Peter Locknan & Anor V. The State (1972)

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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 [1966] 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.”