JUMA ALMAS KIBIRA 19 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 30052 OF 2024 (Arising from Civil case no. 30053 of2024) BETWEEN JUMA ALMAS KIBIRA & 19 OTHERS......................................... APPLICANTS VERSUS THE REGISTERED TRUSTEES OF NATIONAL MUSLIM COUNCIL OF TANZANIA & 11 OTHERS.................... RESPONDENTS RULING 2(Jh & 22nd January 2025 A. MATUMA, J. The applicants herein are Juma Almas Kibira, Ally Deus Masunu, Juma Ramadhani Ally, Mohamed Mansoor Abdallah, Jamal Ahmada Kagimbo, Twalha Dauda Kagimbo, Adam Ibrahim Mussa, Issa Mustapha Rushenga, Saidi Ally Salum, Abdul-fattah Abdallah Kagimbo, Bakari Ally Mohamed, Masoud Hamisi Mgasa, Jumanne Kambuga Ruta, Ramadhan Said Lunyema, Abdallah Mohamed Manyasa, Abdallah Shabani Seif, Shaban Abdu Kavuimbo, Buluhan Salum Jutta, Haji Y. Idrisa and Shauri Abdallah Shabani who stands as the 1st to 20th Applicants and Plaintiffs in the main suit. They are claiming to be registered memtiers of Jumaa Mosque i Mwanza after having been registered by the 2nd Respondent; The Registered Trustees ofJumaa Mosque Mwanza in the year 2024. They are aggrieved with the election of leaders of such 2nd Respondent conducted on 24/11/2024 resulting into the 3rd to 12th Respondents being elected as leaders of such Registered Trustees. In that respect, they instituted a suit civil suit No. 30053 of 2024 which is pending in this Court. In the meantime, pending determination of such main suit, the applicants are seeking an interim injunction order for maintaining status quo ante restraining the 3rd to 12th respondents from entering the management and supervising the activities of the 2nd Respondent. In its place instead, such activities be managed by the interim board of trustees pending the hearing and determination of the main suit between the parties. The applicants are also claiming for costs of this application against the Respondents namely: The Registered Trustees of National Muslim Council of Tanzania, the Registered Trustees ofJumaa Mosque Mwanza, Abdallah A. Abdallah, Abdud M. Bakeisa, Hassan M. Abdallah, Ibrahim H. Sherally, Mohamed A. Mohamed, Muhdini M. Khalid, Musa H. Maguha, Omari S. Mbalamwezi, Rajabu M. Charahani and Sherally H. Sherally (1st to 12th Respondents respectively). 2 At the hearing of this application the applicants save for the 10th, 11th, 19th and 20th were present all being represented by Mr. Akram Adam learned advocate. The respondents on the other hand stood representing themselves save for the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th who were absent for several excuses. Before hearing the parties on the merits or otherwise of this application, I brought to the attention of the parties the fact that I have been performing most of my prayers (sala/swalaa) at that mosque (Jumaa Mosque) which is the subject matter in this application and the main suit for many years and thus I am well known to some of the parties for both sides. I also drew their attention to my worries on whether whatever decision I shall deliver both in this application and the main suit shall not be subject to doubts by the parties due to my familiarity with some of both parties and thus contravene the principle that justice must not only be done but also it should be seen to have been done. In that respect, I invited them to address me on two issues which was given to them in advance. i. Whether I am better positioned to hear and determine this application and the main suit without contravening the principle ofjustice to the effect that justice must not only be done but it should also be seen to have been done. ii. Whether hearing and determining this application and the main suit won't compromise my obligation ofprayers atJumaa Mosque where I expect to continue meeting with both parties. Addressing on the posed issues, Mr. Akram Adam learned advocate submitted that having consulted his clients they agreed that they do not fear any injustice to be done by the mere fact that I am one of the Muslim believers in that mosque for some prayers. The learned advocate sailed this court into the provisions of rule 9(1) & (2) of the Code of Conduct for Judicial Officers GN no. 1001 of 2020 arguing that they do not find any potential interest in me on the existing conflict between the parties by a mere fact that I used to pray in that mosque. He also argued that they do not even find any fact suggesting potential bias in my decision and thus I should proceed to determine the dispute between the parties because the facts disclosed by the court does not meet any possible prejudice. On the other hand, the respondents argued that with the facts disclosed, I am not better positioned to adjudicate the matter and my personal recusal would be the best option. Mr. Mussa H. Maguha for instance speaking for the 2nd Respondent and for himself as the 9th Respondent 4 submitted that so long as I have admitted that I used to pray in that mosque, it is obvious I have heard the conflict between the parties because in most cases such conflict penetrated the podium (mimbari) and being spoken by the conflicting parties to the extent of affecting and dividing the believers in that mosque. He argued that so long as I cannot please both