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."
It was wrong to pronounce a sentence of death on the appellant. Counsel was cognizant of the
following finding of the trial Judge:
"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.
No. doubt, evidence on their ages is very material; but I am satisfied that each of them is older
than twenty years."
The appellant was the first accused at the trial Court. He gave his evidence in the witness box on
22/5/1985. So the above finding of the trial Judge, if it can be sustained, would make the
appellant more than 17 years old at the time of the commission of the offence in question on
20/12/83 and thereby knock the bottom out of the submission of counsel that the death sentence
was wrongly passed on the appellant.
Counsel however submitted that the learned trial Judge's finding cannot be sustained.
He made a two pronged attack on the finding. Firstly, he submitted the learned trial Judge before
assessing the age of the appellant at more than 20 years did not make due enquiry as to the age
of the appellant as enjoined by section 208 of the Criminal Procedure Law in the circumstances
like those facing us in this case. It is abundantly clear that the trial Judge made no enquiry as to
the age of the appellant. Although he himself recognized it that the evidence as to the age of the
appellant was material, yet he based his assessment of the appellant's age on his (trial Judge's)
estimation and not evidence. Since the condition precedent to the determination of the age of a
person by the Court under section 208 of the Criminal Procedure Law, namely, the making by the
court of due enquiry as to the age of that person, has not been carried out by the trial Court, it
cannot be said or argued successfully that the finding of the trial Judge amounts to a
determination of the age of the appellant under the provisions of section 208 of the Criminal
Procedure Law. It follows too that that finding cannot be deemed, relying on the section, as the
true age of the appellant. This is not the end of the matter as regards the submission of counsel
on section 208 of the Criminal Procedure Law. For this Court in Oladimeji v. The Queen (1964)1 All
N.L.R. 131 at 133 interpreting the section held:"It (determination of age) can only arise however if on the facts the Judge ought to have been of
the opinion that the appellant had not attained the age of seventeen years at time of committing
the offence." (words in brackets mine.)
This now takes me to the other ground upon which the attack on the finding of the learned trial
Judge as to the age of the appellant was based.
Counsel submitted that on the facts as disclosed by the evidence before the trial court the trial
Judge not only ought to have been of the opinion that the appellant had not attained the age of 17
years at the time of committing the offence but also, ought to have been satisfied that the
appellant had not attained that age at the time.
The relevant evidence as to the age of the appellant was as follows:
First: Exh. B statement of the appellant to the police of 21/12/83 taken by 4th p. w. Sergeant Eko
Abani where he put the age of appellant in 1983 at 20 years;