Charles Chibuike Ofoma v Chief Principal Immigration and The State

### Preamble
1
HMT 21-22
CASE NO. HC 50/21
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CHARLES CHIBUIKE OFOMA

versus

CHIEF PRINCIPAL IMMIGRATION

and

THE STATE

HIGH COURT OF ZIMBABWE

WAMAMBO J

MUTARE, 14 September 2021 and 1 June 2022

Opposed Application

Applicant in person

P M Garwe, for the 1st respondent

No appearance for the 2nd respondent

WAMAMBO J:   After hearing this opposed matter, I rendered an ex tempore judgment and dismissed the application.  Applicant has requested for reasons for judgment.  These are they:

Applicant sought an order in the following terms:

“1.  The application for unlawful detention be and hereby granted and applicant be released conditionally or unconditionally (sic).

2.    The applicant be and is hereby granted leave to prosecute the application in person.

3.   There shall be no order as to costs.”

I have to mention from the onset that the application was ill advised on many fronts.  The citation of the parties was clearly wrong.  There is no one to my knowledge who goes by the monicker Chief Principal Immigration.  The order sought does not make sense.  The first paragraph of the draft order talks of an application for unlawful detention.

Literally applicant seeks me to order his unlawful detention.  There is vagueness in the second paragraph to the draft order.  Applicant seeks that he be released conditionally or unconditionally.

The body of his application clearly does not demonstrate why he should be released in the first place.  To order a prisoner to be released unconditionally or conditionally would be to perpetrate vagueness and lack of clarity in the order.  This is clearly untenable as this would create a clear ambiguity.

The applicant deposed to a “founding affidavit” which is not an affidavit by any stretch of imagination.  The said founding affidavit is among other deficiencies unsigned and undated.  The founding affidavit reflects the following:

Applicant is a Nigerian national.  He first came to Zimbabwe on 11 November 1996 and got married to a Zimbabwean woman, Portia Gava on 7 November 1999.  The marriage was blessed with three minor children.  On 22 March 2019 he filed an application for his “continue illegal detention by the Immigration”.  Immigration brought to him an order dated 26 October 2016.  He was advised to appeal against the order. He filed what he terms the first application which was rejected because he chose the Judge to hear the case and the application did not comply with the Court rules.  On 6 November 2019 he received comments from a Judge and in turn he served all four respondents on 26 November 2019.  He was illegally transferred to Mutare Remand Prison on 4 December 2019 when he was supposed to attend court on 9 December 2019.  He was denied access to court.

Two letters from Manicaland Chief Prosecutor and Manicaland Provincial Magistrate were written in an effort to have applicant returned to Harare.  This did not yield any positive result.  Paragraph 9 of the founding affidavit reads as follows:

“9.  Applicant is pleading with the court to consider because there are children involved.”

First respondent is opposed to the application.  She filed an opposing affidavit deposed to by Tambandini Richard an Assistant Regional Immigration Officer-in-charge of Compliance Section at Headquarters.

In the opposing affidavit a number of submissions are made as follows:

A “litany” of cases have been filed dealing with the same matter namely HC 2199/04, HC 8087/97, HC 4726/04, HC 1450/11, HC 1178/76, B 15/18 and CRB 6742/15.  The above cases faced the same outcome.  The applicant was deported in 1997, 1998, 2002, 2004 and 2011 preceded by convictions in the criminal courts on five separate occasions.  First respondent challenged the applicant to tender a copy of his passport for the ascertainment of his immigration status.

The applicant came to Zimbabwe illegally and solemnized a marriage in Zimbabwe illegally.  The applicant is detained in terms of s 8(2)(a) of the Immigration Act [Chapter 4:02].  The applicant has produced no proof of the set down of any matter in the courts at the time he was transferred.

Applicant was transferred in the interests of discipline and order after he had incited mutiny in prison along with six other prohibited immigrants.

The High Court has ordered applicant’s deportation.  That order has not been varied.  Applicant appealed to the Minister of Home Affairs and Cultural Heritage seeking a residence permit and exemption from prohibition status and this was declined by the Honourable Minister.

Applicant has threatened to disrupt the airplane if any attempt is made to deport him.

First respondent has always been eager to facilitate the applicant’s deportation once he complies with domestic laws.  Applicant is staying in prison intentionally and willfully.

The applicant cannot impose his will on a sovereign State.

To the above assertions applicant filed no answering affidavit.  Effectively the assertions made in the opposing affidavit stand uncontroverted.  Applicant filed heads of argument.  The heads of argument are generally unhelpful and do not advance his case any further.

After a thorough reading of the record, I find that to applicant’s credit letters were indeed written by the Chief Public Prosecutor and Provincial Magistrate, Manicaland to Immigration Officials seeking clarity on applicant’s complaints and queries.

On the other side is a letter by the Registrar advising applicant that his application was struck off the roll of chamber applications for want of compliance with Court Rules.

At p 20 of the record appears a High Court Order under B 15/18, CRB 6747/15 wherein the application by applicant was struck off the roll.

At p 28 of the record appears the then Minister of Home Affair’s letter to applicant advising him that his appeal for a residence permit was not successful.

At p 19 of the record appears a High Court order under HC 1178/16 dated 26 October 2016.  It reads as follows:

“It is ordered by consent that first and second respondent take all steps necessary to ensure the deportation of the applicant within a period of three months from the date of this order.”

Under HC 1178/16 it is reflected on the order that applicant was represented by K T Marange while T Musangwa represented the respondents.  The respondents therein are the Minister of Home Affairs (N.O), The Chief Immigration Officer (N.O), Commissioner General of Prisons (Retired General Zimondi) and Officer-in-Charge Harare Remand.  He has not appealed against this decision.  Against the background as given above, applicant seeks to be released and to prosecute this application in person.  Applicant bases his application to prosecute this application in person on s 36(1) of the High Court Act [Chapter 7:06] which read as follows:

“

“36.  Prosecution of appeals in person.

A person who has noted an appeal in a criminal case to the High Court shall not be entitled to prosecute such appeal unless a Judge of the High Court has certified that there are reasonable grounds for appeal.”

This application is not an appeal neither does the application emanate from a criminal case.  The section as cited by applicant is clearly inapplicable and irrelevant to the instant case.

The long and short of it is that applicant has a deportation order against him.  The order was granted by consent.  Understandably the said order has not been appealed against.

For an order to be granted for his release on the basis that he has children to look after is clearly untenable.

I find the application unmeritorious.  To that end, I made the following order:

The application be and is hereby dismissed.

Charles Chibufe Ofoma, in person

Civil Division of the Attorney-General’s office, first respondent’s legal practitioners