The appellants were convicted on the 14th of August last by the Magistrate Benin District sitting at Lokoja of stealing and receiving respectively and "appealed to the Supreme Cou.rt of the Kaduna Judicial Division: the appeal was dismissed summarily on the 1st of November and it is from that decision that the two appellants now appeal to this Court on a question of law only. The grounds are:-
“1. Decision unreasonable and cannot be supported having regard to the evidence.
2. Decision erroneous in point of law.
3. Magistrate wrong in law to try two felonies in respect of TWO DIFFERENT ACCUSED AT THE SAME TRIAL.”
Counsel argued only the last ground :-the two charges were Nos. 303C/45 and 304C/45: after the trial on the first charge (Police v. T. Archibong) of two counts of Stealing contrary to sections 390 (4) (b) and 390 (5) of the Criminal Code had opened and the first accused had elected to be tried in the Magistrate’s Court and had pleaded not guilty to both counts an application was made by the prosecutor for “Case No. B/304C/45 Police v. Inokon to be taken along with this case as facts arose out of the same transaction and the witnesses and their evidence are identical in both cases” . The charge of Receiving contrary to section 427 of the Criminal Code was then placed on the record which goes on to say" Both accused have no objection to joint trial before this Court. Accused in B/304C145 pleads not guilty”. The trial then proceeded and the first accused was found guilty on the second count only and the second accused guilty of Receiving.
Mr. David’s submission was that the second charge was wrongly joined against the second accused and that section 155 of the Criminal Procedure Ordinance which allows a joinder only applies where both defendants are charged together before a plea has been taken. He referred to cases in which accused had been tried together after a separate committal in the Supreme Court which had been held to be void and contended that there is no essential difference in this respect between summary trial and trial on information and that consent could not cure the irregularity. For the respondent it was sought to bring the joinder, within section 155 of the Criminal Procedure Ordinance. There was, however, apparent on the record a failure on the part of the Magistrate in the case of the second accused to inform him of his right to be tried in the Supreme Court and to obtain his consent to be tried by him. The proviso to section 20 (1) of the Magistrates’ Courts Ordinance No. 24 of 1943 and section 304 (3) of the Criminal Procedure Ordinance No. 42 of 1945 render the trial void ab initio and as this goes to jurisdiction the Appeal Court is bound to take the objection. We are therefore of opinion that the trial was a nullity and that the conviction m the case of both the accused must be quashed. The trial was a joint trial and must be held to be bad also as against the first accused because they were jointly charged.
It should be added, although we are not called upon to decide this point, that to bring a joinder of two offenders within section 155 of the Criminal Procedure Ordinance an application to join should be made before the issue is joined against either of them and that the pleas should then be taken after their consent has to been obtained to be tried by the Magistrate.
Appeals allowed.