It was for the above reasons that I, on the 16th day of September 1988, allowed this appeal. KAYODE ESO, J.S.C. (Presiding): This appeal must be allowed on sentence and it is hereby allowed. There is evidence by the Appellant as to his age. There is no admissible evidence wheresoever to contradict this evidence. The statements as regards age made in Exhibit B and D are not legally admissible as they were made before the cautions were administered in both cases. The Judges presumption of the appellant's age has no support in law. Section 208 of the Criminal Procedure Law has to be read in the light of section 33(8) of the 1979 Constitution in which case the age for the determination of the sentence must be the date of the accused person at the commission of the offence. In this case upon the admissible evidence the appellant was certainly under 17. Sentence of death could not and must not be pronounced upon him see s. 33(8) of the 1979 Constitution. The appeal is allowed on sentence only. The sentence of death is set aside. In its place the following order is made. The Appellant Sunday Modupe shall be henceforth detained in prison at the pleasure of the Governor of Ondo State. And this shall be the order of this Court. A.G. KARIBI-WHYTE, J.S.C.: On the 16th June, 1988 I allowed the appeal of the appellant against the dismissal of his appeal by the Court of Appeal Division, sitting at Benin City, by allowing the appeal against the sentence of death, and substituting one of imprisonment at the pleasure of the Head of State. I indicated then that I will give my reasons for so doing today. I here below give the reasons. Appellant who was born on the 3rd November, 1967, was tried for murder contrary to s.254(2) and punishable under s.257(1) of the Criminal Code, cap. 28, Volume I, Laws of Western Nigeria 1959.The offence was alleged to have been committed on or about the 20th December, 1983 in Okeluse in Ondo State. Appellant was tried at the Ondo State High Court, at Owo along with seven others. He was convicted with two others on the 26th July, 1985.-They were all sentenced to death. Appellant's appeal to the Court of Appeal against conviction and sentence was dismissed by that Court on 16th April, 1987. Appellant has further appealed to this Court against the judgment of the Court of Appeal. Mr. Nwazojie, learned Counsel to the appellant submitted before us that he was not appealing against the conviction of the appellant. His complaint was against the sentence. He however felt that on the evidence before the learned trial Judge, and though the point was not taken on appeal before the Court of Appeal, there was sufficient material before the Court to hold that the appellant should not be sentenced to death. Counsel therefore urged us to reduce the sentence of death to one of imprisonment. I do not consider much of the facts of this case particularly pertinent to the determination of the issue in this appeal. It is only relevant to state that the appellant in his oral evidence at his trial stated he was born on the 3rd November, 1967. He made two extra-judicial statements in which it was variously indicated that he was 17 years and 20 years old. There was no evidence at the trial contradicting his oral evidence at his trial. In convicting the appellant, the learned trial Judge held: "As regards the ages of the 1st, 2nd and the 7th accused persons, I do not believe their evidence. From my own estimation, each of the 1st, 2nd and 7th accused is older than twenty years of age.