MINJINGU Mines and Fertiliser Limited has gone to the Court of Appeal challenging a move by High Court judge to jump into proceedings involving ownership of a factory, while such case was under another judge.
It is alleged that the action by Judge Latifa Mansoor to intervene into the case pending at the High Court's Land Division and subsequently giving an order, led Judge Hamisa Kalombora, who was conducting the matter to disqualify herself.
Therefore, Minjingu Company moves the Court of Appeal to revise the order given by Judge Mansoor on July 8, 2013, in favour of the respondent, Kisarawe Brick Factory Limited and that the factory, situated on Plot Number 3 along Pugu Road in Dar es Salaam, should be restored to it (Minjingu.
In the order in question, Judge Mansoor, who stated that she was assigned to hear the matter for intervention, ordered the applicant to move out of the factory and stop demolishing the factory or the walls until the application for injunction interparties would be heard by the trial judge (Kalombora).
Through its advocate Joseph Rutabingwa, Minjingu Company alleges that the order complained was initiated by a letter written by principal officer with the respondent and was never brought to the attention of judge in charge neither in a proper way nor to the presiding judge.
"The order was made while there was no pending suit before the court following the striking out of the main case on May 29, 2013 and the subsequent notice of appeal filed on May 31, 2013, (by the Court of Appeal)," reads one of the grounds of the application.
In an affidavit to support the application, the advocate states that immediately upon issuance of the order in controversy, the Registrar of the court extracted a restoration order, appointing Yono Auction Mart to carry out the eviction exercise and wrote a letter to the police to assist the court broker.
"The exercise was carried out early morning of July 9, 2013 whereby the premises were forcefully taken over and all security guards placed by the applicant (Minjingu Company) arrested and locked up at a nearby police station," he states.
According to the advocate, on the same day he made a physical follow up of the order at the High Court and discovered that the court file was taken by the Registrar at the closing hours around 3.30pm on July 8, 2013, from the clerk of the assigned Judge Kalombora, who had the conduct of the case.
During such time, Mr Rutabingwa alleges, Judge Kalombora had left the office and that the file of the case was returned to the clerk of the said judge in the morning of July 9, 2013, with the orders issued by Judge Mansoor, which is the subject of the application.
Prior to that order, the respondent had on June 19, this year, filed an application seeking to be restored to the factory premises.
The applicant, having been served with the same, filed a counter affidavit and raised an objection, which Judge Kalombora was due to hear the matter on July 10, this year.
"On July 10, 2013, the trial judge could not proceed to determine the objection raised due to what had transpired on July 8, 2013 and by July 15, 2013, when she had reserved that matter to decide whether she may proceed with the case, she decided to disqualify herself," reads part of the affidavit.