MODUPE V. THE STATE

• Pages: 437-448

MODUPE V. THE STATE

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437

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MODUPE V. THE STATE

SUNDAY MODUPE

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APPELLANT

V

10 THE STATE

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RESPONDENT

SUIT NO. SC 109/1987

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

KARI BI-WHYTE,

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J.S.C.

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OPUTA,

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J.S.C.

AGBAJE,

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J.S.C.

CRAIG,

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J.S.C.

16th September, 1988

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Criminal Law and Procedure - Murder - Sentencing - Age of offender - Proper

considerations - Whether time of commission of offence or time of trial.

Appeals - Grounds of Appeal - Omnibus Ground.

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Evidence -Age of accused - Uncontradicted evidence - Duty of trial judge.

ISSUES:

1. When does the question of belief or disbelief of evidence, become an issue in a

criminal matter.

30 2. Whether the entry of an appellants age on a statement, can be considered as part

of the statement.

3. Whether the opinion of a trial judge can override the positive evidence adduced

in court.

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4. Whether a constitutional issue can be raised under the omnibus ground of appeal.

5. When does the mandatory provision of section 368(3) of the Criminal Procedure

Act, dealing with young persons apply to a case.

FACTS:

The appellant, who was charged with murder, was tried and convicted along with

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two others, in the Ondo State High Court. The learned trial judge, having found him

guilty, sentenced him to death.

The appellant appealed to the Court of Appeal, against the sentence. The appeal

was however dismissed, and the appellant, aggrieved by this decision, further ap-

pealed to the Supreme Court. The appellant filed only one ground of appeal, the

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Omnibus ground, that the decision was altogether unwarranted, unreasonable, and

cannot be supported, having regard to evidence. At the hearing of the appeal, the

appellant contended

inter alia,

that the learned trial judge erred in rejecting the evi-

dence adduced in court, which was uncontradicted, as the appellant's age, and sub-

stituting his own estimation of the appellant's age. It was also contended that the

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Court of Appeal erred in upholding the trial court's death sentence on the appellant.

The evidence before the trial court, was that the accused was born on Novem-

ber 3rd 1967, and at the time of the trial, he was 18 years old. The murder for which

the accused was charged was committed two years earlier, on the 20th December

1983. There was no evidence adduced to contradict the appellant's evidence on

oath. No due enquiry was made to ascertain the appellant's age, neither was any