there any indication that thee was any objection at lack of interpretation or any proper interpretation in the High Court. I cannot see how the respondents can escape from the force and authority of Eguabor’s case. If as is the case here they were represented by Counsel and made no request for an interpreter at the earliest opportunity which was in the High Court, their right to an interpreter would as rightly contended by Mr Ajayi be lost for ever. I am therefore firmly of the view that the Court of Appeal was clearly in error in that part of their judgment which held that the rights of the respondents had been violated even though they were represented by Counsel and there had been no objection on the issue of lack of interpretation. This appears clearly from that portion of the judgment of Karibi-Whyte, J.C.A. where the learned Justice said:—

“In the course of the argument before us Mr Azaki submitted that appellants were represented by Counsel and could not rely on the provisions of section 33(6)(e) or section 241, 242(2) of the Criminal Procedure Code. This appears to be a view derived from the decision of Buraimoh Ajawi and another v. Zaria N.A. (1963) 1 All NLR 169, where the view was expressed that an unrepresented accused person would by the mere fact of not having been represented by Counsel have shown that he was denied a fair trial. The invariable inference is that a represented accused cannot rely on the non-compliance with the section, thereby losing the fundamental right to which he is entitled under section 33(6)(e) of the Constitution 1979. This is a non sequitur. In the appeal before us the appellants were represented by Counsel and therefore come within the quare which now faces us. Gally Brown-Peterside contends that there is still a failure of justice within the meaning of the provisions if the provisions are not completed with even when appellants are represented by Counsel. I agree entirely with that submission.”

I think, with all respect, that the point which was missed here is that the importance of the issue of representation lies in the fact that if an accused person is represented by Counsel such Counsel ought to demand his client’s right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a Court of Appeal.

I shall now deal with section 241, 242 and 382 of the Criminal Procedure Code of Northern Nigeria. The provisions are as follows:

“241 When any evidence is given in a language not understood by the accused and the accused is present in court, it shall be interpreted to him in a language understood by him. . .

242.

(1) When the services of an interpreter are required by any court or justice of the peace for the interpretation of any evidence statement or other proceedings, he shall be bound by oath or solemn affirmation to state the true interpretation of the evidence, statement or other proceedings.

(2) When the services of an interpreter are used in any proceedings by a court or justice of the peace the record of the proceedings shall state the name of the interpreter, the languages which and in which he interprets, and the fact that he has been bound in accordance with the provisions of subsection (1) to state the true interpretation of the evidence statement or other proceedings. . .

382 Subject to the provisions herein before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this criminal procedure code, unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

Section 241 is mandatory and on it I would only wish to observe that although its wording is so similar to section 33(6)(e) of the Constitution, it is the constitutional provision which guarantees the right of the accused person to an interpreter. The section obliges the court to supply such an interpreter. Section 242 is equally mandatory. Subsection 2 thereof has to be strictly complied with. As the Appeal Court of North Western State held in Ibrahim Shinfida v. Commissioner of Police (1970) NNLR 113 it is not enough, as used to be the practice, merely for the trial Court to record “Section 242 complied with.” The whole details as st down in that subsection must be recorded.

There is no doubt that applying the law to the facts of this case there was non-compliance with section 242(2). There is nothing on the face of the records of the High Court to indicate otherwise. But that ought not to have been conclusive in deciding the issues in the appeal in favour of the respondents. As indicated earlier in this judgment, in Locknan’s case (supra) the Supreme Court held that the principles enunciated in Eguabor’s case (supra) applied to section 242(2) of the Criminal Procedure Code. Secondly, it was contended before the learned Justices of the Court of Appeal, a contention which they rejected, that these irregularities were cured by Section 382 of the Criminal Procedure Code the provisions of which I had set down earlier in this judgment. The relevant portion of that section of the Criminal Procedure Code is—

“Unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

The emphasis is on in fact been occasioned. The words in fact were added by the Criminal Procedure Code (Amendment) Law 1963. The emphasis is such that a mere possibility that a failure of justice might have been occasioned is not enough to justify interference by an appeal court. See Muhammadu Arab v. Bauchi Native Authority (1965) NNLR 48 at 50; and Ubi Yola v. Kano Native Authority (1961) NRNLR 103 or (1961) All NLR 549, 551.

