CONSOLIDATED CIVIL APPEAL NOs 39 41 OF 2021 ABDALLAH SWALEHE RAMADHANI NDAUGA 9 OTHERS VS THE REGISTERED TRUSTEES OF TABATA MAGENGE MUSLIM COMMUNITY

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA, J.A.. MASHAKA. J.A., And MGEYEKWA. J.A.1! CONSOLIDATED CIVIL APPEAL NOS. 39 & 41 OF 2021 ABDALLAH SWALE HE RAMADHANI NDAUGA.......................... 1st APPELLANT QUREISHIIDRISSA KOSKU....................................................2nd APPELLANT SAID NASSORO MSAMVU.........................................................3rd APPELLANT ISSA KHALFAN ISSA ................................................................. 4™ APPELLANT SAID ATHUMANI MWEREKA........... ............................ ......... 5th APPELLANT MADADI ABDULLAH M W IRU................................................... 6™ APPELLANT HASHIM HAMAD MYUYI........................................................... 7th APPELLANT SALIM NUHU BARUTI...............................................................8™ APPELLANT MOHAMED YUSUF NCHIMBI................................................ 9th APPELLANT SAID YUSUF MBW ANA........................................................... 10™ APPELLANT VERSUS THE REGISTERED TRUSTEES OF TABATA (MAGENGENI) MUSLIM COMMUNITY....................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) f De Mello, 3^ dated the 17th December, 2020 in Civil Case No. 67B of 2015 JUDGMENT OF THE COURT 16* August, 2023 & 30th August, 2024 MASHAKA, J.A.: The appellants are jointly aggrieved with the decision of the High Court of Tanzania sitting at Dar es Salaam dated 17th December, 2020 in Civil Case i No. 67B of 2015 which declared that the election conducted due to the directives of RITA and under the supervision of BAKWATA was null and void. Hence the present appeal. A brief background to this appeal is that the Registered Trustees of the Tabata (Magengeni) Muslim Community (hereafter the Community), the respondent was registered on 2nd October, 2000 under the Trustees Incorporation Act (Cap 318 R. E. 2002) (the Act) and obtained a certificate of incorporation (exhibit PI) with 50 to 100 active members and ten trustees namely; Juma Hamis Mpenda, Hassan Lupungwi Rubama, Mwamini Halfan Mwaruka, Selemani Mzee Selemani, Abdallah Hussein Mohamed, Nuhu Ibrahim Witala, Abdallah Mahmud Sungura, Sauda Aladin Juma, Yahya Musa Malipula (deceased), Hamad Rashid Myuyi (deceased). Among its community activities, the respondent acquired Plot No. 426 and 427 Block C Part 1 at Tabata Magengeni area, Ilala Municipality with Certificate of Occupancy No. 397664 (exhibit P2) for construction of a mosque and other activities to implement the objectives of their Constitution. Due to internal conflicts between the respondent and some of its members/followers, complaints landed at the office of the Administrator General, Registration of Insolvency and Trusteeship Agency (hereafter RITA) (2nd defendant during trial but not party to this appeal) on mismanagement of the community's funds and failure of the respondent to convene a general meeting since its inception and not holding election of new trustees. RITA directed BARAZA KUU LA WAISLAM TANZANIA (hereafter BAKWATA) (3rd defendant during trial and not party to this appeal) by a letter (exhibit P3) to convene a meeting which would enable the respondent to prepare and conduct election of new trustees in accordance with the respondent's Constitution and report the steps taken together with the date set for election. On 26th October, 2014 the election was conducted under the supervision of BAKWATA and new trustees were elected. The election led to a leadership crisis, which caused the respondent to lodge Civil Case No. 67B of 2015. In that suit, the respondent claimed among others; a declaration that the election conducted by the Halm ashauri/Kam ati ya M sikiti Tabata Magengeni Muslim Community due to BAKWATA and RITA directions are a nullity, illegal and the appellants, appointees and so elected trustees are trespassers. During trial, four issues were raised for determination; one, whether the 1st defendant (RITA) had lawful power to install new trustees in Tabata Magengeni Muslim Community as against its Constitution; two, whether the election of the Tabata Muslim Community Trustees conducted by RITA and BAKWATA was lawful; three, whether the 4th to 13th defendants are trespassers to the Tabata Magengeni Muslim Community; and four, the reliefs entitled to the parties. Upon hearing of the suit, the trial court declared that