1998NA17 TZHC Dar es Salaam

......... t IN THE HIGH COURT OF TANZANIA DAR .ES SALAAM DISTRICT REG,ISTRY . , AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE N0.9 OF 1997 'In the Matter of Application by Tanzaniq Breweries Ltc A~ ~ In the rv:atter of ltecision by the Minister for Labour · Matters under the Security of Employment Act, 1964 ... , And In the !'ratter of an Application for O~ders of " Certiorari and Mandamt:1-s--- BETWEEN TANZANIA BREWERIES LIMITED e e • 0 e O e • • • • .• APPLICANT VERSUS THE MINISTER, MINISTRY OF' LABOUR AND YOUTH DEVELOF~i::ENT • l ....... RESPOl.\i~ENT THE - ATTO.RNEY GENERAL • • .• • • • • • • l R·u LING BUBESHT, . J: In course· of hearing the ~pplication filed by· the applicants Tanzan1a Bre.,,eries Ltd against the Minister for Labour, for.the orders of certiorari, mandamus and prohi tL.,n, the respondent filed an objection:, to w:i t, that I the supportive affidavit was bad in law. ,' ·Mr. Mwidunda, learned Stete Attorney stated that the affidavit sworn and filed by oiie VILLIE MUTABUZI was incurebly defective and theretore bad in law and called ' for its being struck of!. That is it eontrary to ' not been Order 19 Rule ( 3) (l) in that sourees have£disclosed~ In particular, Mr. Mwidunda has Mr. C. Tenga appeared for the applicants. He submitted that while it is true that an application should an a!tidavit whose soures are known. However he contendec' -· thqt what the law says is that the grounds of belief be stated in the affidavit and net that the deponent should state where the beiief is based. That this can . .. . be shown either by a statement to that effe•t of can be gathered in the affidavit itself. • •.. /2 / 2 Mr. Tenga sutmitted that an examination of para 7 of the affidavit goes to show that the Minister's decisioin was vague and that he invited the court to examine the whole affidavit Mr. Tenga a:dded that in such applications, the court ought to rely more on the statement made since the affida.vit attacked the contents of paragraphs 5, 6 and 7 which read as -µnder: i 5. That I honestly believe that the employee misused and misappropriated.the applicants property as charged and that the applicants decision was in accordance with the law. 6. That I also believe that the Minister did r- 1 not give consideration to one of the provisions unde.r which the employee was charged. I am advised by cur advocates that the High Court has the power to issue directions to the 1st Respondent to:. guide his findings in accordance with the law •. 7. I also-believe that by the Minister fgiling to give consideration to one of the provisions under which the employee was charged bias to the deterim~nt oi~the applicant is evidence. - Mr. Mwidunda foreefully argued-that this being the main application and not an interlocutory application, the paragraphs above are all based on belief~ and these are ·not facts which the deponent can, of his own knowledge prove. Mr. Mwidunda has submitted that if the three paragraphs are ordered struck off, then there will be no affidavit left upon which this court can act upon. It is now settled that where an affidavit is made on information, it should not be acted upon by any court unless the sources of the information and specified. case of Stand9 rd Goods v Harakchend Nathu & Co (1950) 17~ E.A.C.A. 99 and applied in subsequent case the underlying test is, I believe, whether. there is a source disclosed on -1:he face of the affidavit. in compliance with the rules., ••••• /3 3 The issue here is whether paragraph 5, 6 and 7 of the applicants affidavit, have complied with the required rules. A casual glance at the contents of the paragraphs cited above, leaves this court in no doubt whatsover that Mr. Piwidunda's objection have merit. I am satisfied that the three cited paragraphs above are bad in law and they should be struck o£f the affidavit. And if that step is hereby +akP.n the remaining paragraphs cannot sustain an affidavit. In the premises the application has to fail for lack of supportive affidavit properly filed. Application is hereby dismissed with costs. \ .