Paul Onyia Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C.

This is a further appeal to the Supreme Court by the appellant against the judgment of the Court of appeal, Port Harcourt Division delivered on the in December 2005 in which that Court affirmed the conviction and sentence of death passed on the appellant by Imo State High Court sitting in Umuahia on the 18th December 1987.

The appellant was charged in High Court of Imo State with the murder of one Ugwuochi Amadiegwu, contrary to section 219(1) of the Criminal Code cap. 30 of the laws of Eastern Nigeria 1963 applicable in Imo State. The simple fact of the case was that the appellant on the 18th December 1980 stabbed the deceased with a dagger resulting in his death. As the facts of the case are not in issue before this Court, I shall not go into any more details.

The main complaint before this Court is contained in the appellant’s brief on issue 1, which reads:

“Whether the non-interpretation of the evidence of Pw1, Pw2, Pw3, and Pw4 rendered in Igbo, the translation of the same by the learned trial Judge suo motu culminating in its judgment and the affirmation of it by the Court of Appeal, did not violate the appellant’s right to fair hearing and nullify thereby all the findings and conclusions of guilt against the appellant”.

Issue two of the appellant’s brief reads:

“If Issue 1 is answered in the appellant’s favour, what is the proper or appropriate order to be made in the circumstances Is it a trial de novo or an acquittal”

This issue does not arise from any ground of appeal and is totally irrelevant. The question of the proper order to make if an appeal is allowed cannot properly form the basis of an issue in an appeal. Such a matter is purely within the discretion of an appellate court. Accordingly, the second issue is incompetent and I hereby strike it out.

It should be noted that the appellant who was represented by counsel in the High Court and in the Court of Appeal did not complain of the non-interpretation of the evidence of any of the witnesses from Igbo to English. He is raising the issue for the first time in the Supreme Court with its leave. The learned counsel for the appellant complained that Pw1, Pw2, Pw3 and Pw4 gave evidence in Igbo language but their evidence was never interpreted by a court interpreter into English. This in his submission was contrary to section 33(6) of the 1979 Constitution of Nigeria and led to a miscarriage of justice. He relied on the case of suit no SC.328/2001″ Godwin Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107.

In reply to this submission the learned Attorney-General of Abia State who appeared for the respondent submitted that although some witnesses spoke in Igbo before the trial court, there was no violation of the appellant’s right under section 36(5) of the 1999 Constitution because the appellant and his witnesses gave evidence also in Igbo which showed clearly that he understood the language of the witnesses for the prosecution who testified against him. He relied heavily on the cases The State v. Gwonto (1983) All NLR 109 and Godwin Anyanwu v. The State (supra). He urged the court to follow its previous decision that the non-indication of the interpretation in proceedings does not ipso facto render the trial a nullity.

As the trial of the appellant was concluded before the coming into operation of the 1999 Constitution the applicable law is section 33(6) of the 1979 Constitution which reads.

“Every person 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 at the trial of the offence”.

In the case of Anyanwu V. The State (2002) 13 NWLR (Pt. 783) 107 at pages 139 – 140, this Court had occasion to interpret section 33(6) of the 1979 Constitution where my learned brother, Ejiwunmi JSC of blessed memory said

“On those facts, as I have earlier observed, learned counsel for the appellant has invited this court to over-rule the decisions of this court noted above, as they are in breach of the provisions of subsections 6(a) and (e) and 7 of section 33 of the 1979 Constitution which read:

Subsections 6(a) and (e)

“Every person who is charged with a criminal offence shall be entitled to

(a) be informed promptly in the language that he understands in detail

xxx

xxx

(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence,”

33(7) “When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings, ….. ”

It is obvious from a perusal of the provisions quoted above that an interpreter only becomes necessary where a person charged with a criminal offence does not understand the language used at the trial.

Also, in the recent case of this Court in Anthony Nwachukwu v. The State (2007) All FWLR (Pt. 390), 1380, this Court reaffirmed its earlier view that where an accused person understands the language of the proceedings, no miscarriage of justice is occasioned by the failure to provide an interpreter. In the record of appeal, it is clear that the appellant and the witnesses who spoke in Igbo all understood the language. The appellant himself testified in Igbo language. He did not complain about the witnesses who testified in English which leads to the presumption that he also understood English. Could he therefore rightly complain that he did not understand the language used at the trial to require an interpreter as provided for in section 33(6) of the 1979 Constitution The answer is capital No.

There is clear evidence that he was represented by a counsel in the two lower courts. Neither the appellant nor his counsel complained to the trial court about any difficulty in understanding the proceedings.

I am satisfied that the appellant’s right to fair hearing was not in anyway violated by the trial court or the Court of Appeal. This appeal has no merit whatsoever, and I hereby dismiss it and affirm the conviction for murder and sentence of death passed on the appellant by the two lower courts.

SC.232/2006