ABDULKADIR AHMED v. THE MINISTER OF INTERNAL AFFAIRS & ORS(2002)

ABDULKADIR AHMED v. THE MINISTER OF INTERNAL AFFAIRS & ORS

2002)LCN/1252(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of July, 2002

CA/K/158/2001

 

JUSTICES

RABIU DANLAMI MUHAMMAD   Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE   Justice of The Court of Appeal of Nigeria

JOSEPH JEREMIAH UMOREN   Justice of The Court of Appeal of Nigeria

Between

 

ABDULKADIR AHMED Appellant(s)

AND

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

 

  1. D. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The appellant is said to be an Islamic Scholar and a teacher. He has two wives and twelve children. He has been residing in Zaria with the family for about fifty years. On or about the 2nd day of December, 1993 he was arrested by Security Officers comprising Police Officers, State Security Service Officers and Immigration Officers. He was detained in a cell for about forty-eight hours. On the 4th of December, 1993, the appellant was moved out of detention, and was served with a deportation order issued by the Minister of Internal Affairs i.e., the first respondent herein. He was accordingly, transported to the Nigeria-Niger Republic border, near Illela, and was handed over to Immigration Officials of the Niger Republic.
    The appellant filed a suit at the Kaduna State High Court of Justice, for the enforcement of his fundamental right. The State High Court struck out the suit on the ground that, it lacked jurisdiction to entertain the matter. The appellant then, applied to the Federal High Court, Kaduna, for leave to enforce his fundamental rights, to dignity of human person, personal liberty and freedom of movement. He asked 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 rights, guaranteed under section 38 (1) of the Constitution of Nigeria, 1979.
    (2) A declaration that the arrest, detention and forceful removal of the applicant from his home, and country, are unlawful and constitute grave violations of the applicant’s rights to human dignity, and personal liberty, guaranteed under sections 31 (1) and 32 (1) of the Constitution of Nigeria, 1979.
    (3) An order of this honourable court, revoking the deportation order issued by the 1st respondent in respect of the applicant and restraining the respondents from further deporting the applicant.
    (4) An order of court directing the respondents to pay the applicant the sum of twelve million Naira (12,000,000.00) as general and exemplary damages, on account of the grave breaches of the applicant’s fundamental rights to freedom of movement, personal liberty and dignity of human person, occasioned by the illegal and unlawful acts of the respondents.”
    After hearing the exparte application, the Federal High Court, Kaduna, granted the appellant leave to enforce his fundamental rights. The court however, added that the grant would neither operate as a stay of action nor as an injunction. Subsequent to the leave granted, the appellant filed an originating summons, claiming the same reliefs as contained in the application for leave to enforce his fundamental rights, which I have quoted above. The originating summons was supported by an affidavit of 8 paragraphs deposed to by the appellant.
    The respondents filed a counter-affidavit. The appellant sought and was granted leave to amend the statement in support of his application to enforce his fundamental rights. The respondents also filed a counter-affidavit to the additional statement of the appellant.
    The court, after hearing the submission of both counsel for the appellant and the respondents in a reserved ruling, dismissed the appellant’s claim. In dismissing the claims, the trial Judge stated inter alia that-
    1. “The defendants in the counter-affidavit sworn to by Sunday P. Akpan on 16th January, 1995, produced annexure B to which a report, dated 21st October, 1993, issued by Jumare Mahmud, an Assistant Superintendent of Immigration was attached. This report stated in details steps taken to establish the plaintiff’s nationality.
    The steps taken include, and I quote:
    “It has to be remembered that in March last year, Mallam Abdulkadir, was taken to Bodinga by two immigration officers, so that he could identify his birth place. Unfortunately, he failed to show any evidence or even show the place or name anywhere in the town.”
    “Mallam Abdulkadir has directly avoided saying anything of his parents origin, and names in all the three (3) different statements he made to the Immigration Department. This is intentional to hide some information.”
    “2 In one of his statement, he contradicted himself by saying that his parents were cattle rearers, who came to Ilella from Konni Tawa and Agaraji (all in Niger Republic) and they left him at Sokoto, to start Islamic Education, while on the other, he said that his parents are from Bodinga.”
    3. He also confirmed that his parents died about six (6) years ago, at Agaraji in Niger Republic. And that he is a well known figure there, he knows so many people and places. He also confirmed having other relations apart from his parents.”
    These are serious allegations against the plaintiff touching on his claim to Nigerian citizenship. Regrettably, the plaintiff did not deem it necessary to refute any of them.
    I am mindful of the fact that, the court is not bound to accept facts deposed to in an affidavit as representing the true position of matters merely because, they are uncontradicted or because the other party has not filed a counter-affidavit in return. See:- Ekekeugbo v. Fiberesima (1994) 3 NWLR (Pt.335) 707 pages 730-731. However, where such deposition are serious and cogent and are uncontradicted by any exhibit attached such deposition and content of the supportive exhibit will be readily accepted.
    Failure of the plaintiff to challenge those serious allegations is fatal to his claim. The plaintiff’s claim is therefore, dismissed.”
    The appellant is not satisfied with this decision. He appealed to this court on twelve grounds of appeal. The grounds of appeal shorn of their particulars read:-
    “1. The decision of the learned trial Judge is unreasonable and unwarranted and it cannot be supported having regard to the weight of evidence.
    2. The learned trial Judge misdirected himself, when he held that the payment of development levy, the payment of rates and holding of a preaching permit are irrelevant to the issue of citizenship.
    3. The learned trial Judge misdirected himself in failing to attach due weight to exhibit ‘A’ and exhibit ‘VV’ the two international passports issued to the appellant and to exhibit ‘IT’ and exhibit ‘UU’, the letter confirming the local government of origin of the appellant and the letter from the District Head of Danchadi respectively.
    4. The learned trial Judge misdirected himself, when he held that there is no evidence that, Abdulkadir Danchadi is the appellant.
    5. The learned trial Judge erred in law, in refusing to allow the calling of oral evidence in this case.
    6. The learned trial Judge misdirected himself, in holding that the appellant did not lead evidence to counter the affidavit evidence of the respondents as brought out in the counter-affidavit of Sunday P. Akpan to which annexure ‘A’ was attached as an exhibit.
    7. The learned trial Judge misdirected himself in attaching undue weight to annexure ‘A’ attached to the counter affidavit of Sunday P. Akpan sworn to in support of the case of the respondents.
    8. The learned trial Judge misdirected himself, in holding that the failure of the appellant to challenge the allegations contained in the immigration report which forms part of annexure ‘A’ attached to the counter-affidavit of Sunday P. Akpan is fatal to the claim of the appellant.
    9. The learned trial Judge misdirected himself in refusing to attach due weight to exhibit ‘VV’ and ‘VV2′ attached to the further affidavit of the appellant.
    10. The learned trial Judge erred in law, in failing to make a finding on the regularity of the process leading up to the deportation of the appellant out of Nigeria.
    11. The learned trial Judge erred in law, in failing to consider the issue of burden of proof at the trial.
    12. The learned trial Judge erred in law, in allowing his decision to be influenced by extraneous considerations.”