RITA (1st defendant) had mandate in terms of sections 14 (1), (2) (a) to (f), 17 (2), 20 and 23 (1) (d) of the Act to direct BAKWATA (then 2nd defendant) to convene a meeting and therefore what it did was within its power hence the 1st issue was answered in the affirmative. On the second issue, the High Court held that the impeachment by the defendants is illegal rendering the entire exercise incompetent as it offends Article 4.3 (3) of the Constitution of the Community and according to exhibits D4 and D2, the election wrongly replaced all the trustees as by virtue of Article 4 (2) (iii) of the said Constitution it is the General Meeting of the Community which had powers to elect the Board of Trustees. On the third issue, the High Court was satisfied that the appellants were not trespassers as Article 5.2 (a) of the Constitution of the Community provides for the qualifications of a community member and the appellants qualified to be so. At the end, it awarded costs of the suit to the respondent. The appellants were dissatisfied with the decision of the High Court. Thus lodged two appeals, that is Civil Appeal Nos. 39 of 2021 and 41 of 2021 advancing four grounds of appeal paraphrased, due to their similarities, as follows: "1. That the respondent did not have locus standi to prosecute the disputed matter. 2. That the tria l judge erred in holding that the election conducted by the Halm ashauri/Kam ati ya M sikiti Tabata Magengeni Muslim Community and supervised by BAKWATA was n u ll and void. 3. That the tria l Judge failed to judiciously evaluate the evidence to reach a fa ir and ju s t decision and the respondent did not prove the case on a balance o f probability. 4. That the tria i Judge erred in awarding costs to the respondent" When the appeal was called on for hearing, Prof. Abdallah Safari, learned counsel appeared for the 1st - 3rd appellants, while Mr. Ubaidi G. Hamidu, also learned counsel, appeared for the 4th - 10th appellants. The respondent was represented by Mr. Juma Hamisi Mpenda, the Principal Officer of the respondent. At the outset, before the parties were invited to submit on the grounds of appeal, learned counsel for the appellants requested for the consolidation of Civil Appeals Nos. 39 of 2021 and 41 of 2021 and Mr. Mpenda had no objection as the two appeals arose from the same judgment of the High Court. The Court invoked rule 110 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and consolidated Civil Appeal Nos. 39 of 2021 and 41 of 2021. Pursuant to rule 106 (1) and (7) of the Rules, the learned counsel for the parties had earlier on lodged their respective written submissions in support of and opposition to the appeal, which they sought to adopt at the hearing to form part of their oral submissions. In support of the appeal, Prof. Safari and Mr. Hamidu had nothing to add and implored the Court to consider and grant the prayers. Opposing the appeal, also Mr. Mpenda added nothing and prayed to the Court to consider the written submission and dismiss the appeal. H ie complaint in ground one of appeal is that the respondent did not have locus standi to prosecute the disputed matter. It was Prof. Safari's contention that despite the fact that the respondent has capacity to sue and be sued under section 8 (1) (b) of the Act, the evidence of PW1 did not state if the respondent was duly constituted in accordance to Article 4.3 (a) (iii) of the Constitution which provides that the Board of Trustees shall have not less than seven members and not more than ten who would be elected by the General Meeting of the Community. He argued further that the evidence of DW3 and DW5 proves that there were less than seven members hence had no locus standi. In reply, Mr. Mpenda argued that this ground ought to be raised at the earliest stage during the filing of the Amended Written of Defence and that it was not supposed to be raised at the appeal stage because it contravened 6 Order VIII Rule 2 of the Civil Procedure Code, Cap 33. In addition to that, he submitted that, exhibit PI showed that the respondent was duly registered and the names of the trustees were annexed; and there was no evidence adduced that exhibit PI was revoked and thus, any officer of the respondent may sue, defend or testify on behalf of the respondent. He therefore, submitted that PW1 and PW2 testified on behalf of the Community and there is no requirement directing that every trustee has to sign pleadings or testify in court. Further he asserted that when PW1 and PW2 