NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005

8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005

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AT DAR ES SALAAM

NASSER RASHID NASSER .. . . . . . . . .. APPLICANT

VERSUS

1. THE MINISTER FOR )

HOME AFFAIRS )

2. THE ATTORNEY GENERAL ) .... RESPONDENTS

Mlay, J.

This is an application made under section 390 of the

Criminal Procedure Act and Section 14 of the Immigration

Act, 1985 and it is supported by the affidavit of the Applicant

NASSER RASHID NASSERand also, that of SAID NASSOR, a

near relative of the applicant. According to the chamber

summons the applicant is seeking for the following orders.

(i) That this Honourable Court be

pleased to order and direct that

the applicant above be brought


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before this court and dealt

according to law.

(ii) That this Honourable Court be

pleased to set at liberty the

applicant for being detained

from deportation illegally,

(iii) Any other relief this Honourable

Court may deem just and fit to

grant.

In his affidavit, the applicant has deponed inter alia, as

follows:

1. That I am an Oman by registration

and currently under custody at

Segerea Prison in Oar es Salaam

Region pursuant to the order of

deportation issued by the Minister

for Home Affairs.

That the Zanzibar Regional Court

at Vuga allowed me to stay in the


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country pending the finalization of

a civil suit in the said court.

However the 2nd respondent

insisted on my leaving the country

which enderom failed because of

the order. A copy of the order of

the court is annexed here to

6. That since I was taken into custody

I have never been brought before

any magistrate or judge. I was

only brought before the

immigration official on the 8th July,

2005.

7. That I was been advised by my

lawyer that the deportation orders

contradicts with the order of the

court issued in Zanzibar which

allows me to remain in the country

pending the, determination of the

case filed in!the Regional Court at

Vuga.

8. That the case pending in the said

court is paramount to me since it

involves my properly, namely a

3


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Beach Hotel 'at Nungwi in Zanzibar.

Therefore if I am not allowed to

prosecute the case I may lose and

suffer substantial loss income and

investment. The said case has

been fixed for hearing on 22nd July,

2005. "

The respondents filed two counter affidavits one deponed to

by HANNELORE MARGAN MANYANGA an Immigration Officer

and the other by Mr. GEORGE MAHECHE MASAJU, a Senior

State Attorney. In his affidavit Mr. HANNELORE MORGAN

MANYANGA deponed inter alia, as follows:-

5. That the applicants prohibited

Immigrant status and his

deportalion order thereof

were lawful. Annexed hereto

are the copies of the

prohibited Immigrant Notice,

Deportation Order and

4


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Expired Residence Permit

marked as annextures R. 1,. )

r.2 andk.3 ...

That accordingly the

applicants detention at

Segerea Prison is lawful.

Annexed hereto is a copy of

the Detention Order marked

as annexture R. 4 to form

part of the counter affidavit.

That the Vuga Regional Court

ruling and the order thereof i

dated 13th day of May, 2005

are ineffectual and have been

overtaken by the turn of

courts. Enclosed here to is

the copy of the Ruling of

Zanzibar High Court marked

as annexture R. 5 to form

part of the counter affidavit.


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On 12/9/2005 I gave directions under Section 390 (1)

(a) that the applicant be brought before this court on

14/92005 to be dealt with according to law. The

applicant was duly presented in court and also

represented by Mr. Mngaya, learned advocate while the

respondents were duly represented by Mr. Massaju

learned Senior State Attorney. Mr. Mngaya submitted

that the applicant was granted a Residence Permit

Class A whose validity was from 18/9/2002 to

17/9/2004. Mr. Mngaya contended that the applicant

owns property situated at Nursun in Zanzibar and that!. :

when his permit expired, he applied for its renewal inr

Zanzibar. He further contended that his client was

served with a notice of prohibited immigrant on

1/4/2005 and later, he was served with a deportation

order on 6/7/2005.

