ABDULKADIR AHMED v. MINISTER OF INTERNAL AFFAIRS OF THE FEDERAL REPUBLIC OF NIGERIA & ORS (2017)

ABDULKADIR AHMED v. MINISTER OF INTERNAL AFFAIRS OF THE FEDERAL REPUBLIC OF NIGERIA & ORS

(2017)LCN/9736(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of March, 2017

CA/K/199/2014

RATIO

FRESH POINTS ON APPEAL: WHETHER LEAVE OF COURT MUST BE SOUGHT AND OBTAINED BEFORE A FRESH POINT ON APPEAL CAN BE RAISED

While it is not against the law to raise fresh issues for the 1st time on appeal, what is against the law is to raise such issues without first seeking and obtaining the leave of the appellate Court. See Gwede v. INEC (2014) 18 NWLR Part 1438 Page 56 at 87 Para D-F per Onnoghen JSC (as he then was). Issues of fact or law which were not raised, argued and pronounced upon by a trial Court are fresh issues which can only be heard by an appellate Court after leave of the Court is obtained, I hold. An issue for determination raised without the leave of the Court is accordingly incompetent and cannot be validly raised. See Yahaya v Dankwambo (2016) 7 NWLR Part 1511 Page 284 at 305 Para F-G per Onnoghen JSC (as he then was); Compagnie Generale De Geophysique (Nig.) Ltd v. Aminu (2015) 7 NWLR Paft 1459 Page 577 at 591 Para G per Rhodes-Vivour JSC; Idufueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

AFFIDAVIT EVIDENCE: POSITION OF THE LAW WHERE THERE IS CONFLICT IN THE AFFIDAVIT EVIDENCE RELIED ON BY PARTIES ON A MATERIAL ISSUE BEFORE THE COURT

In the case cited by both parties of Momah v. Vab Petroleum Inc. (2000) 4 NWLR Part 654 Page 534 at 556-557 Para G-D, the Supreme Court held, per Achike JSC as follows: “On the question of conflict of affidavit evidence placed before the Lower Court which appellant’s learned counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court, it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. See Falobi v. Falobi (1976) 10 SC 1 and Akinsete v. Akindutire (1966) 1 All NLR 147. In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to affidavit evidence filed by the appellant, on the one hand, and that filed by the respondent, on the other; rather, the contradiction arose only in the respect of the appellant’s averments in his numerous affidavits. Therefore, the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence by the parties did not arise. Rather, it was self-evident from the judgment of the Lower Court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits. Clearly, where the appellant’s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the Court seised of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another. But having said that, I must hurry to state that the onus is undoubtedly on the appellant confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the Court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the Court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within the appellant’s own affidavit evidence.” (Underlining mine) In Lagos state Development and Property Corporation v Adold Stamm International Nigeria Ltd (2005) 2 NWLR Part 910 page 609 at 617 Para B-C per Akintan JSC “In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise.” In the instant case, as pointed out by the Respondents’ Counsel, the International Passport of the Appellant obtained in 1985, exhibited to his affidavit states as his place of birth “Zaria”. This clearly conflicts with the document exhibited by him from Bodinga Local Government showing that his place of birth is Danchadi District of Bodinga Local Government in Sokoto State. Zaria, in Kaduna State, I hold, is vastly different from Bodinga in Sokoto State. The dictum of Achike JSC in the case of Momah v. Vab Petroleum Inc. above, must accordingly come to play, that “where the Appellant’s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the Court seised of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the Appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another.” In addition, it was held in the case of Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 559 Para E-H per Peter-Odili JSC that where there is documentary evidence from which the Courts can settle conflicts in affidavits, there is no point to call for oral evidence. Calling of oral evidence is not the only option. The Appellant, having stated in his passport of 1985 that his place of birth is Zaria, yet later claims it is in Bodinga in Sokoto State, cannot by his inconsistency foist upon the Court the obligation of resolving his contradictions. Indeed, as pointed out by the Respondents’ Counsel, the resolution by oral evidence of whether he comes from Danchadi District of Bodinga Local Government will serve no purpose in view of his positive and prior assertion of Zaria as his place of birth. He cannot approbate and reprobate. The trial Judge was thus not in error to have failed to call oral evidence. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS: WHETHER A PERSON WHO IS NOT A CITIZEN CAN BE ENTITLED TO THE PROTECTION OF THE FUNDAMENTAL RIGHTS CONTAINED IN THE CONSTITUTION OF NIGERIA