The emphasis on failure of justice being in fact occasioned is one way of emphasising the point that while a Court of Appeal would act where there is a material irregularity (particularly one which constitutes a marked departure from well established principles of criminal procedure) it is not every irregularity that is a ground for quashing convictions. The irregularity must be one which goes to the root of the case. See R v. Furlong (1950) 1 All ER 636; R v. Kahiski (1967) 2 All ER 398; (1967) 1 WLR 699; and R v. Berkeley (1969) 2 QB 446, (1969) 3 All ER 6.

What then is failure of justice? In Buraimah Ajayi’s case, the Federal Supreme Court held that there is a failure of justice “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.” Hurley, C.J. (North) put the test thus:

“There is a failure of justice not only when the court comes to the conclusion that the conviction was wrong but also when it is of opinion that the error or omission in the court below may reasonably be considered to have brought about the conviction, and when on the whole facts and in the absence of the error or omission, the trial Court might fairly and reasonably have found the appellant not guilty.” See Abdu Dan Sarkin Noma v. Zaria native Authority (1963) NNLR 97 at 102.

Failure of justice is in my view very much the same thing as miscarriage of justice.

“An accused person is entitled to a trial in which the relevant law is correctly explained and applied and the rules of procedure and evidence strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is in the eye of the law a miscarriage of justice. Justice has miscarried in such cases because the accused has not had what the law says he should have and justice is justice according to law.” Mraz v. The Queen (1954-56) 93 CLR 493, 514 per Fullagar, J.

In the instant case, there would be a failure of justice or miscarriage of justice if in fact the respondents did not understand the language in which the proceedings in the High Court were conducted and those proceedings were not in fact interpreted to them in a language they understand. In such a case there would indeed have been nothing like a fair trial since the respondents could not have understood the case they were to meet. To determine therefore whether section 382 cured the obvious non-compliance with section 242(2) of the Criminal Procedure Code i.e. whether there had been no failure of justice in the sense stated herein, it was clearly necessary for the Court of Appeal to determine what really transpired in the High Court. The burden of affirmatively establishing that such irregularities occurred and that there was therefore failure of justice was on the respondents (see Buraimah Ajayi’s case (supra)). The respondents would have called oral evidence as to whether there was interpretation from English to Hausa or vice versa and/or if there was interpretation, whether it was complete and correct; or indeed whether they understood the language in which the proceedings were conducted. But rather than insist on the respondents discharging the burden which was clearly on them, the Court of Appeal, erroneously in my view, chose to decide the issue on the basis of assumptions. The fact that some of the respondents made their statement to the police in Hausa was enough for their Lordships to decide the question whether they understood English; the fact that there was nothing on the face of the records to show that there was any interpretation of the proceedings in the High Court from English to Hausa and vice versa also established as they saw it that there was no interpretation. The attitude of the Court of Appeal was aptly demonstrated by that part of the judgment of Karibi-Whyte, J.C.A. where the learned Justice said:

“This interpretation is inescapable since the court is bound by the record of proceedings and cannot resort to evidence aliunde or conjecture inference to supply missing requirements which are mandatory requirements of statutory provisions. Prima facie where the record of proceedings does not comply with the provisions of sections 33(6)(e), 241 and 242 then the obvious inference is that there has been no interpretation and injustice has resulted thereby which requires the setting aside of the proceedings” (Italics mine).

There were at least two reasons, in the circumstances of this case, which made it desirable that the Court of Appeal ought to have taken fresh evidence if it was to determine whether there was failure of justice in fact. One is that there is enough judicial support of the principle that in circumstances such as in this case where on the face of the record there is nothing to indicate that there was any interpretation, a Court of Appeal before which there is challenge of the verdict of the lower court on the ground of lack of interpretation, incomplete or incorrect interpretation and a failure of justice ought to take fresh evidence to determine what really transpired in the lower court. In Eguabor’s case (supra) the Federal Supreme Court (as per Brett, F.J.) put the principles thus: at 291:

“In the present case, the record of proceedings in the High Court does not indicate whether the evidence of those witnesses who spoke in English was interpreted to the appellant or not and although Counsel for the respondent did not dispute the assumption that it had not been which was the basis on which the submissions for the appellant rested, we should have though it necessary to require evidence on the point if we had considered that any miscarriage of justice might have resulted from a failure to follow the correct practice as regards the evidence given in the case.” (Italics mine).

