by the provisions of Section 208 of the Criminal Procedure Act not to estimate in vacuo the age of the Appellant but to "make due inquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time or at the time to which the inquiry may be adjourned....". If the trial Judge felt that the Appellant put his age rather low, he was at liberty to adjourn the case and call a medical witness to testify to the age of the Appellant as was done in Oladimeji (E.A.) v. R (1964) 1 All N.L.R. 131. Then he will be comparing the evidence of the Appellant as to his age with the evidence of the doctor. He will be perfectly within his right to do this. But he is not permitted to reject positive evidence without any superior and/or contradicting and more probable evidence. If there was evidence from a doctor or any other person in a position to give such evidence, like the parents of the Appellant, then the learned trial Judge could pick and choose but not otherwise. The Statement of the Appellant to the Police was tendered as Exhibit B. In Exhibit B at p. 152, the age of the Appellant was given as 20 years. Exhibit B was made on 21/12/83 a day after the alleged murder. But Exh. B is not a proof of the age of the Appellant. It suffers from a radical defect as the portion giving the age of the Appellant as 20 years was written probably by the recording Police Officer before the words of caution. That entry of the Appellant's age as 20 years is not therefore part of the Statement of the Appellant. And it would have been wrong of the learned trial Judge to have used it to contradict the Appellant's direct, positive and uncontradicted oral evidence as to his age. In any event, the trial Court did not and rightly in my view, rely on the age shown on Ex. B. The learned trial Judge merely relied on his "own estimation" of the age of the Appellant. To estimate is merely to form an opinion and opinion evidence can only be considered if it amounts to expert opinion. Otherwise the mere opinion of the learned trial Judge cannot over-ride the positive evidence of the Appellant as one is direct evidence of fact while the other is merely a conjecture. The trial Court was therefore wrong to have pronounced and recorded a sentence of death against the Appellant. The Court of Appeal on its part, with respect, was also wrong in upholding, affirming and confirming that sentence. The next Issue for Determination reads:"(2) Whether the second limb of Section 208 of the C.P.A. is not unconstitutional in so far as it is out of tune with Section 33(8) of the 1979 Constitution as amended when it made the age determined by the Judge final and conclusive; and any sentence imposed therefrom final and conclusive even though a subsequent proof of the age of the person concerned would show that the age was incorrectly stated by the Judge and the correct age of the person was lower and would have entitled him to a lower punishment of detention at Governor's pleasure instead of a higher punishment of the death penalty" (Italics ours). The above Issue raises a substantial point of constitutional importance. But Issues for Determination in any appeal must be issues arising from the grounds of appeal filed. I do not see how the above constitutional issue can be argued under the omnibus ground dealing with facts. Also there is no evidence of any "subsequent proof of the age of the person concerned" (here the Appellant) after his evidence which put his age at the time of the commission of the offence charged at 16 years, one month and 17 days - obviously below 17 years of age. In other words, the factual situation that would have necessitated the consideration of the second limb of Section 208 of the Criminal Procedure Act simply does not and did not exist in this case. I will therefore decline from considering the 2nd Issue for Determination. In the final result, this appeal ought to be allowed. The sentence of death pronounced and recorded by the learned trial Judge against the Appellant is hereby set aside and in its place it is hereby ordered that:The appellant Sunday Modupe shall be detained in prison at the pleasure of the Governor of Ondo State.