|
In The Supreme Court of Nigeria On Friday, the 13th day of July 2007
Before Their Lordships
SC.4/2005 Between
And
Judgement of the Court Delivered by Ibrahim Tanko Muhammad. JSC.
Facts surrounding this case as contained in the printed Record of Appeal before this court show that the appellant as an accused person, together with one other, were charged before the High Court of Justice of Imo State holden at Owerri (trial court), on an information of a single count of Murder, contrary to section 319(1) of the Criminal Code, Cap 30, vol. II, Laws of Eastern Nigeria, 1963, applicable to Imo State. It was alleged that on the 20th day of January, 1983, the two accused persons murdered one Benjamin Iheama, at plot 454, Ikenegbu Layout, Owerri. It was the case of the prosecution that the 1st accused, a full blood brother to Timothy Iheama (who testified as "PW I" and who shall hereinafter, be referred to as such in this judgment), was an apprentice trader. He later established his own trading business with the help of PW I. Thereafter, the deceased brought in the 1st accused with three other relations of his: ChibuzorNwachukwu, UchennaNwachukwu and Christopher Ndulaka, in order to assist him in his business. The deceased was by then living at plot 454 Ikenegbu Layout, Owerri together with these people. Further, the 2nd accused was frequenting the house of the deceased from Lagos. The place of business of the deceased was at No. 4, Douglas Road, Owerri.
Because of the suspicion PW I had, he went to the father of the 1st accused and made a suggestion to him that the deceased and the 1st accused should be brought together for a settlement in order that they might not kill themselves. But the 1st accused rejected the suggestion.
The deceased was in the habit of calling on PW 1 from time to time. But after sometime, PW I could not see the deceased. It was the 1st accused that informed PW I that the deceased went to Lagos and that from there he would go to Kaduna.
The 1st accused was selling goods at below the selling price and even used the vehicle of PW I to convey the goods to Aba, the destination of one of the purchasers. PW 1 did not know that the deceased had been killed at that time. It was the Police that gave him that information. The deceased was buried in a shallow grave along Orji Road.
The body of the deceased was later exhumed and a post-mortem examination was carried out on the body by a doctor after PW I identified the corpse.
Later, the Police showed the PW I one Christopher Ndulaka who was shot by the 1st accused. It was he who gave account of how the deceased was killed by himself, the 1st accused, Christopher Nwachukwu, ChibuzoNwachukwu and UchennaNwachukwu. At that time nobody mentioned the name of the 2nd accused person.
After the incident, the 1st accused went into hiding and was even declared a wanted person by the police. In January, 1997, one ChidiUnugu gave information to PW I that the 1st accused was staying in Port Harcourt. The police were informed. They arranged and had the 1st accused arrested. It was after his arrest that he mentioned the 2nd accused as being among those who killed the deceased and returned to Lagos after the incident. It was further alleged against the 2nd accused that he suggested that the deceased should be killed so that both accused and others could own the business of the deceased. It was he who procured a locally made pistol for that purpose but it was not used for the fear that its sound might wake-up the neighbours at plot 454, Ikenegbu Layout, Owerri.
Police investigation was extended to the Federal Prisons, Port-Harcourt, where ChibuzoNwachukwu and UchennaNwachukwu, brothers of the 1st accused were detained after having been condemned for the murder of the deceased.
At the end of taking evidence from the prosecution and the defence, learned counsel for the respective parties addressed the learned trial judge.
After evaluating the evidence placed before him, along side the submissions made by learned counsel as aforementioned, the learned trial judge, delivered his considered judgment wherein he discharged and acquitted the 2nd accused of the offence of murder charged. He however found the 1st accused guilty of the offence charged and sentenced him to death by hanging.
Dissatisfied with the trial court's decision, the 1st accused appealed to the Court of Appeal, Port Harcourt Division. At the end of its hearing, the Court of Appeal dismissed the appeal and affirmed the judgment of the trial court.
Further dissatisfied, the 1st accused appealed to this court on four grounds of appeal as contained in the Notice of Appeal filed on 25th May, 2005.
Briefs of argument were filed and exchanged by the parties. Learned counsel for the appellant asked this court to determine thefollowing three issues:
"Issue No 1
Whether the entire proceedings before the trial court and the Court of Appeal were not illegal, unconstitutional, null and void having been conducted in violation of:
(a) Section 215 of the Criminal Procedure Law and
(b) Section 33 (6) (a) and (e) of the 1979 Constitution
(Ground 1)
Issue No 2
Whether the Court of Appeal was right or justified in affirming the conviction of the appellant by the trial court which suomotu undertook the untenable function of an interpreter, and whether this procedure did not violate the appellant's right to fair hearing and render thereby all the findings and conclusions of quilt, nullities
(Ground 3)
Issue No 3
Whether the Court of Appeal was right or justified in its decision that Exhibit A, the alleged confessional statement, was direct and positive and that the same together with the surrounding circumstances was sufficient to sustain the appellant's conviction for the offence of murder."
