20130903 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA '

ATMWANZA . MISCELLANEOUS CIVIL CAUSE NUMBER 09 OF 2011

IN THE MATTER OF AN APPLICATION BY JOSEPHINE WEGESA MKONO FOR

ORDERS OF CERTIORARI AND IN THE MATIER OF THE IMMIGRATION ACT CAP 54 REVISED EDITION OF 2002

AND

IN THE MATTER OF THE DECISION OF THE PRINCIPAL COMMISSIONER FOR

IMMIGRATION SERVICES TO DECLARE THE APPLICANT A PROHIBITED . IMMIGRANT AND TO DEPORT HER FROM THE UNITED REPUBLIC OF

TANZANIA

AND

IN THE MATTER OF JOSEPHINE WEGESA MKONO --------------------------------------------------------- APPLICANT

VERSUS 1. THE PRINCIPAL COMMISSIONER FOR IMMIGRATION SERVICES --------------------------1 st RESPONDENT 2. THE ATTORNEY GENERAL------------------------------- 2 nd RESPONDENT •

RULING 18/06 & 03/09/2013 S.S. MWANGESI l.: This Chamber summons has been preferred under the provisions of section 17 (2) of Part VII of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 Revised Edition of 2002, and section 2 (2) of the Judicature and Application of Laws Act, Cap 358 of the Laws Revised Edition of 2002, whereby, the applicant is be,seeching this Court, to be pleased to grant Orders of Certiorari, to quash the first respondent's decision made on the 13th day of October 2011, declaring the applicant a prohibited immi~ran~ and deporting her from the United Republic of Tanzania. The grounds for the reliefs sought as could be gathered from the statement of the applicant is from t~e fa_ct that, the decision made by the Principal Commissioner of Immigration is illegal, as long as the applicant is a citizen of Tanzania. As such, the decision made was in defiance of the provisions of sections 10 (1) (f) and (g), 14 (1) and (2) (a), (b) and (c) and 28 of the Immigration Act Cap 54 of the Laws Revised Edition of 2002. And, subsequent to the order made, the applicant was arrested at Tarime and escorted by the respondent's officials, to Isebania border Post within the ~· \ '., ... -~ ' 1 , .• Republic of Kenya. The Chamb~r summons has been supported by sworn affidavit of the applicant, wherein, the reasons as to why the decision of the Commissioner

for Immigration should be quashed by this Court have ~een advanced. Upon the application being stre_nuou~ly resisted by the respondents, the application was set for hearing on the 23 rd April 2013, whereon, at the instance of the learned . ~ .. ,.,;'· . ,;.~' ·. ~'( :t . . '. Counsel for both sides, this Court did order them to argue the application by way of written submissions. In the written submission oh behalf of the applicant, wherein, the affidavit of the applicant has been adopted, learned Counsel· Mr. Nasimire, has started with a brief historical background of the applicant that, she was born on the 21 st day of August 1973 ln Nyangoto village, Matongo Ward, Tarime District as per her birth certificate, that has been annexed to the affidavit as annexure "A". At all material times until when she was declared a prohibit~d immigrant on the 13th October 2011, the applicant was an employee of North Mara Gold Mine within Tarime District, where she worked in different capacities. On the 01 st day of June 2011, the applica·nt" was suspended ,· from employment and subsequently terminated on the lih June 2011, for allegedly embezzlement of her employer's fund. In the .meantime, the applicant got arraigned at the Di.strict ·court of Tarime, on the offence of engaging in emplo.yment witho'ut being in possession of a valid work permit, as well as .being present in the Country

unlawfully as per the charge sheet that has been appended as annexure "B" to the affidavit. The charges were however, dropped against her on the 13th October 2011, and immediately thereafter, declared as a prohibited immigrant as per the notice that has been appended as annexure "C" to the affidavit. It has b~en submitted by Mr. Nasimire that, the order by the first respondent was grounded on mere assumptions which are unfounded. He has strongly insisted that, the applicant is a citizen of Tanzania as set out in her affidavit and verified by her birth certificate, and therefore, her presence in the Country was lawful. That being the case, in terms of the provisions of sections 14 (1) and (2) (c) of the Immigration Act, the order by the first respondent was unlawful. To back up the contention, he has referred this Court to the decisions . ' . •, in the cases of luma Yusuf Versus Minister for Home Affairs [1990] TLR 80 and Hellen Aoko Enock Versus Regional Imn1igration Officer for Kagera Region and Another Misc Civil Cause No. 02 of 2012. The learned Counsel for the applicant has further Sl:lbmitted to the effect that, even if the assumption by the first respondent was to be correct, his.order ought to have been confirmed by the Minister for Home Affairs by virtue of the provision of section 10 (1) (f) of the Immigration Act; a requirement, which in the instant matter does not