    The appellant filed his brief of argument, where he formulated four issues for the determination of the appeal. The 1st and 3rd respondents even though served with the appellant’s brief did not file any brief. The 2nd respondent on the other hand, filed his brief a few days, before the appeal was heard. The brief was filed out of time and there was no application for extension of time within which to file the 2nd respondent’s brief. When this was brought to the notice of counsel to the 2nd respondent, he agreed that the brief was filed out of time and that this court did not grant extension of time to file the said brief. We thought counsel would ask for adjournment to formalise the filing of the said brief, but he did not. Instead, he told the court he was ready to go on with the appeal. The position is that the 2nd respondent having filed his brief out of time without the leave of court, is tantamount to not filing brief at all. In effect none of the respondents have filed any brief.
    The issues formulated in the appellant’s brief are:-
    “1. Whether the learned trial Judge was right in his decision that, the appellant is not a citizen of Nigeria as not to be entitled to the protections 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 process 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.”

    I will start by considering the second issue first, which is whether or not, the trial Judge was right in refusing to allow the calling of oral evidence. It was submitted that the trial Judge was in error, when he refused to call oral evidence. It was submitted that the appellant has denied the respondents’ deposition as contained in paragraph 3 of the counter-affidavit of Sunday P. Akpan in their entirety and as such issues were joined on the main issue of nationality. It was then submitted that the trial Judge ought to have called for oral evidence. In support the following cases were cited: Momah v VAB Petroleum Inc (2000) 4 NWLR (Pt. 654) 534 and Ebohon v. Attorney General, Edo State (1997) 5 NWLR (Pt.505) 298.
    Let me now consider the affidavit evidence adduced to determine whether or not, the affidavits are in conflict. In the affidavit deposed to by one Sunday P. Akpan, which is a counter-affidavit to the appellant’s affidavit in support, it was averred in paragraph 3:-
    “3. That I am informed by the third defendant and I verily, believe him to be true and correct as to the following facts:-
    1. That the affidavit in support of the plaintiff’s action materially, misrepresents the true facts of the matter.
    2 That consequent upon a security report received from Zaria Local Government and an Investigation report on the activities of the plaintiff, the plaintiff was found not only to be a security risk in the community, but that his nationality as a Nigerian was questionable. (a copy of the letter from Kaduna State Governor’s office and the activities report are hereby attached and marked annexure ‘A’).
    3. That further to (ii) above on the nationality of the plaintiff, it was confirmed by Bodinga Local Government that the plaintiff is not a citizen of Nigeria. (A copy of the confirmation letter and the report are hereby attached and marked annexure ‘B’).
    The appellant then swore to a further affidavit challenging the averments contained in the counter-affidavit sworn to by Sunday P. Akpan. The relevant paragraphs are:-
    “3. That the depositions contained in paragraph 3 of the said counter-affidavit of Sunday P. Akpan are not true in their entirety.
    7. That to the best of my personal knowledge and belief, annexure ‘A’ attached to the counter-affidavit of Sunday P. Akpan and produced in August, 1993, was produced before Kaduna State Government had full report from the revelant security authorities.
    (1) That I never claimed to be an indigene of Bodinga town.
    (2) That my claim has always been that I am an indigene of Bodinga Local Government (Bodinga Local Government letter No. BOLG/SEC/105/206, dated 12th April, 1994, confirming my claim is herewith attached and marked exhibit ‘TT’).
    (3) That I am from Danchadi District of Bodinga local Government. (The Hausa and certified English Translation of the letter from the District Head of Danchadi confirming that my parents are from Danchadi District are herewith attached and marked exhibit ‘VV1’ and ‘VV2’).
    (4) The annexure ‘B’ attached to the counter-affidavit of Sunday P. Akpan only confirmed that I am not an indigene of Bodinga town.”
    Considering the two affidavits, it is very clear that they conflict each other. The respondents’ contention is that appellant is not a Nigerian, while the appellant’s contention is that he is a Nigeria. Both parties attached to their respective affidavit a letter form Bodinga Local Government to support their respective claims. The appellant also attached a letter from the District Head of Danchadi to buttress his claim. The conflict will be more clear if we consider the documents attached to the said affidavits. Annexure ‘B’ attached to the respondents’ counter-affidavit is a letter written by the Secretary Boclinga Local Government stating that appellant was not an indigene of Bodinga. The letter reads:-
    “Ref: BOLG/ADM/61/Vol.1/6
    Office of the Secretary
    Bodinga Local Government
    Sokoto State of Nigeria.
    Date 14th October, 1993

