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EMILE NAJIB BITTAR
V.
THE PRINCIPAL IMMIGRATION OFFICER, ACCRA AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
6TH DAY OF MARCH, 1953
2PLR/1953/31 (WACA)
OTHER CITATION(S)
2PLR/1953/31 (WACA)
(1953) XIV WACA PP. 272-274
LEX (1953) – XIV WACA 272-274
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.,
COUSSEY, J.A.,
WINDSOR-AUBREY, J.
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BETWEEN
EMILE NAJIB BITTAR — Appellant
AND
THE PRINCIPAL IMMIGRATION OFFICER, ACCRA AND OTHERS — Respondents
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ORIGINATING COURT(S)
Appeal by an Immigrant against deportation: No. 26/52.
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REPRESENTATION
Dr. J. B. Danquah — for Appellant
A. N. Buckmaster, Crown Counsel — for Respondents
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MATTER(S)/BETWEEN
IN THE MATTER OF IMMIGRATION ORDINANCE, 1947
AND
IN THE MATTER OF APPLICATION BY EMILE NAJIB BITTAR FOR AN ORDER OF CERTIORARI AND AN ORDER OF PROHIBITION DIRECTED TO THE PRINCIPAL IMMIGRATION OFFICER, ACCRA, THE PASSPORT CONTROL OFFICER, ACCRA, AND THE SUPERINTENDENT OF POLICE, ASHANTI, KUMASI:
EMILE NAJIB BITTAR — Appellant
AND
1. THE PRINCIPAL IMMIGRATION OFFICER, ACCRA,
2. THE PASSPORT CONTROL OFFICER, ACCRA,
3. THE SUPERINTENDENT OF POLICE, ASHANTI, KUMASI — Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ADMINISTRATION AND GOVERNMENT LAW:- Immigration Ordinance, 1947, section 19, reg. 3(2) and reg. 6(1) and (2) “Prohibited immigrant” — Deportation without Court order
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CASE SUMMARY
Section 19 of the Immigration Ordinance, 1947, reads as follows:-
“19. Where any person enters the Gold Coast in accordance with the provisions of section 18 of this Ordinance and breaks any of the conditions subject to which he was permitted to enter, then
“(a) if the security furnished be by way of deposit such deposit may be forfeited;
“(b) if the security furnished be by bond the Principal Immigration Officer may sue and recover for the use of the general revenue of the Gold Coast the amount secured by the bond, together with costs of the suit;
“and in any case such person may be treated as a prohibited immigrant.”
Regulation 3(2) of the Immigration Regulations, 1947, reads as follows-
“3(2) The immigration officer shall give to a person permitted to enter the Gold Coast under the provisions of paragraph (b) or (c) of sub-regulation (1) a certificate of conditional entry in the Form Bin the Schedule hereto.”
Regulation 6 (1) and (2) of the Immigration Regulations, 1947, read as follows:-
“6 (1) In addition to the particulars of the form of security given a certificate of conditional entry shall contain particulars of such other conditions, within the provisions of sub-section (1) of section 18 of the Ordinance as the immigration officer in his discretion may impose-
“(a) as to the particular area within which the immigrant may reside;
“(b) as to the occupation or business of such immigrant;
“(c) as to the control of any activities of such immigrant which might offend the religious beliefs of any section of the community.
“(2) Upon contravention of any such additional conditions the person upon whom such conditions have been imposed may be deemed to be a prohibited immigrant and deported and the deposit or bond dealt with as if such person were a person who had failed to obtain a certificate in the Form A in the Schedule hereto.”
The appellant, who was not a native of the Gold Coast, was given a conditional certificate with conditions as to his employment, which he admittedly failed to observe. He was served with notice that that certificate “should be withdrawn” and replaced by one for one month, within which he must go or be deported; whereupon be applied for an order of prohibition against the officers concerned. His application was refused and he appealed with various arguments set out in the judgment infra, the effect of which was that he could not be deemed a prohibited immigrant except by a Court upon conviction for breach of a condition imposed under Reg. 6(1).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) Under section 19 of the Ordinance a person who breaks a condition of his entry may be treated as a prohibited immigrant and under reg. 6(2) he may be deported; neither the section nor the regulation requires the intervention of the Court.
