Misc Application No. 77 of 2022
The applicant, Mkama Pastory, was employed by the Tanzania Revenue Authority (TRA). Following his termination, he successfully challenged it before the Labour Conciliatory Board (CB), and TRA's appeal to the Minister of Labour (ML) failed, resulting in a reinstatement order. TRA reinstated him but transferred him to another station; he refused to comply, leading TRA to dismiss him again. This triggered a protracted, multi-forum litigation history spanning the High Court, the Resident Magistrate's (RM) court, the CB and the ML from 2001 onward, including applications for prerogative orders, revisions, reviews, and appeals, several of which remained pending or were withdrawn. After a second dismissal, Mkama again succeeded before the CB (reinstatement order dated 20/4/2005), and TRA's appeal to the ML was again unsuccessful (5/9/2005). In January 2006, TRA filed HC Misc. Civil Cause 1/2006 seeking leave to apply for prerogative orders against the ML, CB and Attorney General to quash the CB/ML decisions for defect of process. Mkama responded by filing the present application, HC Misc. Civil Application No. 19 of 2006, seeking to be joined as a party in TRA's Cause 1/2006. TRA resisted this joinder application, filing a counter-affidavit raising a three-pronged preliminary objection (PO), which forms the subject of this ruling.
(1) Whether Mkama's affidavit in support of the joinder application was incurably defective for containing legal arguments rather than statements of fact, contrary to the settled rule governing affidavits and Order XIX Rule 3 of the Civil Procedure Code. (2) Whether the application was legally untenable for canvassing contradictory and unjusticiable remedies. (3) Whether the application was legally misconceived for canvassing remedies not legally corresponding to the applicant's rights as a subject of the proceedings.
TRA argued that paragraphs 11 to 14 of Mkama's affidavit contained legal arguments rather than facts, violating the cardinal rule that affidavits must be confined to statements of fact within the deponent's personal knowledge or belief (with grounds stated), relying on Uganda v. Commissioner of Prisons Ex-Parte Matovu and the Court of Appeal decision in Julia S. Busiyah v. The Zonal Manager (South) Tanzania Posts Corporation, which held that inclusion of legal arguments in an affidavit renders it incurably defective and the application incompetent. TRA also raised two further objections: that the application canvassed contradictory and unjusticiable remedies, and that it sought remedies not legally corresponding to the applicant's rights as a party. Mkama, in response, conceded the presence of legal argument-type content but submitted that the defect was not fatal, particularly because the affidavit was drafted by a lay person, citing Ramadhani Nyoni v. Haule and Co and 21st Century Food Packaging v. Tanzania Sugar Producers Association and Two Others in support of leniency toward lay-drafted affidavits.
The Court dismissed all three grounds of the preliminary objection and ordered the hearing of the application to continue. On the first ground, the Court agreed with the general principle that affidavits containing legal arguments or conclusions are incompetent, as established in Ex-Parte Matovu and applied by the Court of Appeal in Busiyah, and rejected Mkama's argument that lay authorship cured such defects, noting that the authorities he cited did not support that proposition and that fundamental procedural defects vitiate a claim regardless of the drafter's status (citing Ashura Abdulkadri v. Director of Tilapia). However, on closer examination of paragraphs 11 to 14 of the affidavit, the Court found that these paragraphs, though framed as legal arguments, were in substance statements of the applicant's belief with the grounds for that belief stated, which is expressly permitted for interlocutory applications under Order XIX Rule 3(1) of the Civil Procedure Code. The Court therefore found the affidavit not defective and dismissed the first ground of objection. As to the second and third grounds, the Court held these were not properly raisable as preliminary objections because they turned on 'unascertained facts' — namely, whether the application canvassed contradictory or unjusticiable remedies, and whether the remedies sought corresponded to Mkama's rights as a party, were themselves part of the substantive contested issues (particularly whether the applicant qualified as a necessary party in TRA's Misc. Cause 1/2006) and could only be properly resolved after a full hearing of the application, not disposed of by way of preliminary objection.
The ruling reinforces and applies the established principle, drawn from Ex-Parte Matovu and the Tanzanian Court of Appeal's decision in Busiyah, that affidavits must be confined to facts and not contain legal arguments or conclusions, and that such defects are fundamental rather than curable merely because the affidavit was drafted by a lay person. At the same time, the ruling clarifies and nuances this principle by recognising, under Order XIX Rule 3(1) of the Civil Procedure Code, that in interlocutory applications a deponent's statements of belief (with grounds stated) are permissible and are not equivalent to prohibited 'legal arguments,' thereby providing guidance on distinguishing permissible belief-based averments from impermissible legal argumentation in affidavits. The decision also illustrates the principle that preliminary objections cannot be used to resolve issues that are inherently intertwined with the merits of the substantive application (such as whether contradictory or non-corresponding remedies are sought), which must instead be determined after a full hearing. Additionally, the judgment offers a broader institutional observation on the inefficacy and cost of Tanzania's multi-forum labour dispute resolution system, highlighting the practical difficulties and risk of contradictory orders arising from parallel and repetitive litigation across the High Court, RM's court, the Conciliatory Board, and the Minister of Labour, particularly concerning the enforcement of reinstatement orders under the Security of Employment Act, 1964.
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