➥ CASE SUMMARY OF:
Sunday Modupe V. The State (SC.109/1987 · 16 Sep 1988)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Age of convict;
Not up to seventeen;
Detention at pleasure of governor.
➥ CASE FACT/HISTORY
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.
➥ ISSUE(S)
I. 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?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THERE WAS ONLY ONE EVIDENCE THAT THE APPELLANT IS NOT UP TO SEVENTEEN AND THE TRIAL JUDGE OUGHT GO BELIEVE HIM
‘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 charge 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.’
‘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 improbable, 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 mere 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 Appellant’s 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 B at 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 Appellant’s 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 Appellant’s 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 on Ex. B. The learned trial 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.’]
.
.
.
✓ DECISION:
‘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.’
➥ FURTHER DICTA:
⦿ TRIAL COURT CANNOT CHOOSE WHETHER TO BELIEVE WHEN THERE IS ONLY ONE VERSION OF A FACT
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 improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. — Oputa JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
C. A. Oputa, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Nwazojie.
⦿ FOR THE RESPONDENT(S)
Mr. Akenroye.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
