(CRIMINAL REVISION)

SUDAN GOVERNMENT v. SUAD AMMED SABAHI

AC-CR-REV-325-1965

Principles

·  Passports and permits –Entering the Sudan without valid  visa –passports and immigration Act 1960,s, 11(1) –prosecution must prove that accused is non Sudanese

·  Evidence-Copies of foreign public registers-not admissible without production by expert witness in the law of the foreign country

·  Evidence-Birth certificate-Not admissible as evidence of nationality

 
Held: conviction under Passports and Immigration Act 1960, s, 11(1) , is quashed because.
(i)                  For a conviction  of entering the Sudan without a valid visa, the prosecutor must prove that the accused is not a Sudanese, and it is not for the defense to disprove that fact.
(ii)                Copies of foreign public registers  e.g., marriage and birth certificates  are not admissible as evidence without production by an exert witness in the law of the foreign country.
 Obiter dictum: Marriage and birth certificates are not admissible as evidence  of nationality.

Judgment

Advocate: Mohamed Ahmed Orabi………………….for accused

 Babiker Awadalla C.J. November 10.1965:- On application by Advocate Orabi on behalf of accused, I hereby quash both finding and sentence in this case and order  that the fine paid by accused be refunded.

In this non-summary trial accused was convicted under passports and Imitation Act 1960,s, 11 (1) , and sentenced to Łs,1.000m/ms fine with an order of depuration.

In my view, finding of guilty in this case is not supported by evidence.

Passports and Immigration Act 1960,s,11 (1) reads as follows:

“save as hereinafter provided no alien shall enter the Sudan unless he  is in possession of a valid entry visa.

An alien is  defined under section 3 of the Act as a “person who is no a Sudanese” it is for the prosecution to prove that accused was not a Sudanese and not for the defense to disprove that fact. All that the prosecution produced in this respect is a letter form the Superintendent of police of Tasanai, which is obviously not receivable as evidence purporting to enclose:

(i)     copy of a marriage certificate of accused (to a certain Hssein Abdalla EL Yamani) issued by the Kadi of Tasanai. In this document (i.e. the copy certificate) accused is described as a Yemeni; and

(ii)    copy of accused’s birth certificate showing that accused was born at Tasanai in 1939.

Even assuming that these documents are genuine copies of their originals, then they are worthless as prosecution evidence for the following reasons:

(a)    In the first place they are copies of foreign registers and are not receivable in  our courts  without production by an expert in the law of the foreign country who should prove:

1-     that the documents were kept under sanction of the law; and

2-     that they are recognized by  the tribunals of their own country.

(b)   Even if these documents were produced in the manner indicated above, they do not prove to any extent that accused is not Sudanese. A marriage certificate is proof only of the fact of marriage and nothing else, and it cannot therefore be received as evidence of birth and nothing else, and the fact that a person was born otherwise than in the Sudan does not mean that he is not Sudanese.

(c)    Assuming for the sake of argument that  these documents were
 

Receivable as proof that accused was a national of Yemen, then it does not follow as a matter of course that she cannot be Sudanese. There is nothing in law to prevent one person from being claimed adversely by two or more countries as their respective national.

The success of the prosecution in case of this sort depends on proof of the fact that accused is not Sudanese. Nothing short of this enough. Proof that a person is not Sudanese,  and therefore does not help the prosecution except in shifting the burden of proof. In the present case there is no evidence that accrued is a foreign national.