The incidents of citizenship as contained in Sections 23-28 of the Constitution of the Federal Republic of Nigeria 1979, in force at the material time, are as follow: SECTION 23 [CITIZENSHIP BY BIRTH] 1. The following persons are citizens of Nigeria by birth, namely- a. every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria: Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria. b. every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and c. every person born outside Nigeria either of whose parents is a citizen of Nigeria. 2. In this section, “the date of independence” means the 1st day of October, 1960. SECTION 24 [CITIZENSHIP BY REGISTRATION.] 1. Subject to the provisions of Section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as a citizen of Nigeria, if the President is satisfied that – a. he is a person of good character; b. he has shown a clear intention of his desire to be domiciled in Nigeria; and c. he has taken the Oath of Allegiance prescribed in the Sixth Schedule to this Constitution. [Seventh Schedule.] 2. The provisions of this section shall apply to – a. any woman who is or has been married to a citizen of Nigeria; or b. every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria. SECTION 25 [CITIZENSHIP BY NATURALIZATION] 1. Subject to the provisions of Section 28 of this Constitution, any person who is qualified in accordance with the provisions of this section may apply to the President for the grant of a certificate of naturalization. 2. No person shall be qualified to apply for the grant of a certificate of naturalization, unless he satisfies the President that – a. he is a person of full age and capacity; b. he is a person of good character; c. he has shown a clear intention of his desire to be domiciled in Nigeria; d. he is, in the opinion of the Governor of the State where he is or he proposes to be resident, acceptable to the local community in which he is to live permanently, and has been assimilated into the way of life of Nigerians in that part of the Federation; e. he is a person who has made or is capable of making useful contribution to the advancement, progress and well-being of Nigeria; f. he has taken the Oath of Allegiance prescribed in the Sixth Schedule to this Constitution; and [Seventh Schedule. g. he has, immediately preceding the date of his application, either- (i) resided in Nigeria for a continuous period of fifteen years; or (ii) resided in Nigeria continuously for a period of twelve months, and during the period of twenty years immediately preceding that period of twelve months has resided in Nigeria for periods amounting in the aggregate to not less than fifteen years. SECTION 28 [PERSONS DEEMED TO BE NIGERIAN CITIZENS.] For the purposes of this Chapter, a parent or grandparent of a person shall be deemed to be a citizen of Nigeria if at the time of the birth of that person such parent or grandparent would have possessed that status by birth if he had been alive on the date of independence; and in this section, “the date of independence” has the meaning assigned to it in Section 25 (2) of this Constitution. The Appellant claims that he is a citizen of Nigeria by birth, under Section 23 (1) (a) Supra. He has however not been able to prove that any of his parents or grandparents belong to a community indigenous to Nigeria. The claim made in the letter from Danchadi District of Bodinga Local Government that both he and his parents were born in Sokoto, is in violent conflict with his claim of being born in Zaria. Contrary to his assertion that the Respondents had failed to discharge the burden that had shifted to them to disprove his place of birth, this burden, I hold, only shifts to them after he (the Appellant) has discharged the burden placed on him. It is not the law for the Respondents to prove a negative assertion. The law, on the contrary, is on the Appellant who has made a positive assertion to prove the same. See Aiyetoro Community Trading Co. Ltd. v. Nigerian Agricultural and Co-operative Bank Ltd (2003) 12 NWLR Part 834 Page 346 at Page 378 Para G-H per Ba’aba JCA. The possession of a passport, without more, I hold, does not qualify a person to be a citizen of the Federal Republic of Nigeria, neither does the possession of a voter’s card or proof of payment of development levies. Qualification to be a citizen of this country is clearly spelt out in Sections 23 to 28 of the 1979 Constitution Supra (Sections 25-31 of the 1999 Constitution). Nothing extraneous can be read into these provisions. The trial Judge did not thus misdirect himself in failing to accord the status of citizenship to the Appellant based on these extraneous factors. The Appellant, having failed to discharge the burden of proving that he is Nigerian, the question is whether he is entitled to the protection afforded by Section 32 (1) of the Constitution, which as aforesaid provides that: 1. Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – f. for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: Section 18(2) and 19(2) of the Immigration Act Cap. 171 of 1963 contained in Laws of the Federation of Nigeria 1990, in operation at the date in question, provides: SECTION 18 2. The Minister may, at any time by notice add to or amend any class of prohibited immigrants in Subsection (1) of this section and if he deems it conducive to the public good may prohibit the entry into or stay in Nigeria of any other persons or class of persons not in any case citizens of Nigeria. SECTION 19 2. The Minister may, if satisfied that it is in the public interest, and whether or not any person has been prosecuted for an offence under this section, make a deportation order against that person as a prohibited immigrant and it shall be no defence that such person was not notified that his entry into Nigeria was prohibited, or that the entry was permitted by oversight or otherwise howsoever; this subsection shall have effect notwithstanding any other provision of this Act. In the case of Chief Obafemi Awolowo v. Hon. Minister of Internal Affairs, Usman Sarki (1966) ANLR Page 171 at 174-175 it was held, per Ademola CJN, as follows: “It seems clear to us that Section 13 of the Immigration Ordinance (or Act) contains an exception in favour of “a native of Nigeria” and one has to look at Section 26 of the 1960 Constitution which provides that: “(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof; and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto.” … In our view, Section 26(1) necessarily implies that other persons may be refused entry or expelled in accordance with the legislation in force on the subject. This is borne out by the following provision in Section 20(1) of the Constitution:- “No person shall be deprived on his personal liberty save in the following cases and in accordance with a procedure permitted by law… (f) for the purpose of preventing the unlawful entry of any person into Nigeria or for the purpose of effected the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.” It appears clearly enough that this provision of the Constitution recognizes the legality of the Immigration Act. and we cannot see anything unconstitutional in the provision of Section 13 of the Act which confers power of the Minister to prohibit in his absolute discretion the entry into Nigeria of any person who is not a native of Nigeria or who is not a citizen of Nigeria (according to Section 26(1) of the Constitution).” (Underlining Mine) It is clear therefore, that Section 32(1) of the 1979 Constitution (same as Section 35 of the 1999 Constitution) cannot be read in the absolute as it recognizes the legality of the Immigration Act, which it is that donates power to the Minister in the public interest to prohibit any person that is not a citizen from remaining in the country. The Report from the Government of Kaduna State showed that the Appellant, who was established to be a foreigner was a security risk, consequent upon which the 1st Respondent, exercising his powers under Sections 18(2) and 19(2) of the Immigration Act Supra, deported him. I hold that the trial Judge was right in his decision that the Appellant is not a citizen of Nigeria and by his acts, which were inimical to the security of the country, was not entitled to the protection guaranteed under the Fundamental Rights Provisions contained in the Constitution of the Federal Republic of Nigeria. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

