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 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

before

this

court

and

dealt

according to law.
(ii)

That this Honourable Court be

pleased

to set at

applicant

for

liberty

being

the

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

country pending the finalization of

a

civil

suit

However

in

the
2nd

the

said

court.

respondent

insisted on my leaving the country

which enderom failed because of

6.

the order.

A copy of the order of

the

is

court

annexed

here

to

That since I was taken into custody

I have never been brought before
any magistrate
only

or judge.

brought

I was

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

allows

me to remain in the country

pending the, determination

which

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,
3

namely

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

were lawful.

Annexed hereto

are

the

copies

prohibited

Immigrant

Deportation
4

Order

thereof

of

the

Notice,
and

Expired

Residence

Permit

marked as annextures R. 1,
.

r.2

andk.3 ...

That

accordingly

applicants
Segerea

the

detention
Prison

is

at
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
courts.
the

by

the

turn

of

Enclosed here to is

copy of

the

Ruling

of

Zanzibar High Court marked

as annexture

R. 5 to form

part of the counter affidavit.

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

also

duly

presented

in

court

and

represented by Mr. Mngaya, learned advocate while the

respondents

were duly represented

learned Senior State Attorney.

that

by Mr. Massaju

Mr. Mngaya submitted

the applicant was granted a Residence Permit

Class A

whose

17/9/2004.

validity

was

from

18/9/2002

to

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

r
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
convicted

of any

that

the

offence

applicant
or

had not

appeared

before

been
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 YR.
[1996]
thereof.

MINISTER

FOR HOME AFFAIRS

TLR 42 and quoted Mackanja, J. at page 49

Mr. Mngaya argued that at the Regional Court

at Vuga, there is a Civil Case No. 11 of 2005 which is

pending

and

immigration

on

applicant's

the

court

has ordered

the

Department to legalise the applicants stay

in the country.
made

in which

He referred to the ruling of that court

13/5/2005,
affidavit

which

is

as annexture

annexed
N2.

to

the

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;

"I have already held that the applicant

has legistimate expectation of staying in
the

contrary

until

the expiry

Residence Permit.

of his

That expectation

could be extinguished justifiably

only

if

he had first

opportunity

been given

an

to make representations to

the authorities.

It is after hearing him

that the authorities

decided

if and

after

could have justly

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

deportation

declaring

him

prohibited

immigrant,

order and the order of detention

Prison pending deportation,

are lawful.

the applicant was declared a prohibited

the

at Segerea

He submitted that
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

Tanzania was unlawful because his residence permit had

already

expired

Ministers

on 17/9/2004.

He contended that

decision to declare the applicant

the

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

Immigration

despite

the

fact

that

the

Regulations 1997 provide for a grace period of

one mother

within

immigration

status.

where

the

applicant

can renew

his

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

prohibited immigrant without first having been convicted of

an offence as argued

by the applicants

referred to section 12 of the Immigration

gives powers to immigration

advocate.

He

Act 1995 which

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

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

prerogative

case

as

they

relate

to

applications

for

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

allegations that he will suffer loss.

substantiate

his

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

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
subsection

prayer which falls within

paragraph

(a) of

(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

detained.

he

is

being

Thereafter

unlawfully

the burden

of

justifying
passes

the legality of the detention

to

respondent

the

may

respondent.
assert

that

The
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

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
involves my property,
Zanzibar.

to me since it

nafn;t:;ly a beach hotel at Nungwi in

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

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

deportation.

This is contained in paragraphs 5 and 6 of the

affidavit

of

Immigration

and the

HANNELIRE
Officer.

order

of

detention

MORGAN

pending

MANYANGA,

an

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
lawful

been answered by the respondents

by reason of the

to be

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

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

subsection (4) above.

Attorney

person

pending

deportation

under

I agree with the learned Senior State

that a deportation

order does not only proceed

after a conviction for an offence under the Immigration Act.

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
therefore
ruling,

powers have been invalidly

the detention is illegal.

accordingly

affidavits

exercised and

As stated earlier in this

to the evidence as contained

in support of the application,

in the

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

OFFICER.

The proceedings

do not disclose the nature of the suit.

The proceedings

PRINCIPAL

IMMIGRATION
,

relate to an application

made in the main suit.

proceedings which took place on 13/5/2005

In the

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:

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.
"

st

Mr. Gharib: 1 respondent was needed

by the Immigration department because
he is illegal Immigrant.
looking
arrested.

We are still

for him but he is yet to be

We have tried to post his

picture through media but he is still not

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.
I am praying to this court

Applicant:

to help me to obtain justice.

Signed: RM

RULING
This
brought

ruling

of

the

application

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
first

be of;dered not to deport

respondent.

Reasons

of

this

application was set out in the affidavit of

the applicant.

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

Immigration
immigrant

is

that

by

the

department as he is illegal
that is why they posted his

picture at media.
court

needed

theyjare

He further told this

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

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)
immigration

is ordered
status

to legalise

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

applicant/plaintiff
person

entitled

under

that

application

ALl SElF" KHAMlS.

to

enforce

the

is

the

It follows that the

orders

is

the

applicant/plaintiff,
applicant

ALl SElF KHAMIS, and not the present

1st defendant/respondent

in the

before the Regional Court at Vuga.

If the

who was the

proceedings

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

Act, under which a person who has been deported

detained

pending deportation.

invalidated
the

The Ministers orders are not

by the ruling of the Regional Court of Zanzibar as

applicant

measures

can be

to

in the

proceedings

enforce

that

decision.

The

court

can take

application

is

'I,

accordingly dismissed.

Right of appeal

in the

is explained.

Delivered

in the presence of

the applicant and Mr. Masaju Senior State Attorney this 30th

2..99?

day of September,

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