    The Comptroller of Immigration Service,
    State Headquarter Office,
    Kaduna State,
    Kaduna.
    RE: MALLAM ABDULKADIR AHMED CONFIRMATION OF NATIONALITY
    Reference to your letter No. NIS/ADM/331/Vol.1 of 12th October, 1993, I am directed to inform you that MALLAM ABDULKADIR AHMED is not an indegene of Bodinga Town in Bodinga Local Government area of Sokoto State.
    This is sequel to the confirmation letter from the District Head of Bodinga Reference No. BDG/D1ST/065/Vol. IX/B13 of 28th March, 1992. As all efforts to trace his roots for the past nineteen (19) months prove abortive.
    Thanks
    Sign
    IBRAHIM ALIYU SIFAWA
    Secretary
    For:- Hon. Chairman.”
    This is the letter relied upon by the respondents that the appellant is not a Nigerian. However, the appellant attached to his further affidavit i.e. exhibit ‘TT’ from the same Bodinga Local Government that he is an indegene of Bodinga Local Government.
    The letter reads:-

    “Ref: BOLG/SEC/1051206
    Office of the Secretary
    Bodinga Local Govt.,
    Sokoto State of Nigeria.
    Date: 12th April, 1994

    TO WHOM IT MAY CONCERN
    CONFIRMATION OF LOCAL GOVERNMENT ORIGIN
    MALLAM ABDULKADIR DANCHADI
    1) This is to confirm to you that the above named person, whose photograph is attached, is an indigene of this Local Government Area of Sokoto State.
    2) Therefore, you are free to give him/her any assistance an indegene deserves please.
    3) Any alteration renders this letter invalid.
    ALH. USMAN DINGYADI
    (NAME, SIGNATURE AND OFFICIAL STAMP)
    For secretary
    Bodinga local Government.”
    Attached to this letter is the photograph of the appellant. The stamp of the Bodinga Local Government was stamped on the photograph.
    I think at this stage, it is apposite to comment on the decision of the trial Judge on this letter. The trial Judge did not attach any weight to this letter. According to him, there was no nexus between Abdulkadir Danchadi and the appellant. This is what he said:-
    “Exhibit ‘TT’ is a letter 12th April, issued by Bodinga Local Government purporting that one Mallam Abdulkadir Danchadi was born in Danchadi District of Bodinga Local Government Area of Sokoto. The plaintiff in all the other documents presented by him described himself as Abdulkadir Ahmed or Abdulkadir Idris Ahmed. There is no nexus between Abdulkadir Ahmed or Abdulkadir Idris Ahmed on one hand and the Abdulkadir Danchadi on the other. There is no evidence before the court that Abdulkadir Danchadi is the plaintiff.”
    If one looks at exhibit ‘TT’ one would see that the photograph of the appellant was attached to it. The stamp of the Bodinga Local Government was also stamped on the photograph. In the letter itself, it was stated that – “This is to confirm that the above named whose photograph is attached”. Since the photograph attached is that of the appellant, I think it is wrong to say that there is no nexus between the appellant and Abdulkadir Danchadi because, the letter referred to the appellant as Abdulkadir Danchadi. The trial Judge should have called for clarification, instead of dismissing the exhibit off hand that it has no nexus with the appellant. This is moreso, if we take into consideration that “Danchadi is a name of a village. It is not a name of a person and that this is an area of the country, where it is prevalent that people identify themselves with the town of village they are born and take the names of such towns and village as their surname instead of their fathers’ names.
    Also attached to the appellant’s further affidavit is a hand written letter by the Head of Danchadi, confirming that the appellant is an indegene of Danchadi. The letter bears the stamp of the District Head. It was written in Hausa. The English translation reads:-
    Bunu Danchadi
    District Head of Danchadi
    Danchadi
    16TH April, 1994
    “I wish to inform Zaria Local Government that the person known as Alhaji Abdulkadir Ahmed, is an indegene of Danchadi. He was born in Danchadi. Where ever he is resident, he is simply resident there. His mother and father are indgenes of Danchadi, Kyahuje Ward Danchadi.
    His mother’s name is Fadimatu and his Father’s name is Alhaji Ahmed. Therefore, I am informing the Local Government where is now resident.”
    Yours Sincerely
    Bunu Muh, Danchadi
    District Head.
    It could be seen that the appellant has refuted all the averments in the affidavit of Sunday P. Akpan. He has claimed that he is a Nigerian and has supported his claim with exhibits which state that he is a Nigerian. The trial Judge is therefore wrong when he said:-
    “These are serious allegation against the plaintiff touching his claim to Nigerian citizenship. Regrettably, the plaintiff did not deem it necessary to refute any of them.”
    A careful consideration of the further affidavit in support and the counter-affidavit it is manifest that the affidavits are irreconcilably in conflict on a very important and crucial aspect of the dispute between the parties i.e. the issue of Nigerian citizenship. One party claims to be a Nigerian, while the other party claims that he is not a Nigerian. Both parties support their respective claim with documents from the same source.
    Where an application supported by an affidavit against which there is also a counter-affidavit where the facts deposed to in such affidavits are irreconcilably in conflict, then in order to resolve such conflicts, the court ought to invite the parties thereto to call oral evidence if they wish. Such oral evidence would enable the court to test the affidavit evidence and thereby be enabled to resolve such conflicts before acting on such affidavit evidence. This duty on the court is not diminished whether or not the parties to the application specifically request for leave to call evidence on oath. See:- Uku v Okumagba (1974) 3 SC 35 See also: Eboh v Oki (1974) 1 SC 179; Olu-Ibukun v Olu-Ibukun (1974) 2 SC 41; Falobi v Falobi (1976) 1 NMLR 169; Ojengbende v Esan (1987) 4 NWLR (Pt. 63) 49 and Okoye v Lagos State Government (1990) 3 NWLR (Pt.136) 115.
    In Ebohon v Attorney-General, Edo State (1997)5 NWLR (Pt. 505) 298, the Supreme Court held that it is a fundamental aspect of trial by affidavit evidence that, where affidavits of the parties conflict on a very important and crucial aspect of the dispute between them, that conflict cannot be cured by the addresses of the parties’ counsel. If the court rules on the affidavits alone, as conflicting as they are, the issue in dispute is being lightly washed away. In such a injustice would be the result for the parties would not thereby be heard on the conflicts in the affidavits. Therefore, the next logical step for a court faced with such affidavits is to hear evidence on the conflicts so as to resolve them before proceeding with the case. In Momah v VAB Petroleum lnc. (2000) 4 NWLR (Pt. 654) 534, Achike JSC, on the issue of resolution of conflict in opposing affidavits stated at pages 556-557 that:-
    “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) 9-10 SC 1 and Akinsete v Akindutire (1966) 1 All NLR 147.”