ABDULKADIR AHMED Appellant(s)

AND

1. MINISTER OF INTERNAL AFFAIRS OF THE FEDERAL REPUBLIC OF NIGERIA
2. THE ATTORNEY-GENERAL OF FEDERATION
3. THE COMPTROLLER-GENERAL OF IMMIGRATION Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This appeal by the Appellant, who was the Applicant before the Lower Court, is against the decision of the Federal High Court, Kaduna Division, delivered on 18th day of May, 2012 by Hon. Justice M. L. Shuaibu (as he then was) dismissing the Appellant’s case. Aggrieved by this decision, the Appellant filed a six ground Notice of Appeal on 7th June, 2012.

The facts of this case are that, following complaints against the Appellant’s activities by residents of Zaria Local Government in Kaduna State, the Security Agencies, on proof garnered by them that the Appellant, an Islamic Scholar, was not a citizen of Nigeria, effected his deportation to the Niger Republic.

The Appellant filed a suit seeking leave to enforce his fundamental human rights. Subsequent to the grant of leave, he filed an Originating Summons for the following reliefs:
1. A DECLARATION that the deportation of the Applicant who is a citizen of Nigeria to Niger Republic by the Respondents is an illegal act and constitutes a violation of the Applicant’s Fundamental Right of freedom of movement

guaranteed under Section 38 (1) of the 1979 Constitution.
2. A DECLARATION that the arrest, detention and forceful removal of the Applicant from his home and country are unlawful and constitute gross violation of the Applicant’s Rights to Human Dignity and Personal Liberty guaranteed under Sections 31(1) and 32(2) of the 1979 Constitution.
3. AN ORDER of this Honourable Court directing the Respondents to pay the Applicant the sum of N12,000,000.00 (Twelve Million Naira) as general and exemplary damages on account of the grave breaches of the Applicant’s Fundamental Rights of Freedom of movement, personal liberty and dignity of human Person occasioned by the illegal and wrongful acts of the Respondents.

The Respondents filed a Counter Affidavit. In response, the Appellant filed a Motion for amendment of his Statement in support of his application for the enforcement of his fundamental human rights, in response to which the Respondents filed a further Counter Affidavit. The Lower Court, upon a consideration of the application and the written addresses filed by the parties, dismissed the Appellant’s case. This appeal is against this decision.

