Femi Bayo V. Federal Republic of Nigeria (2007)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This Appeal is against the decision of B.F.M. Nyako J, of the Federal High Court Abuja, Abuja Division delivered on 20/4/04.
The Appellant Femi Bayo was on the 5th March, 2004 charged along with one Shola Sunday. The Charge reads as follows:
“That you Shola Sunday and Femi Bayo, adult Male on or about the 13th day of October, 2003 at No. 32, Kano Road, Kabba, Kogi State, within the jurisdiction of this Honourable, Court without lawful authority dealt in 131.4 Kilogrammes of Indian hemp and thereby committed all offence contrary to and punishable under Section 10(c) of the National Drug Law, Enforcement Agency Act, Cap 253, Laws of the Federation of Nigeria, 1990.”
When this charge was read to the accused persons and explained to them in Yoruba, they pleaded guilty to the charge and were accordingly convicted. The accused persons pleaded for mercy and were sentenced to 12 months imprisonment.
In passing his sentence the learned trial Judge said:
“In the light of the plea of guilty entered by the accused persons, the exhibits tendered including the confessional statement of the accused persons and the recovered Indian Hemp, I find the 2 accused persons guilty as charged and by virtue of Section 10(c) of the Nigerian Drug Law Enforcement Agency Act convict them to a term of 12 months imprisonment from the date of arrest and the recovered Indian Hemp to he destroyed by the Nigerian Drug Law Enforcement Agency at the Expiration of the Appeal period.”
It is against this Judgment that the 2nd Accused Femi Bayo who is now the Appellant appealed to this Court, based on two grounds of Appeal.
The Appellant formulated two issues for determination in this Appeal, thus:
“1. Whether the learned trial Judge ought to have convicted the Appellant on his own plea.
- Whether the Respondent discharged the burden placed on it by Law to prove the guilt of the Appellant notwithstanding the plea of guilt by the Appellant.”
Counsel to the Respondent conceded that the issues as formulated by the Appellant are capable of disposing the Appeal.
On the first issue for determination of this appeal, Counsel to the Appellant submitted that the learned trial Judge ought not to have convicted the Appellant on his own plea of guilt. He argued that the interpreter of the charge from English to Yoruba has no real identity as Mrs. Ojo was not identified as being a Court Staff or Prosecution’s own staff.
Learned Counsel further submitted that from the record there is nothing to show that the said Mrs. Ojo was sworn as required by law before interpreting the charge from English to Yoruba. Learned Counsel contended that the provisions of Section 218 of the Criminal Procedure Act (C.P.A.) Cap 80 Laws of the Federation of Nigeria 1990 was not complied with, He argued that since Mrs. Ojo was not a sworn Interpreter it cannot be said that:
(a) the Court was satisfied that the Appellant intended to admit the truth of all the essentials of the offence of which he pleaded guilty,
(b) there appears no sufficient cause to the contrary that Appellant does not intend to plead guilty.
Learned Counsel for the Appellant argued that the Appellant did not understand what the prosecuting Counsel Mrs. Judy-Agba said before he was recorded as admitting same especially as it was not shown that same was interpreted to the Appellant. Learned Counsel cited the case of Ahmed v. Commissioner of Police (1971) NMLR page 409.
Learned Counsel for the Appellant submitted that although the charge against the accused person was brought pursuant to Section 10(c) of the National Drug Law Enforcement Agency Cap 253 Laws of the Federation of Nigeria 1999, he was convicted under Section 10(c) of the Nigerian Drug law Enforcement Agency Act which is a wrong Law. Learned Counsel for the Appellant maintained that under Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999, a conviction under a wrong law or non-existent Law is a nullity. He urged the court to resolve the first issue in favour of the Appellant.
In his reply on this issue learned Counsel for the Respondent submitted that the learned trial Judge was right in convicting the Appellant on his own plea of guilt. He referred the Court to page 3 of the Record of Appeal and maintained that the Appellant unequivocally pleaded guilty to the charge after same had been read and translated to him in Yoruba Language (the language they understood) by one Mrs. Ojo.
Learned Counsel for the Respondent argued that neither the provisions of Section 36(6)(e) of the 1999 Constitution nor any other law requires that an interpreter must be identified as either a Court staff or the prosecution’s own staff before he or she can “properly” translate the charge to an accused.
