PETER LOCKNAN & ANOR VS THE STATE
(1972) LCN/1440(SC)
In the Supreme Court of Nigeria
Thursday, May 4, 1972
Case Number: SC 247/1971
JUSTICES:
ELIAS JSC
SOWEMIMO JSC
LEWIS JSC
APPELLANTS
PETER LOCKNAN
HAPPY APOLO
THE STATE
RATIO
THE INTERPRETER IN COURT
“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 the record that the interpreter was present on every subsequent day.” PER LEWIS, JSC
WHERE WITNESS IS GIVING EVIDENCE IN ANOTHER LANGUAGE
“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 benefit of the court, is for an interpreter to stand near the accused and tell him what the witness is saying.” PER LEWIS, JSC.
SIR IANLEWIS, JSC. (Delivering the Leading Judgement )
In case KWS/7C/1969, in the Ilorin High Court, the two accused were charged in the following terms:-
“That you, Peter Locknan, and Happy Apolo, on or about the 3rd day of August, 1968 at Okengwen in the Kwara Judicial Division had formed a common intention together and with other persons unknown, to commit an offence, namely using criminal force on one Sule Salami in furtherance of which you did the following criminal act to wit – causing the death of the said Sule Salami by jointly maltreating and beating him with hide-cane and inflicting numerous injuries, the cumulative effect of which caused his death, with the knowledge that death would be a probable consequence of your acts and thereby committed the offence of culpable homicide punishable with death under Section 221 read with Section 79 of the Penal Code and triable by the High Court.”
And on the 30th August, 1971 Adesiyun, J., found them both guilty accordingly and sentenced them to death. Against that decision each accused has appealed to this court.
Mr. Brown-Peterside for the 1st accused first argued a ground of appeal that reads:-
“The Appellant did not have a fair trial since it is apparent from the record of proceedings that, Section 242(2) of the Criminal Procedure Code Law, inter alia was not complied with, the fact notwithstanding that the appellant made his statement in Hausa and also gave evidence in Hausa.”
He took objection that the 1st accused was shown from the record to have spoken Hausa and that an interpreter, one M.A. Yusuf, was affirmed on the 16th June, 1971, before the charge was put to the accused to interpret English into Hausa and vice versa but he was not shown on the record as having been present on certain subsequent days of the trial, namely the 17th June, 18th June, 29th June and 30th June, 1971, when prosecution witnesses 5,6,8 and 9 gave evidence in English. He accordingly submitted that there had been no compliance with Section 242 of the Criminal Procedure Code which reads:-
“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 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, statement or other proceedings.”
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 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 at the trial. He also submitted that the court should 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 would 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 which reads:-
“382. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or reviews 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.”
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 the 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 arguments we do not think there was an absolute requirement for him to do so. Moreover, the fact that the 1st accused was represented by counsel is very material as one would have expected him to object to any irregularity which was taking place in his presence immediately it occurred, yet there is no record of his having done so, compare Edun & Ors. v. Inspector-General of Police. (1966) 1 All NLR 17 where at page 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 the 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. In Queen v. Eguabor (1962) 1 All NLR 297, the Federal Supreme Court said at page 290:-
“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 is 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 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 is represented by counsel, unless the accused personally expresses a wish to dispense with the translation and the presiding Judge or magistrate considers that the interest 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 if the trial takes any unexpected or unusual turn (e.g., if a witness alters or adds to his story), the Judge or Magistrate should ensure that the accused understands what he has said.
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 the 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.
In the present case, the record of the 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 thought it necessary to require evidence on the point if we had considered that any miscarriage of justice migh