Mr. Mngaya referred section 14 of the Immigration

Act and argued that the applicant had not been

convicted of any offence or appeared before the

Director of Immigration to answer any charges and that

he was declared a prohibited immigrant without being

given an opportunity.to defend himself against anyI;

allegations. He cited the case of MOHAMED JEWAD

6


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MROCHU YR. MINISTER FOR HOME AFFAIRS

[1996] TLR 42 and quoted Mackanja, J. at page 49

thereof. Mr. Mngaya argued that at the Regional Court

at Vuga, there is a Civil Case No. 11 of 2005 which is

pending and in which the court has ordered the

immigration Department to legalise the applicants stay

in the country. He referred to the ruling of that court

made on 13/5/2005, which is annexed to the

applicant's affidavit as annexture N2. He submitted

that the deportation order was in contradiction with the

ruling of the Regional Court at Vuga which was to

legalise the stay of the applicant.

Mr. Mngaya argued that the ruling of the Regional

Court of Zanzibar at Vuga, was for the applicant to

remain to defend this case and in the circumstances,

the Minister should have taken into consideration the

ruling of that court. Mr. Mngaya referred to the case of

JAMAL YUSUF VS. MINISTER FOR HOME AFFAIRS

in which Kyando, J. stated that "the power of this court

to review or investigate [the Minister's decision] is not

based on the merit but on the legality of the Ministers

decision or order'. Mr. Mngaya also referred to the

case of MOHAMED JEWAD MROCHU 1996 TLR 42 at

page 150 where Mackanja J. stated;


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"I have already held that the applicant

has legistimate expectation of staying in

the contrary until the expiry of his

Residence Permit. That expectation

could be extinguished justifiably if and

only if he had first been given an

opportunity to make representations to

the authorities. It is after hearing him

that the authorities could have justly

decided after considering there

representations, that it was in the public

interest to revoke the permit."

On the basis of the submissions Mr. Mungaya asked

this court to quash the decision of the Minister and a null the

deportation order and order the applicant to be set at liberty

and the Minister to review his permit Class A.

d'

Mr. Masaju learned Senior State Attorney submitted

that the Ministers orders in relation to the to the applicants

status, in declaring him a prohibited immigrant, the

deportation order and the order of detention at Segerea

Prison pending deportation, are lawful. He submitted that

the applicant was declared a prohibited immigrant under

section 10 (h) of the Immigration Act 1995. He argued that

by the time the applicant was served with a Notice of

Prohibited Immigrant on 1/4/2005, the applicants stay in


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Tanzania was unlawful because his residence permit had

already expired on 17/9/2004. He contended that the

Ministers decision to declare the applicant a prohibited

immigrant was justified as 8 months had lapsed since when

he was served with the Notice of Prohibited Immigrant. Mr.

Masaju contended that the applicant has never attempted to

renew his Residence permit despite the fact that the

Immigration Regulations 1997 provide for a grace period of

one mother within where the applicant can renew his

immigration status. Mr. Masaju argued that upon being

served with the notice of Prohibited Immigrant he could

have appealed to the Minister under Section 23 of the

Immigration Act, 1995, which he did not do. Mr. Masaju

submitted that the applicant could not therefore he heard to

complain that he was not heard.

Mr. Masaju submitted that a person can be declared a

prohibited immigrant without first having been convicted of

an offence as argued by the applicants advocate. He

referred to section 12 of the Immigration Act 1995 which

gives powers to immigration officer and police officers to

arrest and detain prohibited immigrants with an option to

take them to court or to deal with them otherwise. He also

argued that under section 14 (4) of the Immigration Act the

Minister has powers to make an order of Deputation against

any person whose presence in Tanzania is unlawful. He


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therefore contended that the fact that the applicant had not

been taken to court is not a violation of the law.

As for the decided cases cited by the applicant's

advocate, Mr. Masaju submitted that they are irrelevant to

the present case as they relate to applications for

prerogative orders challenging the Ministers orders on the

applicants immigration status.

