Smart Duah Applicant v Superintendent of Prisons Chief Immigration Officer Attorney General Respondents [ECSC]

• Jurisdiction: St Lucia
• Judge: d'Auvergne,J.
• Judgment Date: 07 March 2000
• Judgment citation (vLex): [2000] ECSC J0307-2
• Docket Number: CIVIL SUIT NO: 973 OF 1999
• Court: High Court (Saint Lucia)
• Date: 07 March 2000

[2000] ECSC J0307-2

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT NO: 973 OF 1999

Between

Smart Duah

Applicant

and

Superintendent of Prisons Chief Immigration Officer Attorney General

Respondents

d'Auvergne,J.

1 On the 23^rd day of December 1999 the applicant sought and was granted leave to file Summons for Writ of Habeas Corpus ad Subjiciendum on the Respondents for his release forthwith from his detention at the St Lucia Royal Gaol and further to grant the following

• 1. "A Declaration that I am entitled to have my refugee status determined properly and by law and that pending such application I should be released from my illegal detention forthwith.

• 2. An order preventing the Chief Immigration Officer, his Immigration Officers or Constables from removing me from the State of St. Lucia pending the outcome of these proceedings or pending the outcome of the review by this Honourable Court of my illegal detention and refugee status.

• 3. A Declaration that the decision of the Respondents were made in breach of the Rules of Natural Justice.

• 4. A Declaration that I am illegally detained by the Superintendent at the Royal Gaol St. Lucia Castries.

• 5. Further or other relief."

2 On the 17^th day of January 2000 the said summons was set down for hearing and Counsel for the Respondents took a point in limine under Order 41, Rule 6 of the Rule of the Supreme Court 1970 that paragraphs 1,2,3,4, 5 and 9 of the applicant's affidavit be struck out. Order 41 Rule 6 of the above noted rules reads as follows:

"The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive."

3 In order to appreciate what was being sought, the various affidavits and exhibits filed in this case must be perused. I therefore note them in this order.

4 Affidavit of Smart Duah and exhibit.

Affidavit of Smart Duah

I Smart Duah a Citizen of Nigeria born on the 21^st June 1975 and now illegally detained in the State of St. Lucia make oath and say as follows:-

• 1. I am the applicant in the present action and make this Affidavit in support of my applicant for a writ of Habeas corpus against the Respondents who are responsible for my illegal detention at the Royal Goal St. Lucia Castries in the State of St. Lucia. The matters which I hereinafter declare are true to the best of my knowledge and belief and are within my personal knowledge unless stated otherwise. On 18^th June 1996 I arrived in the State of St. Lucia having journeyed from Nigeria via the republic of Benin. My arrival in St. Lucia was to seek political asylum because my life in Nigeria was at threat due to my activities as a student engaged in pro democratic activities, demonstrating against the oppressive dictatorial regime of Sani Abcha the then Military leader.

• 2. Between 1993 and 1996 I attended Bayaro University situated in Kanoo State, Nigeria. I studied Petro Chemical Engineering whilst simultaneously engaging myself in a student pro democratic movement. Nigeria under Sani Abcha's Military Regime was expelled from the Commonwealth due to his regime's excessive violation of human rights.

• 3. My departure for St. Lucia was preceded by my unlawful detention for seven days in or about May 1994 by the said Military Government simply because I helped organise a peaceful studentdemonstration for democracy and democratic rule in the State of Nigeria.

• 4. After my release I observed that I was under constant surveillance and was followed everywhere by the secret police whilst suffering anonymous threats from unknown persons against my life.

• 5. In May 1996 in fear of my life I fled from Kano State to the Republic of Benin where I was able to secure a Ghanian Passport from an associate at Immigration Headquarters enabling me to leave the entire region so as to ensure the safety of my life and liberty.

• 6. I chose St Lucia to seek Asylum as a Political refugee from oppression. I chose St. Lucia, because I was informed that St. Lucia was and is a Democratic State and because a cousin of mine who had visited St. Lucia in the early 90's had a friend on the Island with whom it was intimated I could reside with.

• 7. I have been informed by my Solicitors and verily believe that under the Universal Declaration of Human Rights Article 14(1) that everyone has the right to seek and enjoy in other countries asylum from persecution and, that in consideration thereof my decision to come to St. Lucia cannot be construed as improper.

