THE RIGHT TO REJECT LEGAL AID AND REQUEST INTERPRETER By:Abubakar Aliyu Sa'ad and Hanan Nasir


Where a  counsel  is  provided  by the Legal Aid Council to a defendant standing criminal trial, such a defendant can reject or refuse to be represented by the counsel when he is not satisfied. Further, the perfect point of raising objection on absence of an interpreter by a defendant is at the trial, not on appeal; especially where he is being represented by a counsel.

This review will focus on when an accused is expected to raise objection or request an interpreter where he doesn't understand the language of the court And whether he is bound to be represented by counsel provided to him by legal aid Or he may reject such representation.
It is well known principle of law that in capital offenses an accused person ought to be represented by a counsel of his own choice and where he can't afford, legal aid shall be provided for him probono. Courts have made it their habits to appoint a counsel for the defendant where he has none especially in capital offences. 
Another important aspect of law is that where an accused does not understand the language of the court, he is therefore entitle to an interpreter free of charge and it is him or his counsel that should draw the attention of the court to the fact that he doesn't understand the language of the court. In the case below the court considered this position and it's limitations, in other words when it'll be waved.
            
A shot account on the fact of the case of Olanrewaju v. State (2023) 13 NWLR (pt. 1901) 305.    The appellant and four other co-accused persons were arraigned at the High Court upon a charge of criminal conspiracy, culpable homicide punishable with death and armed robbery punishable under relevant sections of the Penal Code.

At arraignment only the 1st accused was represented by a counsel, the court directed the counsel to represent the appellant and the co-accused persons subject to their consent to which they gave there and then. The charge was read to the 1st accused person in Hausa Language while it was read to the appellant and the other accused persons in Yoruba Language. They all pleaded not guilty to the charge. At the trial, the prosecution called nine(9) witnesses who testified. A total of twenty-nine exhibits were tendered and admitted including the appellant's confessional statement. The prosecution presented evidences placing the accused persons at the scene, how and where they were arrested. 

At the close of prosecution's case, the case was adjourned for defence. The trial court asked the appellant whether he would like to give evidence by himself or call witnesses or he would want to rely on all that the prosecution had presented. The appellant responded that he had nothing to add to what the prosecution stated and that he was not calling any witness.  

At the judgement, the appellant was found guilty of all the charges and sentenced to ten years imprisonment, life imprisonment and death by hanging respectively. Dissatisfied, the appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and affirmed the judgement of the trial court. Still dissatisfied, the appellant appealed to the Supreme Court.                                                
In determining the appeal, the Supreme Court considered the provisions of Section 36(4) of the constitution of the Federal Republic of Nigeria 1999(as amended) and sections 191(1), 231(1) and 236(1) of the Criminal Procedure Code to determine whether there was miscarriage of justice against the appellant. 

From the legion of legal issues settled during the determination of the case by the honorable Justices of the Court, the questions of not being given the chance to have his own counsel in court and not provided with an interpreter arose. Arguing on the later (of not being provided with an interpreter) the appellant's counsel argued that there's nothing on the record to show that the proceeding immediately preceding the reading of and explanation of the charge to the appellant in Yoruba Language, was not interpreted to the appellant in Yoruba. On the former(consent to being represented by counsel provided by court) that the purported consent of the appellant to have the 1st accused person counsel to represent him is null and void. That, it is clear on the record that the appellant had his own counsel, thus the proceeding ought to have been adjourned to another date when the appellant could have had his counsel to represent him. He further argued that the counsel did not represent the appellant well, contending that he did not call for any evidence from the appellant or witnesses except the part done in the Trial within Trial. He submitted that the counsel acted so because the appellant and the other co-accused persons made statement against each other, lastly that he was not giving a fair hearing as required.

The court in its judgement stated that the appellant in the present case was not under any compulsion to accept the Legal Aid volunteered by Chief Oyibo(1st accused counsel) as duly ordered by the trial court. The appellant had every opportunity to pronounce his rejection of Chief Oyibo as his counsel if he was not satisfied. 

"Contrary to the appellant's contention, in the instant case, there is no semblance of cogent              evidence that the appellant's instruction and trust had in any way been breached by the counsel thereof(Chief Oyibo)....The appellant have every opportunity within the two(2) years when the trial was conducted to have refused the representation of counsel if he thought he was not being adequately represented. Having not complained to the court against the counsel who appeared pro bono, he cannot turn around to complain. This is more so where the trial court was punctitious in ensuring that the rules of natural justice were followed. There is nothing on the record to indicate that the appellant's counsel did not adequately prepare or conduct the defence of the appellant to ensure that he received a fair trial.

