Peter Locknan & Anor V. The State (1972)
LawGlobal-Hub Lead Judgment Report
SIR I. LEWIS, J.S.C.
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 pay 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 canes 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 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.”
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 anyway 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 which reads:-
“382. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdication 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.”
Now whilst we must of course agree with Mr. Brown-Peterside that the record does not specifically show that the interpreter in English into Rausa 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 argument, 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 and ors. v. Inspector General of Police  1 All N. L. R. 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 N.L.R. 287 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 Magistrate’s 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 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 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. If a 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 has been said.
These views are in conformity with those expressed by the Court of Criminal Appeal in England in R. v. Lee Kun  1 K.B. 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 might have resulted from a failure to follow the correct practice as regards the evidence given in the case. It has not been suggested that there was anything in the evidence given in English by which the appellant would have been taken by surprise if he had understood it and we think it unnecessary to pursue the point.”
We think the principle of the Eguabor 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 fade, 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  1 All N.L.R. 169 when the Federal Supreme Court at page 173 said:-
“In this passage the High Court was applying the test laid down in section 382 of the Criminal Procedure Code, which provides that:-
‘Subject to the provisions hereinbefore contained, no findings, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal, on account of any error, omission or irregularity in the proceedings before or during trial … unless the appeal court thinks that a failure of justice has been occasioned by such error, omission or irregularity”,
and we do not dissent from the view that for the purpose of that test the burden is on an appellant to show that the irregularity has led to a failure of justice. However, while the point has not been argued before us, we are of the opinion that there is a failure of justice within the meaning of the section if the proceedings at the trial fall short of the requirement ‘not only that justice be done, but that it may be seen to be done’, as that maxim has been applied by the Judicial Committee in Adan Haji Jama v. The King  A.C. 225 and by the Queen’s Bench Division in such cases as R. v. East Kerrier JJ. ex Parte Mundy  2 Q.B. 719. We have already referred to the difficulties facing an appellant who seeks to establish that the interpretation was in fact incorrect or incomplete, and in view of those difficulties, we consider that if the burden rests on the appellants it will have been satisfied if it is shown that a reasonable person who was present at the trial might have supposed that the interpretation was defective to such an extent as to deny the appellants a fair trial. In our view the appellants satisfied that burden.”
But whether that would still be the position if he was as here represented by counsel we would prefer to reserve until another time when the point has been more fully argued as it does not necessarily arise here because of the absence of any affirmative evidence before us that the interpreter was not present. We accordingly see no substance in this ground of appeal.
Mr. Brown-Peterside then argued a ground of appeal that reads:-
“The learned trial judge further erred in law in refusing to admit the evidence of p.w. 7 in an earlier trial between the parties, under sections 198 and 208 Evidence Law and this also occasioned a failure of justice. ”
The objection here arose because when the p.w. 7 was being crossexamined the record shows his evidence as being:-
“I remember giving evidence before the High Court but before another judge. I did not say the accused two was not one of the soldiers who pursued Sule. If it was so recorded it must have been due to wrong interpretation. I do not understand English. What I said was that accused two was at the rear of the four soldiers that pursued Sule. I did not say accused two was watching the loads. I did not say that acused two remained at the road block all along. I did not say that accused two was met (sic) one of the soldiers that pursued Sule Salami.”
The record then goes on:-
“At this stage Mr. Sawyer makes an application under sections 189 and 208 of the Evidence Law and ask this Court to make use of the record of trial by the High Court dated 31st October, 1969 in which this witness gave evidence as p.w. 2.
Shittu: I am opposing this application because section 198 has no application to this case. There is no statement made by this witness that was made by him in writing or reduced into writing. It was his evidence that was reduced into writing. Similarly section 208 of the Evidence Law has no application because it talks of statement made by him in writing.
Sawyer: Nothing more to add.
This is an application made by the learned counsel for the first accused to tender the record of this Court dated 31st October, 1969 wherein this witness gave evidence as p.w. 2. In support of this application he referred to sections 198 and 208 of the Evidence Law.
The learned state counsel in opposing this application submitted that both sections 198 and 208 talk of the statements made in writing of a witness and section 198 goes further by saying; or statement reduced into writing. What took place before this court on 31st October, 1969 in my view was the evidence of this witness reduced into writing by the court. I have seen where the evidence ofthis witness was made on oath before it was reduced into writing. There is difference between a statement reduced into writing which section 198 of the Evidence Law talks about and evidence made under oath reduced into writing by court which does not come within sections 198 and 208 of the Evidence Law. This court has no authority to allow the tendering of the evidence of this witness dated 31st October, 1969 under either section 198 or section 208 of the Evidence Law and this application is therefore rejected.”
Sections 198 and 208 of the Evidence Law read:-
“198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
- A witness may be cross-examined as to previous statements made by him in writing relative to the subject matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:-
Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for the purpose of the trial, as it shall think fit.”
In Mr. Brown-Peterside’s submission the learned trial judge was in error in refusing the admission of the previous evidence of the 7th p.w. under those sections and he relied on The Queen v. Ukpong  All N.L.R. 25 where at page 26 the Federal Supreme Court said:-
“There is, however, one aspect of the trial to which attention should be drawn, and that is the use made by the learned trial judge of the statement made by the appellant’s mother to the police, which was exhibit A at the hearing. This statement was put in by the prosecution after leave had been obtained to treat the appellant’s mother, prosecution witness 3, Adiaha Udo Akang as a hostile witness.
The learned trial judge, after making it clear in the passage to which I have made reference that he was satisfied with the evidence of the eye-witnesses and that his findings would have been the same even if the statement was not admitted, yet went on to say a little later on in his judgment that:-
‘Although the accused said in his evidence that he did not believe that the deceased had any hand in the death of his son, yet the statement which his mother made to the police revealed that the accused was told by a native doctor that the deceased was responsible.’