• 8. In error, on my arrival in St. Lucia in June 1996 I did not seek refugee status and or political asylum at the port of entry because I was afraid to do so then, fearing the incompetence of the Airport Immigration Authority to manage my refugee status adequately or at all. I also then decided that I would subsequently seek the aid of a Human Rights Organisation in St. Lucia or anywhere else tomanage my refugee status, if St Lucia was uncooperative to my human plight. To date St. Lucia remains uncooperative by refusing to address seriously or at all my refugee status in particular now that I have been informed and verily believe that the previous Government under Sani Abcha is no longer in power.

• 9. In the course of my stay in St. Lucia I was unable to effectively engage any established Human Rights Organisation in which I had the complete confidence to advance my cause for refugee status. As a result I unwittingly decided to maintain a low profile in the hope that in the near future some solution to my refugee status would result. I am of good character and have no previous criminal convictions recorded against me in the State of St. Lucia or anywhere else in the world. In an effort to pursue my refugee status I commenced in July 1996 communicating with my family in Nigeria with the view to determine whether the previous problems I encounter in Nigeria still persisted. Notwithstanding such communication was severely curtailed when I was arrested. The present situation is that I remain ignorant of my fate where my life and liberty is concerned in the State of Nigeria.

• 10. On the 21^st October 1996 I was arrested and detained by way of an order under Section 33(2) of the Immigration Ordinance Chapter 76 Vol. 1 of the 1957 Revised Laws of Saint Lucia. This Order was made to the Superintendent of Prisons, Castries classifying me as a Prohibited Immigrant.

• 11. Pursuant to this Order I was detained for five months before being brought before the Senior Magistrate Florita Nicholas on March 21^st 1997.

• 12. I am informed by my Solicitors and I verily believe that my detention for as long as five months between 21^st October 1996 and 21^st March 1997 was in direct contravention of Section 33(3) of the said Ordinance which required inter alia that no person should be detained in custody for any period than is necessary for the purpose of any inquiry under the said Ordinance.

• 13. It is inconceivable that the issue around my prohibited status should have at first instance taken so very long before coming to the Magistrate's Court. In consideration thereof my detention of five months, almost equaled the sentence under the charge which was preferred against me namely Section 13 and 36(K) of the said Immigration Ordinance Chapter 76 Vol 1. Of the Revised Laws of Saint Lucia 1957 as amended by Section 8 of the Immigration Amendment Act and #15 of 83.

• 14. On 21 March 1997 I appeared before the Learned Senior Magistrate to specifically answer charges preferred against me under Section 13 and 36(K) of the Immigration Ordinance Chapter 76 Vol. 1 of the Revised Laws of Saint Lucia 1957 as amended by Section 8 of the Immigration Amendment Act and #15/83. I was found guilty of the said charges. I am informed by my Solicitors and verily believe that the penalty for such conviction is limited in terms of detention and fines to a maximum period of detention of six months or to a fine penalty of $2500.00 or to both such penalties and imprisonment.

• 15. Notwithstanding this clear law on sentence and procedure I have been in custody for three years and two months and my immediate detention therefore is without the force of law and is unconstitutional. There is now produced and shown to me andexhibited herewith marked DS1 a true copy of the extract of conviction for penalty taken out from the First District Court concerning the said charges.

• 16. Further, I am informed by my Solicitors and I verily believe that the Learned Magistrate acted Ultra Vires in her decision and sentence of 21^st March 1997 in that she ordered that I be Deported out of the State of St. Lucia as soon as possible when she has no authority to do so. It is my respectful submission that a Deportation Order is considered so severe that only the Ministry of Home Affairs and or the Secretary of State may carry out such an Order at the instigation of the Courts. In consideration thereof I am informed by my Solicitors and verily believe that the Senior Magistrate did not address her sentence to the particular conviction under which I was charged.

• 17. As a result of the aforementioned the following isPARTICULARISED:

  • (a)That my refugee status was not considered adequately or at all. On the 21^st March 1997 I addressed my refugee status to the Learned Senior Magistrate who wrongly directed that the question of refugee's status could not be considered. Further in view of the present Political developments in Nigeria I remain anxious and willing to determine my refugee status appropriately.

  • (b) That my original period of detention before being brought to court on 21^st of March 1997 as a prohibited immigrant was improper and illegal and signified undue delay.

    © That I have from the 21^st March 1997 served an ongoing sentence far in excess of that which I was charged with under Section 13 and 36(K) of the Immigration Ordinance Chapter 76 Vol. 1 of the Revised Laws of Saint Lucia 1957 as amended by...