In Locknan’s case (supra) the Supreme Court not only quoted this passage with approval but itself refused to take a particular point “because of the absence of any affirmative evidence before us that the interpreter was not present.”

Secondly there was abundant material on the face of the record of the High Court to indicate that there may have been interpretation. On 8th July, 1980 the record states, “The charges are each read and explained to the accused persons.” On the same date, after Counsel’s objection on the issue of duplicity had been overruled, each of the 23 accused persons was recorded as having pleaded “not guilty.” Surely explanation of the charges and the subsequent plea of “not guilty” by each accused person suggests an understanding of the charge. It is also noteworthy that though the 2nd, 3rd, 4th, 5th and 6th accused persons in the trial Court (i.e. including 2nd, 3rd, 4th and 5th respondents herein) gave evidence in Hausa that evidence appears in the record of proceedings in English. One must also remember that the statements made by the respondents to the police were read out in the High Court and each of them was recorded as having agreed that the statement was correct and as having adopted same.

Further, the Court of Appeal was not lacking in power to look beyond the record of proceedings of the High Court and take fresh evidence if it so wished. Section 131(1)(a) of the Evidence Law, Cap.40 Laws of Northern Nigeria 1963 provides as follows:

“131

(1)  When any judgment of any court or any other judicial or official proceedings, or any contract of any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence: Provided that any of the following matters may be proved:—

(a) fraud, intimidation, illegality. . .” See Taylor Mbi v. Numan Native Authority (1959) NRNLR 11 at 12.

In the instant case in my view, there would be illegality if in fact the proceedings in the High Court were not interpreted to the respondents in a language they understand. There was therefore every justification to take fresh evidence to establish whether such illegality actually occurred.

It is perhaps an appropriate state to mention that at the time the Court of Appeal considered the respondents’ appeal it had before it Affidavits filed by the parties i.e. the appellant and respondents herein. These Affidavits were sworn to by 1st, 2nd, 3rd, 4th, 5th respondents and their Counsel Mr Ahinche on one side and by Napgan Fyenda and Martin Dansel Dabup on the other. The Affidavits conflicted considerably on this issue of interpretation of the proceedings of the High Court. It is clear that the Court of Appeal could have resolved these conflicts only by taking oral testimony. Regrettably that Court not only rejected these Affidavits but failed to take fresh oral testimony. Of the Affidavits the learned Justices said:

“We are at the moment concerned with the record as compiled and presented to this Court. It is for Counsel on both sides to argue the appeal or defend the judgment on the said record. The averments in the Affidavits are irrelevant. All the court is concerned with at the moment is the record which form the basis on which the appeal is being argued.” (Italics mine).

If the Court of Appeal had adverted its mind fully to those Affidavits and counter-Affidavits and then proceeded to take fresh oral evidence there would have been sufficient material, in my view, from which it could have resolved the all-important question of whether in fact there was interpretation of the proceedings in the High Court into English and Hausa. The court was clearly in error in not doing so.

For all the reasons stated in this judgment, I am in no doubt that there was no violation of the fundamental rights guaranteed to the respondents by section 33(6)(e) of the Constitution of the Federal Republic of Nigeria, 1979. Further, although on the face of the record of proceedings of the High Court there was non-compliance with section 242(2) of the Criminal Procedure Code, I am of the firm view that section 382 of the Criminal Procedure Code was applicable, the respondents having failed in the Court of Appeal to discharge the burden which rested on them to show affirmatively that there had been a failure of justice. The Court of Appeal ought not therefore to have interfered with the judgment of the High Court. In the circumstances, I would allow this appeal. The appeal is accordingly allowed. The judgment of the Court of Appeal dated 15th July, 1981 is hereby set aside. In its place, I hereby restore the judgment of the High Court of Plateau State in Suit No. HL/2CA/1980 delivered on 11th July, 1980. I further order that the respondents herein (i.e. 1st, 2nd, 3rd, 4th and 5th respondents) be arrested and committed to Prison to serve various terms of imprisonment to which they were sentenced.

