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BALOGUN & OTHERS v. MINISTER OF INTERIOR


  • New
  • 1959-12-22
  • HIGH COURT
  • GLR 452-456
  • Print

OLLENNU J.


Summary

Deportation Orders?-Citizenship of Ghana?-Standard of proof required?-Family tradition an exception to rule against hearsay?-Nullity of Orders.

Headnotes

On the 17th October, 1958 Deportation Orders under the Deportation Act, 1957 were made inter alia as follows:L.N. 333: Against Abdul Wahabi BalogunL.N. 336: Against Gariba MahamaL.N. 338. Against MailafiaL.N. 339. Against Mallam Zeberu Imoru.Section 3(1) of the Act provides that "No citizen of Ghana shall be liable to deportation under this Act." The four men named issued a writ as co-plaintiffs against the Minister of the Interior on the 16th March, 1959, claiming declarations that the Deportation Orders were null and void on the ground that each plaintiff respectively was a citizen of Ghana, because at the date of the commencement of the Ghana Nationality and Citizenship Act, 1957 each was a citizen of the United Kingdom and the former Gold Coast (including the former Northern Territories Protectorate). The 1st plaintiff claimed that he was born in Ghana, and that his mother was also born in Ghana. The 2nd plaintiff claimed that he was born in Ejisu in Ashanti, and that his mother was a native of Kintampo in Brong Ahafo. The 3rd plaintiff claimed that he was born in Ghana, and that his mother Ayishetu was a native of Gambaga. The 4th plaintiff claimed that he was born in Ghana and that his father Mallam Imoru was also born in Ghana.Section 3(2) of the Act provides that "for the purpose of this Act, the burden of proof that he is a citizen of Ghana shall lie upon the person who asserts that he is such a citizen." The statement of defence accordingly pleaded (para.3) that the defendant did not admit the facts pleaded by the plaintiffs as to their respective places of birth, and those of their parents. In para 2. the defendant pleaded [p.453] further that he did not admit that by virtue of their respective places of birth, and those of their parents and grandparents, the plaintiffs were citizens of Ghana.Suit No. 99/59.

Judgement

(His lordship referred to the pleadings, and continued:?-)

None of the plaintiffs can succeed in his action unless he is able to satisfy the Court, by preponderance of evidence as in all civil cases, that he is a citizen of Ghana within the terms of the Ghana Nationality and Citizenship Act (No. 1 of 1957) (see Cooper v. Slade (27 L.J. (Q.B.) 449), and Bruce v. Attorney-General (Civil Appeal No. 2/57, judgment of Appeal Court, unreported, delivered on the 24th November, 1957)).

The section of that Act appropriate to this case is section 4(1), together with the proviso thereto:

"4(1) Subject to the provisions of this section, every person born in Ghana, whether before or after the commencement of the Ghana Independence Act, 1957, who immediately before the date of commencement of this Act was a citizen of the United Kingdom and Colonies or a British protected person shall be a citizen of Ghana."

"Provided that a person shall not be such a citizen by virtue of this section if none of his parents or grandparents was born in Ghana." [p.454] To succeed on his claim, therefore, each of the plaintiffs must prove three things:

(i) that he himself was born in Ghana, and

(ii) that one of his parents, or one of his grandparents, was born in Ghana, and

(iii) that immediately before the commencement of the Ghana Nationality and Citizenship Act he was a citizen of the United Kingdom and Colonies or a British Protected person.

None of the plaintiffs could attend the trial because each had already been deported; but witnesses were called on behalf of each of them.

For the 1st plaintiff, his uncle (P.W.1) and his mother (P.W.4) gave evidence that 1st plaintiff was born in Accra, that he is a registered voter, and that he had stood as a candidate in the Accra Municipal Elections just before his deportation. The witnesses said that the 1st plaintiff's mother was also born in Accra. They said further that his grandmother (a woman proved to be too old and infirm to be able to come to Court) had declared to Police detectives who had interviewed her shortly after the commencement of this suit, that she herself was born at Salaga in Northern Ghana, and that the 1st plaintiff's mother (P.W.4) was born in Accra.

On behalf of the 2nd plaintiff his mother (P.W.2) gave evidence that he was born at Ejisu, and that she herself was born at Kintampo. She said that she did not know where her father came from; all she learnt about him was that he grew up in Kintampo, married her mother at Kintampo and lived there with her all the time.

On behalf of the 3rd plaintiff one witness (P.W.5) gave evidence. According to her, the 3rd plaintiff was born in Kumasi, and at the time of his deportation was a registered voter in Kumasi. She deposed that his late mother herself told her that she (the mother was born at Gambaga, which was her home town, and that it was from Gambaga that she (the mother) came to Kumasi.