(Grounds 2 & 4)
The learned Director, Public Prosecution for the respondent, who settledthe brief, distilled the following issues for determination:-
1. whether or not there was substantial compliance by the trial court with the requirements of section 215 of the Criminal Procedure Law and section 33 (6) (a) and (e) of the 1979 Constitution of the Federal Republic of Nigeria with respect to this case.
2. whether the court below, erred in affirming the decision of the trial court convicting the appellant given the available evidence at the trial."
The appellant's issues appear more comprehensive and cover adequately, in my view, the issues formulated by the respondent. I shall rely in my consideration of the appeal on the issues formulated by the appellant.
Citing the provisions of section 33(6) (a) and (e) of the 1979 Constitution and section 215 of the Criminal Procedure Law (CPL) of Imo State, the learned counsel for the appellant submitted in the main; that the appellant did not understand the English Language which was the language of the trial court, and that there was an abiding need to ensure strict compliance with the above provisions in order to ensure fair trial. He contended that there was failure by the trial court to read the charge and explain to the appellant in Ibo Language which he understood. That failure, argued the learned counsel, vitiated the entire proceedings. He cited and relied on the cases of Idemudia v State (19991 5 SCNJ 47 at page 55: Effiom v the State (1995) 1 SCNJ 1 at page 15.
Learned counsel for the appellant stressed the point that Section 215 of the Criminal Procedure Law is mandatory and was inserted for the protection of accused persons and to ensure fair trial. Although the learned counsel cited the case of Uwaekweghinya .v. State where this court seemed to have given support to the fact that such non-interpretation did not occasion any failure of justice, he distinguished that case from the appeal on hand. Learned counsel cited further, the case of Damina .v. State (1995) 9 SCNJ 254 at page 267 where the act of the learned trial judge in translating or interpreting a document written in a language other than English is an act he lacked the competence to embark upon. The learned counsel faulted the decision of the court below which was in patent error not to have declared the proceedings a nullity for the said reason.
In his submissions the learned counsel for the respondent stated that there was substantial compliance with the requirements of section 215 of the Criminal Procedure Law and section 33 (6) (a) and (e) of the 1979 Constitution. He submitted that from the commencement of trial, proceedings were conducted in English Language and no mention of Ibo Language was made which suggested the appellant was an educated or literate person which was also supported by Exhibit 'A', the appellant's statement to the police. This, it is suggested, shows that the appellant was literate in English Language. It was further submitted that the appellant's interactions with PWs 1 and 2 who were non-lbo speaking witnesses both during and after the period of taking of appellant's confessional statement, shows that those interactions took place in no other language than English. Learned counsel went on to argue that the mere fact that the appellant, suddenly switched over to give evidence in Ibo after the prosecution had closed its case does not in any way, suggest that he is an illiterate who cannot hear or understand English Language and there is no obligation under the law to interpret anything to him whether from English to Ibo or vice-versa, as he understands both languages.
Learned counsel for the respondent told this court that the absence of an interpreter on the record or the explanation of the charge to the appellant was needless and was mere irregularity since there was substantial compliance with the demands of section 215 of the Criminal Procedure Law and section 36 (6) (a) and (e) of the 1979 Constitution with respect to the trial and conviction of the appellant. He cited the case of Amala v State (2004) 18 NSCQR 834 At Page 838 1
Appellant's issue No 1 and all the arguments in respect thereof are a direct challenge to the entire proceedings of the trial court as the proceedings violated sections 215 of the Criminal Procedure Law applicable in Imo State and section 33 (6) (a) and (e) of the Constitution of the Federal Republic of Nigeria 1979. The provisions of section 215 of the Criminal Procedure Law are as follows:-
"The person to be tried upon a charge or information shall be placed before the Court unfettered unless the court shall see cause otherwise to order and the Charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith."
(Underlining supplied for emphasis)
The provisions of section 33 (6) (a) and (e) of the 1979 Constitution of the Federal Republic of Nigeria read as follows:
"33 (6) Every person who is charged with a Criminal Offence shall be entitled -
(a) To be informed promptly in the language that he understands and in detail of the nature of the offence
(e) To have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence."