In prosecution of the appeal, the Appellant, under the hand of his Counsel, Aliyu Umaru, filed a Brief of Arguments on 16/4/15, in which he formulated four issues for determination, namely:
1. Whether the learned Trial Judge was right in his decision that the Appellant is not a citizen of Nigeria and as such not entitled to the protection guaranteed under the Fundamental Rights Provisions contained in the Constitution of Nigeria 1979.
2. Whether the learned Trial Judge was right in refusing to allow the calling of oral evidence.
3. Whether the learned Trial Judge was not in error when he failed to make a finding on the regularity of the processes leading up to the deportation of the Appellant out of Nigeria.
4. Whether the learned Trial Judge was not in error in his consideration of the evidence adduced at the trial particularly with regard to the issue of burden of proof at the trial.

The Respondents, in their Brief of Arguments filed on 13/4/16 but deemed by this Court on 31/5/16 as properly filed, settled by S.S. Liman Esq, adopted the issues for determination raised by the Appellant.
?
Before proceeding to the issues

which I consider that arise for determination, mention must be made of the 3rd issue formulated by the Appellant, which complains about the failure of the trial judge to make a finding on the regularity of the processes leading up to the deportation of the Appellant.

As rightly pointed out by the Respondents’ Counsel in his Brief of Arguments, this issue was never raised at the Lower Court. The sole issue placed by the Appellant before that Court, as contained in his Written Address at Page 177 of the Record of Appeal is the following:
“Whether the Plaintiff (sic) is a citizen of Nigeria; and if this issue is resolved in favour of the Plaintiff, he will be entitled to the reliefs sought in the action.”

an appellate Court after leave of the Court is obtained, I hold. An issue for determination raised without the leave of the Court is accordingly incompetent and cannot be validly raised. See Yahaya v Dankwambo (2016) 7 NWLR Part 1511 Page 284 at 305 Para F-G per Onnoghen JSC (as he then was); Compagnie Generale De Geophysique (Nig.) Ltd v. Aminu (2015) 7 NWLR Paft 1459 Page 577 at 591 Para G per Rhodes-Vivour JSC; Idufueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC.

In consequence, from the processes filed before the Lower Court and the judgment of that Court, the issues that I consider that arise for determination, are the 1st and 2nd issues formulated by the Appellant. The 2nd issue shall, however be considered along with the 1st issue, as it forms an integral part, in the determination of the issue.
?
These issues, slightly modified for succinctness, are:
1. Whether the learned Trial Judge was right in his decision that the Appellant is not a citizen of Nigeria and as such not entitled to the protection guaranteed under the Fundamental Rights Provisions contained in the Constitution of Nigeria,

1979.
2. Whether the learned Trial Judge was right in refusing to allow the calling of oral evidence.

The issue in this case centres around the justification of the trial Judge holding that the Appellant is not a citizen of this country and thus not entitled to the protection guaranteed by the Constitution of the Federal Republic of Nigeria 1979, the Constitution in force at the time in question.

These guarantees are contained in Sections 31 to 38 of the Constitution of the Federal Republic of Nigeria 1979, as follows:
SECTION 31 (1)
1. Every individual is entitled to respect for the dignity of his person, and accordingly –
2. no person shall be subjected to torture or to inhuman or degrading treatment;
SECTION 32(1)
1. Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
f. for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:<br< p=””

</br<

SECTION 38
[RIGHT TO FREEDOM OF MOVEMENT.]
Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
2. Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society.
a. Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
b. Providing for the removal of any person from Nigeria to any other country to:-
(i) be tried outside Nigeria for any criminal offence, or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.

The Respondents have however contended that the Appellant is not a citizen of the Federal Republic of Nigeria and was deported from the country

for security reasons. The facts relied upon by them are as contained in reports exhibited to their affidavits filed before the Lower Court.

These reports are, firstly a letter, dated 6/9/93, from the Kaduna State Government, addressed to the 3rd Respondent forwarding a Report on the activities of the Appellant and requesting for expeditious action on the same. The Report mentioned Security Reports and also from the Zaria Local Government warning of the Appellants “unorthodox religious activities”. The Report stated that information coming to them showed that he was a non Nigerian. Investigation of this showed that he came to Zaria as an Islamic pupil, and initially stayed with the late Mallam Na’iya and on his death, became a mallam in his own right, being patronized by students and others. He however started manifesting fanatical tendencies similar to the Maitatsine sect, following which he was ejected from his quarters by the community. He later resettled in his personal residence, again becoming a problem. The State Security Council decided to seek for his deportation if he was found to be non Nigerian.
?
Also exhibited to the Respondents’

Counter Affidavit is a letter from Bodinga Local Government of Sokoto State, dated 14/10/93 addressed to the 3rd Respondent, stating:
“….Mallam Abdulkadir Ahmed is not an indigene of Bodinga Local Government Area of Sokoto State.
This is sequel to the confirmation from the District Head of Bodinga Reference No. BOG/DIST/065/Vol.IX/813 of 28th March 1993. As all efforts to trace his roots for the past nineteen (19) months proved abortive.”