For the 4th plaintiff his first cousin (P.W.3), who is older than the 4th plaintiff, gave evidence that the latter was born in Accra, and that he is a registered voter in Accra. He said that the father of the 4th plaintiff was his (P.W.3's)uncle, younger brother to his father; that his (P.W.3's) father, was also born in Accra, and that from what he used to hear from time to time during his childhood in conversation between his father and the 4th plaintiff's father in the [p.455] house where they lived, he knows that the mother of the 4th plaintiff was born in Northern Ghana, though he did not hear the name of the town where she was born.

The searching cross-examination to which each of the plaintiffs' witnesses was subjected was of great assistance to the Court. It went into details, not only upon matters relevant to the issue before the Court, but also upon matters not directly connected with the issues. Each of the witnesses was excellent under cross-examination, and proved himself or herself an honest and truthful witness, admitting certain facts put to them even though they must have known that those facts were against the interest of the particular plaintiff on whose behalf he or she had been called, and making the same statement two or three times in answer to questions carefully framed in different forms and at different times on the same point. I am satisfied that the veracity of each of these witnesses is beyond reproach, and that each of them has a clear recollection of the facts he or she deposed to.

No evidence was led on behalf of the defendant. The evidence given on behalf of the plaintiffs stands uncontradicted, and I must accept it.

Learned Crown Counsel for the defendant submitted that most of the evidence given on behalf of the plaintiffs was inadmissible as hearsay, evidence of facts which the witness who deposed to them acquired from older members of the family (most of them deceased), or presumptions drawn from facts of the witness's early life.

In making this submission, learned Crown Counsel appears to have overlooked the principle that in this country evidence of the traditions of family, such as was given in this case by members of the family, has become a well-known exception to the hearsay rule, and is admissible. On that principle it was held by the Court, in the case of Bruce v. Attorney-General already referred to, that oral evidence given by relations as to the place of birth of the said Emmanuel Bruce, was admissible in proof of his citizenship of the Gold Coast. On the question of the admissibility of this type of evidence, which by the strict rules of English law may be hearsay evidence see Redwar's Commentaries on the Laws of the Gold Coast, pages 86-87; see also judgments of the Privy Council in Kobina Angu v. Cudjoe Attah (P.C. (1874-1928), 43, at page 45), and in Charles Amoo Ankrah v. Robert Adjabeng Ankrah (Privy Council Appeal 1/52 delivered on 2nd October, 1957).

It is not denied by the defendant that by virtue of the places where the plaintiffs and their parents and grand-parents were born as [p.456] proved, the plaintiffs were citizens of the United Kingdom and the Colonies or British protected persons immediately before the commencement of the Ghana Nationality and Citizenship Act, and must by virtue of section 4 sub-section (1) of that Act each be a citizen of Ghana. But it is submitted on behalf of the defence that being persons of mature age, the plaintiffs might have changed their nationality before the commencement of the Act. This hypothetical submission will not bear examination. There is no evidence which could warrant such a presumption. When learned Crown Counsel suggested to some of the witnesses that, as persons of mature age, the plaintiffs could change their nationality the answer which he obtained in each case was that they could, but that to the knowledge of each such witness they never had. There is the further evidence in respect of three of the plaintiffs that at the time of their deportation they were registered in Ghana as voters entitled to elect members to Municipal Councils and to Parliament, and that in the case of the 1st plaintiff he had stood as a candidate for election to the Accra Municipal Council immediately before his deportation. The presumption is that they have not changed their nationality.

The uncontradicted evidence on the record leads to the irresistible conclusion that each of the four plaintiffs is a citizen of Ghana, and that the deportation of each of them is prohibited by section 3 sub-section (1) of the Deportation Act (No. 14 of 1957), which provides,

"No citizen of Ghana shall be liable to deportation under this Act."

It follows that the deportation orders L.N. 333, L.N. 336, L.N. 338 and L.N. 339 made on the 17th October, 1958 respectively against the four plaintiffs are all null and void, and I so declare them.

Decision

<P>There will therefore be judgment for each of the plaintiffs against th

Plaintiff / Appellant

Dr. Danquah

Defendant / Respondent

Amissah

Referals

(1) Cooper v. Slade (27 L.J. (Q.B.) 449);

 

(2) Bruce v. Attorney-General (unreported);

 

(3) Angu v. Attah (1874-1928) P.C. 43);

 

(4) Ankrah v. Ankrah (unreported).

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