(Underlining supplied for emphasis)
Section 33 (6) (a) and (e) of the Constitution is very clear on the requirement of affording a person accused of committing any Criminal Offence with an interpreter, if he does not understand the language of the trial court before his plea can be taken or before the entire trial can proceed. This is a fundamental right which is inalienable and non-negotiable. Section 215 of the Criminal Procedure Law requires that the charge must be read over to the accused person in the language he understands to the satisfaction of the court before he is called upon to plead to the charge.
From the Record of Appeal, it is clear that on the 4th day of November, 1997, the trial court sat. Both accused persons were present in court with their respective counsel. J. C. Duru, Director, Public Prosecution appeared for the state. The learned judge recorded the following:-
"Charge on the information is read in English andexplained to the accused person (sic) and each pleads(sic) as follows:
1st accused pleads not guilty.
2ndaccused pleads not guilty."
(Underlining supplied for emphasis)
The trite position of the law is that when a charge is read to the accused person and he makes his plea and the court records his plea and thereafter proceeds to trial, the presumption is that the court is satisfied that the charge was explained to the accused to its satisfaction in compliance with the provisions of the Constitution and Section 215 of the Criminal Procedure Law as set out above. See: Solola v. State (2005) Q. C. C. R. vol.3, page 160; Erekanure v State (1993) 5 NWLR (Pt.294) 385; Kajubo v. State (1988) 1 NWLR (Pt.73) 721.
The proceedings of that day show that:
(a) There was no interpreter engaged by the trial court for the purposes of interpreting its proceedings from English to any other language to any of the accused persons.
(b) The information against each of the accused persons was read and explained in the English Language which was the official language of the trial court.
(c) There was no suggestion at all that any of the accused persons did not understand the language of the court.
(d) There was no objection raised by any of the counsel representing the various parties, especially the accused persons, that any of them did not understand the language of the court.
These leave me to presume that the proceedings were conducted in a perfect order and each of the accused persons understood the language of the court in which the charge against him was read and explained to his understanding and to the satisfaction of the trial court. This, certainly, obviates the necessity of employing the services of an interpreter for any of the accused persons. The trite position of the law is that where the accused person understands the language of the proceedings, no miscarriage of justice is occasioned by the failure to provide an interpreter. See: Uchegbu v. State (1993) 8 NWLR (Pt. 309) 89 at page 103-104 paragraphs A- H; 108, paragraph A, which case is almost on all fours with this appeal. It was held in that case that failure to provide an interpreter for the translation of the Ibo version of the proceedings to English language is not fundamental as the accused understood English and also spoke Ibo.
In the appeal on hand, it is clear also that before the arraignment, the statements of the accused persons were made. The 1st accused/appellant stated as follows:
"The above named person having been duly cautioned in English language that I am not obliged to say anything ..."
(Underlining and italics supplied by me)
There is an endorsement on the accused statement by one Sergent Moses Azubuike who was the Investigating Police Officer. It reads as follows:
"Statement recorded in English Language read over to the maker in same language, he signed it as true and correct. I counter-signed it under."
Again, one Mr. LivinusTorhim, a DSP, made an endorsement that the accused person, Anthony Nwachukwu, was brought before him by the Investigating Police Officer. His confessional statement was read over to him in English Language and he confirmed it to be quite correct. Further PW 1, Mr. Timothy O. Iheama, told the trial court in his evidence in chief as follows:
"By then, 1st accused had left school and was unemployed."
This piece of evidence was not challenged. In our modern and Western educational system, if it is alluded that one has attended a school, the general presumption is that one was educated up to a certain level and training. In Nigerian Institutions, training is mainly conducted in the English Language, Nigeria being an Anglophone country. There was nothing in evidence to rebut the presumption that the appellant understood English Language in which he was investigated and arraigned. Thus, the necessity for providing an interpreter for the purposes of interpreting the trial court's proceedings from English to Ibo and vice-versa to the appellant and the court respectively did not arise at all in this appeal. The question of providing an accused person with an interpreter will only arise where the accused person cannot understand the language used at the trial of the offence with which he is charged. See: Madu v. State (1997) 1 NWLR (Pt.482) 386 at page 401 paragraph E.