Learned Counsel for the Respondent submitted that from the combined effects of Section 218 and Section 36(6)(e) of the 1999 Constitution, what is material is that the charge is read and where necessary as in this case translated to the accused to the satisfaction of the Court before his plea is taken. He maintained that a look at page 3 of the Record of Appeal will show that the requirements have been satisfied before the Appellant was convicted. Learned Counsel referred the Court to the cases of Durwode v. The State (2000) NSCQR page 33 at 37: State v. Ajie (2000) 3 NSCQR 53 at 55.
Learned Counsel maintained that the Record of Appeal at page 3 shows that Mrs. Ojo interpreted the charge to the Accused. He argued that the fact the record does not expressly state that Mrs. Ojo translated/interpreted the rest of the proceedings to the accused does not mean that same was not interpreted to the accused and therefore not fatal to the proceedings. Learned Counsel referred the Court to the case of Amala V. State (2004) 12 NWLR Pt. 888 page 520 at 529. He submitted that the case of Ahmad v. Commissioner of Police (1921) NMLR page 409 cited by Counsel to the Appellant is not relevant to this case.
Learned Counsel for the Respondent submitted that the conviction of the appellant under the Nigerian Drug Law Enforcement Agency Act instead of the National Drug Law Enforcement Agency Act was an honest mistake on the part of the trial Judge which did not occasion any miscarriage of Justice. He maintained that Section 36(8) of the 1999 Constitution referred to by Counsel to the Appellant is of no relevance to this Appeal.
Learned Counsel for the Respondent urged the Court to resolve this issue in favour of the Respondent.
Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 provides that;
“Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence:
(b) …
(c) …
(d) …
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
The proceedings of the trial Court of Tuesday, the 2010 of April, 2004 reads:
“Parties: Accused in Court.
Counsel: B.E. Judy-Agba for the Prosecution.
Mrs. Judy-Agba: I apply that the charge be read to the accused and their plea taken. I apply to withdraw the charge dated 18/12/03 and proceed with the one dated 5/3/04.
Charge read to the 2 accused in Yoruba translated by Mrs. Ojo. They understand and 1st accused pleads guilty to the charge. 2nd accused pleads guilty to the charge.
Mrs. Judy-Agba: The facts are as per the charge before the Court and in Support I seek to tender the following in evidence.
- Certificate of Test analysis form
- Ranking of substance form
- Request for science aid form
- Statement of 1st and 2nd accused under counter
- 3 sacks of the recovered Indian hemp
Accused 1st -Admits documents and Indian hemp.
Accused 2nd – Admits documents and Indian hemp,
Court: Admitted and marked Exhibits A – F.
1st Accused: I plead for mercy
2nd Accused: I plead for mercy.
Mrs. Judy-Agba: I urge the court to convict the 2 accused as charged. They have no record of previous conviction.
COURT: In the light of the plea of guilty entered by the 2 accused persons, the exhibits tendered including the confessional statement of the accused persons and the recovered Indian hemp, I find the 2 accused persons guilty as charged and by virtue of Section 10(e) of the Nigerian Drug, Law Enforcement Agency Act convict them accordingly and sentence each of them to a term of 12 months imprisonment from the date of arrest and the recovered Indian hemp to be destroyed by the Nigeria drug Law Enforcement Agency at the expiration of the appeal period.
B.F. M. NYAKO,
JUDGE
20/4/04. ”
The provisions of Section 118 of the Criminal Procedure Act (C.P.A.) Cap 80 Laws of the Federation of Nigeria 1990 referred to the court by the learned counsel to the Appellant stipulates thus:
“If the accused pleads guilty to any offence with which he is charged, the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
The Accused/Appellant admitted committing the offence after the charge was read and explained to him in Yoruba Language, the language he understands. This procedure adopted by the learned trial judge is a short summary trial procedure.
The complaint of the Appellant is not that the charge was not interpreted to him correctly, but that the interpreter Mrs. Ojo was not sworn before she started the interpretation
The fact that the interpreter, Mrs. Ojo was on the face of the record not shown to have been sworn before she started interpreting the Proceedings of 20/4/04 to the Accused/Appellant, that in itself is not a ground on which it would be necessary to set aside the conviction. What is essential is that the trial Court should be satisfied that the Accused person had a fair opportunity to defend himself and in particular that he was accorded in full the right conferred by Section 36(6)(e) of the Constitution of the Federal Republic of Nigeria 1999.