feature. Either, the provision of section 10 (1) (g) of the same Act could not be brought into aid, as there was no any subsisting similar order against the applicant. ' Lastly, Mr. Nasimire . learned Counsel ... ' has opined that, the correct method . . . . . of establishing the applicant's unlawful presence in the Country ought to have • been by way of prosecuting her ·as earner opted by the first respondent. And, once established to the satisfaction of the Court, an order thereafter against the applicant, in terms of the provision of section 14 (2) (b) of the Immigration Act, . . would have no discussion. To that end, and the fact that, the affidavit of the -, applicant has remained uncontroverted as per the counter affidavit lodged in reply to the Chamber Summons, it has been prayed that, the order of Certiorari ' . prayed for be issued to quash the decision of the first respondent made on the 13th October 2011, with costs. in· response to the submission made by the learned Counsel for the applicant, Learned State · Attorney Revina Tibilengwa on behalf of both respondents has in the first place, joined issues with her learned Brother that, the deportation order issued by the first respondent was short of legal strength, after having not been confirmed bythe Minister for Home Affairs, in compliance ·· with the provision of section 10 (1) (f) (supra). The Learned State

Attorney has however, parted way with her learned · Brother on the subsequent step~ that got taken by the applicant. In her free advice to the applicant, she has submitted that, after finding that the notice that declared her to be a prohibited immigrant was legally incomplete, she ought to have appealed to the Minister for Home Affairs, and not to lodge the current application in Court for order of certiorari. This is from the fact that, orders for certiorari can only be sought where th'e remedy for appeal does not lie. To substantiate her contention, she has sought refuge in the decision of the case of Sanai Murumbe and Another Versus Muhere Chacha [1990] TLR 54. To that end, it has been the humble submission of Madam Tibilengwa that, this Court lacks the requisite jurisdiction to entertain the application at hand, the consequent of which is to strike out the application. ·, In brief rejoinder, learned Counsel Nasimire has faulted his learned sister • for using interchangeably the words "an appeal" and "confirmation" as used in section 10 (1) (f) of the Immigration Act. Even if the said notice of prohibited immigrant was incomplete as submitted by his learned Sister, what has sparked ' t ' the application at hand is the fact that it got acted upon by the first respondent. And had it not been the order of the Court to sL:Jspend the execution of the ,. notice, the applicant

could already have been in Kenya, and thereby rendering the current application impossible. In any event, whatever might have the case, their contention before this Court is that, the applicant is a lawful citizen of the · United Republic of Tanzania. He has thus reiterated his prayer for the grant of the sought orders with costs. In the light of what has been submitted by both learned Counsel above, .there is no dispute to the fact that, the notice of prohibited immigrant issued to the applicant by the first respondent was incomplete, and as a result, it ought not to have been acted upon. In order to be acted upon, i_t was pertinent to be confirmed by the Minister for Home Affairs; The only question for ,determination by this Court is in respect to the reaction that was the appellant to challenge . the said decision by the Principal Commissioner for Immigration. It has been the view of the learned State Attorney that, the act by the applicant to lodge the current application was improper as the proper means ought to have been to lodge an appeal to the Minister for Home Affairs. In so proposing, the learned State has relied on the decision in the case of Sanai Murumbe {supra} Indeed, the decision in the said case did set some tests under which a matter has to qualrfy for the grant of orders of certiorari. The first test which is the one based by Madam Tibilengwa is that, th~

order and/or decision challenged, should not be appealable. We are thus required to test, .if the decision given by the Principal Commissioner in the instant matte·r was appealable. The avenue for appealing to the Minister for Home Affairs under the Act is provided for, under the provision of section 23 of the Immigration Act, ' which stipulates inter alia thus: •~ny person aggrieved by any decision . of the Director refusing an application for a residence permit or varying the conditions or period of validity specified in the permit, may appeal to the Minister against the decision and the decision of th{! Minister I on that appeal shall be final and shall not be subject to anyinquiry by any court of law." It is evident from the wording in the above quoted.provision of law that, among the decisions that have been listed as appealable to the Minister, an order for deportation is not among. The reason for omission of such an order is obvious that is, from the fact that, the. order for deportation by· the Principal Commissioner under the provision of section 10 (1) (f) of_ the Act is in itself incomplete and therefore, un-executable. As such, the act of escorting the