    Where a court is expected to resolve conflicting affidavit evidence by calling oral evidence of the deponents to resolve the conflict and such oral evidence is not called the decision of the trial court based on the conflicting affidavit in the absence of the oral evidence cannot be allowed to stand on appeal.
    Earlier in this judgment, I have held that the appellant’s further affidavit and the respondent’s counter-affidavit are irreconcilably in conflict on very crucial aspect of the dispute between them. This being the case, it behoves the learned trial Judge to call oral evidence in order to resolve the conflict. Since he has not called oral evidence in order to resolve the conflict, his decision based on the conflicting affidavits will not be allowed to stand.

    In the circumstance, the appeal has merit and is allowed by me. The judgment of Okeke, J. is set aside. The case is remitted back to the Federal High Court to be heard de novo by another Judge. I make no order as to costs.

    OMAGE, J.C.A.: In the Federal High Court of Nigeria, in the Kaduna Judicial Division, leave of the court was granted to the appellant on 6/12/94, to enforce the fundamental right of the appellant. The fundamental rights prayed for by the appellant, were a right to dignity of a human person for the personal liberty and for freedom of movement of the appellant. Upon being granted the leave, the appellant commenced proceedings in the said Federal High Court by originating summons, dated 3/2/95. The respondents to the prayers sought in the court by the appellant are;
    (1) The Minister of Internal Affairs of the Federal Republic of Nigeria.
    (2) The Attorney-General of the Federation of Nigeria.
    (3) The Comptroller-General Immigration.
    In the statement in support of the summons, the appellant averred as follows:
    (i) That he is a citizen of Nigeria by birth.
    (ii) That he is an Islamic scholar and teacher resident in Zaria, for a period close to if not more than fifty years.
    (iii) That he was born in Nigeria before the 1st October, 1960.
    (iv) That his father and mother were of the Fulani community, which is indigenous to Nigeria.
    (v) That his parents were of Bodinga Local Government of Nigeria in Sokoto State.
    (vi) That on or about the 2nd December, 1993, the agent of the 1st to 3rd defendants in the night, came to his residence at Zaria, and forced him against his will to a cell in Zaria.
    (vii) The detention was without a warrant by the police, immigration, or State Security personnel.
    (8) In the detention cell, this appellant said he was subjected to all forms of degrading and inhuman treatment. On or about the 4th December, 1993, the appellant averred that in the middle of the night he was moved from the cell, and driven to the border of Nigeria and the Republic of Niger and at Ilela border, he was handed over to the immigration officials of Niger Republic.
    (9) That in that action, the officials of the 1st-3rd respondents had deported him.
    (10) That as a citizen of Nigeria, he was issued with a Nigerian passport NO. A651296, a copy of which he annexed to the statement as an annexure.
    (11) That the appellant lived and obtained his Islamic Education in Zaria City, in the house of the famous Islamic teacher, late Mallam Na’iya.
    (12) That, he has a preaching permit issued to him by the Jama’atu Nasril Islamic to preach openly and anywhere.
    (13) That, during the period of his detention, the appellant was denied food and water and was not permitted to say his obligatory.
    (14) That during the period of his detention, he was prevented from sleeping.
    (15) That on or about 4th December, 1993, when he was handed over by his agents of the 1st-3rd respondents to the official of Niger Republic, he was not shown or given any deportation order.
    (16) That the appellant was denied access (1) to his family and lawyers.
    (17) That the appellant lived a life of a destitute at Bimin Konno, Niger Republic from 1994, December to May, 1995.
    (18) That the appellant was granted permission by the High Court Kaduna, to prosecute the case he filed.
    (19) That the nationality of the applicant had never been in doubt as he had a voters.
    (20) That the officials of Niger Republic had thoroughly, investigated the issue of the appellant’s nationality and had found that, the appellant is not a citizen of Niger Republic, but a Nigeria. A letter to this effect and its translation are attached.
    The appellant in the court below, therefore, sought the following reliefs:
