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1 SC. 356/1965

CWLR (1965) 17


LN-e-LR/1965/69  (SC)







  1. A. COLE – for the appellant.
  2. O. OFIAH, Senior State Counsel (East), – for the respondent.



CRIMINAL LAW:- Murder – Proof thereof – Sentencing proceedings – Sentence of death – Age of offender at time of conviction as distinct from time of offence – Which applies for the reckoning of age of accused person to determine if he is a minor or adult

CHILDREN AND WOMEN LAW:- Murder and Minors – Age of a young person convicted for murder – Need to satisfy court that accused is not minor – On whom the burden lies – Where doubt exist – Effect of failure to satisfy court thereof

CONSTITUTIONAL LAW: – Fair hearing – Validity of reckoning age of majority at the time of conviction instead of the time of committing the offence –  Constitution of Federation (1963), s.22(7) – Interpretation thereof

INTERPRETATION OF STATUTE: – Legislation: A—Criminal Code Law (E.N.), s.319(2); Criminal Procedure Law (E.N.),s.368(3); Federal Criminal Code, s.319;  Criminal procedure Act, s.368; Children and Young Persons Act (1958 Laws of the Federation, cap. 32), s.12.; Criminal Procedure Code Law (N.N.), s.272 (as in 1963); England-Children and Young Persons Act, 1933, s.53; Homicide Act, 1957



BAIRAMIAN, J. S C. (delivering the judgment of the Court):-

In this appeal the only question raised is whether the appellant could have been sentenced to death upon conviction of murder. He committed the murder in August, 1964; he was convicted and sentenced on the 1st June, 1965; and the question is whether he had attained the age of 17 by the time he was convicted.

The provisions on punishment are to be found in section 319(2) of the Criminal Code Law, chapter 30 of the 1963 Laws of Eastern Nigeria, and in section 368(3) of the Criminal procedure Law, chapter 31: it will be enough to quote here the latter subsection:

“(3)   Where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor’s pleasure and if so ordered he shall be detained in accordance with the provisions of Part XLIV notwithstanding anything to the contrary in any written law.”

The Federal Supreme Court decided in R. v. Bangaza 5 F.S.C. 1, that the material date under that provision was the date of conviction, and although Mr. Cole has asked us to take the view that it is the date of the offence, we do not think that there is any need to reconsider R. v. Bangaza. That provision was first introduced into Nigeria in 1945: see section 12 of the Children and Young Persons Act, chapter 32 of the 1958 Laws of the Federation; repeated in section 319 of the Criminal Code and in section 368 of the Criminal Procedure Act of the Federation. It came from section 53 of the English Children and Young Persons Act, 1933, which provided in subsection (1) that:-

“Sentence of death shall not be pronounced on or recorded against a person under the age of 18 years, but in lieu thereof the court shall sentence him to be detained during His Majesty’s pleasure. . .”

(We adopted that in 1945 but fixed the age at seventeen). The English Parliament in 1957 replaced that provision by the following, which was enacted in the Homicide Act of 1957- “Sentence of death shall not be pronounced on or recorded against a person convicted of an offence who appears to the court to have been under the age of 18 years at the time the offence was committed.. .’

We therefore suggest to Mr. Cole that he might consider those provisions before asking for a review of R. v. Bangaza.

Mr. Cole suggested that the Eastern Region provisions ought now to be read in the light of section 22, subsection (7) in the 1963 Constitution of the Federation, which provides that:-

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”

We think that in the present case it is not necessary to decide the meaning of the Constitutional provision; for it seems to us doubtful on the evidence whether the appellant had attained the age of 17 by the time he was convicted.

The evidence comes from the doctor who first saw the appellant in February, 1965 and testified that the appellant then told him that when baptised in 1960 he was 13 years old; therefore, said the doctor, he would be 18 in 1965. In answer to the court, the doctor said that “at the material time the accused would have been under 17 years.” The trial judge took the view that in between the date of the offence and the date of conviction the appellant had attained the age of 17 and was liable to sentence of death in accordance with the view of the Federal Supreme Court in R. v. Bangaza.

There are two points which escaped consideration: one is what does an Ibo villager mean when he says he was 13 when baptised? An English boy who says that he is 13 means that he has had 13 candles on his birthday cake-that he has had the 13th anniversary of his birth or, as he would say, his 13th birthday; that is to say he has attained the age of 13 in full. It is conceded by Mr. Offiah, the Senior State Counsel, that an Ibo villager who says he is 13 may well be out by several months, and it is well known to two members of the Court that Ibo villagers reckon their age by certain festivals, and that the result may well be that an Ibo boy who says he is 13 is only 12 and a bit but has not attained the age of 13 in the English sense. And one may add that when a Cypriot boy says he is 13 he really means that he has attained the age of 12 and is in his 13th year-on the way to attaining 13 but not yet 13. Thus it is probable that the appellant when baptised was 12 really and on the way to 13 but not 13 yet.

The other point relates to the date of the baptism. The appellant said it was in 1960, which might mean any month between January and December; but this would make a great difference to his age for purposes of sentence.

Having regard to the above considerations, which were not canvassed in the Court below, we think that it is doubtful whether the appellant had attained the age of 17 by the time of conviction, and on the rule that doubt must be resolved in favorem vitae we must take the view that he had not attained the age of 17.

Reverting to the provisions on sentence, we note that the Federal Supreme Court in R. v. Bangaza suggested that consideration might be given to amendment with a view to making the age at the time of the offence the deciding factor. We note that this was done in the Northern Region in section 272 of the Criminal Procedure Code in 1963. The Registrar of this Court is to send a copy of this judgment to the Attorneys-General of the other territories in Nigeria for consideration. They might like to consider the recommendation in R. v. Bangaza; also whether section 22(7) of the Constitution does not make it necessary to amend the provision on punishment in regard to the material date of age.

The present appeal is allowed in regard to sentence; the sentence of death is quashed and replaced by an order that the appellant shall be detained during the Governor’s pleasure in accordance with subsection (3) of section 368 of the Criminal Procedure Law of Eastern Nigeria.


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