It is the constitutional right of every person who is charged with a criminal offence to be informed promptly in the Language that he understands and in detail the nature of the offence. Equally the court is entitled to be informed promptly of anything said by the accused person in a language which the court does not understand. An Accused person should also have without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence. In interpreting a similar constitutional provision under the 1960 Constitution, the Federal Supreme Court held in Buraimoh Ajavi & Anor. V. Zaria Native Authority (1963) All NLR 168 at 170 -171 & 172 thus:
“…and although it is agreed that the interpreters were not Sworn that is not in itself a ground on which it would be necessary to set aside the convictions. 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 25(5)(e) of the Constitution of the Federation which provides that-
“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.”
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.”
See Udosen v. State (2007) 4 NWLR Pt. 1023 page 125:
Although it is Constitutional requirement that there shall be adequate and free interpretation to the accused of anything said in a language, which he does not understand, the procedure may however be dispensed with where the accused so wishes and the trial judge is of the opinion that the accused does not require any interpretation of the proceedings. The right of the accused to an interpreter cannot however be raised on appeal, unless he claimed the right during his trial and was denied it. See Queen v. Eguabor (supra).
In the case of Uwaekweghinya v. State (2005) I NCC page 369 at 379 the Supreme Court per Dahiru Musdapher J.S.C. said thus:
“Now, by the provisions of Section 36(6)(e) of the 1999 Constitution, every person 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 offence. The law requires that there shall be adequate interpretation to the accused person of anything said in a language which he does not understand. See Ajayi v. Zaria N.A. (1963) 1 ALL NLR 169: State v. Gwonto (1983) 1 SCNLR 142. The former Federal Supreme Court in the case of Queen v. Equabhor (1962) 1 ALL NLR 287, stated that if the accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice and that if the accused is represented by counsel, the objection must be taken at the trial in the first instance, and not on appeal. There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of a trial of a case. See Egbedi v. The State (1981) 11-12 SC 98. It is settled law that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain on the procedure on all appeal.
In the case of Ajavi v. Zaria N.A. (No. 2) (1964) NNLR 61, this Court allowing the appeal, held that an appellant discharges the burden of showing that a failure of justice has taken place for want of interpretation or adequate interpretation by showing “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 appellant a fair trial.”
The matter of Interpretation is also of practice. What this court looks out for is whether any substantial miscarriage of justice has resulted from a failure to follow the correct practice.
An Appellant who complains that the proceedings of a court were not correctly interpreted to him must point to instances where what he himself said was wrongly or incompletely interpreted. He must establish conclusively that he did not receive the benefit of a full and accurate interpretation by reference to particular omission or inaccuracies in the interpretation made to him.
In the instant case, the Appellant has not disclosed either in his brief of argument or from oral argument by his Counsel such instances where what he had said was wrongly or incompletely interpreted. He has also not alleged that the was denied the benefit of a full and accurate interpretation as a result of any omission or inaccuracies in the interpretation made to him by Mrs. Ojo.
It is also the complaint of the Appellant, that it was not reflected on the face of the record of the trial Court that Mrs. Ojo interpreted to him what Mrs. Judy-Agba said before she tendered the exhibits to which he said he had no objection.
Since Mrs. Ojo was recorded at the beginning or the trial as the interpreter, it is not necessary to continue to record at every stage of the proceedings that she interpreted moreso when the whole trial was conducted on the same day, See Lockman & Anor v. The State (1972) 5 SC 22 at 25; Anyanwu v. State (2002) 13 NWLR Pt. 783 page 107 at 126 – 127
Although the Appellant was charged under the correct law to which he pleaded guilty, however the trial Court referred to the National Drug Law Enforcement Act under which it convicted him as Nigerian Drug Law Enforcement Act. Learned Counsel for the Appellant contended that the law under which the Appellant was convicted is a non-existing Law and is therefore a nullity. I am of the opinion that the mistake of the trial Judge in referring to the law as Nigerian Drug Law Enforcement Act instead of National Drug Law Enforcement Act has not occasioned any miscarriage of justice. The provision of the law read to the Accused/Appellant to which he pleaded guilty is that of an existing law.
The Appellant has not shown that he suffered any miscarriage of justice resulting from the wrong citation of the law by the learned trial Judge.
There is no merit in the first issue formulated and the arguments proffered on this issue are hereby rejected. This issue is resolved in favour of the Respondent.