Where the accused does not understand the language used at his trial, it is his duty or his counsel's duty to bring to the notice of the court at the earliest opportunity, that he does not understand the language used at the trial. See: Madu .v. State (supra) pp 408 - 409 Paras E - D. where in a situation it is affirmatively established that the interpreter (where there is one) was not present on one of the days in which proceedings were taken, then, prima-facie, an accused person who was not represented by a counsel would have shown that his fundamental right to fair hearing was breached or violated. The position would however be different where the accused person was represented by counsel, as in the appeal on hand, and there was no objection taken on the issue of any alleged lack of interpretation, That will, of course, be too late in the day to do so, having consented to the procedure employed by the trial court; See: Lockman v State (1972) All NLR. 498: State v Gwonto (1983) 1 SCNLR 142; Madu v State (supra). In a general note, I think it is instructive to state that although the absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the trial court is a clear violation of his Constitutional right, it does not render the whole trial "null and void." It is only the testimony of witnesses whose evidence was established not to have been interpreted as required by law that needs to be expunged from the records. See: Ogba v State (1992) 2 NWLR (Pt. 222) 164; Okaroh v state (1990) 1 NWLR (Pt.125) 128; Madu v State (supra). But where the non-interpretation is initially at the arraignment stage, as seen earlier, that can, abinitio invalidate the whole proceedings and render same null and void as the substratum of the trial has collapsed from the start and as one cannot put something on nothing and expect it to stand. It would certainly collapse as Lord Denning said in the case of Mackfoy v UAC Ltd (1962) A. C. 152 or (1961) 3 All E. R. 1169.
Finally, on this issue, unless it appears very clearly from the records that an appellant did not understand the language used at the trial and that interpretation for his benefit was refused, all acts are presumed to have been legitimately done until the contrary is established. See: Madu v State (supra). It is to be emphasized that counsel for an accused person has no right to waive the right to interpretation as that right is not his but that of the accused person. See: Gwonto v State (Supra) or (1982) 3 NCLR 312. I resolve issue No. 1 in favour of the respondent.
Appellants issue No. 2 is on whether the court of Appeal was right or justified in affirming the conviction of the appellant by the trial court which suomotu undertook the function of an interpreter which violates the appellant's right to fair hearing. In his submission, the learned counsel for the appellant stated that nowhere in the record of appeal is it indicated that anyone ever acted as an interpreter throughout the proceedings culminating in the conviction of the appellant for murder. The act of the learned trial judge in translating or interpreting suomotu the evidence of the appellant rendered in Igbo language into English Language is an act he clearly lacked the competence to embark upon and the Court of Appeal was wrong in affirming the judgment resulting there from. The learned trial judge acted in breach of section 33 (6) (e) of the 1979 Constitution and usurped, thereby, the role of an interpreter and/or a translator. Learned counsel cited the case of Damina v. the State (1995) 9 SCNJ 254 at page 267; Ojenabede v Esan (2001) 12 SCNJ 401 at P. 421 to support his submissions. He urged us to hold that the learned trial judge was in error.
I have studied the brief of the respondent and it appears the respondent did not effectively respond to this 2nd issue raised by theappellant. Another point is that although this issue was tied to ground 3 of the Notice of Appeal to this court it appears it was not an issue before the Lower court. Two issues were formulated by the appellant's counsel for the determination of the lower court. They are:
"(1) whether the learned trial judge was right in relying on Exhibit A held to be the confessional statement and finding the appellant guilt (sic) without investigation or inquiry or trial within trial.
(2) Whether the guilt of the appellant was proved beyond reasonable doubt given that the prosecution relied on circumstantial evidence which did not point irresistibly to the fact that it was the appellant that perpetrated the crime."
In his submissions in his brief of argument before the lower court, learned counsel for the appellant related the issues to the grounds of appeal as follows: "issue Number 1 is tied to Ground three, that is, the additional ground of appeal. Issue No. 2 is tied to ground 2 of the original notice and ground of appeal on page 102 of the Record.
The grounds of appeal contained in the original Notice of Appeal before the lower court are as follows:-
"1. the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.
2. the learned trial judge erred in law and on the facts in holding that the prosecution proved its case beyond reasonable doubt. The circumstantial evidence did not irresistibly point to the accused as the perpetrator of the crime.
3. further grounds will be filed on the receipt of the records of proceedings."
By a motion on Notice, the appellant sought for and had leave to amend the Notice and grounds of appeal filed by filing additional ground of appeal. The additional ground reads:-
"Ground Three
the learned trial judge erred in law in holding that the prosecution proved its case beyond reasonable doubt when there was no trial within a trial to determine the voluntariness of the confessional statement, Exhibit A, used in convicting the appellant.
Particulars of Error
(a) The learned trial judge ought to have directed that Exhibit A, the confessional statement, be read aloud and in open Court to the hearing of the appellant so as to avoid a situation of the appellant stating, as in this case, during his defence that his statement was obtained under duress or by coercion.