As regards the decision of the Regional Court of

Zanzibar at Vuga, Mr. Masaju argued that the decision has

been overtaken by events, following the decision of the High

Court of Zanzibar at Vuga in civil Revision NO.9 of 2005. He

also contended that since justice is not a union matter, as

stated by the High Court of Zanzibar in the case of HIMID

MBAYE VS. THE BRIGADE COMMANDER[1984] TLR 294,

in deciding this application, this court should not have

regard to the decision of the Regional Court of Zanzibar.

On the applicant's argument that he should be allowed

to stay in the country to defend the suit in Zanzibar as he

has investments to protect',. Mr. Masaju argued that the

applicant has not supplied this court with any pleadings in

that case. So it is not possible to substantiate his

allegations that he will suffer loss.


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Mr. Masaju prayed that this application be dismissed

and all the Ministers orders being lawful, should not be

disturbed.

This application has been brought under section 390 of

the Criminal Procedure Act 1985 and the substantive orders

sought in the application are

(i) That this Honourable Court be

pleased to order and direct that

the applicant above be brought

up before that court and dealt.. !,

with according to law;

(ii) That this Honourable court be

pleased to set at liberty the

applicant for being detained for

deportation illegally.

The two prayers fall within the provisions of Section 390 (1)

(a) and (b) of the Criminal Procedure Act, 1985, which

provide as follows:

11390-(1) The High Court may whenever

it thinks fit direct -

(a) that any person within the limits of

Tanzania Mainland be brought up


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before this court to be dealt with

according td taw;

(b) that any person illegally or

improperly detained in public or

private custody within such limits

be set at liberty; (emphasis mine).

The first prayer which falls within paragraph (a) of

subsection (1) above, has been granted as the result of

which the applicant appeared before this court and heard

through his advocate. The only issue remaining is whether

having heard the applicant through his advocate, this court

is satisfied that the a~phcant is being "illegally or

improperly detained" in Segerea Prison, which is a public

custody, and therefore should "be set at liberty", as

prayed by the applicant.

CLIVE LEWIS in the book JUDICIAL REMEDIES IN

PUBLIC LAW second edition, writing or the Burden and

Standard of proof in applications of this nature, states at

page 385:

"The writ of habeas corpus is a writ of

right but not of course. This means that.\ \

the applicant has to show a prima facie

case that he is being unlawfully

detained. Thereafter the burden of


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justifying the legality of the detention

passes to the respondent. The

respondent may assert that the

detention is pursuant to the exercise of

a statutory or other public law power. If

so, and providing that the assertation is

not bad on its face, it will be for the

applicant to establish that the statutory

power has been invalidly exercised and

the detention is illegal. The standard of

proof is the civil standard of he balance

of probabilities."

I think the above stat~;ment also states the position of

the law as it applie in this contrary regarding an application

of the nature of habeas compus, as the present application.

The first question is whether the applicant has put forward a

prima facie case that his detention at Segerea is illegal.

In paragraph 1 of his affidavit the applicant has stated

that he is "currently under custody at Segerea Prison in

Dar es Salaam Region pursuant to the order of the

deportation issued by the Minister for Home Affairs."

In paragraph 7 the applicant has deponed, "that I have been

advised by my lawyer that the deportation order contradicts

with the order of the court issued at Zanzibar which allows

me to remain in the contrary pending the determination of


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the case filed in the Regional Court at Vuga." He has further

deponed in paragraph 8 of the said affidavit "that the case

pending in the said court is paramount to me since it

involves my property, nafn;t:;lya beach hotel at Nungwi in

Zanzibar. Therefore if I am not allowed to prosecute the

case I may loose and suffer substantial loss .... "

The affidavit of SAID NASSOR the near relative of the

applicant is substantially the same as that of the applicant

as regards the circumstances and reasons of the applicants

detention as can be seen in paragraph 6 and 7 of the

affidavit. On the evidence as exhibited by the contents of

the affidavits in support of the application, the illegality of

the applicant's detention is that the intended deportation

contravenes the decision of {the Regional Court of Zanzibar

at Vuga which allowed the applicant to stay in the country to

prosecute the civil case pending in that court. There is no

where in the applicants affidavit or in the supporting second

affidavit, has it been averred that the applicant had a

pending application for renewal of his residence permit or

that his detention had anything to do with the status of the

applicant residence permit. This matter was only brought up

by the applicants advocate in his submissions. Submissions,

are not evidence and this court cannot consider submissions

from the bar, on matters which have not been deponed to as

evidence. The applicant has; conceded that his detention is


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pursuant to a deportation order by the Minister for Home

Affairs.

