Sunday Modupe V. The State (1988)

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A. OPUTA, J.S.C.

This appeal came up for hearing on the 16th day of June, 1988. Both counsel for the Appellant and the Respondent relied on their respective Briefs and addressed the Court briefly in elaboration of the main issues canvassed in those Briefs.

The Court allowed the appeal on sentence and adjourned its reasons for judgment to today the 16th day of September 1988. Hereunder are my Reasons for Judgment.

The facts are not in dispute. The Appellant along with eight others were arraigned before the Ondo High Court on a charge of murder. They were alleged to have unlawfully killed one Dapo Awoboyokun contrary to Section 254(2) and punishable under Section 257(1) of the Criminal Code Law Cap 28 Laws of Western Nigeria 1959. After due trial, the Court of first instance on the 26th day of July 1985 convicted the Appellant and two others and sentenced them to death.

The Appellant appealed to the Court of Appeal, Benin Division, against his conviction and sentence. The Court of Appeal on the 16th April 1987 dismissed the appeal of the Appellant, affirmed the judgment of the trial Court and confirmed the sentence of death passed by that Court.

The Appellant then appealed to this Court against his conviction and sentence. He filed only one ground of appeal- the omnibus ground. He however indicated that “additional grounds of appeal will be forwarded on receipt of the record of proceedings.” None was however filed. The only ground of appeal would therefore seem to be:-

“That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.”

This ground undoubtedly deals with facts. The issue now would seem to be:-

Whether or not this ground of appeal is wide enough to sustain and support the Issues for Determination as formulated in the Appellant’s Brief

The 1st Issue reads as follows:-

“Whether the learned trial Judge was right in estimating the age of the appellant instead of setting up an enquiry to find out the age of the appellant in accordance with the provisions of Section 208 of the Criminal Procedure Act.”

This issue deals with the question of whether there was any evidence that the Appellant was of such an age that would warrant his being sentenced to death, as was done by the trial Court, and confirmed by the Court of Appeal.

Here it is relevant to note the provision of Section 368(3) of the Criminal Procedure Act to wit:-

“S.368-