Tanzania: Yusuph vs Minister for Home Affairs

Published: 23/Jul/1990
Source: High Court of Tanzania

Jama Yusuph vs Minister for Home Affairs [1990] TZHC 9 (23 July 1990)

Coram Kyando, J.

Kyando, J.: The applicant in this matter Mohamedi Jama Yusuph, is a Somali by origin. He has filed this application seeking from this court on order of certiorari to quash a deportation order made against him by the Ministry for Home Affairs on 10th April, 1989. The Minister’s deportation order was made under s.24 of the Immigration Act, 1972, and it was served on the applicant on 19th April, 1989, after he was arrested on 17th April, 1989.

The application is supported by the affidavit of the applicant himself. Mr. El-Maamry advocates for him in these proceedings and Mr. Salula, learned State Attorney, appears on behalf of the Minister, who is the respondent in the matter.

The grounds upon which the application is made are that the applicant is a citizen of Tanzania and he cannot for that reason be deported from this country. He has stated that he is a holder of Tanzania passport No. 152603 which at the moment is in police hands. He also tendered, amongst other documents, birth certificates of himself and his mother to show that they i.e. his mother and himself, were born in Tanzania and therefore that the applicant is a Tanzanian.

It is, of course, not an easy or simple matter to interfere with or, above all, quash a decision or order of a Minister. In making such decisions or orders, the Minister does so on behalf of government, headed by the President. But, as I we often say, justice must be done, even when heavens fall. And as was said by Lord Denning in the case of Congreve v Home Office [1976] A. C. 629 which involved revocation by the Home Secretary in England of a television licence:

… when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke it without giving reasons, or for no good cause. If he should revoke it without giving cause, or for no good reasons, the courts can set aside his revocation and restore the licence. It would be a misuse of the power conferred on him by Parliament: and these courts have the authority – and I would add, the duty-to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequence if we do – Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 is proof of what I say. It shows that when a Minister is given discretion – and exercises it for reasons which are bad in law the courts can interfere so as to get him on to the right road.

In sum, even though it is not an easy or simple matter to interfere with or quash a Minister’s decision or order, courts have authority or power, even a duty, to quash them in proper and fitting cases. In doing so, of course, the courts are not acting as appellate bodies over the ministers’ decisions or orders; they only investigate the legality or otherwise of a decision or order and make determinations on these accordingly. In other words, this power of the courts to review or investigate is not based on the merit, but on the legality, of the Minister’s decision or order. Prof. Wade says on the point in Administrative Law,Clarendon Press Oxford, 2nd Edn., p. 48:

At the root of the matter is jurisdiction or, more simply power. The principle is that if an administrative authority is acting within its jurisdiction, or ultra vires, and no appeal from it is provided by statute, then it is immune from control by a H court of law. But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its decision and declare it to be legally invalid.

In this matter, the applicant is saying exactly what is stated in the passage above i.e. that the Minister for Home I Affairs acted ultra vires his powers when he ordered the deportation of the applicant, who is a Tanzanian. Did the Minister act ultra vires as contended? This is the fundamental question for determination in this application.

As already indicated above, the Minister’s order to deport the applicant was made under s.24 of the Immigration Act, 1972. The section provides:
24 – (1) The Minister may make an order (hereinafter referred to as a deportation order) requiring –
(a) any prohibited immigrant (other than a prohibited immigrant who is the holder of a valid pass or other authorisation issued to him under the provision of this Act); or
(b) any person (other than a citizen of Tanzania) convicted of an offence against any of the provisions of this Act any regulations made there under; or
(c) any person (other than a citizen of Tanzania) whose continued presence in Tanzania is, in the opinion of the President undesirable, to be deported from, and remain out of Tanzania, either indefinitely or for the period specified in the order.

Then it is provided under s. 25 of the Act that the burden of proof that a person who is the subject of an order of the deportation is a citizen of Tanzania lies upon him to prove that he is a citizen of Tanzania.

As stated at the beginning of this judgment, the applicant has indicated that he is a holder of a Tanzania passport to prove that he is a Tanzanian. He has also tendered other documents to establish the fact of his citizenship of this country. The whole of the evidence he has tendered (to show that he is a Tanzanian) has not been challenged in any way. Indeed Mr. Salula did not even seek to reply to Mr. El-Maamry’s submissions that the applicant is a citizen of Tanzania and that the Minister acted wrongly in ordering his deportation.

I am satisfied beyond doubt myself that the applicant is a citizen of Tanzania. Is the Minister then justified in ordering his deportation from this country? I unhesitatingly hold that he was not: he acted beyond his power in making the deportation order against the applicant G and acted plainly in breach of the provisions in the Immigration Act, 1972, which empower him to make deportation orders. These provisions do not empower him to deport Tanzanian citizens, like the applicant, from the country. His order of deportation against the applicant was therefore contrary to law, as shown above, and I have, as I hereby do, to quash it, by certiorari, as prayed in the application filed by the applicant in this court.Order accordingly.

Read on TanzLII: https://tanzlii.org/tz/judgment/high-court-tanzania/1990/9

Themes: ID Documents and Passports, Loss and Deprivation of Nationality
Regions: Tanzania
Year: 1990