nasserrashidnasservshomeaffairattorneygeneral 34 of 2005
TRANSCRIPT
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
1/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
2/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
3/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
4/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
5/23
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.
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
6/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
7/23
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;
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
8/23
"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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
9/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
10/23
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.
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
11/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
12/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
13/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
14/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
15/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
16/23
(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.
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
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:
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
18/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
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.
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
22/23
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
-
8/16/2019 NasserRashidNasserVsHomeAffairAttorneyGeneral 34 of 2005
23/23
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 ?,. . . .; ~ - - - _ . .,- . . _ , . • . .,
•..~,
...-';:;:';'--".ouR; r,"·';::",l "" '/ .. . .. . ~ ' ¥ ' . ' .
~/(2~'f- > -
(
h.(" 1-'\
~
,~, 4t4
~ . < , " 1 k > : , ~ ". iiI " ~~~'?fd '\ _),~"'.:.~;.r.
\
' "•.!~,:~\~'\'; ...;
\\ • . .\, J
~,
. • • .: , < r . - 'I l" " • ~) t t " I . / ' "