testified on behalf of the respondent, it was not contested by the appellants. The doctrine of locus standi is about the competence of a plaintiff to avow the matter of her complaint or violation of her legal right before a court of law. In other words, it is the right or ability to take legal action in such a court. We wish to state clearly that the issue of parties to a case is fundamental and central in all proceedings. For a person to bring a matter before a court or a tribunal, they must have the capacity to sue and/or be sued. See for instance, Afriq Engineering & Construction Company Limited v. The Registered Trustees of the Diocese of Central Tanganyika (Civil Appeal No. 474 of 2021) [2024] TZCA 591 (17 July, 2024) TANZLII, Ilela Village Council v. Ansaar Muslim Youth Centre & Another, Civil Appeal No. 317 of 2019 [2021] TZCA 181 (7 May, 2021) TANZLII and Afriq Engineering & Construction Company Limited v. The 7 Registered Trustees of the Diocese of Central Tanganyika, Civil Appeal No. 474 of 2021 [2024] TZCA 591 (17 July, 2024) TANZLII. The argument by the respondent that the issue of locus standi ought to have been raised during trial when the appellants filed their Amended Written Statement of Defence is misconceived. The same being a point of law, can be raised at any stage, even at the appellate stage, irrespective of it being raised during trial or not. On the issue that, the respondent had no capacity to sue or be sued, section 8 (1) of the Act, states; "Upon the grant o f a certificate under subsection (1) o f section 5 the trustee or trustees sh all become a body corporate by the name described in the certificate, and sh all have: - (a) Perpetual succession and a common seal; (b) Power to sue and be sued in such corporate name; (c) Subject to the conditions and directions contained in the said certificate to hold and acquire, and, by instrum ent under such common seal, to transfer, convey, assign and demise, any land or any interest therein in such and the tike manner, and subject to the like restrictions and provisions, as such trustee or trustees m ight, w ithout such incorporation, hold or 8 acquire, transfer, convey therein, assign or dem ise any iand o r any interest" The provision above sets a condition that for a body corporate to have a legal personality to sue or be sued it must have a certificate of incorporation. In the instant appeal, it is not disputed that the respondent was a registered trustee duly incorporated as shown in exhibit PI and as correctly argued by the learned counsel for the respondent. With due respect, we are not in agreement with the submission of Prof. Safari that PW1 and PW2 ought to have testified whether at the time of institution of the case/suit there were duly constituted trustees according to the Constitution of the respondent. In our considered view, the fact that PW1 and PW2 did not state if the respondent was duly constituted in terms of the Board of Trustees does not negate the validity of exhibit PI and it does not render the respondent incapable of suing or being sued in its corporate name. We find ground one is baseless and therefore it fails. In respect of the grievance in ground two that the High Court failed to evaluate the evidence and concluded that the election conducted by Haim ashauri/Kam ati ya M sikiti Tabata Magengeni Muslim Community and supervised by BAKWATA was null and void. It was Mr. Hamidu's argument that, the trial court failed to understand the nature of the complaint before it that the root of the case was centred on two issues; one, the legality of the election 9 conducted on 05/01/2014 supervised by BAKWATA which elected the appellants to be trustees of the respondent; and two, the legality of the appellants as the Board of Trustees of the respondent. He argued further that, the trial court had failed to consider the defence case hence led to a wrong and/biased conclusion. It was his contention that, the provision of the Constitution of the Community cannot override provisions of the Act, unless the provision of the Act contravenes the Constitution of the United Republic of Tanzania of 1977. Mr. Hamidu further submitted that, the trial court failed to take into cognizance the fact that, the appellants were elected by the members of the Community and not BAKWATA. He argued further that according to section 17 (2) of the Act, the election was supervised by BAKWATA and that the appellants were neither elected nor installed in leadership by BAKWATA rather BAKWATA xs