Fatai-Williams, C.J.N. I agree with the views expressed and the conclusions reached in the lead judgment of my learned brother, Nnamani, J.S.C., which I have had the advantage of reading in draft. For the reasons he has given, I too would allow this appeal. The appeal is allowed and the decision of the Federal Court of Appeal is hereby set aside. The judgment of Obi-Okoye, C.J., High Court of Plateau State, is hereby restored and affirmed. It is further ordered that the respondents be arrested and committed to prison to serve their sentence.

Bello, J.S.C. I have had the advantage of a preview of the judgment delivered by my learned brother, Nnamani, J.S.C. For the reasons stated by him, I agree the appeal should be allowed, the judgment of the Federal Court of Appeal be set aside and the judgment of convictions and sentences of the trial Court be restored.

Idigbe, J.S.C. Having been privileged to read the draft of the judgment just delivered by my learned brother, Nnamani, J.S.C. with which I am in complete agreement, I agree that, for the reasons stated in the judgment, this appeal should be allowed. I also endorse the orders in the said judgment.

Obaseki, J.S.C. I have had the advantage of reading in draft, the judgment delivered this morning by my learned brother, Nnamani, J.S.C. and I am in full agreement with him that the appeal be allowed for the reasons so ably set out by him in the said judgment.

The main ground on which the Federal Court of Appeal allowed the appeal against the conviction and sentence of the respondents was the failure at the trial to interpret the evidence of some of the prosecution witnesses from English to Hausa language, the language understood by the respondents. This failure, the Federal Court of Appeal contended, led to a miscarriage of justice at the trial and was a violation of section 33(6)(e) of the 1979 Constitution and sections 241 and 242(2) of the Criminal Procedure Code and occasioned a failure of justice under section 382 of the Criminal Procedure Code. The importance of this issue was highlighted by Karibi-Whyte, J.C.A. in his lead judgment (concurred in by Coker, J.C.A. and Maidama, J.C.A.) when he observed and commented:

“I think I have endeavoured to do justice to the industry and ingenuity of Counsel in reproducing at considerable length and detail, the salient aspects of the contentions urged on us on this ground. I must however point out here that considering the importance relevance and strategic nature of this ground which in my opinion could determine this appeal in limine, I have decided to consider the arguments in full. In my view, the ground of appeal rests substantially on the correct interpretation of the provisions of section 33(6)(e) of the Constitution 1979, section 242(2) and section 382 of the Criminal Procedure Code.” (Italic mine.)

The appellant’s Counsel’s main complaint before us was that the assumption by the learned Justices of the Federal Court of Appeal, that because there was no expressed statement on the record of proceedings that the evidence was interpreted from English to Hausa and vice versa there was no interpretation of the evidence from English to Hausa and Hausa to English for the benefit of the respondents who as the accused persons on trial were alleged to understand the Hausa language only, was erroneous.

There can be no doubt about the value and importance of interpretation. Indeed, it is the only means of ensuring proper understanding by and participation of accused persons in the trial proceedings where the proceedings are being conducted in the language they do not understand and enabling justice to be done.

It is my opinion, that it is for these reasons that our laws and Constitution made special provisions with respect to interpretation of evidence, statement and other proceedings in section 241, section 242 of the Criminal Procedure Code and section 33(6)(e) of the Constitution. These provisions are as follows:

Criminal Procedure Code: Section 241 reads:

When any evidence is given in a language not understood by the accused and the accused is present in court it shall be interpreted to him in a language understood by him.” (Italic mine.)

Section 242 reads:

“(1) When the services of an interpreter are required by any court of justice of the peace for the interpretation of any evidence, statement or other proceedings, he shall be bound by oath or solemn affirmation to state the true interpretation of the evidence, statement or other proceedings.

