(1960)5 FSC. 1. Mr. Nwazojie referred to and relied on the provisions of section 33(8) of the Constitution 1979 and Godwin Ikpasa v. Bendel State (1981)9 SC.7 at p. 15. Mr. Akenroye in his submission contended that the trial Judge was right to hold that appellant had attained the age of 17years at the time he committed the offence. He further submitted that on the express words of s.208 the trial Judge setting up an enquiry for the determination of age was not mandatory; and that it lies in the discretion of the trial Judge. I have already set out the issues for determination. I think this appeal could be decided on the first issue. Section 208 of the Criminal Procedure Act, provides as follows:" Where a person is before any court and it appears to the court that such person is an infant, or a child, or a young person, or an adult, the court may make due inquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time, or at the time to which the inquiry may be adjourned but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person shall for the purposes of this Act be deemed to be the true age of that person. The presumption or declaration of age made under this section applies only for the purposes of this Act, that is in relation to orders made under section 204 or 206, to sentences passed under section 385 and to the finding that the jurisdiction of the court is or is not excluded under section 413. Since the inquiry is made by the court, there is no true burden of proof on either party: R. v. Oladimeji (1964)1 All N.L.R. 131; 1964 N.M.L.R. 31. CF. Ss.563 and 753. It seems from the above provision that the use of the precatory word "may" did not suggest the exercise of a discretion whether to set up an enquiry as to the age of the accused, where such was relevant to the sentence to be imposed. In my opinion where the age of the accused person is material for the purpose of conviction or relevant in the determination of the nature of the sentence, and evidence of such age is not conclusive the trial Court is obliged to make due inquiry as to the age of that person by taking evidence of such age. It does not lie in the trial Judge to ignore uncontradicted evidence of age of the accused before him by relying on his own perception without supporting evidence before him. Whereas the trial Judge is required to determine the age of the appellant where this is relevant, the court is required to come to its determination on the evidence before it. In the instant case, the trial Judge appreciated that the evidence of the age of the appellant was very material, but went on to hold that the appellant was more than 20 years old. It is not certain whether this was reckoned from the date when appellant gave evidence, or the date of the judgment, or of the commission of the offence. The opinion of the trial Judge was based on his own estimate of the age of the appellant unsupported by any evidence before him. This is not what section 208 of the Criminal Procedure Act enjoins the trial Judge to do. As was pointed out by Brett F. J. in Oladimeji v. The Queen (1964)1 All NLR at p. 135, "In the exercise of its judicial discretion the Court has to apply its mind, not to any hypothetical set of facts, but to the material before it, and if either party wishes to invoke the discretionary power of the court in his favour, it is for him to lay a basis for its exercise." There was clearly, no basis for the trial Judge coming to the conclusion that appellant was more than twenty years old, at the time of the commission of the offence, which is the time relevant for the imposition of the punishment. Section 33(8) of the Constitution 1979 provides as follows:-