muhammad rafik others vs the ad hoc committee sunni muslim jamaat dar es salaam 2012 tzhc 22 16 june 2012

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MAIN REGISTRY CIVIL CASE NO 119 2012 BETWEEN 1. MUHAMMAD RAFIK 2. MUHAMMAD OWAIS 3 .MUHAMMAD WASIM 4. MUHAMMAD FAROUK 5. MUZAMIL KHAKI 6. MUHAMMAD IRFAN PLAINTIFFS 7. MUHAMMAD SIKANDER 8. RAFIQ SATYA 9. IQBAL FULWALA 10. ABDUL AZIZ MAYA 11. HANIF FULWALA 12. HANIF AZIZ MAYA THE AD HOC COMMITTEE, SUNNI MUSLIM DEFENDANT > JAMAAT DAR ES SALAAM RULING JUMA, J: The Chamber Summons application and the Plaint were filed on 13th June 2012 by the Plaintiffs/Applicants under certificate of urgency. This Court is being moved under O rder XXXVII Rules 1 and 2 of the l Civil Procedure Code, Cap. 33. Dr. Lamwai had initially wanted this Court to make an ex parte order of interim injunction restraining the A d Hoc Committee of the Sunni Muslim Jamaat D ar es Salaam from holding the extra ordinary m eeting scheduled on 17th June 2012 pending the hearing and final determ ination of the application for tem porary injunction inter partes. Dr. Masumbuko Lamwai also included a certification th at the hearing of the application for injunctive orders is a m atter of extrem e urgency because if the proposed general m eeting takes place as scheduled on 17th June 2012, there are real prospects of the breach of the peace at the m eeting and in the future! M uhammad Farouq and Muzamil Khaki (4th and 5th plaintiffs/applicants) affirmed a joint affidavit in their own behalf and on behalf of the rest of the Plaintiffs to support the application for restraining orders. M uhammad Farouq and M uzamil Khaki affirmed that the Defendant A d Hoc Committee has not complied with the Term s of Reference which Justice Aboud of this Court issued in the case of the R egistered T rustees o f Sunni Muslim Jamaat, DSM vs. Mohamed Zamaan Hassan, Civil Case No. 48 o f 2012. According to the Plaintiffs, this non-compliance of the Term s of Reference is reflected in a N O T IC E OF THE GENERAL M E E T IN G which the A d Hoc Committee issued through SUNDAY N EW S newspaper of 3rd June 2012. Earlier, the Plaintiffs filed the suit subject of application for interim injunction on 13th June 2012 and the case file was placed for my action on 15th June 2012. I refused to hear the Plaintiffs’ application for interim injunction ex-parte and ordered that the Registered T rustees of Sunni M uslim Jam aat and the A dm inistrator-G eneral should be served to appear and at least be aware of the prayers sought by the Plaintiffs. I similarly ordered that the application for interim injunction should be heard inter-parte from 3 p.m. on the same day, i.e. 15th June 2012. At the inter parte hearing, Dr. Lamwai, the learned Advocate represented the Plaintiffs/Applicants. D efendant/R espondent A d Hoc Committee was represented by M r. Mbugha, the learned Advocate. M r. M bugha qualified his appearance by insisting that he was only appearing for some of the members of the A d Hoc Committee. Mr. Muhoza, the learned State A ttorney represented the A dm inistrator-General. Dr. Lamwai prefaced his submission with background facts leading up to the application by the Plaintiffs for interim injunctive orders. 3 According to Dr. Lamwai, the Plaintiffs would like this Court to restrain the Defendant A d Hoc Committee from convening a meeting designed to adopt a new Constitution of the Sunni M uslim Jam aat of D ar es Salaam and election of new office bearers. Both the adoption of a new constitution and subsequent election of office bearers is slated to take place on Sunday, 17th June 2012. Dr. Lamwai subm itted that allowing the m eeting to take place, will not only contravene the term s of reference which Aboud, J. issued under Civil Case Num ber 48 of 2012, but will also make the resulting constitution a product of a few members of the defendant Ad Hoc Committee. Dr. Lamwai expounded that it was Lady Justice Aboud who constituted the Defendant Ad Hoc Committee to update the constitution of Sunni Muslim Jam aat of D ar es Salaam. Instead of living up to the two terms of reference (i.e. to update the constitution and preparation of an election based on updated constitution), the defendant Ad Hoc Committee has been bogged down in internal disputes so much so that no constitution has been updated for purpose of adoption and guidance of elections. In his submission Dr. Lamwai adopted the contents of the Plaint initiating Civil Case Num ber 119 of 2012 to illustrate the internal conflict within the Ad Hoc Committee. T he learned Advocate referred to paragraphs 8 to 11 of the Plaint wherein Plaintiffs accuse the defendant A d Hoc Committee of being bogged down by resignations, conflicting Committee members, decision to allow membership of Baluchis as members of the Sunni M uslim Jamaat and wrongful assumption of powers to vet candidates. Dr. Lamwai believes that this application for interim injunctive orders meets the guidelines for grant set down in A tilio vs. Mbowe (1969) HCD n. 268. This im portant decision issued three guiding principles to courts when determ ining application for interim injunctive orders. T he first guiding principle is existence a serious question between the parties, which has to be tried w ith a probability that it would be decided in plaintiffs favour. In the second principle the courts would w ant to determ ine w hether from the facts, the plaintiff is likely to suffer irreparable injury/loss which cannot be compensated. T he third guiding principle revolves on balance of convenience, i.e. w hether the plaintiff will suffer greater hardship if the prayer for injunctive orders is denied. 