attendance was to supervise the election process. It was Mr. Hamidu's argument that the trial court failed to consider the fact that since 2000 no elections had been held. Thus, the trial court failed to consider the evidence of DW1, DW6 and DW7 that the respondent had not held any election nor convened a general meeting. It was the contention of the appellants that since PW1 and PW2 violated the respondent's Constitution by failing to convene a general meeting, failure to conduct elections and the 10 misappropriation of the community funds, their complaint was justified and if the trial court had evaluated the evidence adduced during trial fairly and impartially, it would have reached at a different decision, he added. Prof. Safari submitted that, the trial judge failed to consider the reasons advanced by the appellants in their written submissions during trial and thus prayed to adopt the contents of those written submissions. Further, he argued that the trial court failed to consider that the election was conducted for the sole reason to fill the vacancies left by the two trustees who had passed away and those who could no longer participate as trustees of the respondent. On the other side, Mr. Mpenda was of the view that, the learned judge evaluated the evidence adduced and properly dealt with the issues raised. He submitted that, the defence was considered as it was based on the evidence of failure to convene the general meeting and failure to file annual returns, in which the trial court at page 14 of the judgment considered the fact that the impeachment of the appellants was due to the contravention of the Constitution of the respondent. He therefore maintained that the trial court properly considered and analysed the evidence adduced, together with exhibit P9 to appraise the mandate of RITA and legality of the election. The argument advanced by the appellants is that the Constitution of the respondent cannot override provisions of the Act, referring section 17 (1) and ii (2) of the Act. It was the respondent's submissions that, such provision of the law did not expressly authorize RITA to direct BAKWATA in any event to call a meeting for the election of the Board of Trustees of the respondent as the said provision provides that religious bodies, corporate or organisation shall be monitored by their respective supreme religious bodies. He further submitted that, the argument of the learned counsel for the appellants that the appellants were elected by members of the Community is misleading. He urged that according to exhibit P9 in Article 4.2 (i) of the Constitution of the Community, a general meeting shall be attended by all Muslims who participate in the community activities, which was not complied with and through its supervisory role BAKWATA elected the trustees instead of ensuring that all procedures were complied with before new trustees were elected. He concluded that the trial court nullified the election based on the contravention of the Constitution (exhibit P9) that it is the General Assembly which has mandate to elect new Board of Trustees and not ''Kam ati ya M sikiti'supervised by BAKWATA. We have carefully considered the rival submissions of the parties and with respect, we are unable to agree with Mr. Hamidu that the trial court failed to evaluate the evidence of DW1, DW6 and DW7. We find that the trial Judge considered and evaluated the evidence of DW1, DW6 and DW7 as gleaned from pages 7 to 10 of the record of appeal and she proceeded to determine the first issue concerning whether RITA had power to install a new 12 board of trustees. Likewise, we, respectfully decline the invitation by Prof. Safari that the written submission filed during trial to be adopted in this appeal. It is worthy to note that, submissions are not evidence. Submissions are generally meant to reflect the general points of a party's case. They are elaborations or explanations on evidence already tendered during trial and they are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence. See for instance; Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government, Civil Appeal No. 147 of 2006 (unreported). It is common ground that the respondent's activities are regulated by its Constitution and the general assembly is vested with powers among which, to elect the board of trustees. In terms of Article 4.3 (d) of the respondent's Constitution is to convene a meeting after every six months and the board of trustees shall compose of not less than seven