(CRIMINAL REVISION)

SUDAN GOVERNMENT v. BSADA SAEED

AC-CR-REV-56-1967

Principles

· Conflict of Laws—Son’s domicile—Follows that of the father

· Passport and Permit—Expulsion of non-Sudanese-—Passport and Immigration (Amendment) Act, 1961, s. 30—One of the three requisites of the section must be proved.

(I) The son domicile, before attaining maturity, follows that of the father He can retain such domicile even afterwards.

(ii) To expel a non-Sudanese who resides in the Sudan without permit, under Passport and Immigration (Amendment) Act. 5961, s. 30: it must be proved that the accused, either:
1. entered the Sudan without permission.
2. remained after the expiry or cancellation of permission, or
2. committed a breach of conditions attached to a residence permit

Judgment

Advocate: Taha Ibrahim for accused

Babiker Awadalla C.J. March 19, 1967: — On application by advocate Taha Ibrahim and in pursuance of my powers under Code of Criminal Procedure, s. 257, 1 hereby confirm finding of guilty but reduce the sentence of fine to £S.1.000m/ms. only or three days’ imprisonment in default. I hereby quash the order of deportation.

I am reducing the sentence because I am of opinion that accused in this case is entitled to all clemency. The evidence proved that accused did enter the Sudan with his father in 1943. Accused was then a child of only six. The father remained here until 1957 when he acquired Sudanese nationality and continued to reside in the Sudan since then. Accused—who continued to reside with his father—was laboring under a misapprehension that his father’s acquired nationality also clothed him with the same status. When he realized his mistake he applied for grant of nationality and there is nothing in the evidence to show that he had left the Sudan since his entry in 1943. I do not think that this is a case in which the Minister of Interior would refuse to exercise his discretion in favour of accused under the Nationality Act, 1957, S. 8. For if the father had acquired a Sudan domicile surely the son had acquired it before attaining his maturity and retained it even afterwards.

As regards the order of deportation, I regret to say that cases have frequently come before me in which an order of deportation under Passport and Immigration (Amendment) Act, 1961, S. 30, had invariably been made whenever there was a conviction under Passport and Immigration Act, 1960, s. 15. This is wrong, Passport and Immigration Act, 1960, s. 15, deals with cases of residence without a permit, but in order that a case may be made under Passport and Immigration (Amendment) Act, 1961, s. 30, one of three requisites must be established, viz., either:

(i) breach of conditions attached to a residence permit (s. 30 (1) (b) (1)), or

(ii) entry without permission (s. 30 (2) (a)), or

(iii) remaining in the Sudan after expiry or cancellation of permission to enter(s. 30 (2) (b) )

I do not think the case of accused comes under any of the above three. Although it was established that he is residing in the Sudan without a valid residence permit, it was not, nor can it in the circumstances be, established that accused had entered without permission, or remained after cancellation or expiry of a permission to enter or had committed a breach of conditions attached to a residence order. In fact the evidence shows lawful entry and lack of proof of any special terms attached to that entry so as to make application of (iii) above possible. Paragraph (i) is not applicable because there is no residence permit and therefore no breach of conditions attached to such permit can be proved...

I regret to say that I cannot see the justice of the cause, which prompted, an advocate to prosecute in this case. I cannot understand what interest— a part from the public interest, which an individual shares in common with, of the community—can a person have in the expulsion of a foreigner.

If an alien is undesirable then the state steps in to expel him and does not leave him to the spite of individuals. Furthermore, it is the state who normally is possessed of documents necessary for the prosecution which are not available for inspection by individuals or their legal representatives.

I can therefore set no justification for the court allowing private individuals to prosecute in cases of this sort.