Second: Exh. E the second statement of the appellant to the police taken by Sergeant Daniel Audu on 25/12/83 where he stated the age of the appellant as 17 years; Third: The evidence of the appellant in the witness box which was as follows: "1st accused: Sunday Modupe, sworn on bible and states in English language, I live at 5, Agbado Street, Okeluse, Via Owo. I am a student at Okeluse Anglican Grammar School, Okeluse. I am in Form 5 at the School. I was born on November 3rd, 1967. I am now 18 years old.".......... "Cross-examined by Mr. Adebusoye: I am the first child of my mother. There are five of us who are the children of my mother. My mother is still a young woman. My immediate younger brother was thirteen years of age in 1983. I am not telling lies when I said that I am 18 years old. I did not tell the Police that I was 20 years old at the time I made the Statement, exhibit 'B'. Court: the 1st accused looks older than 20 years of age" .......... Exh. E which was part of the case for the prosecution showed that the appellant was 17 years on 25/12/83 and this indicates that on 20/12/83 when the offence was committed the appellant had not attained the age of 17 years. On this evidence alone I am of the firm view that the trial Judge ought to have been of the opinion that the appellant had not attained the age of 17 years at the time he committed the offence for the provision of section 208 of the Criminal Procedure Law to apply in the determination of the appellant's age. If this were all to be considered in this appeal I would have done what this court did in Oladimeji v. The Queen (supra) and referred the question of the enquiry and report as to the appellant's age to a special commissioner under section 33(d) of the Supreme Court Act 1960. But it is not. There was the uncontradicted evidence for the appellant albeit by himself which shows that the appellant had not attained the age of 17 years at the time he committed the offence. It was wrong of the learned trial Judge to discredit this evidence not by reference to any fact revealed by the evidence before him but by reference to his estimation of the age of the appellant, an estimation the basis of which cannot be supported in law. I am, therefore, satisfied that the trial Judge on the evidence before him ought to have been satisfied that the appellant had not attained the age of 17 years at the time he committed the offence with which he was charged. It is for the above fuller reasons that I allowed the appellant's appeal on the issue of sentence. I quashed the death sentence passed on him by the trial Court and confirmed by the lower Court, the Court of Appeal. I further ordered that he be detained in prison at the pleasure of the Governor of Ondo State, his appeal against his conviction having been dismissed by me. E. B. CRAIG, J.S.C.: When this case came up for hearing on the 16th of June, 1988, the Court, after hearing arguments, allowed the appeal on sentence and adjourned till today, 16th September 1988 to give reasons for its judgment. I now give my reasons for agreeing that the appeal be allowed. In this connection, I have read the judgment of my learned brother Oputa J.S.C., and I agree with his reasoning and conclusions. The appeal concerned the sentence of death passed on the appellant who was convicted of murder. It would appear that, at the time of the commission of the offence, the appellant was under 17 years, and by the provision of section 368(3) of the Criminal Procedure Act, he should not have been sentenced to death but "in lieu thereof, the Court shall order such offender to be