(Editor’s Note: After serving him with notice to leave, the Immigration Officer, when six months were up from the time of entry, prosecuted the appellant for staying on without obtaining another appropriate certificate. But the appellant’s certificate of conditional entry had two periods on it-six months and two years. The Magistrate discharged him on that account; and it was argued both in the Supreme Court and on appeal that the Immigration Officer could not, in view of that acquittal, exercise any powers under the Ordinance without an Order of Court.
(2) The argument had no substance as, whether the period was six months or two years, the conditions regarding employment applied equally and they had not been observed.
The point is mentioned here so as to clarify passages in the judgment infra.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a judgment of Korsah, J., by which he refused an application by the appellant for:-
(a) an Order of Prohibition that the Principal Immigration Officer, Accra, the Passport Control Officer, Accra, and the Superintendent of Police, Ashanti, Kumasi, be forbidden to withdraw the Immigration Officer’s Conditional Certificate Form “B” granted to the appellant on the 6th November, 1950, and that they be forbidden to deport the appellant or to request him to leave the Gold Coast; and
(b) an Order of Certiorari to remove into the Supreme Court the record of the Immigration Officer’s Conditional Certificate Form “B” issued to the appellant on the 18th June, 1951, together with all other papers relating thereto.
Shortly put the facts are that the appellant, who is not a “native of the Gold Coast”, was granted a certificate of conditional entry, Form “B”, on the 6th November, 1950, to enter the Gold Coast. The conditional certificate was given under the provisions of sub-regulation (2) of regulation 3 of the Immigration Regulations, 1947, and it was issued subject to the following conditions, imposed under the provisions of sub-regulation (1) of regulation 6 of the same regulations, which were endorsed on the back of the certificate:-
“(a) This pass is only valid while the subject is employed by Messrs Captan and Company Limited.
“(b) Subject should not without permission of the Principal Immigration Officer accept employment from any other firm or set up business of his own.”
It was admitted that the appellant did not comply with the conditions so imposed.
As a result of this non-compliance the Principal Immigration Officer caused notice to be served on the appellant on the 19th April, 1951, notifying him that the certificate “should be withdrawn” and that he would be issued with another one valid for one month and subject to the conditions which are set out in the notice which is exhibited as appendix “A” to the appellant’s affidavit filed in these proceedings:
Two periods are stated in the original certificate, i.e. six months and two years, but both such periods are subject to the conditions endorsed on the back of it, to which I have already referred.
The main arguments put forward on behalf of the appellant were, firstly, that neither the Immigration Ordinance,-1947, nor the regulations made thereunder empower the Immigration Officer to withdraw a certificate issued to cover a period of two years and substitute therefor one valid only for one month, secondly, that sub-regulation (2) of regulation 6 of the regulations, which provides that upon contravention of any of the additional conditions imposed under sub-regulation (1) of the regulation, the person upon whom such conditions have been imposed may be deemed to be a prohibited immigrant and deported, is subject to regulation 5 of the regulations, thirdly, the appellant having been acquitted when charged with remaining in the Gold Coast for a period of over six months without obtaining from the Immigration Officer a certificate that he was a fit and proper person to be received in the Gold Coast without making a deposit of money or giving security, Form “A” in the Schedule to the regulations, the respondents cannot exercise any of the powers under the Ordinance or regulations without an order of the Court, fourthly, that a person cannot be deemed to be a prohibited immigrant except by a Court upon a conviction for contravening conditions imposed under regulation 6(1) of the regulations, and fifthly, that.it was unreasonable to treat the appellant as having contravened a condition of the certificate, a reasonable explanation having been given regarding such contravention.
In my opinion the arguments put forward on behalf of the appellant are not well founded. Section 19 of the Ordinance expressly provides that any person who enters the Gold Coast and breaks any of the conditions subject to which he is permitted to enter may be treated “as a prohibited immigrant”: sub-regulation (2) of regulation 6 of the regulations contains a similar provision and goes on to provide that a person deemed to be a prohibited immigrant may be deported, Neither the section nor the regulation requires the intervention of the Courts before the consequences of a breach of the conditions attach, and the fact that there may be an explanation of the breach does not affect the position if there has, in fact, been a breach.
It follows that, in my opinion, the judgment appealed against ought to be affirmed. I would accordingly dismiss this appeal with costs fixed at £21 19s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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