The State V. Salihu Mohammed Gwonto (1983)

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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 7 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 7 years I.H.L. and 6 months I.H.L. on the 2 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.

The appellant originally filed three grounds of appeal. 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 endeavored 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 taun 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 anor. v. The State (1972) 1 All NLR part 2 page 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 con 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.: