20080621 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 10 OF 2004. MANDIKI BIN LUYEYE ...................... APPLICANT VERSUS DIRECOTR OF IMMIGRATION SERVICES & OTHERS . .............................. RESPONDENTS Date of last Order: 16/06/2008 Date of Ruling : 21/06/2008 RULING MLAY, J. This is an application by one MANDIKI BIN MAYEYE and the named Respondents are, 1. The Director of Immigration Services, (2) Minister for Home Affairs and (3) Attorney General. The application has been made by Chamber Summons Under Order XXXVII Rule 2 and section 95 of the Civil Procedure Code 1966, as well as Section 2 (2) of the Judicature and Application of Laws Ordinance Cap 453 and Section 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) ordinance Cap 360. It is duly supported by the affidavit of JAMES TUNGU BOAZ advocate representating the applicant and it 1s accompanied by the usual statement. According to the Chamber Summons, the applicant has sought the following orders: a) An interim order staying and suspending the deportation of the applicant under the notice to prohibited immigrant pending hearing and determinations of this application. b) Leave to apply for an order of certiorari to quash the notice to prohibited immigrant in respect of the applicant. c) Leave to apply for an order of mandamus directing the respondent to consider the applicant application for work permit and class "B" residence permit accordance to the law. d) Any or other orders the court deems fit. In the supporting affidavit, James Tungu Boaz has deponed as follows: 1. That I am an advocate representing the applicant herein and therefore conversant with the facts giving rise to this application. 2. The applicant zs a Congolese National who arrived zn Tanzania in 1999 as a visitor. 2 3. That, the applicant obtained shares in Nendiwe Investments Limited in which was employed as Group Manager. A photocopy of the document detailing the particulars of share holders and directors of the said Nendewe Investment Limited is attached hereto and marked "A". 4. That, the applicant also obtained a class B residence permit. A photocopy of the permit. A photocopy of the permit is attached and marked "B". 5. That after the same had expired he applied for renewal. The application is still pending with the first respondent who is an employee of the second respondent. A photocopy of the application for renewal is attached and marked "C". Meanwhile the applicant was granted C visitors pass that was valid until the end of March 2004. A photocopy is attached and marked "D". 6. That while the application for renewal of the applciate work permit and class "B" residence permit was still . pending with the respondents, on 11/2/2004 the first and second respondents caused the applicant to be arrested and detained at Salender Bridge Police Station without any charges until 14/2/2004 when officers of the first and second respondents farced the applicant to sign some papers and look him to Tunduma Boarder where his passport was endorsed "Prohibited Immigrant. A photocopy of the endorsement is attached hereto and 3 marked "E". The applicant was never served with a copy of the P 1 notice or given any reasons for being declared a prohibited immigrant. The applicant was forced to proceed to Zambia for seven days. 7. That before being declared a prohibited immigrant, the applicant was not charged or given any opportunity to depend (sic) himself and no reasons were assigned for the decision declaring him a prohibited immigrant. 8. That unless restrained by this court, the respondents intend to implement the decision declaring the applicant a prohibited immigrant thereby depriving the applicant his investment, employment and family in Tanzania. According to the verification clause, what is stated in paragraphs 1,2,3,4,5,6,7 and 8, are true to the best of the deponents own knowledge. The Respondents through Mr. DONALD MATILANGA LUCAS CHIDOWU filed a Counter Affidavit contesting the allegations made in the supporting affidavit. Mr. Chidowu deposed inter alia that, "the applicants resident permit was not renewed and therefore he has been returned to his home of domicile''. He further deposed that, "the applicant was refused review (sic) of his permit , accorded P. l after contravening Resident permit living out of his permitted area" and "that the application has been passed by event 4 as the applicant his been deported and that that is nothing that was left behind by the applicant". The parties advocates filed written submissions on the application. According to the submissions filed by James Boaz on behalf of the applicant, the "prayer for an interim order staying and suspending his deportation pending the hearing of this application was dismissed by the Honourable Shangali, Jin March 1 st , 2004". This being the position, the application before this court which is under consideration in this ruling, is the application for leave to apply for the order of certiorari to quash the notice to prohibited immigrant ...... " (para (a) and for "leave to apply for an order mandamus directing the respondents to consider the applicant application for work permit and class "B" resident permit" In the his opening statement Mr. Boaz has stated as follows: "The application for leave to apply for the prerogative order has been taken under section 2 (2) of the Judicature and Application of Laws Ordinance Cap 453 which imports the application of English Law and practice in Tanzania and Section 5 1 7 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap 360 that gzves the High Court powers to grant the sought prerogative orders. The affidavit of James Boaz, advocate for the applicants supports the application. The applicant himself is unable to depose as he has already been deported and is living beyond the territorial