members and not more than ten. Deduced from the evidence, there is no doubt that some of the members of the Board of Trustees were deceased, since its inception no general meeting was convened to fill the vacancies and there were allegations of mismanagement of community funds. Those were the reasons for the appellants' complaint to RITA which directed BAKWATA by the letter (exhibit P3) to convene a meeting which would enable the respondent to prepare and 13 conduct election of new trustees in accordance with the respondent's Constitution and report the steps taken together with the date for election. The question here is, was it correct for BAKWATA to supervise the election of the respondent's board of trustees? There is no dispute that RITA is mandated under section 17 (1) and (2) of the Act to monitor the meetings of body corporates and organisation. Section 17 (1) and (2) of the Act reads: "(1) No changes o f the names o f a person who is or who were trustee or trustees o f a body corporate or organisation incorporated under this A ct sh aii be authorised by the Registrar-General unless he is satisfied that— (a) there were held a law ful m eeting o f the body corporate or organisation for the purposes o f electing a person or persons as trustee o f such a body corporate or organisation; (b) the m eeting electing new leaders as trustees or any person to f ill any vacancy was m onitored by any o f Government authorities. (2) In the case o f religious bodies corporate or organizations, they sh all each be m onitored by their respective relevant suprem e authority in Tanzania in accordance with their statutes, charter or instrum ent o f that body corporate or organization." 14 In the instant appeal, the respondent being a religious body the power of monitoring is vested to the respective relevant supreme authority in Tanzania, and such monitoring must be in accordance with the statute or charter or instrument of that body corporate. Since the respondent had its constitution (exhibit P9) then its monitoring was to be in compliance with it. Article 4 (a) (ii) of exhibit P9 stipulates the number of the trustees to make the Trust functionable and how such trustees are to be elected. It further provides that, the Board shall have members not less than seven (7) and not more than ten (10) who shall be elected by the General Meeting of the Community. The evidence of PW1 was to the effect that, the ten trustees were Juma Hamis Mpenda, Hassan Lupungwi Rubama, Seleman Mzee Seleman, Yahaya Mussa Malipula (deceased), Hamadi Mwinyi (deceased), Abdallah Mohamed, Sauda Aliadin Juma, Mwamini Halifani Mwaruka, Abdallah Sungura and Nuhu Ibrahim Witala. It appears from the evidence of PW1 and PW2 that two trustees had passed away and were replaced. While on the other hand, the appellants contended that there were trustees who had passed away meaning they had not been replaced because no election had been held. In the light of the above provision of the respondent's constitution, there is no doubt that even with the demise of two trustees still the number of the present/existing trustees was within the range provided under Article 4 (a) (ii) 15 of exhibit P9. More so, the appellants through DW1 contended that the general meeting had not been convened since its inception, there was no filing of annual returns and there was misappropriation of community funds. These complaints led to directives by RITA to BAKWATA that the respondent is to convene a general meeting, however, since the respondent is a body corporate with duly registered trustees according to its own modality provided in exhibit P9 was required to convene a general meeting and the election be held. We would like to recapitulate the letter (exhibit P3) from RITA to BAKWATA, which reads as follows: "JAMUHURI YA MUUNGANO WA TANZANIA WIZARA YA KATTBA NA SHERIA WAKALA WA USAJILIUFILISI NA UDHAMINI (RITA) Anuani ya Telegraph: "HATI"DSN O fisi ya Kabidhi Wasii Mkuu, Simu: 022-2115034/6 S. L P. 9183, Nukushi: 022-21233325 D ar es Salaam . Tovuti: www.rita.go.t2 TANZANIA. ADQ/TI/2091/14 24 Ju ly 2014 KATIBU, BAKWATA (W), WILAYA YA ILAIA, S. L R 13625, D A R E S SALAAM . YAH: SH ER IA YA M U U N G AN ISH O WA W AD H AM IN I SU R A YA 3 1 8 TOLEO LA 2 0 0 2 THE R EG ISTER ED TRUSTEES O F TABA TA M A G EN G EN I M U SLIM CO M M U N ITY 16 Tafadhati husika na kichwa cha Habari hapo juu. O fisi ya M sim am izi Mkuu wa Wadhamini inakujulisha kuwa unatakiwa ku an d aa u ta ra tib u w a k u fa n y ik a m ku tan o w a ta