    (a) A declaration that the deportation of the applicant who is a citizen of Nigeria to Niger Republic by the respondent is an illegal act, and constitutes a violation of the applicant’s fundamental right guaranteed under section 31(1) and 32 of the Constitution of Nigeria, 1979.
    (b) A declaration that the arrest detention and forceful removal of the applicant from his home and country are unlawful and constitutes a grave violation of the applicant’s right to human dignity and personal liberty guaranteed under section 31 (1) and 32 (1) of the Constitution of Nigeria, 1979.
    (c) An order of this honourable court revoking the deportation order issued by the 1st respondent in respect of the applicant and restraining the respondent from further.
    (d) An order of court directing the respondent to pay the applicant the sum of twelve million Naira (N12,000,000.00)as general and exemplary damages on account of the grave breaches of the applicants fundamental rights to freedom movement, personal liberty and dignity of human person occasioned by the illegal and unlawful acts of the respondents.”
    The appellant also filed additional statement in support of his application and inter alia:
    (aa) That he has never being adjudged as constituting danger to the national security of Nigeria by relevant authorities.
    (bb) That the appellant is an indigene of Bodinga Local Government Area from Danchadi District of Sokoto State.
    (cc) That it was only after one Shehu Turaki became the applicant’s neighbour at Unguwar Alkali, Zaria City, the so called security report on the applicant started streaming which culminated in the orchestrated moves to deport the appellant to satisfy a purely private interest of the said Shehu Turaki.
    (ee) That the applicant had lived peacefully with the community at Unguwar Alkali, Zaria, for over 14 years prior to Shehu Turaki becoming neighbour to the applicant.
    (gg) That the applicant/appellant is still in possession of his valid Nigeria passport.”
    The appellant filed yet another additional statement in which he drew a distinction from the area known as Bodinga Town and Bodinga Local Government Area saying he is from Danchadi District of Bodinga Local government. The applicant appellant also deposed to a 29 paragraph affidavit to which he annexed several exhibits including relevant photocopies of the applicant’s passport. In response to the applications affidavit in the court below the employee to the 3rd respondent, viz the Comptroller-General Immigration one Jumare Mohammed, deposed as follows:-
    (1) That he is attached to the investigation unit of the immigration State headquarters office Kaduna by virtue of which he said he was conversant with this case. He deposed viz, that I have the consent of the 3rd defendant to depose to this counter-affidavit.
    (2) That I was assigned to investigate the issue of the nationality of the plaintiff/applicant.
    (3) That my investigation took me to Bodinga Local Government in Sokoto State, where the plaintiff claimed he comes from.
    (4) That the entirety of my investigation is in annexure B. of the earlier counter-affidavit, which revealed that the applicant is not a citizen of Nigeria, but a national by Niger Republic.
    (5) Since after the investigation and deportation of the plaintiff/applicant to his country and his subsequent recently to Nigeria there has been counter-proof etc to shown that applicant is a Nigeria.
    (6) That the applicant parents cannot be traced to any Nigerian Citizen therefore his claim should be disregarded. The counter-affidavit of the 3rd respondent was filed after the three respondents had entered appearance in his proceedings one Sunday Akpan also deposed to a counter-affidavit, denying the averment in the applicant’s affidavit.”
    In exhibit D, referred to in the affidavit of one of 3rd defendant’s staff contained in pages 78-80 of the record, in particular pages 78 where the following appears. “Report on activities of Alhaji Abdulkadir Ahmed alias Mai Takalmin Karfe” etc.
    “Introduction: The activities of Alhaji Abdulkadir Ahmed Alias Mai Takalmin Karfe came to the notice of the State Government last year following security and Zaria Local Government report of his being a potential source of crises over his unorthodox religion activities. It was then hinted that he is a non-Nigeria accordingly the State Security council discussed the matter and ordered that he be investigated and if found to be a non-Nigeria a case should be made for his deportation.”
    Inclusive in the report of investigation allegedly carried out and signed by Mr. Shehu Lawal of Green Office Kaduna is that “the subject came to Zaria as an Islamic pupil.”