Further exhibited is a Report to the 3rd Respondent, dated 21/10/93 from the Nigerian Immigration Service, Kaduna State Command of its assignment to travel to Bodinga Local Government to officially confirm the claim of the Respondent that he is from Bodinga. It gave information of the failure of the Appellant to identify his birth place and the failure of the locals of that area to identify him. Information was that he is a citizen of Niger Republic, in which country his parents died.

?The contention of the Appellant, in his affidavit filed is a denial of his being troublesome. He denied that he ever claimed to be an indigene of Bodinga Town but of Danchadi District of Bodinga Local Government. Exhibited

to his affidavit is a letter also from Bodinga Local Government, dated 12th April, 1994. Stating:
“This is to confirm to you that the above named person whose photograph is attached to this note is an indigene of this local government area. He was born in Danchadi of Danchadi Bodinga Local Government Area of Sokoto State…”

Also exhibited is a letter from Zaria Local Government, dated 16/4/94 from the District Head of Danchadi that the Appellant was born in Danchadi and that his parents are indigenes of Danchadi, “Kyahuje Ward”.

Further exhibited was a passport of the Federal Republic of Nigeria.

The Lower Court, upon a consideration of the application before it and the written addresses of Counsel, held as follows:
“In the famous decision in Awolowo Vs Usman Sarki (supra), it was inter alia held that where a person is not a Nigerian, the Minister may in his discretion conferred by Section 13 of the Immigration Act refuse the entry of such person into Nigeria. In the instant case, the Applicant contends that he is a Nigerian as such his deportation from Nigeria was not only arbitrary but illegal and unconstitutional. However, the

third Respondent places reliance on Exhibit “B? annexed to the counter affidavit which is a letter dated the 14th of October, 1993 addressed to the Comptroller of Immigration Kaduna and duly signed by the Secretary of Bodinga Local Government to the effect that the Applicant is not an indigene of Bodinga Local Government. Thus, rebutting the Applicant’s claim that he is an indigene of Bodinga and by necessary implication a non-citizen of Nigeria. In Bedding Holdings Limited Vs NEC (1992) 8 NWLR (Pt.265) 428 at 435, it was held that a counter affidavit is expected to contradict or depose to contrary or opposing facts vis–vis the affidavit in support. Where however, after the supply and exchange of affidavits filed by parties, it is discovered that there exist a material conflict therein, the Court will resort to parole evidence to resolve such conflict or contradiction.
In the case at hand, there are enough documents showing that the Applicant is not a citizen of Nigeria and that neither his parents nor his grandparents belonged to any community indigenous to Nigeria. Also the allegation that the Applicant is security risk as shown in the

Security Reports is nowhere controverted or challenged. It is trite that a deposition in an affidavit which is not denied is admissible and can be admitted by the Court.
In the light of the above and considering the weighty evidence placed by the third Respondent, the deportation of the Applicant was in accordance with the relevant Immigration Act and thus, there is nothing unconstitutional. In the final analysis, the application is hereby dismissed.”

The Appellant has contended that the conflict in the affidavits of the parties could only be resolved by the calling of oral evidence, which the trial judge erred in failing to do. He cited the cases of Momah v Vab Petroleum Inc. (2000) 4 NWLR Part 654 Page 534 and Lt. CDR Ebohon (RTD) v. A/G Edo State (1997) 5 NWLR Part 505 Page 298.
?
Counsel to the Respondent has however contended that the documents exhibited to the Appellant’s Further Affidavit that he is a citizen from Bodinga Local Government were not in existence at the period in question and were manufactured, having not been produced at the material time. He also pointed to the contradiction between the name and place of birth of the

Appellant as appears in his International Passport and the documents allegedly authenticating his “indigeneship” of the Local Government. He referred to the Report exhibited to Respondents’ Counter Affidavit proving the abortive search of the origin of his parents, which all go to prove the later fabrication of his place of origin.

The trial Judge was right, he said, not to have called evidence. The documents which the Appellant wants the Court to have called evidence in respect of, he submitted, were not in existence at the time of the deportation and even if oral evidence was called, did not establish the Nigerian citizenship of the Appellant, as the requirement is that the parents or one of his parents or grandparents belongs to the community indigenous to Nigeria. Calling of oral evidence would thus not have resolved the conflict. He cited the case of Lagos State Development and Property Cooperation v Stamm International Nigeria Ltd. (1994) 7 NWLR Part 358 Page 545.