(2) When the services of an interpreter are used in any proceedings by a court of justice of the peace the record of proceedings shall state the name of the interpreter, the language which and in which he interprets and the fact that he has been bound in accordance with the provisions of subsection (1) to state the true interpretation of the evidence, statements, or other proceedings.”

1979 Constitution: Section 33(6)(e) reads:

“Every person who is charged with a criminal offence shall be entitled

“to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the defence.” (Italic mine).

I would, as my learned brother has done, also, emphasise the phrase “if he cannot understand the language used at the trial of the offence.”

It is only if the accused person under trial cannot understand the language used at the trial of the offence that

(1) he is entitled under the Constitution section 33(6)(e) to have without payment the assistance of an interpreter; and

(2) he is entitled under section 241 of the Criminal Procedure Code to have the evidence given in that language not understood by him interpreted to him in a language understood by him.

The need for interpretation does not arise if the accused person understands the language. A fortiori, the court will not know that he does not understand the language unless he makes representation about it to the court or judge.

Unless it appears clearly from the record that an accused appellant does not understand the language used at the trial and that interpretation for his benefit was refused, the following two presumptions arise:

(1) Omnia praesumuntur rite et solemniter esse act (all acts are presumed to have been done rightly and regularly) and

(2) Omnia praesumuntur legitima facta donec probetur in contrarium (all things are presumed to have been legitimately done, until the contrary is proved).

In this instant appeal, the failure of the learned trial Chief Judge to indicate (where there appeared record of interpretation from Hausa to English and vice versa) the names of the interpreter and the fact that he has sworn to interpret does not affect the operation of the presumption. It rather strengthens the necessity for proof of the contrary, i.e. that he the respondent did not understand the language used at the trial requested interpretation and it was denied to him. This requirement of proof (to support this complaint in a ground of appeal) has been settled by judicial authority since 1962. See the case of The Queen v. Inadebhor Equabor (1962) 1 All NLR 287 at 290 and 291 (Brett, F.J. delivering the judgment of the Federal Supreme Court) cited by learned Counsel for the appellant. The cases of Buraimoh Ajayi and Juluade Jos v. Zaria Native Authority (1964) NNLR 61; Peter Locknan and another v. The State (1972) 6 SC 22 have also emphasised the requirement of clear proof of denial of the interpretation requested.

In Peter Locknan and Another v. The State (1972) 5 SC. 22 Lewis J.S.C. (delivering the judgment of the Supreme Court) said at 24:

“Mr Brown-Peterside conceded that the 1st accused was represented throughout at his trial by Counsel, one Mr Sawyer, who had in no way objected at the trial about any lack of interpretation. Counsel nonetheless submitted that that interpretation was so vital to a fair hearing that he was entitled to take the objection before us notwithstanding any failure to object by Counsel at the time of the trial. He also submitted that the court could not go behind the record as it stood.

Mr Shittu, Senior State Counsel, for the State submitted that it should be presumed that everything was regularly done and that any way as the 1st accused was represented by Counsel it was too late for the point to be taken on his behalf as an objection now and that at the least the irregularity could not be said to have caused any failure of justice so that the appeal should not in any case be allowed having regard to section 382 of the Criminal Procedure Code. . .

and at 25, said:

“Now whilst we must of course agree with Mr Brown-Peterside that the record does not specifically show that the interpreter in English into Hausa and vice versa was present on the four days in question when the 5th, 6th, 8th and 9th prosecution witnesses gave evidence, we do not think that, once the learned trial Judge had recorded the interpreter as being affirmed on the first day of the trial, it was absolutely necessary for him to show on record that the interpreter was present on every subsequent day. The presumption of regularity must apply and, though if he had noted his presence on each subsequent day, it would have put objections such as this completely out of the scope of Counsel’s argument, we do not think there was an absolute requirement for him to do so. Moreover, the fact that the first accused was represented by Counsel is very material as one would have expected him to object any irregularity which was taking place in his presence immediately it occurred, yet there is no record of his having done so, compare Edun and others v. Inspector–General of Police (1966) 1 All NLR 17 where at 21 we said:

‘We do not regard the first submission as well founded. It would have been better if the Chief Magistrate had written ‘each pleads not guilty’ instead of ‘they plead not guilty’ but they were represented by Counsel who took no objection to course adopted, and as no attempt has been made to supplement the record by any further evidence of what took place, we think it may safely be assumed that the correct procedure was followed.’