jurisdiction of this court". This application is solely supported by the affidavit of JAMES BOAZ, the applicant's advocate and in the verification clause, Mr. James Boaz has confirmed that all matters deposed to in the said affidavit, are based on his own knowledge. According, Mr. James Boaz deposed inter all that; "on 11 I 2/ 2004 the first and second respondents caused the applicant to be arrested and detained at Salender Bridge Police Station without any charges until 14/2/2004 when officers of the first and second respondents farced the applicant to szgn some papers and look him to 6 Tunduma boarder where his passport was endorsed "Prohibited Immigrant". Mr. Boaz further deposed in the same paragraph that; "the applicant was never served with a copy of the Pl notice or given any reason for being declared a prohibited immigrant. The applicant was forced to proceed to Zambia for seven days". An affidavit, is a substitute for oral evidence and oral evidence according to section 67 (2) of the Evidence Act 1967 or Cap 6 RE 2002, "must in all cases whatever, be direcf'. If this test is applied to what has been deponed to by Mr. Boaz in paragraph 6 of his affidavit, it appears that allegations such as "officers of the first and second respondents forced the applicant to sign some papers and took him to Tunduma Boarder where his passport was endorsed Prohibited immigrant", cannot be direct evidence, unless Mr. James Boaz was present when the applicant was arrested and detained at Salander Bridge Police Station, and was present when officers of the first and second respondents forced the applicant to sign some papers and was also present at Tunduma boarder to see the applicants passport being stamped and the applicants "being forced to proceed to Zambia for seven days". If Mr. James Boaz was present in all these events, he did not depose to that evect. It remains 7 that what has been deposed by Mr. James Boaz in paragraph 6, is what he was told or informed by someone who also was able to obtain the photocopy of the endorsement in the applicants passport which was made at the Tunduma Boarder. These facts were not therefore within the personal knowledge of Mr. James Boaz as he has alleged in the verification clause. This application was filed on 16/2/2004. According to what Mr. James Boaz has deposed to in paragraph 6 of the supporting affidavit, the applicant was taken to Tunduma Boarder on 14/2/2004. However, according to the photocopy of the endorsement of "prohibited immigrant' stamped on the applicants passport which is attachment "E" to the application, it was stamped on 13/2/2004. So if the applicant was deported on 14/2/2004 or on 13/2/2004, when the supporting affidavit was deposed to on 16/2/2004, which is the same date on which this application was filed, the applicant was already out of Dar es salaam and out of Tanzania. Mr. James Boaz could not therefore have obtained the information deposed to from the applicant himself as the applicant was already out of Dar es salaam and out of Tanzania. In paragraph 5 of the supporting affidavit Mr. James Boaz has deponed inter alia that, "after the same (residence 8 , • permit) had expired he applied for renewal. The application is still pending within the first respondent .............. ". The alleged pending application is appendix "C" to the application. Upon scrutiny of Appendix C, it is a letter dated 6 th February 2004 from the Chief Executive of Nendiwe Investment Ltd to the Director of Immigration Services. It is not an application made by the applicant as deponed to by Mr. James Boaz and if there is an application pending, it is the Chief Executive of Nendiwe Investment who wrote the letter, who is vested with the facts, and not Mr. James Boaz. It appears from what has been demonstrated above, that the matters deponed to by Mr. James Boaz in the affidavit in support of this application, are not matters which were in is personal knowledge. This is an application for leave to apply for the prerogative orders of certiorari and mandamus. The requirement of leave or permission of the court, as stated in JUDICIAL REMEDIES IN PUBLIC LAW BY Colive Lewis, second Edition P. 263), 1s "designed to filter out applications which are groundless or hopeless at an early stage. The purpose is "to prevent time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the 9 ti • 41 uncertainty in which ....... Public authorities might be left ..... "[quoting Lord Dip lock in R. V I. R. C EXPARTE NATIONAL FEDERATION OF SELF EMPLOYED AND SMALL BUSINESS LTD [1982] A.C 617 at 643) The present application has been filed by an advocate and based on an affidavit sworn by the same advocate, containing facts which by their very nature, could have been within the personal knowledge of the advocate. No court exercising its discreation judicially would grant leave on the basis of such evidence. It is difficult in the circumstances of this application, to exclude the advocate from the category of the proverbial "busybodies with misguided or trivial complaints", referred to by Lord Diplock in the above cited case. I have scrutinised the written submissions filed by both parties. The submissions are more relevant to an application for the granting of the prerogative orders intended in this application if leave was granted, than for the granting of leave itself. Since the application for leave is based on evidence which 1s hearsay or at best unreliable, the written submissions are not of any help. For the reasons given above, leave to apply for the prerogative orders sought in this application, is refused and the application is dismissed with costs. J. I. JU Delivered in the presence of Mr. Senguji State Attorney and in the absence of the Respondent and his Advocate, this 25 th day of June 2008. 25/06/2008. Words: 1,900. 11