Case No.:

AC-CR-REV-264- I 960

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Conflict of laws—Infants domicile—Legitimate child’s domicile that of the father

·  Conflict of laws—Wife’s domicile—Follows that of husband

·  Passports and permits—Passports and Permits Ordinance. s. 31—Court will not expel person domiciled in the Sudan

The wife and daughter of a non-Sudanese legally domiciled in the Sudan entered illegally. They were convicted of illegal entry and sentenced to fine and expulsion.
Held: (i) An infant’s domicile is that of the father regardless of its place of residence.

(ii) The wife’s domicile follows her husband’s.
(iii) Courts will not expel non-Sudanese domiciled in the Sudan under Passports and Permits Ordinance. s. 31 [ passports and Immigration Act. 1960 (196o Act, No. 40), s. 30 (b)).

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. ZAHRA AMAN HAMDI

AC-CR-REV-264- I 960

SUDAN GOVERNMENT v. GUMGA YASSIN MOHAMED

(AC-CR-REV-247- 196o)

Advocate: All Elias ... for the accused

Facts :—Yassin Mohamed, an Eritrean, entered the Sudan in 1952 with permission by Permit No. 54158. He left his wife and children in Eritrea, and worked as a common labourer in Gedaref. Shortly after 1952 he married a Sudanese woman in Gedaref. Because of his small salary he was unable to send money to Eritrea to support his first wife and children. In April 1960 his first wife, Zahra Aman Hamdi, entered the Sudan without permission with her 16-year-old daughter Gumga Yassin Mohamed. Zahra Aman Hamdi left two sons, aged 10 and 6. in Eritrea; she was pregnant when she entered. Three months after Zahra Aman Hamdi and her daughter Gumga Yassin Mohamed entered they were arrested for entering illegally, convicted before the police magistrate in Gedaref, and sentenced to fine and expulsion under Passports and Permits Ordinance, ss. 6, 31 and 32. Separate applications for revision were tiled for Gumga Yassin Mohamed (AC-CR-RE V247 1960) and Zahra Amán Hamdi (AC-CR-REV-264. 19601).

M. A. Hassib J. September 28, 1960:—Finding against Gumga Yassin Mohamed is correct and sentence is adequate but the order of expulsion is most unfair.

Accused is a female infant. She is 14 according to Case Diary and 16 according to trial. She has Sudan domicile by operation of law for it is admitted that her father is domiciled in the Sudan.

According to the principles of private international law the domicile of an infant is the domicile of his father.

Wolf. Private International Law 117 (2nd ed., 1950), states the law as follows:

“For infants, we have dealt with their domicile of origin which comes into existence at the moment of their birth, the question arises how this domicile can be changed during the period of minority. A change by the infant’s own voluntary act takes place in one case only, that is when a female infant marries and thereby acquires her husband’s domicile. Apart from that the infant’s domicile of origin is not changed.”

In the case of a legitimate child by a change of his father’s domicile during minority the child snares compulsorily the father’s changing domicile. It makes no difference whether child follows the father to his new domicile or stays with the mother.

In this case, the domicile of the accused is, by law, the domicile of her father and as the accused’s father’s domicile is in the Sudan there is no reason for expelling a person constructively domiciled in this country.

I therefore confirm the finding and sentence and quash the order of expulsion.

Finding of guilty in the case against Zahra Aman Hamdi is supported by sufficient evidence and sentence is adequate. Therefore I see no reason to intervene as to them.

According to the principles of private international law, a married woman changes her domicile according to her husband’s change of domicile. English law does not allow an exception to this rule. In this case it was proved that accused’s husband is domiciled in the Sudan.

I therefore consider the order of expulsion against Zahra Aman Hamdi as undesirable and quash it.