Mallam Madu Vs The State (1997)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C.

The charge preferred against the appellant at the High Court, Bauchi State of Nigeria, was culpable homicide punishable with death contrary to section 221(b) of the Penal Code, Laws of Northern Nigeria, applicable in Bauchi State. The allegation against the appellant was that he, on the 2nd day of April, 1981, at Gadum of Dukku Local Government Area caused the death of one Idi Maiganga by stabbing him with a knife at the left side of his stomach with knowledge that death would be the probable consequence of his act.

The appellant pleaded not guilty to the charge. Seven witnesses gave evidence for the prosecution and the appellant testified in his own defence. The learned trial Judge, after due consideration of the evidence and the submissions of the learned counsel for the prosecution and the defence, delivered a reserved judgment in which he found the appellant guilty as charged. The appellant was accordingly convicted and sentenced to death.

Dissatisfied with the judgment of the learned trial Judge, the appellant lodged an appeal to the Court of Appeal. The court below dismissed the appeal and affirmed the conviction and the sentence imposed by the learned trial Judge. One of the fundamental issues raised by the appellant before the court below was that the evidence of each of the P.W.4., P.W.5, P.W.6 and P.W.7 was during the proceedings, not interpreted to him (appellant) from English to Hausa which was the language that he understood. He did not understand English.

Further, it did not appear on the face of the record of proceedings that the provisions of sections 241 and 242 of the Criminal Procedure Code, which required that a note in certain terms should be made in the record of proceedings, were complied with in relation to the evidence of the P,W.4 to P.W.7: The court below held that if the evidence of the P.W4, P.W.5, P.W.6 and P.W.7 was expunged from the record, was completely disregarded, and not taken into consideration, the evidence left on the record (i.e. the evidence of the 1st P.W., 2nd P.W. and 3rd P.W.) warranted and supported the conviction of the appellant for the culpable homicide of the deceased by the appellant contrary to section 221(b) of the Penal Code.

Dissatisfied with the judgment of the court below, the appellant has lodged a further appeal to this court. The learned counsel for the appellant made it clear at the beginning of the hearing of this appeal that the facts of the case were not disputed by the appellant. The complaint of the appellant was that the provisions of sections 33(1), 33(6)(e) and 33(7) of the Constitution of the Federal Republic of Nigeria, 1979, and section 242 of the Criminal Procedure Code of the Laws of Northern Nigeria were not complied with. The merit of the case was not disputed or contested in relation to the facts.

In accordance with the rules of this court, the parties duly filed and exchanged briefs. The questions raised in the three issues framed by the appellant are,in my view,leading questions and are not appropriately framed for the present purpose. In the case of the respondent, two of the three issues framed are properly framed but, in my view, only two of them covered all the questions necessary for the determination of this appeal. I adopt them, in the circumstance, and they are as follows:-

“(1) Whether there was any breach or violation of sections 33(1), 33(6)(e) and 33(7) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) and sections 241 and 242 of the Criminal Procedure Code of the Laws of Northern Nigeria (applicable in Bauchi State) by the non-recording of the fact of interpretation of the evidence of some prosecution witnesses.

(2) Whether the absence of record or proper record of interpretation in respect of some witnesses vitiates the whole trial or could at best result only in the expunging from the records the evidence of the witnesses concerned.” .

If one examines the record of proceedings of the trial court, there was nothing on the face of it showing that there was interpretation of the evidence of the P.W.4, P.W.5, P.W.6 and P.W.7 in the language understood by the appellant. The aforesaid witnesses gave evidence in English language and the contention made for the appellant was that interpretation of their aforesaid evidence was necessary because the appellant did not understand English. There was also a complaint that there was nothing on the face of the record to show that section 242 of the Criminal Procedure Code was complied with in relation to the evidence of the P.W.4, P.W.5, P.W.6 and P.W.7.’ In order to enable one to fully understand the provisions of sections 33(1), 33(6)(e) and 33(7) of the Constitution of the Federal Republic of Nigeria, 1979, they are as follows:-

“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(6) 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.

(7) When any person is tried for any criminal offence, the court shall keep a record of the proceedings and the accused person or any person authorised by him in that behalf shall be entitled to obtain copies-of the judgment in the case within 7 days of the conclusion of the case.”