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Ezekiel Akinsola Oladimeji V. The Queen (1964) LLJR-SC

Ezekiel Akinsola Oladimeji V. The Queen (1964)

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The appellant was convicted in the High Court of Western Nigeria on a charge of having, on the 5th July, 1962, murdered a woman or girl named Ibirinlade Falana, and Mr J. A. Cole, who appeared on his behalf in this Court, did not submit that there were any grounds for setting aside the conviction.

He submitted, however, that on the evidence before him the trial judge ought to have been of the opinion that at the time of committing the offence the appellant had not attained the age of seventeen years, and that if the judge had formed that opinion section 21 (7) of the Constitution of the Federation, 1960 (section 22(7) of the Constitution of 1963), would have required him to order the detention of the appellant during Her Majesty’s pleasure, in accordance with section 257(2) of the Criminal Code of Western Nigeria, instead of passing sentence of death in accordance with section 257( 1).

Both section 257(2) of the Criminal Code and section 368(3) of the Criminal Procedure Ordinance lay down that where a conviction for murder is recorded against a person who in the opinion of the Court has not attained the age of seventeen years the offender shall not be sentenced to death, but shall be ordered to be detained during pleasure. Section 21 (7) of the Constitution of 1960 lays down that ‘no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time when the offence was committed’.

In R. v. Bangaza (1960) 5 F.S.C. I, this Court expressed the view that for the purpose of the Criminal Procedure Ordinance the material date was the date on which the conviction was recorded, but the constitutional point was not raised in that case, and the dictum does not apply in the present case. Mr Coles submission is that the words ‘the penalty in force’ in section 21(7) of the Constitution should be treated as equivalent to ‘the penalty to which the offender was liable’, and this is a novel and important point.

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It 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 the time of committing the offence. Section 208 of the Criminal Procedure Ordinance empowers the Court to make due inquiry as to the age of any person who is before it, and goes on to provide that ‘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 Ordinance be deemed to be the true age of that person’.

To the extent of any inconsistency between this section and the Constitution, the Constitution must prevail, so that if Mr Coles submission is right, the opinion of the Court of trial cannot be conclusive for the purpose of deciding whether or not a sentence of death should be imposed, but in the present case the trial judge, quite understandably, did not find it necessary to record any presumption or declaration as to the age of the appellant, since the constitutional point had not been raised before him.

The only evidence in the High Court as to the appellants age was that of the appellants father, who said in reply to a question put by the judge-‘Both the deceased and the accused are of the same age group.

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The deceased is about eighteen years of age.’ In view of what this Court said in R. v. Bangaza, this was sufficient to warrant the passing of a sentence of death, unless the Constitution precludes it, and no criticism attaches to the judge for not inquiring further.

When the appeal was first argued before this Court, Mr. Cole submitted that that single piece of evidence was enough to entitle the Court to say that the trial judge ought to have been of the opinion that the appellant had not attained the age of seventeen years at the time of the offence, which was about a year before the trial, but we were unable to agree, and we were of the view that at the highest there could be said to be a question deserving further examination.

In providing that the Court itself may make due inquiry as to the age of a person who is before it, the Criminal Procedure Ordinance appears to remove the question from the category of those on which there is a true burden of proof in any sense of the phrase.

That being so, this Court did not consider this a case for the calling of evidence under paragraph (b) or (c) of section 33 of the Federal Supreme Court Act, and in fact neither the appellant nor the respondent invited the Court to receive further evidence; indeed Mr Cole submitted with all the force he could that the Court ought not to consider anything but the evidence given by the appellants father in the High Court.

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The Court decided to treat the question as one involving scientific or local investigation which could not conveniently be conducted before the Court, and referred it for inquiry and report to Mr Justice Fatayi Williams, sitting as a special commissioner appointed by the Court, under section 33(d) of the Act.

The order of the Court directed that evidence was to be taken from certain of the appellants near relatives and from the prison doctor, but expressly said that the doctor was not to examine the appellant with a view to determining his age unless the appellant consented, or in the manner provided by the Prisons Regulations.

The special commissioner sat on the 8th and 13th February, 1964, and the appellant was present and was represented by counsel on both days. The father and mother of the appellant stated on oath that his age in July, 1962, was sixteen or about sixteen; his aunt said that he was aged sixteen in February, 1964. Dr J. B. Azinge, a medical practitioner attached to the General Hospital, Benin, whose opinion the special commissioner thought reliable, said that after examining the appellant and taking X-ray photographs of him he had formed the opinion that in February, 1964, he was about twenty-five years of age; he

Other Citation: (1964) LCN/1151(SC)

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