19881025 TZHC Dar es Salaam

IN 'l'J:ic; HIGH CuURT OF 'fANZANIA A'l' DAi:< .c;b SA1AhM MISC. CIVIL CAUSE NO. 85/88 In the matter of the Decision of the Director of Immigration Service to is~ue a Notice to Prohibited and Mandamuso between SibUFldED MILCHB.EHGEH •••••••••••••••••••• APPLICANT and THi!i 1JIR6C'l'OH OF• IMMIGHATION SERVICE ••• ; •• RESPONDEJl.'T RULING BAHATI, J. This is ~n application for a ternporbry injunction to be issued to-restrain the Director fur Immigration from expelling the applicant from Tanzania pe~ding the_ hearing and deturmination of the app1ication by the applicant for leave to apply for the orders of certiorari and mandamus and pending the hearing ahd determination of matrimonial cause No.6 of 1988 which involves the marriage, properties and custody of the applicant's child. This application is supported by an affidavit. The affidavit in support of the application states inter alia that the applicant arrived in Tanzania in 1982 and that the applicant 'is an Austrian national. The applicant was lawfully married to one Celina lJaudi, ai;; 'l'anzanian national in 1983 and the two acquired a plot on which they built a house and cultivated a shamba. In 1984 the appli~ant's wife gave birth to a child. ~hen there was a misunder- standing between the two and on or about November, 1986· the applicant was served with a notice to Prohibited immigrant by the Director of i Immigration Services. The applicant departed soon thereafter fot Kenya from where he tried ·unsuccessfully to gain entrance into Tanzania 9 everal times. Un 18th July, 1988 he was finally granted a visa and he entered the country lawfully with a view of settling his marital pr?blems and the custody of the child and his business and propertieso He filed Matrimonial Cause Noe 6 of 1988 in the High Court of Tanzania~ Un 23rd September, 1988 a Chamber application with regard to the matrimonial home was heard and determined. On 29th Septemb~r, 1988 the applicant was again served with a notice to prohibited immigrant . by the l.J{rector of Immigrntion. The last paragraph of the notice states th&t should a competent court of lcw require the applic2nt's presence in Tunzunia for any lawful rE:uson, such court may stay tempor~rily such notice for such period as it considers necessary • .In chambers, Miss. N.m.igula learned aounsel for the npplicunt, stated that the passport of the applicant showed that he had been granted n visa to enter Tanzaniao She produced the passport of the ' applicant to the court for the court to viewo She also submitted ~ • o o o/2 o .... •, IN 'l'lili HIGH C0URT OF '.j:'ANZANIA AT DkH ~S SALARM MISC. CIVIL CAUSE NOo 85/88 In the matter of the Decision of the Director of Immigration Service to issue a Notice to Prohibited and Mandamus o - between Sil;liJ!'ldED MILCHBEHGEH •• o • • • • • • • • • • • • • • • • • APPLICANT and THl!; DIH.t:;C'J.'O.H UF IMMIGi<AT ION SERVICE •••••• RES PO.ND ENT RULING BAHA'l1 I, J. This is an application for a temporary injunction to be issued to restrain the Director fur Immigration frbm expelling the ~pplicant from Tanzania pending the hearing and det~rmination of the application by the applicant for leave to apply for the orders of certiorari and mandamus and pending the hearing and determination of matrimonial cause No.6 of 1988 Which involves the marriage, properties and cust~dj of the applicant's child. This application is supported by an affidavit. The affidavit in support of the application states inter alia that the , applicunt arrived in Tanzania in 1982 and that the applicant is an Austrian n~tional. The applicant was lawfully married to one Celina lJaudi, ai:; 'l anzanian national in 1983 and the two acquired a plot on 1 which they built a house and cultivated a shamba. In 1984 the applicant's wife gave __birth to a child. 