Section 368(3) of the Criminal Procedure Act will apply and then again it will be wrong of any Court not only to sentence him to death but also to even pronounce or record such a sentence. Now what was the evidence before the trial Court? The Appellant gave evidence on oath in his own defence, His positive testimony with regard to his age was:"I was born on November 3rd 1967. I am now 18 years old..." This evidence was given on the 22nd day of May, 1985. The murder charge was alleged to have been committed "on or about the 20th day of December 1983." On this material date (20th December 1983) the Appellant was only 16 years, one month and 17 days. He had by then not attained the age of 17 years required by Section 368(3) of the Criminal Procedure Act before any sentence of death can even be pronounced or be recorded against him. Throughout the entire proceedings there was no direct oral evidence to contradict the positive assertion of the Appellant that he was born on the 3rd of November 1967. How did the Court of first instance deal with the crucial question of the age of the Appellant? Learned Counsel for the Appellant submitted to the Court that "if the 1st accused is under 17 years of age then he cannot be sentenced to death." In his submission, Mr. Adebusoye, learned State Counsel at p. 131 of the record stated:"As regards the ages of the accused persons counsel submitted that Section 368(3) of the C.P.A. will only apply if the accused persons are found guilty by the Court and if the Court believes their evidence as to age." After considering the submissions on both sides as to the age of the Appellant, the learned trial Judge at p. 137 of the record found as follows:"As regards the ages of the 1st (the Appellant) 2nd and the 7th accused persons, I do not believe their evidence. From my own estimation, each of them, 1st, 2nd and 7th accused is older than 21 years of age. No doubt, evidence on their ages is very material, but I am satisfied that each of them is older than twenty years." This judgment was delivered on 26/7/85. Normally a trial Court that had the opportunity of seeing the witnesses, hearing them and watching their demeanour enjoys the special privilege of believing or disbelieving their evidence. But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. To reject the positive assertion by the Appellant that he was born on the 3rd of November 1967 without any contrary evidence at alleither in cross-examination or in rebuttal seems to be much mere than a trial Court is allowed to do. To base such a rejection on the subjective estimation of the trial Judge looks quite arbitrary, nay dangerous. It looks as though the trial Judge converted himself into a witness, gave evidence of the age of the Appellant, and then preferred his own evidence of age to that of the Appellant. Put as bluntly as this, one can then appreciate the danger involved in a trial Judge preferring his own estimation, which is not evidence, and which was not based on any evidence, to a positive assertion which has not in the least been contradicted or controverted. The learned Director of Public Prosecutions at a stage conceded "that there was no evidence contradicting the Appellant's evidence on oath." In his judgment, the learned trial Judge rightly observed that "no doubt evidence of their ages is very material." That is correct. But evidence of the age of the Appellant is a very different thing from speculation as to his age. If the learned trial Judge was in any doubt as to age, when as in this case evidence of the proper age is material, he was obliged and obligated