In the case cited by both parties of Momah v. Vab Petroleum Inc. (2000) 4 NWLR Part 654 Page 534 at 556-557 Para G-D, the Supreme Court held, per Achike JSC as follows:
“On the question

of conflict of affidavit evidence placed before the Lower Court which appellant’s learned counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court, it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. See Falobi v. Falobi (1976) 10 SC 1 and Akinsete v. Akindutire (1966) 1 All NLR 147. In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to affidavit evidence filed by the appellant, on the one hand, and that filed by the respondent, on the other; rather, the contradiction arose only in the respect of the appellant’s averments in his numerous affidavits. Therefore, the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence by the parties did not

arise. Rather, it was self-evident from the judgment of the Lower Court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits. Clearly, where the appellant?s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the Court seised of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another. But having said that, I must hurry to state that the onus is undoubtedly on the appellant confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the Court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the Court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within the appellant’s own affidavit evidence.”
(Underlining mine)
In Lagos state Development and Property Corporation v Adold Stamm International

Nigeria Ltd (2005) 2 NWLR Part 910 page 609 at 617 Para B-C per Akintan JSC
“In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise.”
In the instant case, as pointed out by the Respondents’ Counsel, the International Passport of the Appellant obtained in 1985, exhibited to his affidavit states as his place of birth “Zaria?. This clearly conflicts with the document exhibited by him from Bodinga Local Government showing that his place of birth is Danchadi District of Bodinga Local Government in Sokoto State. Zaria, in Kaduna State, I hold, is vastly different from Bodinga in Sokoto State.
The dictum of Achike JSC in the case of Momah v. Vab Petroleum Inc. above, must accordingly come to play, that “where the Appellant’s case is

plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the Court seised of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the Appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another.”
In addition, it was held in the case of Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 559 Para E-H per Peter-Odili JSC that where there is documentary evidence from which the Courts can settle conflicts in affidavits, there is no point to call for oral evidence. Calling of oral evidence is not the only option. The Appellant, having stated in his passport of 1985 that his place of birth is Zaria, yet later claims it is in Bodinga in Sokoto State, cannot by his inconsistency foist upon the Court the obligation of resolving his contradictions. Indeed, as pointed out by the Respondents’ Counsel, the resolution by oral evidence of whether he comes from Danchadi District of Bodinga Local Government will serve no purpose in view of his positive and prior assertion of Zaria as his place of birth. He cannot approbate

and reprobate. The trial Judge was thus not in error to have failed to call oral evidence.

Having so held, the issue in consideration is whether the trial Judge was right in his decision that the Appellant is not a citizen of Nigeria and as such not entitled to the protection guaranteed by the Constitution.

Arguing the 1st issue, learned Counsel to the Appellant contends that the Lower Court erred in his decision that the holding of a preaching permit payment of development levy and rates are irrelevant to the issue of citizenship, thus leading to a miscarriage of justice, these documents not having been challenged by a counter affidavit.

In addition, that the failure of the said Court to attach due weight to the two international passports issued to the Appellant and the letter of confirmation of the Local Government origin of the Appellant was a misdirection, in particular as it possessed the picture of the Appellant.
?
Furthermore, that the passports of the Appellant, having not been revoked, makes him a valid holder. He cited the cases of The Federal Minister of Internal Affairs v Shugaba Abdurrahman Darman (1982) 3 NCLR 975; Habib

Nigeria Bank Ltd v Wahab Opomulero (2000) 15 NWLR Part 690 Page 315.

Learned Counsel again contended that the Appellant, having discharged the onus of proof that he is a citizen, shifted the burden on the Respondents to disprove this fact, which burden was not discharged. He submitted that the Report relied upon by the Respondents in deporting the Appellant was based on hearsay evidence and inadmissible. The trial Judge was thus in error to have relied upon it. He cited Utteh v State (1992) 2 NWLR Part 223 Page 257; Osawaru v Ezeiruka (1978) 6-7 SC 135 and Section 137(2) of the Evidence Act.
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The Respondents’ Counsel, on the 1st issue, citing Chapter 3, Sections 23-25 and 41 of the Constitution of the Federal Republic of Nigeria 1979, which was the Constitution in force at the time the event occurred, on the definition of citizenship of Nigeria, submitted that possession of a Nigerian passport, possession of a voter’s card, a preaching permit or payment of levies, do not qualify a person to be a citizen of Nigeria, moreso when the same was acquired by misrepresentation of the true identity of the holder. Furthermore, the passport was no longer valid,

having expired since 24th October, 1994.

He also argued that which Section 32(1) (f) of the 1979 Constitution protects the fundamental human rights of citizens of the country, these rights are not absolute, as therein stated. The Report from the Government of Kaduna State showed that the Appellant, who was established to be a foreigner was a security risk, consequent upon which the 1st Respondent, exercising his powers under Sections 18(2) and 19(2) of the Immigration Act Cap LFN 1990, deported the Appellant. He cited the cases of Chief Obafemi Awolowo v Mallam Usman Sarki (Minister of Internal Affairs) (1966) ANLR Page 171.