This is, of course, a misuse of the statement made by the appellant’s mother to the police, and in this respect we would like to refer to the case of Regina v. Golder  1 W.L.R. 1169, at page 1172, where Lord Parker C.J. said that:-
‘In the judgment of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.’
It did not, however, result in any miscarriage of justice …. ”
Mr. Shittu for the State conceded that the learned trial judge was in error in refusing to admit the earlier evidence of the 7th p.w. but submitted that this was because of the provisions of section 239(2) of the Criminal Procedure Code which reads:-
“239 (2) If a witness is produced and examined in any judicial proceeding under this Criminal Procedure Code, his evidence given on oath and duly recorded in writing at any like proceeding previously held against the same accused in which the quesitons in issue were substantially the same or in a previous stage of the same judicial proceeding may be read out after his evidence in chief has been given and he may be examined and cross-examined upon it and it may be accepted as evidence by the court.”
He further submitted however that the learned trial judge was right in his interpretation that the evidence was not admissible under sections 198 and 208 of the Evidence Law. He went on to submit that notwithstanding the error no failure of justice had been occasioned within the terms of section 382 of the Criminal Procedure Code, so the appeal should not because of the error be allowed.
Now, whilst we agree with learned counsel for the State that the learned trial judge could have admitted this earlier evidence of the 7th p.W. given at a previous trial by virtue of section 239(2) of the Criminal Procedure Code, we are of the view that he had in fact also got the necessary power under the provisions of sections 198 and 208 of the Evidence Law and that the interpretation that he gave in the ruling which ‘tie have quoted to what was a “statement” is erroneous having regard to the definition thereof, to which he did not advert, in section 2(1) of the Evidence Law which reads:-
“‘statement’ includes any representation of fact, whether made in words or otherwise;”.
We think that this definition would certainly cover his earlier evidence at a previous trial as a “statement”. Be that as it may, on either view the learned trial judge was in error in refusing to allow the earlier evidence to be tendered for the purpose of putting it to the 7th p.w. with a view to discrediting the latter.
Moreover, he certainly relied heavily on the evidence of both the 2nd and the 7th p.ws. and specifically said-“I have no doubt in my mind about the evidence of p.w. 2 and p.w. 7 and I believe them.” Having regard to that we cannot be certain what the effect would have been of the proper admission of the rejected evidence and the possible consequential disbelief of the 7th p.w. as a witness of truth. We must give the 1st accused the benefit of the doubt and we accordingly accede to the request of his counsel, Mr. Brown-Peterside, to order are trial of the 1st accused because of that error. We think that such error may well have occasioned a failure of justice so the provisions of section 382 of the Criminal Procedure Code upon which learned counsel for the State relied are not applicable here.
Mr. Brown-Peterside did also argue before us a ground of appeal that the judgment was against the weight of evidence and in particular he sought to submit that there was not from the evidence proof that the 1st accused caused the death of the deceased but as we have decided to order a re-trial we think it better not to deal with this in detail save to say that we think there was evidence which the learned trial judge believed and accepted that entitled him to find that fact established.
So far as the 2nd accused is concerned, Mr. Ogunleye, who appeared for him, argued that though the 2nd accused was shown to have been present the necessary common intent to make him liable under section 79 of the Penal Code for the killing of the deceased was not established. He particularly relied on Asemakaha v. The State (1965) N.M.L.R. 317 where he submitted a common intent under section 79 of the Penal Code was only established because the accused were armed with dangerous weapons and here he submitted that was not shown to be the case. He further submitted that the learned trial judge was in error when he said:-
“P.W. 1 also said that accused one used hide cane, no doubt the type of hide cane usually carried by soldiers. Accused three was said to have used soldier’s belt and carried a gun. Even if all of them had no hide-canes in their hands and not all of them carried guns on the day, I am of the view that a soldier’s uniform is incomplete without a belt round his waist”, as it was wrong to take judicial notice that a soldier’s uniform was incomplete without a belt round his waist.
Whilst we would agree with the latter contention, we do not think it was a vital error or in itself occasioned a failure of justice. The vital thing was that the 2nd accused was found to be one of those who together raced after the unfortunate taxi-man, the deceased, when he refused to take the soldiers to Auchi and after one of them said either, “Get him round” or “Get him here”, and that at least one of them was armed with a hide-cane 2 inches thick with which one soldier beat him whilst another, the 1st accused, was said to have used his belt to hit the deceased with whilst the 2nd accused stood at the door of the room within which the others were beating the deceased. Mr. Ogunleye submitted on behalf of the 2nd accused that he might have been a sadist enjoying the spectacle of a man being beaten to death but he was a mere onlooker and not taking an active part.
We think that the learned trial judge was entitled on the evidence before him to come to the conclusion that the 2nd accused was not a mere onlooker but was actively participating in the brutal and fatal chastisement of the deceased and though we agree he was not shown to have hit the deceased himself that makes no difference if, as he was found to be, he was there with the purpose of aiding the others and assisting them, because he would be rightly convicted under section 79 of the Penal Code when read in conjunction with section 221 of the Penal Code as is shown by Ofor v. The Queen (1955) 15 W.A.C.A. 4 and Nyam v. The State  1 All N.L.R. 361. We therefore see no substance in the submissions on his behalf.
The appeal of the 2nd accused is accordingly dismissed but the appeal of the 1st accused is allowed and his conviction and sentence to death are hereby set aside and it is ordered that he be re-tried before another judge of the High Court of Kwara State.