Cor. Kingdon, C.J., Butler Lloyd and Carey, JJ.

                                                                         REX                                            Appellant.

                           v

                                                 

                   IBRAHIM  BAUCHI                             Respondent.

                                     

 Appeal Court. 12th Jan., 1938.  Case Stated by High Court.

Possession' by night of instruments of housebreaking contra.

Section 417 (c) of Criminal Code-Admissibility in evidence of previous convictions.

C. N. S. Pollard for Crown. Appellant not present.

The following joint opinion was delivered:-

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

This is a case stated for the opinion of the West African Court of Appeal by the Jude of the Kaduna-Makurdi Judicial Division.

The Judge held as follows:~

" (a) a previous conviction must not be brought to the notice of the Court (except where under the law of evidence it is permissible to do so) unless it forms an essential ingredient of the offence, and that

(b) the prisoner cannot be sentenced under the sub-section imposing the increased sentence unless the fact that he is liable· .to the enhanced penalty has brought to his notice before he was called on to plead, but that

(c) a practice by which the accused is given notice in writing that it is intended to give evidence of previous convictions-these should be set out in detail-which renders the prisoner if he pleads guilty or is convicted by a finding of guilty liable to an increased penalty would be 'unobjectionable, and that

(d) the Court would in such case feel justified in using the special sub-section in suitable cases for the purpose of sentence."

And our opinion is desired as to whether the above decisions are correct in law.

We are of opinion that sub-paragraph (b) is a correct state­ment of the law but sub-paragraph (a) is incorrect in stating that previous convictions with certain exceptions must not be brought to the notice of the Court. The rule is that with the same exceptions previous convictions must not be brought to the notice of the jury, and although of necessity the Judge may be himself performing the functions of a jury the rule does not apply to him.

This being the rule it is the duty of the Judge in a case where liability to increased punishment depends on the proof of previous convictions to inform the accused as part of the charge that it is proposed to 'prove these convictions against him.

the practice to which sub-paragraphs (c) and (d) refer is therefore unnecessary.