On the second issue for determination, learned Counsel for the Appellant submitted that the Respondent failed to discharge the burden placed on it by law to prove the guilt of the Appellant notwithstanding the plea of guilt by the Appellant. Learned Counsel for the Appellant submitted that it is not in doubt that the prosecution tendered before the Court five (5) exhibits put together as can be seen on page 3 lines 21 – 25 of the record of Appeal but the number of exhibits marked by the Court was six (6) in number and captioned “Admitted and marked as exhibits A – F” on the same page 3 line 28 of the record of Appeal. He contended that this has raised doubt in the case of the prosecution (Respondent).
Learned Counsel for the Appellant submitted that it is trite law that once there is doubt in the case of the prosecution against an accused, it must be resolved in favour of the accused person such as the Appellant in this case. He further submitted that it is also trite law that a plea of guilty is not a conclusive proof of guilt in law. Learned Counsel cited the case of Rabiu v. State (2005) 7 NWLR Pt. 925 page 491 at 498. He urged the Court to resolve issue number two (1) in favour of the Appellant.
In reply to the submission on issue two, learned Counsel for the Respondent submitted that the Respondent had discharged the burden placed on it to prove the guilt of the accused persons.
He contended that the Accused/Appellant pleaded guilty to the charge when same was read to him. The prosecution presented the facts and tendered exhibits which were admitted by the Accused/Appellant before they were admitted in evidence by the trial Court. Learned Counsel maintained that this is apparent from page 3 of the record of Appeal.
Learned Counsel for the Respondent argued that the mere fact that the learned trial Judge marked the exhibits tendered by the prosecution as Exhibits A – F did not occasion any miscarriage of justice. He further argued that the improper marking of exhibits by the trial court does not impact negatively on the weight of evidence adduced by the prosecution in support of its case neither did it raise any dust in favour of the accused.
Learned Counsel for the Respondent submitted that the combined effect of the plea of guilty and the exhibits tendered by the prosecution has proved the case beyond all reasonable doubt. He urged this Court to resolve issue number two m favour of the Respondent.
Learned Counsel for the Appellant has referred the Court to the case of Idris Rabiu v. The State (supra), this case can be distinguished from the case at hand. In that case which is of rape requiring corroboration, the prosecution did not present to the Court any evidence apart from the “plea of guilty” by the Appellant. In the present case, apart from the plea of guilty entered by the Appellant, the prosecution also tendered documents and the Indian hemp recovered in evidence. The Appellant admitted them and they were admitted and marked as exhibits.
I am of the opinion that from the circumstances of this case, there is every reason to believe that the Court was satisfied that the Accused/Appellant clearly understood the meaning of the charge in detail and the essence and effect of his plea of guilty. This might explain the reason for his plea for mercy when he was about to be convicted. I am satisfied that the Accused/Appellant was validly convicted on his plea of guilty.
The Appellant from his brief of argument has not indicated that any of the exhibits recovered from him which ought to have been tendered was not tendered or missing. He has also not shown that the mistake by the learned trial Judge in not properly identifying or assigning correct identification to the exhibits had resulted in failure of justice or that he had suffered any miscarriage of justice.
I am of the opinion that the Appellant is unable to satisfy this Court that there was in fact any misinterpretation or any failure to interpret by Mrs. Ojo what be told the Court or what the Court said to him, He has equally not shown to this Court that anything was added or omitted or falsified in the process of the interpretation. The Appellant has not established that any failure of justice was occasioned because the proceedings were interpreted by an unsworn interpreter. He has also not shown that he suffered any miscarriage of justice as a result of the mistake by the learned trial Judge in assigning correct identification to the exhibits.
In conclusion, I will like to state that this Appeal is substantially anchored on matters of technicalities. To set aside the decision of the trial Court as advocated by learned Counsel for the Appellant would amount to travesty of justice.
The Supreme Court has laid down as a guiding principle to all Courts that they should be more interested in substance than in mere form. Justice, the Apex Court said, can only be done if the substance of the matter is examined. It said that reliance on technicalities leads to injustice. See State v. Gwonto (supra).
I am of the firm view that the Appellant had a fair hearing in the Federal High Court and the Respondent had proved its case against the Accused/Appellant beyond reasonable doubt.
There is no merit in this Appeal and it is hereby dismissed. The conviction of the Appellant by the Federal High Court stands.
Other Citations: (2007)LCN/2326(CA)
