Foster-Sutton, P. This appellant was charged together with two other men the stealing, contrary to section 390 of the Criminal Code (Cap. 43). The case me for trial before the Magistrate's Court of the Lagos Magisterial District on the 16th day of November, 1953, when all three accused elected to be tried summarily and pleaded not guilty.
The present appellant was represented by counsel and the other two accused conducted their defence personally. The learned Magistrate convicted the appellant, who was the first accused in the Court of trial, acquitted the second accused, convicted the third accused, and imposed a sentence of two years imprisonment with hard labour.
Both of the convicted men appealed to the Supreme Court. which dismissed their appeals, and they then appealed to this Court.
When the appeals came before this Court on the 12th day of August, 1954, Mr. Coker, who appeared on behalf of the third accused, drew attention to the fact that the provisions of section 287 (1) of the Criminal Procedure Ordinance had not been complied with. The sub-section in question requires the Court in cases where it holds that a prima facie case has been made out and calls upon I an accused person to make a defence, if the accused is not represented by a legal practitioner, to inform the accused that he has three alternatives open to him, ), namely that :-
(i) he may make a statement, without being sworn, from the place, where: he then is; in which case he will not be liable to cross-exammation; or ; (ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination; or (iii) he need say nothing at all if he so wishes;
and, in addition, the Court is required to ask him if he has any witnesses to examine or other evidence to adduce in his defence.
It being clear that the learned Magistrate had omitted to inform the third accused as to his rights as required by sub-section (1) of section 287 of the Ordinance this Court held that the trial in his case was a nullity and ordered that he be tried before a competent Court; and the appeal of the first accused, the present appellant, was adjourned.
Subsequently the appeal was fixed for hearing on the 18th day of November, 1954, and we assigned Mr. David, of counsel, to appear on the appellant’s behalf.
Mr. David submitted that since the trial of the third accused had been declared a nullity, he having been tried jointly with the present appellant, the trial of this appellant should also be held to have been a nullity, and he cited, in support of his contention, the cases of Rex v. Christopher Okwedi and Others (i)-and the Commissioner of Police v. Thomas Archibong and Henry Inokon (2).
In the first case the Court held that the course followed by the trial Judge in respect of all the accused was entirely irregular, and it was on that footing that the Court held their trials to be a nullity. That case is not, therefore, an authority for the proposition contended for by counsel.
In the second case, however, the Court did hold that the Magistrate having in the case of the second accused to inform him of his right to be tried in the Supreme Court, the trial was nullity. and that since the two accused were jointly charged the trial of the first accused must also be held to be a nullity. This in spite of the fact that there was no irregularity in his case.
In the present case we can find no ground for saying that the appellant has suffered in any way through the irregularity of the procedure in the case of the third accused. So far as this appellant is concerned the procedure was quite regular. All the evidence called at the trial, in so far as it affected him, was undoubtedly admissible against him, and would have been equally admissible against him if he had been tried alone.
In these circumstances we are not prepared to follow the decision in the second case cited.
It is our view that each case must be decided on its own merits, and we are of the opinion that the Court was in error in laying down such a general proposition. The decision in question must, therefore, be regarded as over-ruled to that extent.
For the reasons we have given, this appeal must be dismissed.
Appeal dismissed.