5 Applying guidelines for grant set down in A tilio vs. Mbowe to facts before this Court, Dr. Lamwai submitted that there is a serious question in the form of draft constitution and conduct of the A d Hoc Committee which is to be tried, and this serious question shall be defeated if the m eeting takes place as scheduled. On the scale of balance of convenience, Dr. Lamwai submitted that irreparable harm will befall the Plaintiffs if their prayer for injunctive orders is denied. T h at is, the more harm on the Plaintiffs will take the form of the approval of a new constitution that was prepared by a few members of the defendant A d Hoc Committee and an election based on that constitution. Replying on behalf of the defendant A d Hoc Committee, Mr. M bugha, subm itted that the claims contained in the supporting affidavit is hearsay because not a single member of the A d Hoc Committee has confirmed the allegations of conflicts within the A d Hoc Committee. The learned Advocate further submitted that there is no evidence before this Court to indicate that the Plaintiffs are in fact members of the Sunni Muslim Jamaat. M r. M bugha believes that this being a Court of law, it should demand proof of the right of the Plaintiffs to sue as members of the Sunni M uslim Jamaat of D ar es Salaam. Further, Mr. M bugha 6 referred to a copy of N O T IC E OF T H E G EN ERAL M E E T IN G which was advertised in Sunday News of 3rd June 2012 stating: “SU N N I MUSLIM JAMAAT DAR ES SALAAM NOTICE OF TH E GENERAL M EETING All male members of the Sunni M uslim Jam aat D ar es Salaam are being notified of the General M eeting to be held on Sunday, June 17, 2012 at the SMJ Hall at 9:00 am. The main agenda will be presentation of revised SMJ Constitution and its approval. You are kindly invited. ABDUL MAJEED KHAN SECRETARY AD HOC COMMITTEE June 1, 2012” On this advertisem ent, Mr. M bugha subm itted th at there is nothing suggesting that an election is also planned to take place on 17th June 2012. T he key words used here are, to revise the constitution and to approve that constitution if members are in agreement. T he learned Advocate invited the Plaintiffs as members of Sunni M uslim Jamaat, to participate in that m eeting and present their respective points of view. Mr. Muhoza, the learned State A ttorney representing the A dm inistrator-G eneral explained that he honoured the summons to 7 come and wait for any directions which this C ourt may be pleased to provide through the Ruling. From the broad perspective of the principles guiding the grant of injunctive orders, I propose to begin by the determ ination of the question w hether there is a serious question between the Plaintiffs and the Defendant A d Hoc Committee, which has to be tried with a probability that it would be decided in plaintiffs’ favour. Dr. Lamwai contends that there is a serious question in the form of draft constitution and conduct of the A d Hoc Committee which is to be tried. Dr. Lamwai similarly believes that contents of the Plaint and Affidavit proves that the defendant A d Hoc Committee had failed to comply with the term s of reference issued by Aboud, J. in Civil Case No. 48 of 2012 creating a strong likelihood of success of the Plaintiffs in their Civil Case Number 119 of 2012. On his part, Mr. M bugha insists that the defendant A d Hoc Committee has fully complied with the orders issued by Aboud, J. I should perhaps express my exasperation over the whereabouts of the “Term s o f Reference given by the court in Civil Case No. 48 o f 2012” and “directions o f the court in Civil Case No. 48 o f 2012” which the Plaintiffs have referred to in paragraph 3 of the supporting 8 affidavit and in paragraph 9 of the Plaint. T he Plaintiffs did not attach to their pleadings any term s of reference or O rder which Aboud, J. allegedly issued under Civil Case No. 48 o f 2012. It is therefore not possible for me to determ ine when and how the “Term s o f Reference given by the court in Civil Case No. 48 o f 2012” and “directions o f the court in Civil Case No. 48 o f 2012” were infringed by the defendant A d Hoc Committee. T he current status of Civil Case No. 48 o f 2012 which is pending before Aboud, J. is similarly not clear to me. W ith regard to existence of serious question to be tried between the Plaintiffs and the Defendant A d Hoc Committee, I must also express my concern over the failure of the Plaintiffs to make a trustee a party to the suit as required by Rule 2 of ORDER XXX of the CPC. This Rule provides that where there are several trustees as they are in the R EG IST E R E D T R U ST E E S SUNNI M USLIM JAMAAT, DAR ES SALAAM, the trustee shall all be made parties to a suit against one or more of them. T he Civil Case Number 119 o f 2012 subject of the present injunctive prayers is between the twelve Plaintiffs and the A d Hoc Committee of Sunni Muslim Jamaat D ar es Salaam (as defendant). The Plaintiffs did not bring specific Orders of Aboud J. specifying the 9 exact role of the A d Hoc Committee and which would have assisted me to determine w hether this Committee can be made Defendants in place of