Civil Reference No. 7 of 2004
The applicant, Mkama Pastory, was a former employee of the Tanzania Revenue Authority (TRA). Since 2001 the parties had been embroiled in a prolonged series of overlapping proceedings before the High Court, the Resident Magistrate's Court, the Labour Conciliatory Board and the Minister of Labour, arising from Mkama's dismissal, a reinstatement order, a disputed transfer, and a subsequent second dismissal. Mkama successfully challenged his dismissals before the Conciliatory Board and the Minister of Labour, obtaining reinstatement orders, while TRA repeatedly sought judicial review and revision of adverse decisions. In January 2006 TRA filed HC Misc. Civil Cause No. 1/2006 seeking leave for prerogative orders to quash the Conciliatory Board's, Minister's and Attorney General's decisions reinstating Mkama, alleging procedural defects. Mkama responded by filing HC Misc. Civil Case No. 19/2006 seeking to be joined as a party to TRA's application. The judge allowed Mkama's application to be heard before the main cause to avoid proliferation of unresolved disputes. TRA resisted the joinder application, filing a counter-affidavit raising a three-pronged preliminary objection (PO), which is the subject of this ruling.
1. Whether Mkama's supporting affidavit was incurably defective for containing legal arguments in paragraphs 11–14, contrary to the rule that affidavits must be confined to facts. 2. Whether the application was legally untenable for canvassing contradictory and unjusticiable remedies. 3. Whether the application was legally misconceived for seeking remedies not legally corresponding to the applicant's rights as a subject seeking joinder.
TRA argued that Mkama's affidavit was fundamentally defective because paragraphs 11–14 contained legal arguments rather than pure statements of fact, violating the cardinal rule on affidavits (citing Uganda v. Commissioner of Prisons, Ex-Parte Matovu and the CAT decision in Juma S. Busiyah v. The Zonal Manager, Tanzania Post Corporation). TRA contended this defect rendered the affidavit, and thus the application, incompetent. TRA further argued (grounds 2 and 3) that the application sought contradictory and unjustifiable remedies and remedies not legally corresponding to Mkama's rights as a party seeking joinder, making the application legally untenable and misconceived. Mkama conceded the presence of legal argument-like content but submitted that the defects were not fatal because the affidavit had been drawn by a lay person, relying on Ramadhani Nyoni v. Haule and Co. and 21st Century Food Packaging v. Tanzania Sugar Producers Ass. and Two Others. He also implicitly resisted the substantive characterization of his remedies as contradictory or misconceived, treating that as part of the merits of his joinder application.
The Court dismissed the preliminary objection in its entirety and ordered the hearing of the joinder application to proceed. On ground 1, the Court held that although Order XIX Rule 3 of the Civil Procedure Code generally confines affidavits to facts within the deponent's knowledge, the rule permits, in interlocutory applications, statements of the applicant's belief provided the grounds for that belief are stated. Examining paragraphs 11–14, the Court found that although Mkama's statements resembled legal argument, they were framed as his belief with grounds stated, and thus were not contrary to Order XIX Rule 3; the affidavit was therefore not incurably defective. The Court rejected Mkama's alternative argument that a lay person's affidavit could excuse fundamental defects, finding no authority for that proposition and reaffirming that fundamental defects in pleadings/procedure vitiate a claim regardless of the drafter's status, while only minor defects may be expunged or amended. On grounds 2 and 3, the Court held these objections could not be resolved as pure points of law because they were premised on 'unascertained facts' going to the merits—specifically whether Mkama satisfied the test of being a necessary party in TRA's Misc. Cause No. 1/2006—an issue only properly determinable after a full hearing, not by way of preliminary objection.
The ruling reaffirms and applies established Tanzanian precedent (Ex-Parte Matovu; Juma S. Busiyah v. Zonal Manager, Tanzania Post Corporation) that affidavits must be confined to facts and that inclusion of legal arguments or conclusions can render an affidavit incompetent, while clarifying an important exception under Order XIX Rule 3 of the Civil Procedure Code: in interlocutory applications, statements of belief are permissible provided the grounds for the belief are disclosed, and such belief-based statements—even if resembling legal argument—do not automatically render an affidavit fatally defective. The decision also reiterates the procedural principle that a preliminary objection must be a pure point of law and cannot be used to resolve contested factual or merits-based issues, such as whether a party qualifies as a necessary party for joinder; such matters must await full hearing. The case further highlights judicial concern over the inefficiency and cost of fragmented, multi-forum litigation arising from labour disputes and the risk of contradictory orders, prompting the court to consolidate related applications to prevent further proliferation of unresolved proceedings between the same parties.
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