Counsel denied that the Appellant had proved his citizenship sufficient to shift the burden on the Respondent. He pointed to the contradiction in the documents produced by the Appellant in proof of his citizenship as being evident that this burden had not been discharged, which burden of proof lay on the Appellant. He cited the case of Aiyetoro Comm. Trading Co. Ltd. v NACB Ltd. (2003) 12 NWLR Part 834 Page 346 and Nwaga v Reg Trustees Recreation Club (2004) FWLR Part 190 Page 1360.
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The incidents of citizenship as contained in

Sections 23-28 of the Constitution of the Federal Republic of Nigeria 1979, in force at the material time, are as follow:
SECTION 23
[CITIZENSHIP BY BIRTH]
1. The following persons are citizens of Nigeria by birth, namely-
a. every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria:
Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria.
b. every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and
c. every person born outside Nigeria either of whose parents is a citizen of Nigeria.
2. In this section, “the date of independence” means the 1st day of October, 1960.
SECTION 24
[CITIZENSHIP BY REGISTRATION.]
1. Subject to the provisions of Section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as a citizen of Nigeria, if the President is satisfied that ?<br< p=””

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a. he is a person of good character;
b. he has shown a clear intention of his desire to be domiciled in Nigeria; and
c. he has taken the Oath of Allegiance prescribed in the Sixth Schedule to this Constitution. [Seventh Schedule.]
2. The provisions of this section shall apply to –
a. any woman who is or has been married to a citizen of Nigeria; or
b. every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria.
SECTION 25
[CITIZENSHIP BY NATURALISATION]
1. Subject to the provisions of Section 28 of this Constitution, any person who is qualified in accordance with the provisions of this section may apply to the President for the grant of a certificate of naturalisation.
2. No person shall be qualified to apply for the grant of a certificate of naturalisation, unless he satisfies the President that ?
a. he is a person of full age and capacity;
b. he is a person of good character;
c. he has shown a clear intention of his desire to be domiciled in Nigeria;
d. he is, in the opinion of the Governor of the State where he is or he proposes to be

resident, acceptable to the local community in which he is to live permanently, and has been assimilated into the way of life of Nigerians in that part of the Federation;
e. he is a person who has made or is capable of making useful contribution to the advancement, progress and well-being of Nigeria;
f. he has taken the Oath of Allegiance prescribed in the Sixth Schedule to this Constitution; and [Seventh Schedule.
g. he has, immediately preceding the date of his application, either-
(i) resided in Nigeria for a continuous period of fifteen years; or
(ii) resided in Nigeria continuously for a period of twelve months, and during the period of twenty years immediately preceding that period of twelve months has resided in Nigeria for periods amounting in the aggregate to not less than fifteen years.
SECTION 28
[PERSONS DEEMED TO BE NIGERIAN CITIZENS.]
For the purposes of this Chapter, a parent or grandparent of a person shall be deemed to be a citizen of Nigeria if at the time of the birth of that person such parent or grandparent would have possessed that status by birth if he had been alive on the date of

independence; and in this section, “the date of independence” has the meaning assigned to it in Section 25 (2) of this Constitution.
The Appellant claims that he is a citizen of Nigeria by birth, under Section 23 (1) (a) Supra. He has however not been able to prove that any of his parents or grandparents belong to a community indigenous to Nigeria. The claim made in the letter from Danchadi District of Bodinga Local Government that both he and his parents were born in Sokoto, is in violent conflict with his claim of being born in Zaria.
Contrary to his assertion that the Respondents had failed to discharge the burden that had shifted to them to disprove his place of birth, this burden, I hold, only shifts to them after he (the Appellant) has discharged the burden placed on him.
It is not the law for the Respondents to prove a negative assertion. The law, on the contrary, is on the Appellant who has made a positive assertion to prove the same. See Aiyetoro Community Trading Co. Ltd. v. Nigerian Agricultural and Co-operative Bank Ltd (2003) 12 NWLR Part 834 Page 346 at Page 378 Para G-H per Ba’aba JCA.
The possession of a passport, without more, I

hold, does not qualify a person to be a citizen of the Federal Republic of Nigeria, neither does the possession of a voter’s card or proof of payment of development levies. Qualification to be a citizen of this country is clearly spelt out in Sections 23 to 28 of the 1979 Constitution Supra (Sections 25-31 of the 1999 Constitution). Nothing extraneous can be read into these provisions. The trial Judge did not thus misdirect himself in failing to accord the status of citizenship to the Appellant based on these extraneous factors.
The Appellant, having failed to discharge the burden of proving that he is Nigerian, the question is whether he is entitled to the protection afforded by Section 32 (1) of the Constitution, which as aforesaid provides that:
1. Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
f. for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating

thereto:
Section 18(2) and 19(2) of the Immigration Act Cap. 171 of 1963 contained in Laws of the Federation of Nigeria 1990, in operation at the date in question, provides:
SECTION 18
2. The Minister may, at any time by notice add to or amend any class of prohibited immigrants in Subsection (1) of this section and if he deems it conducive to the public good may prohibit the entry into or stay in Nigeria of any other persons or class of persons not in any case citizens of Nigeria.
SECTION 19
2. The Minister may, if satisfied that it is in the public interest, and whether or not any person has been prosecuted for an offence under this section, make a deportation order against that person as a prohibited immigrant and it shall be no defence that such person was not notified that his entry into Nigeria was prohibited, or that the entry was permitted by oversight or otherwise howsoever; this subsection shall have effect notwithstanding any other provision of this Act.
In the case of Chief Obafemi Awolowo v. Hon. Minister of Internal Affairs, Usman Sarki (1966) ANLR Page 171 at 174-175 it was held, per Ademola CJN, as follows:
“It

seems clear to us that Section 13 of the Immigration Ordinance (or Act) contains an exception in favour of “a native of Nigeria” and one has to look at Section 26 of the 1960 Constitution which provides that:
“(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof; and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto.” ?
?In our view, Section 26(1) necessarily implies that other persons may be refused entry or expelled in accordance with the legislation in force on the subject. This is borne out by the following provision in Section 20(1) of the Constitution:-
“No person shall be deprived on his personal liberty save in the following cases and in accordance with a procedure permitted by law… (f) for the purpose of preventing the unlawful entry of any person into Nigeria or for the purpose of effected the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of

proceedings relating thereto.”
It appears clearly enough that this provision of the Constitution recognizes the legality of the Immigration Act. and we cannot see anything unconstitutional in the provision of Section 13 of the Act which confers power of the Minister to prohibit in his absolute discretion the entry into Nigeria of any person who is not a native of Nigeria or who is not a citizen of Nigeria (according to Section 26(1) of the Constitution).?
Underlining Mine?
It is clear therefore, that Section 32(1) of the 1979 Constitution (same as Section 35 of the 1999 Constitution) cannot be read in the absolute as it recognizes the legality of the Immigration Act, which it is that donates power to the Minister in the public interest to prohibit any person that is not a citizen from remaining in the country.
The Report from the Government of Kaduna State showed that the Appellant, who was established to be a foreigner was a security risk, consequent upon which the 1st Respondent, exercising his powers under Sections 18(2) and 19(2) of the Immigration Act Supra, deported him.?
I hold that the trial Judge was right in his decision

that the Appellant is not a citizen of Nigeria and by his acts, which were inimical to the security of the country, was not entitled to the protection guaranteed under the Fundamental Rights Provisions contained in the Constitution of the Federal Republic of Nigeria.

I thus resolve the 1st & 2nd issues for determination against the Appellant.

Having resolved both issues for determination against the Appellant, I hold that this appeal fails and it is hereby dismissed. Each party to bear their respective costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft the lead judgment delivered by my lord, Oludotun Adebola Adefope-Okojie J.C.A. I am in agreement with the reasonings and conclusion that the appeal lacks merit, and ought to be dismissed. I adopt my lord’s reasonings and conclusion as mine, and I too hereby dismiss the appeal for lacking in merit. I abide by the order made on costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with the reasoning and conclusions reached in the

said judgment. Indeed there is a conflict in the affidavit evidence of the Appellant with regard to his place of birth. While the International Passport exhibited by his affidavit gives the place of his birth as Zaria in Kaduna State, another document exhibited by him gives his place of birth as Danchadi District of Bodinga Local Government Area of Sokoto State. This is not a case of conflicting affidavit evidence of different parties, it is an intra conflict of affidavit evidence as the conflict is within the affidavits of the Appellant. Having given two conflicting places of birth, the Appellant effectively sealed the fate of his own case. The maxim qui res contraries proponit non est audiendus meaning, he who alleges contradictory things is not to be listened to, applies here. The Lower Court cannot be faulted in its judgment. The appeal lacks merit and is dismissed.

Appearances:

A. Suleiman with him, Tahir UsmanFor Appellant(s)

Seun OriowoFor Respondent(s)

Appearances

A. Suleiman with him, Tahir UsmanFor Appellant

AND

Seun OriowoFor Respondent