On the appellant's contention that his right to fair hearing was breached because he did not understand the language of the court and could not have consented to being represented by Chief Oyibo, the court disagree with his argument stating that his contention is not supported by record. The court went forward to say;
It is curious that while learned counsel refers and relies on the part of the record where the appellant responded to the court's query as to whereabouts of his counsel by saying "my counsel is not around" yet he contends that in the same proceeding, when asked if he consented to being represented by Chief Oyibo, he could no longer understand the language of the court. The court further stated that in any event, the stage at which to raise objection to the absence of an interpreter is in the course of trial, especially where the accused person is represented by counsel. The issue can only arise if the accused person requested an interpreter and is not provided with one or where he indicates to the court that he does not understand the language of the court. The appellant failed to raise the issue during the hearing at the trial court. It was therefore too late in the day to raise it on appeal. The record clearly showed that he understood the questions put to him and answered accordingly, he was also represented by counsel throughout. The Supreme Court therefore unanimously dismissed the appeal and upheld the conviction of the appellant.

It is therefore worthy to note that an accused person is not bound to accept representation from legal aid and where he doesn't understand the language of the court, the most appropriate way is to raise the issue at trial and inform the court especially where he has legal representation.

Authors:
 Abubakar Aliyu Sa'ad is a writer, poet and member of research & litigation directorate , solace chambers, Bayero university kano. He can be reache via his email babakilode011@gmail.com or 09071127064
Hanan Nasir is a member of research & litigation directorate , solace chambers, Bayero university kano she can be reached via 08128888284

Comments

Post a Comment

Popular posts from this blog

An Explanation of the Maxim: Leges Posteriores Priores Contrarias Abrogant by Nana-Aishah Manzumah

Image
If there are two conflicting laws applicable to a circumstance, situation or fact, it bears the question of which of these two conflicting laws shall be considered and applied. One cannot just take any one based on speculative mind since the law has to be certain. In this vain, this piece brings to you a thorough research of the subject matter with adequate authorities. The maxim “ Leges posteriores priores contrarias abrogant ” is translated as “ [s]ubsequent laws repeal prior conflicting ones” — See Black's Law Dictionary (8th ed. 2004), Page 5327. To put differently, later laws abrogate earlier contrary ones. It is a principle which states that, where two laws or legal instruments conflict, the one adopted later in time, rather than the one adopted earlier, is considered binding on the relevant parties. That is, when two statutes conflict, the one enacted last prevails. The provisions of a later document are contrary to those of an earlier, the earliest must ...
Read more

Non-Eforceability of Memorandum of Understanding & Exceptions thereto By Qosim A. Muhibudeen, SABUK

Image
Memorandum of Understanding (MOU) is in itself not an enforceable contract. It is, by law, a preliminary negotiation upon which a definite future-reaching contract may or may not be birthed. To be enforceable, something more needs be done subject to the clause stated in the agreement. — Author The position of the law is settled that not all agreements are enforceable contracts; even where all the ingredients of a valid and enforceable contract (which include offer, acceptance, and consideration) are present. A good example of this is an agreement with which offer, acceptance, and consideration have all been furnished but the subject matter of the contract is found to be illegal, immoral, or contrary to public policy. So also is the question of enforceability of MOU agreement, which would be given succinct explanation in subsequent paragraphs. It has been a settled law that a Memorandum of Understanding, which, of course and tradition, predates a formal (not in its str...
Read more

The Legal Effect of Dismissing an Application for Leave to Appeal: Is it a dismissal on Merit or that of Striking out? By Qosim A. Muhibudeen

Image
In this week legal publication, we presented the decision of the Court on: The Legal Effect of Dismissing an Application for Leave to Appeal: Is it a dismissal on Merit or that of Striking out? SHORT EXPLANATION : The well settled position of the law, as well captured in the attached flyer, is to the effect that an application for leave to appeal where so required by law, is a condition precedent to the initiation of a valid appeal, whether of an appeal within time or an appeal out of time. An appeal is within time where an appeal is brought within the statutorily prescribed period or time within which such an appeal should be filed against the decision of a lower Court. For instance, an appeal against the decision of a trial Court lying to the Court of Appeal, in a civil matter, is to be brought within three months. Where such appeal is brought before the expiration of the three months, it is an appeal within time. Otherwise, it is an appeal out of time. The law is, befor...
Read more