(b) The learned trial judge ought to have taken precaution in admitting Exhibit A, as a confessional statement because the learned judge disbelieved the contents of Exhibit A in discharging the 2ndaccused person, Victor Amadi, thereby fail in error of picking and choosing what to believe and disbelieve in the purported confessional statement.
(c) There was no corroborative evidence outside Exhibit A, the confessional statement that makes it probable that the contents are true."
In this court the appellant's 2nd issue for determination was distilled from ground 3 of the Notice of Appeal filed in this court. Ground 3 reads as follows:-
"Error in law
The Court of Appeal erred in law by affirming the conviction of the appellant by the High Court which court undertook the function of an interpreter, a function it clearly lacked the competence to carry out when it recorded the evidence of the appellant in Ibo Language and proceeded Suo Motu to translate the same into English Language, the language of the court, and thereby violated the appellant's right to fair hearing contrary to section 33 (6) (e) of the constitution of the Federal Republic of Nigeria, 1979.
Particulars of Error
i. The Court of Appeal was in error in affirming the appellant's conviction by the trial High Court when the said trial Court acted in breach of the clear and mandatory provisions of section 33 & (e) of the Constitution of the Federal Republic of Nigeria, 1979.
ii. The Court of Appeal ought to have held that the evidence of the appellant should have been translated from Ibo to English Language, the Language of the Court by a sworn interpreter.
iii. There was no sworn interpreter or at all.
iv. The Court below was in error in affirming the appellant's conviction notwithstanding that the trial court usurped-the role of an interpreter and/or a translator.
v. The appellant's Constitutional right to an interpreter cannot be waived.
vi. The appellant was constitutionally entitled to an interpreter/translator
vii. The Court of Appeal ought not to have affirmed the appellant's conviction when it is patently clear that the trial court abandoned its constitutional and adjudicatory role to perform that of a witness."
It is very clear to me from the Records that the above ground of appeal was never raised in the court below. It is a new ground altogether, which was not canvassed before the court below. I also failed to see where leave was sought and obtained for the appellant to raise and argue that fresh ground. The trite position of the law is that leave of either this court or the court below must be sought and obtained before raising any fresh issue or ground for the first time. A party cannot surreptitiously smuggle into his issues or grounds without such leave first sought and obtained, any new issue or ground. If that is done, such grounds or issues are incompetent and will be struck out. See: Adio v. State (1986) 2 NWLR (Pt.24) 581; AlhajiLatifuAjuwoo&Ors .v. Madam AlimotuAdeoti (1990) 2 NWLR (Pt.132) 271 at 283; Obioha v. Duru (1994) 9 NWLR (Pt. 365) 631 at page 646 - 647.
Perhaps that was why the learned counsel for the respondent did not venture to waste his time in addressing us on a non - issue. Therefore, as this court does not entertain an appeal straight from a High Court, without the intermediary court, i.e. Court of Appeal having the benefit of making its pronouncements on the issue, issue two of the appellant's issues for determination, which is on the capacity of the learned trial judge to embark upon translating the evidence given by the appellantas DW I in Ibo language to English Language without the assistance of an interpreter, is incompetent and is hereby struck out.
But, assuming even for the sake of argument that the issue is competent, I will have dismissed it simply because there is nothing to show, although it is procedurally wrong, that the reducing of the evidence given by the appellant in Ibo language, into the language of the court i.e. English by the learned trial judge himself, has caused any miscarriage of justice. Although the absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the court as 1 stated earlier, is a clear violation of his constitutional right, it does not render the whole trial null and void. If the non interpretation relates to the testimony of a witness, it is only that testimony that will be expunged from the records. In this appeal, it was the appellant's testimony that was said to be conducted without an interpreter to the court. The duty now lies squarely on the shoulders of the appellant to show that the non -interpretation of his evidence to the trial court which he gave in Ibo language caused him a miscarriage of justice. Secondly, it has already been seen that the appellant was quite fluent and understood English very well. This is the issue treated earlier. If there was anything objectionable the appellant or his counsel ought to have raised such objection. I think the duty of ensuring that the right thing is done is not only on the trial judge. It is a duty as well on a party to a case or his counsel. The counsel, where one is engaged, who, by the nature of his call, is an officer of the court must insist that the right thing is done by the court in accordance with the law. Thus, where a counsel observes that a judge is deviating from the known principles of practice/law, he has a duty to invite the attention of the judge to that omission. At least the records will bear him testimony that he, as a counsel, for one of the parties before that court, has not taci |