nasser rashid nasser vs minister of home affairs another 2005 tzhc 124 30 september 2005

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 34 OF 2005 NASSER RASHID N A S S ER .................... APPLICANT VERSUS 1. THE MINISTER FOR ) HOME AFFAIRS ) 2. THE ATTORNEY GENERAL ) ___ RESPONDENTS RULING Mlav, 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 NASSER and 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 l 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 Dar es Salaam Region pursuant to the order of deportation issued by the Minister for Home Affairs. 2 ....................... 3................. 4................. 5. That the Zanzibar Regional Court at Vuga allowed me to stay in the 2 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 marked "N.2". 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 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 otherby Mr. GEORGE MAHECHE MASAJU, a Senior StateAttorney. In his affidavit Mr. HANNELOREMORGAN MANYANGA deponed inter alia, as follows:- 1 .................................................... 2 .................. 3......... 4........ 5. That the applicants prohibited Immigrant status and his deportation order thereof were lawful. Annexed hereto are the copies of the prohibited Immigrant Notice, Deportation Order and Expired Residence Permit marked as annextures R. 1, . ■ i. r.2 and R.3 . . . 6. 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. 7. 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.......................... 9......... . .: . . 1 0...................... 5 11 . 12.................... 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 in ■I 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 any i allegations. He cited the case of MOHAMED JEWAD 6 MROCHU VR. 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; 7 "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. 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 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 9 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. 10 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: "390-(l) The High Court may whenever it thinks fit direct - (a) that any person within the limits of Tanzania Mainland be brought up ii before this court to be dealt with according to1law; (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 applicant 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 12 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 in validly exercised and the detention is illegal. The standard of proof is the civil standard of he balance of probabilities." I think the above statement 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 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, namely a 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 hasr conceded that his detention is 14 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 (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. 16 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 depcttation 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 ALI SEIF 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 ALI SEIF 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: 13/5/2005 17 Coram: George Kazi (RM) Applicant - Present Respondent 1. 2. Mr. Gharib and Ramadhan for 2nd Respondent C.C. Zuwena 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 18 in our hands. We 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 AH 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 ordered not to deport first respondent. Reasons of this application was set out in the affidavit of the applicant. 19 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. Gha rib 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 they are 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 20 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. 3. Costs to follow the event." 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 ALI SELF KHAMIS. It follows that the person entitled to enforce the orders is the 21 applicant/plaintiff, ALI SEIF 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 ALI SEIF 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 ALI SEIF KHAMIS to institute the application which led to the making of the said orders. As I have stated earlier, ALI SEIF 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 22 Act, under which a person who has been deported can be detained pending deportation. The Ministers orders are 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. j Right of appeal is explained. Delivered in the presence of the applicant and Mr. Masaju Senior State Attorney this 30th day of September, 2005. 23