Abdulkadir Ahmed V. The Minister of Internal Affairs & Ors (2002)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

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.

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Other Citations: 2002)LCN/1252(CA)