parties, I have to step aside from this matter. He made some comments about human nature which I find better to quote; "Mwanadamu kwa tabia zake data akionyeshwa haki hujenga dhana ovu moyoni mwake. Usishangae ukaja msikiti wa Ijumaa kuhudhuna swala ya jamaa, ukapanga swafu, ukamsogezea mguu Jirani yako kuziba mwanya, yeye akauepusha mguu wake au akahama kabisa katika safu. Kwa hiyo kuepusha sintofahamu hizo ni busara kuepuka shauri hili" The 3rd Respondent Mr. Abdallah A. Abdallah and Mr. Sherally H. Sherally the 12th respondent speaking for himself and his two others Ibrahim H. Sherally and Omari S. Mbalamwezi submitted that they consulted their religious scholars on the raised issues who after scrutinizing the matter adjudged that under Islamic law the Judge can withdraw himself from the suit if there is another one to adjudicate the same. He made reference to Islamic Book titled Riyaadhus-swalihiin in which the teachings of Prophet Mohamad (s.a.w) is reported to the effect that a moslem is required to abstain from doubts (Acha unalotilia mashaka na ufanye usilotilia mashaka). He further quoted Quran verse 195 of Suratul-Bakara aiming a part of it which states that; "....wala msijitie kwa mikono yenu katika maangamizi". He again referred me to a history of Islamic Leader Hassan Bin Ally r.a who decided to step down and handle his leadership to Muhawiyah by considering the best interest of the general public (Umma). Having heard the parties on the raised issues supra, it is my turn to decide whether or not, I should recuse myself from this case. In our legal jurisprudence, we have governing principles for the judge or magistrate to recuse himself or herself from a case as clearly stated under rule 9 of GN no. 1001 as well cited by the Applicants' counsel. The rule provides the following guide; "9. -(1) A judicial officer shall disqualify himself in any case in which that judicial officer: (a) believes he will be unable to adjudicate impartially; (b) believes that a reasonable, fair minded and informed person, would have a reasonable suspicion of conflict between a judicial officer's personal interest or that of a judicial officer's immediate family and his judicial functions; (c) has a personal bias or prejudice concerning a party or personal knowledge or facts; (d) served as a lawyer in a matter in controversy or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter or the judicial officer or such lawyer has been a material witness in the matter" In this matter it is not the parties who have moved me to recuse myself. It is my own motion due to the fact of familiarity with some of both parties and being one of the Muslims performing prayers in the mosque which is subject to the instant matter. In the case of Laurean G. Rugaimukamu versus Inspector General of Police and Another, Civil Appeal No. 13 of 1999, the Court of Appeal of Tanzania held that one of the factors or principles for recusal is when the judge has a close relationship with the adversary party or one of them. As I have stated earlier on, I used to pray at Jumaa Mosque the subject of litigation in this case since 2008 when I was a State Attorney. In the year 2013 I got transferred to Kagera Region but after my appointment as a Judge I have found myself returning in Mwanza and met my old are associated in the current conflict as rightly submitted by Mr. Musa Maguha that believers in that mosque are divided. In the instant matter to be specific I am close related to the 2nd Applicant Ally Deus Masunu and the 11th Respondent Rajab M. Charahani. The two at one time worked together to fight against two car mechanics who had stolen my vehicle entrusted to them for repair and sold it. One of the mechanics is a bloody related to Mr. Rajab M. Charahani the 11th Respondent but he did not consider blood relations. He considered justice and fought against him in the name of Allah until when I was compensated. Ally Deus Masunu on his part was the one who reported the matter to police on my behalf as I was out of this Region and worked together with Mr. Rajab Charahani to stand for me against injustice. It has surprised me to find them into conflict in this case. The rest of the parties I used to stand with them on lines (swafu) during some prayers at Jumaa Mosque though I am not that much close to them. My concern is not the question that I cannot do justice if I decide to preside over the matter by declaring a winner against a loser in accordance to the facts and evidence. This is because I am aware of the Aisha (r.a) in which the prophet commanded whoever administering justice to do so impartially. Not due to the closeness, weakness or superiority of either parties under litigation. The prophet peace be upon him to show that justice must always stand stated that even if the matter before him would have been involving his own daughter (Fatma), he would still stand for the needful (justice) even against his own daughter. See; Sahih Bukhar ahadith no. 6788 and Sahih Muslim ahadith no. 1688. Not only that but I am also aware of the business of Satan (iblisi) as stated under the Quran during his conversation with the Almighty God the creator of the World and the Universe (Allah). Reading verses 12 to 18 of Surat Al-aaraf (7) we find that Satan was chased out of the mercy of God (Allah) for his disobedience to the command of God towards the glory of human being against other creatures. As a revenge to human being who was the cause of his being damned (kulaaniwa) by Allah, Satan told God (Allah); "Kwa kuwa umenihukumia upotofu basi nitawaka/ia (waja wako) katika njia yako Hiyonyooka (Hi niwapoteze). Kisha nitawafikia kwa mbele yao na nyuma yao na kuumeni (ku/iani) kwao na kushotoni kwao; wengi katika wao hutawakuta (hutawaona) ni wenye kukushukuru" verve 16-17 translation of Sheikh Abdullah Saleh Al- Farsy. 