The respondents position is that the Applicants

Residence Permit Class A expired and hence the applicants

stay in Tanzania is unlawful and this is the basis of the

deportation order and the order of detention pending

deportation. This is contained in paragraphs 5 and 6 of the

affidavit of HANNELIRE MORGAN MANYANGA, an

Immigration Officer. The existence of the deportation and

detention orders has not been disputed by the applicant and

they have been appended to the affidavit of the Immigration

Officer.

The alleged illegality of the detention of the applicant

has therefore been answered by the respondents to be

lawful by reason of the Ministers exercise of statutory

powers under the Immigration Act, 1995. Section 14 (2) (b)

of the Immigration Act provides as follows:

"(2) The Minister may make an order

requiring -

(a)

(b) any person whose entry into

Tanzania was, or presence within

Tanzania is, unlawful; or


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(c)

to be deported from and remain

not of Tanzania either indefinitely

or for the period specified in the

order. "

Subsection (4) thereof provides

(4) If permit against whom a

deportation order is made may,

if the Minister so directs, while

awaiting deportation and while

being conveyed to the place of

departure, be kept in custody

from any period not exceeding

twenty eight day." (emphasis

mine)

There is no doubt in my mind that where the Minister is

satisfied that the presence of any person in Tanzania is

unlawful, the Minister may make a deportation order in

relation to that person under section 14 (2) (b) and order he

detention of that person pending deportation under

subsection (4) above. I agree with the learned Senior State

Attorney that a deportation order does not only proceed

after a conviction for an offence under the Immigration Act.


17/23

The respondents having alleged and proved that the

applicant's detention has been ordered in the exercise of the

statutory powers of the Minister for Home Affairs, it is for

the applicant to establish on the balance of probabilities that

the statutory powers have been invalidly exercised and

therefore the detention is illegal. As stated earlier in this

ruling, accordingly to the evidence as contained in the

affidavits in support of the application, the applicant has

stated that the Minister has invalidly exercised the statutory

powers to order his depRltation and consequential order of

detention pending deportation, by reason of not complying

with the ruling of the Regional Court of Zanzibar at Vuga.

Let us examine the ruling which is the basis of the alleged

illegality of the Ministers orders. According to the copy of

the proceedings appended to the application "N 2", one ALl

SElF KHAMIS the plaintiff, instituted a suit Civil Case No. 11

of 2005 against NASSER RASHID NASSER AND THE

PRINCIPAL IMMIGRATION OFFICER. The proceedings

do not disclose the nature of the suit. The proceedings, ,

relate to an application made in the main suit. In the

proceedings which took place on 13/5/2005 the applicant

who appears to be ALl SElF KHAMIS the plaintiff in the main

suit, was present. The 1st respondent who appears to be

NASSER RASHID NASSER the applicant in this order, was

not present. The record of the proceedings is as follows:


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Coram: George Kazi (RM)

Applicant - Present

Respondent 1.

Ramadhan for 2nd

Respondent

Applicant: Because of prevailing

situation I pray before this court to hold

the passport of the 1st respondent so

that he cannot run away so that I can

get my right. Also I pray to this court

the 1st respondent to be arrested as 1st

respondent is no where to be seen.

Apart from this I adopt what stated in

my chamber summons and affidavit.

