The trial must be conducted in accordance with the legal framework prescribed by the relevant ordinance, and the absence of a prosecutor and the combination of the duties of prosecutor and Judge can vitiate the trial.

Sir John Beaumont.-

This is an appeal by special leave from the judgment of the protectorate Court of the Somaliland Protectorate sitting as a Court of Appeal dated 30th May 1946 dismissing the appellants' appeal from the judgment of the Protectorate Court of the Somaliland Protectorate sitting as a Court of original jurisdiction dated 19th December 1945, and confirming the death sentences for murder passed on the appellants by the latter Court.

2. At the conclusion of the arguments their Lordships announced that they would humbly advise His Majesty that the appeal be allowed, and they now give their reasons.

3. The question which arises for decision on this appeal is whether the trial of the accused was vitiated by the failure of a prosecutor to appear at the trial, and by the course which the trial took in his absence.

4. Criminal procedure in the Somaliland Protectorate is regulated by the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Protectorate (hereinafter referred to as "the Ordinance"). The Ordinance provides for a preliminary enquiry to be held before a Magistrate, and for committal of accused persons to the Protectorate Court. It is not disputed that the appellants, with others, were properly committed for trial to the Protectorate Court. The provisions of the Ordinance relating to trials in the Protectorate Court in force at the date of the trial of the appellants were, so far as material, as follows:-

Section 4 (1).

(q) " Public Prosecutor " means any person appointed under Section 356 and includes any person conducting a prosecution on behalf of His Majesty in the Protectorate Court in the exercise of its original criminal jurisdiction.

Section 220.

All trials before the Protectorate Court shall, save where otherwise provided, be with the aid of assessors.

Section 226.

(1) When the assessors have been chosen, the prosecutor shall open his case by stating the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused.

(2) The prosecutor shall then examine his witnesses. Section 229.

(1) When the evidence of the witnesses for the prosecution and examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.

(2) If he says that he does not, the prosecutor may sum up his case….

(4) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court considers that there is evidence that he committed the offence, or if on his saying that he does not mean to adduce evidence, the prosecutor sums up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence.

Section 232.

If the accused, or any of the accused, adduces any evidence, the prosecutor shall be entitled to reply.

Section 236.

(1) When, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.

(2) The Judge shall then give judgment but in doing so shall not be bound to conform to the opinions of the assessors.

Section 296.

An appeal shall lie from any judgment or order of the Protectorate Court, sitting as a Court of original Jurisdiction to the Protectorate Court sitting as a Court of Appeal.

Section 356.

(1) The Governor may appoint generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.

(2) In any case committed for trial to the Protectorate Court the Governor may appoint any officer of the administration not being an officer of police below the rank of Superior Police Officer to be Public Prosecutor for the purpose of such case.

Section 357.

The Public Prosecutor may appear and plead without any written authority befo