The Queen V. Imadebhor Eguabor (1962)

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BRETT, F.J 

The appellant was convicted in the Western Region High Court on a charge of murder. Various grounds of appeal were filed and argued but only two of them require consideration.

Among the additional grounds of appeal filed is one which alleges that “the proceedings are a mistrial, having been vitiated by failure to interpret the evidence of witnesses who deposed in the English language to the appellant, whereby there has been no compliance with S. 210 of the Criminal Procedure Act, contrary to S. 21(5) (a) and (e) of the Constitution of the Federation of Nigeria and the rules of natural justice”. Section 210 of the Criminal Procedure Act provides that:-

“Every accused person shall, subject to the provisions of section 100 (which deals with trials for simple offences) and of subsection (2) of section 223 (which deals with the case where the accused is suspected to be of unsound mind) be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”

and the submission is that it is idle to insist on the presence of the accused unless he understands what is going on. Section 21(5) of the Constitution of the Federation provides that: –

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

(a)   to be informed promptly in a 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 used at the trial of the offence”,

and the submission is that the whole of the proceedings must be interpreted to the accused in every case.

In the Northern Region, 5.241 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 Magistrates’ 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 al-ready 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 under-stands the case he has to meet. If the 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 (1916) 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 Kan 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 rep-resented by counsel at the trial cannot invoke the right conferred by S. 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.

The matter does not rest there, however. A police officer was called by the prosecution to produce a statement in Ishan taken from the appellant under caution after his arrest, and an English translation of it. The record reads: –

“I tender the statement. (Both original statement and translation read to the Court. Accused denies that they are correct. He says what he told the Police was that he was sick and could not get up.) (Defending counsel): I do not object to the statement being admitted. My original instructions were that the accused went to tap palm wine on the day in question.

Court I would admit the statement.”

There are several irregularities here. In the first place, as this Court held in Igwe v. Queen (1960) 5 F.S.C. 55; (1960) SCNLR 158 it is only where an issue arises as to whether a confession was made voluntarily that the ex-ceptional procedure of holding a kind of trial within a trial should be adopted, and if an accused person wishes to deny that he made a statement attributed to him, or that his statement was correctly recorded, the time for him to do so is when he comes to make his defence. It follows that he should not be permitted to say anything, whether by way o£ admission or denial, when the statement is tendered by the prosecution, a fortiori he should not be invited to say anything, though it is not clear whether or not that was done here.

Secondly, counsel’s statement as to the original instructions he had received was one which he ought not to have made. If counsel finds that his client’s conduct is such that he cannot, consistently with his duty to the Court, continue to represent him, he may ask the Court to release him, but whether he takes this extreme course or not he is at all times under an obligation not to disclose the instructions he has received except with the express or implied consent of his client or former client. It may be that no actual prejudice to the appellant resulted from the mere fact of the disclosure made by counsel, since the statement produced by the police officer was not a confession but an alibi different from that put forward at the trial and there was a considerable body of evidence to disprove either story, but as long as counsel continued to represent the appellant we consider that it was his duty to cross-examine the police officer with a view to showing that the statement was inaccurately recorded, and that in not doing so he was, by implication, discrediting the defence which he was supposed to be putting forward. It is a serious matter that after making this potentially injurious disclosure, and abstaining from cross-examination on the issue involved, counsel should have continued to represent the appellant, and that there should be nothing on the record to show that the appellant knew what had been said by his counsel or what the implications of his omission to cross-examine were. It has not normally been held necessary for everything said by counsel to be interpreted to his client, and in the absence of anything on the record we can-not assume that the appellant realized the position. If he did not, he would have had no reason for wishing, when he came to give evidence himself, to say anything by way of explaining how his evidence came to differ from the original instructions he gave to his counsel, and he would have known of no reasons for exercising his undoubted right of dispensing with the services of his counsel. We think the Court might properly have explained to the appellant what had happened, and what his rights were, and that in the absence of such an explanation justice has not been seen to be done.

In fairness to counsel it should be said that apart from this lapse he seems to have done his best for the appellant, and we do not suggest that he was guilty of any conscious dereliction of his duty to his client. That cannot alter the fact that by his unauthorized disclosure and his abstention from cross-examination he implied that he himself doubted if the evidence to be given by his client was to be relied on, and it was a miscarriage of justice, as understood in this country that he should have continued to represent the appellant without the appellant’s being aware that the counsel to whom he looked to present his case had, from his point of view, gone over to the enemy.

In the circumstances we consider that the conviction must be set aside, but there was a substantial case against the appellant, and the order we make is that the conviction is quashed and the appellant is to be retried before another Judge of the Western Region High Court.

Other Citation: (1962) LCN/0996(SC)