9 With such personal commitment of Satan, Almighty God (Allah) replied to the Satan; "... Atakayekufuata miongoni mwao (nitamtia motoni) niijaze Jahanamu kwa nyinyi nyote" (verse 18 translation of Sheikh Abdullah Saleh Al-Farsy). But again, on Surat Sad (38) verse no. 26 Almighty God (Allah) speaking to Prophet Daud commanded; "Ewe Daudi! Hakika tumekujaa/ia kuwa Khalifa katika ardhi, basi wahukumu watu kwa haki wa/a usifuate matamanio ya nafsi yasije yakakupoteza na njia ya Mwenyezi Mungu. Kwa Yakini waie wanaopotea, wakaacha njia ya mwenyezi Mungu, wao watapata adhabu kali kwa sababu ya kusahau (kupuuza) kwao siku ya hisabu" (the same translation of Sheikh Abdullah Saleh Al-Farsy) Being aware of all these and the fact that at the end of the day everyone shall be individually accountable for his own deeds, I am committed to do justice and only justice for my own sake before Allah. I cannot therefore adjudge in favour of anybody to what he does not deserve. But as I have already said, the guiding principle is that; justice must not only be done but also be seen to have been done. To achieve the purpose of such a guiding principle, the decision fo be made must not be subject io to potential suspicions surrounding the matter. There should not be fears of potential biasness or unfairness by the parties against the adjudicator. Among the factors leading to such potential suspicions is closeness, relationship and interests of the adjudicator either to the subject matter or to either of the parties or all of them. With the facts stated supra, my decision shall not be free from suspicions by the would be a losing part. I believe that a reasonable, fair minded and informed person, would have a reasonable suspicion against my decision to be made because of my closeness to the parties as I have stated. Not only that as rightly submitted by Mussa H. Maguha, but also there is reasonable suspicion that I might have personal knowledge of the conflict or facts relating to it by virtue of being attending prayers in that mosque where the conflicting parties get times to speak out. All these reasonable and potential suspicions cannot be ignored as by doing so would be contravening rule 9 (1) (b) and (c ) of the Code of Conduct for judicial Officers supra. The first issue is thus answered in the negative to the effect that I am not better positioned to hear and determine both this application and the main suit. On the 2nd issue on whether hearing and determination of this application and the main suit won't compromise my obligation of prayers at Jumaa c ii Mosque where I expect to meet with both parties, the answer is not far to fetch. It is born out of the submission made by the 9th respondent as quoted supra. He has stated that human nature is to disagree with justice even if he is well guided. He has worried that my presiding over this suit might at the end of the day cause difficulties to me or other believers in standing to the lines (swafu) for swalaa where some people might not be happy to stand beside me or even shift the line altogether because of such human nature. I agree with him and the authority is well quoted supra. Satan (Ibilis) committed himself to surround human from all sides and make sure that he does not accept the truth and justice. I therefore doubt whether I will continue to be a free believer to enter and pray at Jumaa Mosque or I will be necessitated to shift to another mosque after hearing and deciding the conflict between the parties. Being guided by prophet Mohamed (s.a.w)'s hadithi as narrated by Hassan bin Alliyy the grandson of prophet Mohamed (s.a.w) who heard prophet Mohamed (S.a.w) saying; "Acha lenye kukutia shaka kwa Hsiiokutia sAaAra"(Riyaadhus-swalihiin ahadith no. 593) and that of Waabiswah bin Ma'bad in which prophet taught that "Kufanya wema niKutenda lenye kutuliza nafsi na ukatutia moyo; na kitendo kiovu ni chenye kukera kwenye nafsi na kutaradadi kifuani hata kama wamekutoiea fatwa watu kuwa ctfafaa" (Riyaadhus-swalihiin 2 ahadith no. 591), I find it better to avoid determination of the conflict between the parties because there is no such necessity regard being that at this Integrated Justice Centre there are five other Judges one of whom can take over and adjudicate the matter. With all these, I do hereby recuse myself in both this Application and the main suit herein above named. This matter shall stand adjourned pending the reassignment of both cases to another judge by the Hon. Judge Incharge. The parties should appear on 17/02/2025 at 09:00 hours to the would-be reassigned judge for necessary orders. It is so ordered. 22.01.2025 13