    The report did not say where the subject came from. In a letter dated 15th September, 1993, from the department of State services to the controller of Immigration, page 97 of the printed record is contained the following in paragraph 3 thereof:
    “Subject claims to have been born to Nigeria parents from Bodinga Local Government area in Sokoto State but his father in search of Islamic knowledge went to Niger Republic when he was of a tender age. He subsequently came back to Nigeria to one Mallam Dabi at Kware.” etc
    There are various report tendered to court as exhibits alleging that the appellant had a fanatical disposition or congregate in religious groups, that he was a follower of Martasine religious groups. That he was troublesome in particular quarrelsome with his neighbour Shehu Turaki that he would not give out his daughter in marriage etc. Hearing in the originating summons commenced on 30/11/94 and the filing on it was adjourned to 31/3/95. Judgment in the originating summons was finally delivered on 6th February, 1996 and the Federal High Court sitting in Kaduna decided as follows;
    “These are very serious allegations against the plaintiff touching on his claim to Nigerian citizenships. Regrettably, the plaintiff did not deem it necessary to report any claim of them. I am mindful of the fact that the court is not bound to accept facts deposed to in an affidavit as representing the true position of matters, merely because they are uncontradicted or because the other party has not filed a counter-affidavit in return See Ekekeugbo v. Fiberesima (1994) 3 NWLR (Pt.335) 730- 731. However, such depositions are serious and cogent and are uncontradicted by any exhibit and such deposition and consent are of the supportive exhibit will be readily accepted. Failure of the plaintiff to challenge those serious allegations is fatal to his claim. The plaintiff’s claim is dismissed.”
    Within the judgment is the following opinion expressed by the learned trial Judge. The opinion is relevant in view of the ground of appeal and issues formulated by the appellant. The comment was an answer to the submission of the appellant’s counsel to the court to order the witnesses to testify since conflict arose in the affidavits tendered by both parties. Here is what the learned trial Judge wrote in the judgment.
    “The learned Counsel for the plaintiff has invited this court to take oral evidence to resolve what he described as the irreconcilable conflict between exhibit TT and annexure B. In an appropriate case, the court being mindful of the fact that conflicts in where the parties omit to call such evidence would have taken oral evidence. See the case of Eboh v. Oki (1974) 1 SC 179; Uku v. Okumagba (1974) 3 SC 35; Falobi v. Falobi (1976) 9-19 SC 1; Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 at 579; Nigeria Arab Bank Limited v. Ogueri (1990) 6 NWLR (Pt.159) 751 at 760. However, where there are enough documentary evidence before the court, it can on its own resolve the conflicting affidavit evidence by resorting to the documentary evidence See Ezegbu v. FA T.B. (1992) 1NWLR (Pt.220) 699 at 720. It is my humble view that there is not irreconcilable conflict between exhibit TT and annexure B in that one deals with Abdulkadir Danchadi, while the other deals with Abdulkadir Ahmed, also known as Abdulkadir Idris Ahmed and there is no affidavit evidence to shown that they relate to one and the same persons.”
    It is against the decision of the learned trial Judge of the Federal High Court sitting in Kaduna, coram Okechukwu J. Okeke, J., that the applicant/plaintiff in the summon has appealed to this court. The printed record shows that he filed twelve grounds of appeal, and formulated four issues for determination of the appeal. The issues are:
    (1) “Whether the learned trial Judge was right in his decision that the appellant is not a citizen of Nigeria and not to be entitled to the protection guaranteed under the fundamental right 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 awake a finding on the regularity of the processes leading up to the deportation of the appellant out of argue.
    (4) Whether the learned trial Judge was not in error, in the consideration of the evidence adduced at the trial particularly with regard to the issue of burden of proof at the trial.”
    The appeal suffered adjournments because of the failure of the respondent to accept service of processes from the court. Eventually the respondent filed the respondents brief out of time as ordered by the court. The consequence of failure of the respondent to file the respondents brief within time is provided for in Order 6 rule 10 of the Court of Appeal Rules where it is subscribed that if the respondent fails to file his brief, he will not be heard in oral argument, rule 4 of Order 6 of the rule above subscribes that the respondent shall also within forty days of service of the brief of the appellant on him file the respondents briefs which shall be duly endorsed etc. In this appeal, the appellant brief was filed on 3/9/01 and was duly served on the respondent who did not file the respondent’s brief until 22/4/02, the day the appeal was called for hearing. In compliance with the rules of court the respondent will not ordinarily be heard and the appeal should ordinarily be heard and this appeal should ordinarily be decided only on the contents of the appellants brief. However it is my view that nothing is lost by considering also the contents of the respondent’s brief filed out of time, since it ensures that real justice is done in hearing both parties and that they are heard in compliance with the rules of natural justice which enjoins the constitutional provision of audi alteram partem. It is also a demonstration of the rules that the court will not allow technicality to hinder the attainment of justice. See Nishizawa Ltd v. Jethwani (1984) 12 SC 234-256. It is for the above reasons that I now record and consider in this appeal the brief of the 2nd respondent filed on 22/4/02. The 1st and 3rd respondents are not reflected as spoken for in the brief. It is noteworthy however, that the 2nd respondent is usually cited as respondent in matters affecting the 1st and 3rd respondent even where the 2nd respondent, the Attorney-General of the Federation is not directly involved. The 2nd respondent formulated two issues only for the court to determine.
    (1) “Whether the appellant is a citizen of Nigeria.
    (2) Whether the failure on the part of the court to conduct oral evidence was fatal to the matter.”