a s is i ta jw a hapo ju u i/ i w aw eze ku ch ag u a W adham ini kw a m u jib u w a K a tib a w aliyo n a yo n a in ayo w an g oza. M ara tu baada ya ku an d aa u ta ra tib u hu o O fis i in aom b a u tu ju iish e h a tu a u lizo ch u k u a na ta re h e k a m ili ya u ch ag u zi. Tafadhali kwa utekelezaji. Edna £ Kamara k. n. y. M S IM A M IZ I M K U U WA WADHAMINI" [Em phasis m ade] According to the directives of the above letter, RITA was exercising its mandate that BAKWATA was to prepare the modality for the respondent to convene its general meeting in compliance to its Constitution and to report back to RITA the action taken and the date set by the respondent to hold the election. In those circumstances, RITA was justified to direct BAKWATA to do so in accordance to section 17 (2) of the Act which in case of religious corporate body, the law vests the power of monitoring it to the supreme authority but in compliance of the respective constitution of that community. However, the 17 action taken by BAKWATA to conduct and supervise the election was null and void as correctly found by the trial court because, the election ought to be conducted in accordance with exhibit P9. To the contrary, in the instant case, it is BAKWATA who drew the minutes heading MUHTASARI WA MKUTANO WA UCHAGUZI WA WADHAMINI WA TABATA MAGENGENI MUSLIM COMMUNITY TABATA WILAY A YA ILALA - DAR ES SALAAM ULIOFANYIKA TAREHE 26/10/2014 exhibit D4 revealing that they went against the directives of RITA. The minutes were prepared and signed by BAKWATA officials namely, Yahya M. Geruka who was the Chairman/M sim am izi and Suleiman N. M. Semamba, Msim am izi M saidizi of the said meeting. The role of BAKWATA was to monitor as an observer and ensure that the respondent's Constitution was followed to the letter for the election of the trustees, which was not done. This means that the purported election was held, conducted and supervised by BAKWATA contrary to Article 4.2 (i) and (iii) of the Constitution. This is not the report expected by RITA (exhibit P3) to inform it on the preparations for the elections and the date set for election. Thus, the purported election and the results of electing Abdallah Swalehe Ramadhani Ndauga, Qureishi Idrissa Kosku, Said Nassoro Msamvu, Issa Khalfan Issa, Said Athumani Mwereka, Madadi Abdullah Mwiru, Hashim Hamad Myuyi, Salim Nuhu Baruti, Mohamed Yusuf Nchimbi and Said Yusuf Mbwana was null and void. It follows therefore, the leadership of the trustees who existed before the purported election by BAKWATA should 18 continue until a proper election in accordance with the directives of RITA is conducted. The trial court properly evaluated the adduced evidence as correctly argued by the respondent and reached at a just and fair decision. This ground has no merit, it fails, Concluding with the complaint regarding the award of costs, whether it was correct for the trial judge to award costs to the respondent. It is a settled principle of law that costs of, and incidental to, it is at the discretion of the trial court to award costs in all civil actions. However, considering the relationship between the appellants and the respondent and the need to maintain a cordial relationship and tolerance among the members of the Community which is to uphold the faith to live together in harmony, we are of the finding and in agreement with learned counsel for the appellants that it was not proper to award costs to the respondent in such circumstances. This ground four is merited. Thus, we are of the considered view that grounds one, two and four suffices to dispose of the appeal as we have discussed and determined to show that by virtue of BAKWATA clothing itself with the power vested on the Community General meeting, on a balance of probability, the respondent proved its case. 19 In the light of the above, this appeal has merit to the extent explained in ground four on costs and otherwise it is accordingly dismissed. We make no order as to costs. DATED at DAR ES SALAAM this 29day of August, 2024. S. A. LILA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 30th day of August, 2024 in the presence of Mr. Hamidu Ubaidi, learned counsel for the 4th, 5th, 6th, 7th, 8th, 9th and 10th Appellants and holding brief for Prof. Abdallah Safari, learned counsel for the 1st, 2nd and 3rd Appellants, and Mr. Juma Hamis Mpenda, Principal officer for the Respondent, is hereby certified as a true copy of the original. y.— &£ R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 20