However, if the 1st accused could affirmatively show that an interpreter was absent then we would certainly be prepared to agree that the objection had force but that was not the case here. Mr Brown-Peterside did not seek to adduce evidence before us to show that the interpreter was not there on the days in question but he relied solely on the absence on the record of any definite statement that he was present, nor did he seek to show that any evidence was given on the days in question when the interpreter was alleged to be absent, that would have taken the 1st accused by surprise. (Italic mine).

and at page 29 the learned Justice of the Supreme Court concluded.

“We think the principle of the Equabor case which in fact was not dealing with the Criminal Procedure Code is equally applicable to section 242(2) of the Criminal Procedure Code. Just as was there indicated we would certainly have required evidence before us to show affirmatively that an interpreter was not present on the days in question before accepting that such was in fact the position, but if it had been so shown then, prima facie, we think that an unrepresented accused would have shown that he was denied a fair trial as was held in Ajayi v. Zaria Native Authority (1963) 1 All NLR. 169. . . (Italic mine).

What is required by the appeal court to satisfy it of the denial of the right is proof by credible evidence of the denial, not by mere suspicion arising from failure to keep a full record of proceedings by the trial Court. This denial was not established before the Federal Court of Appeal and indeed the conflicting Affidavit evidence before the Federal Court of Appeal ignored by it should have led it to take evidence on the matter. It appears that the Federal Court of Appeal chose to ignore the Affidavit evidence. But in view of the importance it attached to the complaint, it should have been guided by the well established principles laid down in the above cases and settle the issue before accepting the complaint as genuine and using it to nullify the proceedings in the court of trial.

As my learned brother, Nnamani, J.S.C. has examined and dealt with, the failure of the Federal Court of Appeal to take a proper view of the matter in very great detail, more emphasis is in my view, unnecessary.

For the above reasons and the reasons so ably set out by my learned brother, Nnamani, J.S.C. I too would allow the appeal and I hereby allow the appeal. The decision of the Federal Court of Appeal is hereby set aside and the judgment of the High Court, Okoye, C.J. is hereby restored.

The respondents are hereby ordered to be arrested and committed to serve their sentence.

Eso, J.S.C. I agree entirely with the judgment just delivered by my learned brother Nnamani, J.S.C. I had the privilege of a preview of its draft.

I cannot see any violation of the right of the respondents under section 33(6)(e) of the Constitution. The Constitution guarantees as fundamental, the right of every person charged with a criminal offence to be informed promptly in the language that he understands and in detail of the nature of the offence. The facts of this case show conclusively that this provision was strictly adhered to. The respondents were all represented at the trial by a legal practitioner. There was no complaint whatsoever from either the respondents or their Counsel that they did not understand the proceedings in court. The Court of Appeal on the other hand proceeded on assumption that they could not have understood the proceedings as some of them gave evidence in Hausa. With respect, assumptions could never amount to evidence.

It would have amounted to travesty of justice to allow the judgment of the Court of Appeal to stand. This Court has for sometime now laid down as a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.

I am of the firm view that the respondents had a fair trial in the High Court. They all understood the proceedings, they did not complain nor did their Counsel complain.

The appeal is therefore allowed and the conviction of the respondents by the High Court of Plateau State stands.

Uwais, J.S.C. I have had the privilege of reading in draft the judgment read by my learned brother Nnamani, J.S.C. As I agree with the reasons and conclusion therein, I have nothing to add.

Mr G. O. K. Ajayi, S.A.N., with him Messrs A. K. Dabi, Dolu Segun, S. O. Shonibare and Miss Ayo Ogunsola for the Appellant.

Mr Gally Brown-Peterside, S.A.N., with him Messrs J. O. Edremoda and J. C. Azinge for the Respondents.