    I am of the view and so subscribe that issues 1, 3, and 4 of the appellant issues to be considered can be argued together given some extension in arguing issue three which complained about the failure of the trial court to determine and rule on the complaint before the court on the mode of the complaint of arrest of the appellant. Issue two is on the failure of the court to resolve conflicting affidavit by calling oral evidence; whether such failure is fatal to the proceeding.
    In effect, there it is possible to argue the issue formulated by the appellant with those formulated by the 2nd respondent. They will be taken together in this appeal. In the appellant’s issue four he asked whether the trial Judge was not in error in his consideration of the evidence adduced at the trial, particularly with the issue of the burden of proof? In issue three the appellant asked whether the 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 and in issue one the appellant asked whether the Judge was right in his decision that the appellant is not a citizen of Nigeria as not be entitled to the protection guaranteed under the fundamental rights provisions contained in the Constitution of Nigeria, 1979, which is, “Whether the appellant is a citizen of Nigeria.”
    The statement that is not expressed in both questions of the appellant on which the appellant is positive and the respondent asked negatively is this, if the appellant is a Nigerian, he would not have been subjected to the incidents of complaint on which he deposed in his affidavit in the proceedings. This raised the issue of who has the onus to prove, that the appellant is not a Nigerian in the court below. Is it the appellant or the respondent? In the respondent brief, he has commented as follow;
    “Based on the adverse security reports and through investigations that followed the 1st and 3rd respondent deported the appellant to his country Niger Republic on 4th December, 1993.”
    The appellant has submitted in his brief, what he testified to in the court below, that he is a Nigerian; that his parents were Nigerians belonging to the Fulani community in his Bodinga Local Government of Sokoto State. That he belonged to the Danchadi District of Sokoto State. That he had lived in Zaria virtually all his life except for the early ten years of life. That he was born before 1960, of Nigerian parents. The report on which the respondent commenced its process of deporting the appellant is material in this proceedings, it started with the report of the Department of State Service, which report is marked secret. It was tendered at the proceedings on page 97 of the printed record. In my view it is the report on which the security council of Kaduna State based it subsequent recommendation. Excepts from it are relevant. “Direct investigation reveal that Abdulkadir Ahmed hereinafter referred to as subject resides at No. 103, Anguwar Alkali, Zaria etc. However, from the true of subject’s arrival in Zaria some eighteen years ago he stayed at Limancin Kona. Arising either from his fanatical disposition or conspiracy by religious groups individuals in these wards subjects was freed to leave to the current residence which he bought with the assistance of one who is a supporter.” Subject also claims to have been born to Nigerian parents, from Bodinga Local Government Area in Sokoto State. But his father in search of Islamic knowledge went to Niger Republic when he was at tender age. He subsequently, came back to Nigeria to one Mallam Dabi at Kware in Sokoto State. Between 10-12 years of age, subject in company of other tenement seekers Islamic knowledge moved to Zaria where they stayed with one Mallam Na’iya at Anguwar Nufawa, Zaria City, subject at a certain stage also carried out series of preaching for the Izala organisation in Zaria. He was however dropped due to some doctrinal practices they felt were at variance with the Quran.” While at Anguwar Alkali his current abode, subject came face to face with a menacing problem incompatibility with neighbours four issues of confrontation and quarrel with one Shehu Turaki, subject neighbours were listed.
    7. These issues complied with some relations with his neighbours, and the widely held belief that he is not a Nigerian made some of his neighbours to advocate for his deportation.
    10. Based on the available data and our investigation we have nothing conclusionly at our disposal to suggest any organised threat from subject.”
    His hostile disposition and often uncompromising stand and issues highlighted in this report are the bone of contention between him and his neighbours, who are mostly advocating for his deportation. His deportation in our view should be based on very conclusive confirmation by your department that he is not a Nigerian etc.
    This report was forwarded by the Department of State Service to the Controller of Immigration, Kaduna State what the printed record showed followed this report was commenced at a later day.
    On that day as deposed to by one Sunday Akpan who deposed to the affidavit made on January, 1995, deposed as follows:
    1. That I am a litigation security in the Legal Unit, Ministry of Internal Affairs, Garki.
    2. That I am informed by the 3rd defendant and I verily believe him to be true and correct as to the following facts:
    i) That the affidavits in support of the plaintiff action naturally misrepresent the true facts of the matter.
    ii) That consequent upon a security report received from Zaria Local Government and an investigation report on the activities of the plaintiff, the plaintiff was found not only to be a security risk in the community but that his nationality as a Nigerian was questionable.”
    Having considered the report on which the respondent appeared to have relied on and because of the order made I am of the view that the onus of proof in the court below was due charged. However, I will take only one issue of law in issue two in the appellant brief when the appellant wrote and the respondent in his brief subscribed to the question whether the learned trial Judge was right in refusing to allow the calling of oral evidence.”
    It is desirable to consider the aspect of the judgment of Okeke, J, the trial court below from which the issue arose. In his judgment dated 6th February, 1996, the learned trial Judge recorded inter alia:
    “where there are documentary evidence before the court it can on its own resolve conflicting affidavit evidence by resorting to the documentary evidence.”
    The learned Counsel for the appellant has submitted that the learned trial court was in error for failing to call oral evidence to resolve the issue. The respondent has submitted that such an error does not vitiate the proceedings. I have considered the issue raised by both counsel in the said issue. In my view the decision of the learned trial court raised the following issues:
    a) Whether in a trial founded on affidavit evidence, an unidentified; or unnamed “documentary evidence” introduced into the proceedings to resolve a conflict of two affidavits can resolve the conflict in the affidavit.
    b) Whether the preference of one unidentified documentary evidence used by the trial court to resolve the affidavit is not subjective to the urites or wish, as opposed to evidence in the trial.
    c) Whether by suo motu introducing the so called a documentary evidence to resolve a conflict in the contents of the affidavit the learned trial court has not thereby, descended into the arena of the contestants by producing the document to resolve conflicting contents of depositions in an affidavit.
    d) Whether by deciding suo motu which document will be used to resolve the conflict in the two affidavit, the trial court has not by that determined the issue before him on the weakness of the case of the appellant.

