No doubt, evidence on their ages is very material; but I am satisfied that each of them is older than twenty years." It is on this reasoning, having considered the age of the 1st, 2nd and 7th accused persons, that the learned trial Judge found them guilty of the offence of murder as charged. Appellant was the 1st accused. It is this reasoning that is the subject matter of complaint in this appeal. Mr. Nwazojie, counsel to the Appellant has formulated three issues for determination. Mr. Akenroye, for the respondent agrees with the formulation of the issues which are as follows:"ISSUES FOR DETERMINATION "(1) Whether the learned trial Judge was right in estimating the age of the appellant instead of setting up an inquiry to find out the age of the appellant in accordance with the provisions of section 208 of the Criminal Procedure Act. (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. (3) If first and second propositions above are correct, whether the sentence of death in this case can be sustained from the evidence." The submission of Mr. Nwazojie in his brief of argument is that on the evidence before the learned trial Judge, there was considerable doubt whether appellant had attained the age of 17 years at the time of the commission of the alleged murder. He therefore submitted that if the doubt was resolved in favour of the appellant, the appropriate sentence should not be death but an order that appellant should be detained during the Governor's pleasure in accordance with section 368(3) of the Criminal Procedure Law of Western Nigeria, applicable in Ondo State. Mr. Nwazojie pointed out that on the evidence which remained uncontradicted appellant was born on 3rd November 1967, and the offence was alleged to have been committed on 20th December, 1983. Hence appellant was at the time only 16 years, one month and seventeen days old. He admitted that on 22nd May, 1985 when appellant gave evidence, he was 17 years 6 months and 19 days old and not 18 years. Appellant under cross-examination denied he told the Police he was 20 years old at the time he made the statement, Exhibit B, where he (appellant) was indicated as being 20 years old. Counsel relied on the provisions of section 368(3) and 208 of the Criminal Procedure Law and submitted that on reading of the two sections the expression "in the opinion of the Court has not attained the age of 17 years" it is an objective and not a subjective test that is required. Section 368(3) of the Criminal Procedure Act, provides as follows"Where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the pleasure of the President and if so ordered he shall be detained in accordance with the provisions of Part 44 notwithstanding anything to the contrary in any written law." In his submission the Court is bound to set up an enquiry to find out the true age of the accused. Counsel cited and relied on Oladimeji v. The Queen (1964) 1 All NLR. 131 at 133 R v Baganza