THE Kisutu Resident Magistrate’s Court on Friday refused to issue a temporary order restraining the Dar es Salaam City Council from convening a meeting to remove Lord Mayor Isaya Mwita from his post.
Principal Resident Magistrate Janeth Mtega made the decision after dismissing a request Mr Mwita, his advocate, Hekima Mwasipu, had lodged against the City Council and Regional Commissioner (RC), the respondents, seeking for an order for maintaining the status quo.
Mr Mwita, the applicant, had sought for the order, that he should not be removed from the position he was holding, pending hearing and final determination of the main application to challenge his impeachment by the two respondents.
In her ruling, however, the magistrate pointed out that the advocate for the applicant failed to advance evidential proof on the existence of the meeting by the respondents to remove his client from his position as Mayor post of Dar es Salaam City Council.
Furthermore, she said, the applicant counsel’s submissions failed to meet the required principle for grant of an injunction.
Among the principles, according to her, is for the applicant to prove irreparable loss he would incur if the order sought was not granted.
She emphasized that the loss to be proved must be such that it could not be atoned by monetary compensation.
The magistrate also ruled that the applicant ought to have proved the existence of prima facie success of his pending case before grant of the injunctive order sought.
After delivery of the ruling, the magistrate adjourned the matter to January 13, 2020 for mention.
In the main application, the applicant is requesting the court to issue a permanent injunction against the ongoing process of impeaching him as Lord Mayor of the Dar es Salaam City Council.
He is also seeking orders to declare that the impeachment process is tainted with procedural irregularity and substantively flaws.
The respondents have, however, strongly opposed the application by filing counter affidavits.
In addition, the respondents have filed a notice of preliminary objection containing three grounds, including the application being premature in law.
Furthermore, the respondents state that the application is untenable in law for lacking jurisdiction as the applicant has not exhausted available remedies.
In addition, they state that the application is defective and bad in law for being preferred under the wrong provisions of law.
The court’s decision comes just a day after the Dar es Salaam City Council cast a vote of no confidence in the Lord Mayor at a meeting convened at Karimjee Hall to receive a report following an inquiry on charges Mr Mwita was facing. Sixteen members of the Council voted against the Lord Mayor.
Following the Council’s decision, Mr Mwita was locked out of his office and the official vehicle that was at his disposal was withdrawn.
It was not made clear at the meeting whether Mr Mwita was no longer the Mayor of the city.
At the end of the proceedings, Mr Mwita maintained that he was still the Mayor of the City of Dar es Salaam, alleging that the quorum to remove him from the post had not been attained.
It is pointed out that the Mayor could be removed from his post as per the rules on two-thirds vote, that is, 17 members.
He expressed disappointment following a decision to “rob” from him the Lordship Mayor’s vehicle that he was using and locking him out of office.
During hearing of the request for maintenance of the status quo, Advocate Mwasipu had moved the court to temporarily restrain the respondents to impeach his client.
He told the court that since the city council and the RC, the respondents, were in the process of impeaching the Lord Mayor, while the case is pending, it would be prudent for the court to justifiably grant the order sought to avoid the matter to be rendered nugatory.
The advocate for the applicant also submitted that the grant of the order would enable his client to be afforded with the right to be heard, as enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania and that the respondents would not be prejudiced in any way.
However, state lawyers led by Deputy Solicitor General Gabriel Malata, for the respondents, asked the court to dismiss the request with costs for having been misplaced and lacked both legal and factual basis.
Mr Malata told the court that the application has been brought on speculations as there were no factual backgrounds the applicant brought forward for the court to rely upon before granting the order being sought.
For the court to issue restrain orders, he argued, there must be tangible issues. Such issues, he submitted, could be availability of a meeting deliberating the so called impeachment.
“Unfortunately there is no such thing. The applicant’s application is based on imaginations. There are no circumstances that have been clearly stated to justify the restraint order sought,” he submitted