    It is settled law that conflicts in two affidavits tendered in a trial before the court should be resolved by calling oral evidence. See Ebohon v. A.-G. Edo State (1997) 5 NWLR (Pt.505) at p. 298. The reasoning behind the resolution by the preference of a viva voce evidence is commendable since the issue to be determined should be solved by the evidence of the parties themselves not the opinion of the court. Akinduro v. Iwakun (1994) 3 NWLR (Pt.330) 106; Falobi v. Falobi (1976) 9-10 SC 1, the Supreme Court commended the method because it enables conflicts in the proceedings to be resolved purely on the testimony of the parties. In Nigerian Victory Assurance Company Ltd v. Grains Processing Company Ltd (1995) 3 NWLR (Pt. 386) 671, the learned Justice Mohammed observed and I quote,
    “once affidavits show irreconcilable issue, there should be a trial. The implication thereof in my view is that it is not the function of the court to supply evidence of a written document to resolve whatever conflict he perceives in the affidavit.”
    In the instant appeal, the court below did not identify the nature or in any case the documentary evidence, employed by him. He suo motu proceeded to purport to resolve the conflict in the affidavit. Even if he did, the deliberate decision to select a documentary evidence in order to discredit one of the contents of the two conflicting affidavit before him reduces the trial Judge to a participant in the proceedings. The learned trial Judge by his own election or selection of a document to resolve the conflict in the affidavit has elected by his participation in the proceedings weakened the onus of proof of one of the parties. The scenario before the court below was as follows. By the originating summons before the court, the appellant had averred that the respondent have failed to show that he is truly not a Nigerian and sought an order of court to set aside the order of the respondents to deport him. The evidence presented by the appellant in the court below shifted to the respondent, the onus of proof, see section 138 Evidence Act, rather than allow the respondent to show the justification if there is, in the action by presenting a further evidence oral or written the learned trial court sought for and discovered a weakness in the affidavit of the appellant to wit the name or pseudonym of the appellant in the court below, on this and on his own the court ruled that he, the court can resolve the conflict in the contest between the two affidavits which had been deposed to before a Commissioner of Oath. This was unfair and unjust. The court below was unjust to conclude thereby, on the weakness of the alleged several names of the appellant. It is settled law that a plaintiff must succeed on the strength of his own case, not rely on the weakness of the defence. See Nimanteks Associates Ltd. v. Marco Construction Company Ltd (1991) 2 NWLR (Pt.174) 411. It must not be an easy process to simply determine that a person resident for over 40 years in Nigeria and who does not claim any other nationality is not a Nigeria. There ought to be strict proof that he is not a Nigerian. The assumption being Nigerian live in Niger. I have written above, that the plaintiff in the originating summons was like a defendant, though a plaintiff. He is infact a defendant in the court of law who seeks to reverse an order made against him by the respondents. I now come to the issue of the sanctity of affidavit evidence. The contents of an affidavit are a deposition. It is a deposition because it has been sworn to by the deponent. In my view, only another statement on oath can vary or alter such deposition. The learned trial court in the court below did not describe or identify the documentary evidence which he employed the sanctity of his office to use his preference document resolve the conflict between the two conflicting affidavits. The trial court is therefore, in error to have so resolved. In view the proceeding and judgment in the court below are irregular; and wrong.
    The order made thereon is wrong. The said order is hereby set aside. I deem it appropriate to send the motion back to the Federal High Court in the appropriate Division Kaduna for proper trial and determination.

    UMOREN, J.C.A.: I have had the advantage of reading in draft, the judgment of my learned brother, R.D. Muhammad, JCA, just delivered.
    I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed and I hereby, equally allow it.
    I abide by all consequential orders made in the lead judgment, including order as to costs.

    Appeal allowed.

 

Appearances

Aliyu Umar (with him, Abdulaziz Muhammad and Kabir Babatunde)For Appellant

 

AND

  1. S. Ajayi for the 2nd RespondentFor Respondent

 

Leave a Reply

Close Menu