"

Mr. Gharib: 1st respondent was needed

by the Immigration department because

he is illegal Immigrant. We are still

looking for him but he is yet to be

arrested. We have tried to post his

picture through media but he is still not


19/23

in our hands. W~ are not intending to

deport him but we want to take him to

the authority concerned as he is illegal

immigrant.

Applicant: I am praying to this court

to help me to obtain justice.

Signed: RM

RULING

This ruling of the application

brought forward by applicant, one Ali

Seif Khamis on his chamber application.

Applicant on his chamber

application prays to this court to hold

respondent No. 1 passport Numbered

00535784 issued Oman in order to stop

him leaving the country until the suit

against him is over and that second

respondent be of;dered not to deport

first respondent. Reasons of this

application was set out in the affidavit of

the applicant.


20/23

On the hearing of the application,

applicant adopted what stated in his

chamber application and affidavit and

add that first respondent to be arrested

as he is no where to be seen by the

applicant.

Second respondent as represented

by Mr. Gharib filed this court that the

first respondent is needed by the

Immigration department as he is illegal

immigrant that is why they posted his

picture at media. He further told this

court that theyjare not intending to

deport him but they want to refer him to

the authority concerned.

After being heard the applicant and

second respondent submission, this

court sees the applicant prayal to be

material and need be granted because

doing otherwise will defeat the end of

justice. It is the duty of this court to

prevent the ends of justice from being

defeated vide section 70 (1) (e) of Cap.

8. For that reason therefore the


21/23

application by the applicant is hereby

granted.

Signed: RM

Order: 1. The first respondent

passport with number 00535784 issued

in Oman to be under court custody.

2. The second respondent (Immigration

Department) is ordered to legalise

immigration status of the first

respondent so that he can stay till

such time the case is over.

From the above proceedings it is clear that the

proceedings in the Regional Court of Zanzibar at Vuga were

not instituted by the applicant. They were infact instituted

against the applicant who was the 1st defendant/respondent.

The application under which the above orders were issued,

was instituted and heard in the absence of the applicant who

it was alleged was no where to be seen. The beneficiary of

the order made under that application is the

applicant/plaintiff ALl SElF" KHAMlS. It follows that the

person entitled to enforce the orders is the


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applicant/plaintiff, ALl SElF KHAMIS, and not the present

applicant who was the 1st defendant/respondent in the

proceedings before the Regional Court at Vuga. If the

orders of the Minister to deport the applicant and to detain

the applicant pending the deportation, contravenes the order

of the Regional Court at Vuga, the aggrieved party who is

ALl SElF KHAMIS can seek remedy in the High Court of

Zanzibar, which under the constitution, has concurred

jurisdiction with the High Court of Tanzania.

The present applicant who was the 1st respondent in

the proceedings in the Regional Court of Zanzibar at Vuga

cannot be allowed to hide under the orders given by that

court, having hidden from the jurisdiction of that court which

forced ALl SElF KHAMIS to institute the application which

led to the making of the'~aid orders. As I have stated

earlier, ALl SElF KHAMIS has recourse to the High Court of

Zanzibar or ever this court to challenge the Ministers orders

in the light of the ruling of the Regional Court of Zanzibar.

Having given due consideration to the applications and

the submissions from the both counsels, this court is

satisfied that the Ministers order to deport the applicant, has

been properly made as the applicants residence permit long

expired, making the applicant's stay in Tanzania unlawful.

The detention order is also lawful and valid exercise of the

statutory powers under section 14 (4) of the Immigration


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Ac t, un der wh ich a pers on who has been dep ort ed can be

det ained pending depor tat ion. The Minist er s order s ar e not

invalidated by the ruling of the Regional Court of Zanzibar as

the applicant in the proceedings in the court can take

measures to enforce that decision. The application is

accordingly dismissed. ' I ,

Ri gh t o f ap peal i s ex pl ai ned . Del iv er ed i n th e p res en ce o f

the applicant and Mr. Masaju Senior State Attorney this 30th

day of September, 2 .. 9 9 ?,. . . .; ~ - - - _ . .,- . . _ , . • . .,

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NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005

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