Sunday Modupe Vs The State (1988)

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OPUTA, J.S.C 

 The 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 Awobo Yokun 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, lbadan 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 grounds 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 appellants 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’.   The 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- When an offender who in the opinion of the Court has not attained the age of seventeen years is found guilty of capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the Court shall order such offender to be detained at the pleasure of the Governor of the State’.  

If the evidence on record shows that at the time the offence was committed (which is the crucial date) the appellant had not attained the age of seventeen years then the mandatory provision of section 368(3) of the Criminal Procedure Act will apply and then again it will be wrong of any Court not only to sentence him to death but also to even pronounce or record such a sentence.   Now what was the evidence before the trial Court? The appellant gave evidence on oath in his own defence. His positive testimony with regard to his age was:- ‘I was born on November 3rd 1967. I am now 18 years old…

‘This evidence was given on the 22nd day of May, 1985. The murder charged was alleged to have been committed ‘on or about the 20th day of   December, 1983’. On this material date (20th December, 1983) the appellant was only 16 years, one month and 17 days. He had by then not attained the age of 17 years required by section 368(3) of the Criminal Procedure Act before any sentence of death can even be pronounced or be recorded against him.   Throughout the entire proceedings there was no direct oral evidence to contradict the positive assertion of the appellant that he was born on the 3rd of November, 1967. How did the Court of first instance deal with the crucial question of the age of the appellant? Learned counsel for the appellant submitted to the court that ‘if the 1st accused is under 17 years of age then he cannot be sentenced to death.’  

In his submission, Mr. Adebusoye, learned State counsel at p. 131 of the record stated:- ‘As regards the ages of the accused persons, counsel submitted that section 368(3) of the C.P.A. will only apply if the accused persons are found guilty by the court and if the court believes their evidence as to age’. After considering the submissions on both sides as to the age of the appellant, the learned trial judge at p. 137 of the record found as follows:- ‘As regards the ages of the 1st (the appellant), 2nd and the 7th accused persons, I do not believe their evidence. From my own estimation, each of them, 1st, 2nd and 7th accused is older than 21 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’.  This judgment was delivered on 26/7/85. Normally a trial Court that had the opportunity of seeing the witnesses, hearing them and watching their demeanour enjoys the special privilege of believing or disbelieving their evidence. But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. When there is only one version of an essential fact and that version is not patently and obviously improbably, a trial court is not left with any option than to believe that which has not been controverted or contradicted in any way. To reject the positive assertion by the appellant that he was born on the 3rd of November, 1967 without any contrary evidence at all- either in cross-examination or in rebuttal – seems to be much more than a trial court is allowed to do. To base such a rejection on the subjective estimation of the trial judge looks quite arbitrary, nay dangerous. It looks as though the trial judge converted himself into a witness, gave evidence of the age of the appellant, and then preferred his own evidence of age to that of the appellant   Put as bluntly as this, one can then appreciate the danger involved in a trial judge preferring his own estimation, which is not evidence, and which was not based on any evidence, to a positive assertion which has not in the least been contradicted or controverted.

The learned Director of Public Prosecutions at a stage conceded ‘that there was no evidence contradicting the appellants evidence on oath’. In his judgment, the learned trial judge rightly observed that ‘no doubt evidence of their ages is very material’. That is correct. But evidence of the age of the appellant is a very different thing from speculation as to his age.

If the learned trial judge was in any doubt as to age, when as in this case evidence of the proper age is material, he was obliged and obligated by the provisions of section 208 of the Criminal Procedure Act not to estimate in vacuo the age of the appellant but to ‘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 …’.   If the trial judge felt that the appellant put his age rather low, he was at liberty to adjourn the case and call a medical witness to testify to the age of the appellant as was done in Oladimeji (E.A.) v R. (1964) 1 All N .L.R. 131. Then he will be comparing the evidence of the appellant as to his age with the evidence of the doctor. He will be perfectly within his right to do this.

But he is not permitted to reject positive evidence without any superior and/or contradicting and more probable evidence. If there was evidence from a doctor or any other person in a position to give such evidence, like the parents of the appellant, then the learned trial judge could pick and choose but not otherwise. The statement of the Appellant to the Police was tendered as Exhibit B. In exhibit Bat p. 152, the age of the appellant was given as 20 years.

Exhibit B was made on 21/12/83, a day after the alleged murder. But Exh. B. is not a proof  of the age of the appellant. It suffers from a radical defect as the portion giving the age of the appellant as 20 years was written probably by the recording Police Officer before the words of caution. That entry of the appellants age as 20 years is not therefore part of the statement of the appellant. And it would have been wrong of the learned trial judge to have used it to contradict the appellants direct, positive and uncontradicted oral evidence as to his age. In any event, the trial Court did not and rightly in my view, rely on the age shown Ex. B. The learned judge merely relied on his ‘own estimation’ of the age of the appellant. To estimate is merely to form an opinion and opinion evidence can only be considered if it amounts to expert opinion. Otherwise the mere opinion of the learned trial judge cannot over-ride the positive evidence of the appellant as one is direct evidence of fact while the other is merely a conjecture.

The trial Court was therefore wrong to have pronounced and recorded a sentence of death against the appellant. The Court of Appeal on its part, with respect, was also wrong in upholding, affirming and confirming that sentence. The next Issue for Determination reads:-    ‘(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 Governors pleasure instead of a higher punishment of the death penalty’.  

The above issue raises a substantial point of constitutional importance. But Issues For Determination in any appeal must be issues arising from the grounds of appeal filed. I do not see how the above constitutional issue can be argued under the omnibus ground dealing with facts. Also there is no evidence of any ‘subsequent proof of the age of the person concerned’ (here the appellant) after his evidence which put his age at the time of the commission of the offence charged at 16 years, one months and 17 days – obviously below 17 years of age.

In other words, the factual situation that would have necessitated the consideration of the second limb of section 208 of the Criminal Procedure Act simply does not and did not exist in this case. I will therefore decline from considering the 2nd Issue for Determination.   In the final result, this appeal ought to be allowed. The sentence of death pronounced and recorded by the learned trial judge against the appellant is hereby set aside and in its place it is hereby ordered that:-   The appellant Sunday Modupe shall be detained in prison at the pleasure of the Governor of Ondo State. It was for the above reasons that I, on the 16th day of September, 1988, allowed this appeal.

KAYODE ESO, J.S.C. This appeal must be allowed on sentence and it is hereby allowed. There is evidence by the appellant as to his age. There is no admissible evidence where so ever to contradict this evidence. The statements as regards age made in Exhibit Band D are not legally admissible as they were made before the cautions were administered in both cases.  

The judges presumption of the appellants age has no support in law. Section 208 of the Criminal Procedure Law has to be read in the light of section 33(8) of the 1979 Constitution in which case the age for the determination of the sentence must be the date of the accused person at the commission of the offence. In this case upon the admissible evidence the appellant was certainly under 17. Sentence of death could not and must not be pronounced upon him. See S. 33 (8) of the 1979 Constitution. The appeal is allowed on sentence only.

The sentence of death is set aside. In its place the following order is made. The appellant, Sunday Modupe, shall be henceforth detained in prison at the pleasure of the Governor of Ondo State. And this shall be the order of this Court.

Other Citation: (1988) LCN/2379(SC)