'l'hen there· was a misunder- standing between the two and on or ab6ut November~_l986 the applicant 1 was served with a notice to Prohibited immigrant by the Director of Immigration &ervices. The applicant departed soon thereafter for Kenya from where he tried unsuccessfully to gain entrance into Tanzania several times. Un 18th July, 1988 he was finally granted a visa and he entered the country lawfully.with a view of settling his marital problems and the custody of the child and his business and properties~ He filed Matrimonial C8 use Noo 6 of 1988 in the High Court of Tanzania~ Un 23rd September, 1988 a Chamber application with regard to the matrimonial home was heard and determinedo On 29th Septemb~r, 1988 the applicant was again served with a notice to prohibited imm{grant by the .l.Jirector of Immigrntion. The last paragraph of the notice states th~t should a competent court of law require the applic&nt's presence in Tunzc:.nia for any lawful ru,.son, such court may stay teinpor.:::.rily such notice for such ·period as it considers necessary., In chambers, Miss. Nlil.igula learned aounsel for the npplicant, stated that the passport of the applic~nt showed that he had been - granted a visa to enter Tanzaniao She produced tqe passport of the applicant to the court for the court to viewo She also submitted tl11.:.t r- . it woulcl be too- -ex:ve2~1:,i,..-,J for the appl:i..ca.nt to be coming to· tanzania for his sase n~d othe~ affairs from abroad. After examining the letter of the Di~ector of Immigration Services of 29th beptember, 1988 to the applicant a copy of which was annexed to the application 1 I have found that this letter is not another notice to prohibited immigrant as the applicant claims in his affidavit. It is aimply a letter referring the applicant to the Notice to Prohibited Immig~ant No~ 0078285 of 29th October, 1986 and stating that the said n·otice No~ 0078285 is still in force and that. his presence in the country is therefore unlawful. It follows, therefore 1 that there can be no question of staying a Notice of Prohibited Immigrant issued on 29th September 1 1988 because there wa~ no such notice. W~at is there is Notice to Prohibited Immigrar; No. 0078285 issu0d o~ 29th October, 1986. The question which ariees now is whether it wjll be in order for this court to stay the notice to Prohitited J □ ~igrunt No~ 0078285 of 29th 0ctober, 1986. I think not, bec.::.use .~ :--:. ~::.>.e f.i.r.st place -this cow:·t cannot know on what busis this nn+~ce was i~sued, and secondly, when this notice was issuef 1 the appl~cant left the country accortling to his own affida7it: and it is not k~owu whether he challenged it in court then in 1986 or not. hzsu2ing that he did challenge it, then his departure must mean tha·c he was \..lT.!Sl'.cce.ssi'uL, And assuming that he did not challc :1.;__·c- it I then it xeu~~ thRt this notice No. 007285 of 29th October: 1986 was a lawful ~nd lagal order of the Director of Immigration to expel the applicant out of the country. According to the letter of the Director of Imrnigratio~ Se~vicea of 29th September, 1988 to the applicant (exhibit B): this ilotice No~ 007825 is still in force to date, whi~h mco~3 ~h2~ it has not yet been revoked. That means that even the re-entry j_nto the country of the applicant on 18th July 1 1988, althoug~,. made with e. ·visa e,llov,i~1g such entry into the countnr,, cannot be J.a\•ii:nl ent.r-y 1 because the High Commi:c;sion of T~nzt.,nia in Kenya would not have given such visa to the applic .. nt if it knew thit a Prohibited ~.::11r..J.gr.:i.nt notice o.g&i.nst ch~ applic.:::nt was still in force. In other words 1 I cnnnot see how such re-entry on 18th July, 1988 into the country c~n bu lawful when notice to prohibited immigrc.,.n·;: noe 00?82E5 :i.~ . .still to.lid,, }'ox· the above:: :'ea,sons the applicution for a temporary injunction is refused,,, Huling delivered in Chambers 1 Miss o m~.~ cu.la fc.F' app:.icant"' lJAH &3 t,hL1-lii.M. 9~cf o~e.£., J.JB§~.