the Registered Trustee. I have no other option other than to conclude that Rule 2 of O RD ER XXX of the CPC obliged the Plaintiffs to join the Registered T rustees of Sunni Muslim Jam aat as defendant. It is the Registered T rustees of Sunni Muslim Jam aat who have the legal capacity to sue or be sued following its incorporation as a body corporate. T he members of the A d Hoc Committee are not trustees within the m eaning of that expression used in O rder XXX, Rule 2. In an action founded upon an act or omission a Registered Trustee, it seems to me that th at registered trustee should also have been joined in this Civil Case Number 119 o f 2012. This Court cannot issue an injunctive order whose effect touches on the rights of a registered trustee which was not made a party to the proceedings seeking injunctive orders of this court. T here is another reason why I think th at this present application for injunctive orders lacks serious question to be tried as between the Plaintiffs and the Defendant A d Hoc Committee w ithin the principle laid down in the case of A tilio vs. M bowe (supra). In my opinion, there are effective dispute resolution forums under the T rustees' Incorporation 10 A ct, Cap. 318 RE 2002 which the Plaintiffs should have resorted to first before filing suits in courts of law. In Tanzania, it is the Trustees' Incorporation A ct which provides the legal framework for free exercise of freedom of every person to freely and peaceably associate in furtherance of religious purposes and to practise religion. This law goes further by giving religious trustees legal capacity and the framework for these religious trustees to acquire and own property. In so far as meetings and elections which forms the subject m atter of this application is concerned, section 17 of the Trustees' Incorporation A ct requires the Plaintiffs to first give the A dm inistrator-G eneral and BAKWATA space to resolve dispute facing an incorporated religious organisation. T he A dm inistrator-G eneral and BAKWATA enjoy the initial statutory duty to m onitor meetings and changes of leadership in Islamic organizations th at have been incorporated as trustees. In my opinion, members of registered religious trustees cannot seek direct recourse to ordinary courts of law without first channelling their grievances, complaints or disputes to their respective relevant supreme authority (BAKWATA for Islamic trustees) and the A dm inistrator-G eneral. Sub section (2) recognizes the role of li BAKWATA as a supreme authority for M uslims in Tanzania entrusted with the m onitoring how Islamic religious organizations operate within their establishing constitutions and charters. T he relevant section 17 of the T ru stees’ Incorporation Act, states: 17.-( l) No changes of the names of a person who is or who were trustee or trustees of a body corporate or organisation incorporated under this Act shall be authorised by the A dm inistrator-G eneral unless he is satisfied th at— (a) there were held a lawful m eeting of the body corporate or organisation for the purposes of electing a person or persons as trustee of such a body corporate or organisation; (b) the m eeting electing new leaders as trustees or any person to fill any vacancy was m onitored by any of G overnm ent authorities. (2) In the case of religious bodies corporate or organisations, they shall each be m onitored by their respective relevant supreme authority in Tanzania in accordance with their statutes, charter or instrum ent of th at body corporate or organization. R eiterating the controlling power of the A dm inistrator-G eneral, section 14 of the T rustees' Incorporation A ct deals with complaints or disputes arising from any alleged misuse of property vested in the trustee. 12 These complaints or disputes m ust first be referred not to the courts of law but to the A dm inistrator-G eneral. T he relevant section 14 states: 14.-(l) W here the A dm inistrator General is of the opinion th at a trustee incorporated under this Act uses or misuses any property vested in the trustee, he may investigate or authorise any fit and proper person to investigate on his behalf into the trustee. (2) If as the result of investigation carried out in pursuance of subsection (l), the A dm inistrator General is of the opinion that the tru st property has been used, or misused in circumstances which are prejudicial to the interests of members of the body corporate or organisation in respect of which the trustee has been incorporated, he m ay- (a) suspend or remove the trustee and any person found in use or misuse of such property; (b) appoint a receiver and m anager or the Public T rustee to take care of such property and run the day to day affairs of the body corporate or organisation for a period pending appointm ent of the new trustee or trustees; (c) freeze the bank account of that body corporate or organisation; (d) stop further action by the trustee or trustees in dealing with the property of the body corporate or organisation; (e) refer the m atter to a police officer of the rank of Inspector or above for further investigations with a view to taking further legal action in a court of law; (f) pursue trustee or trustees who have committed breach of tru st and to recover tru st property or seek damages. It seems to me th at freedom of members of Registered T rustees Sunni Muslim Jam aat to freely and peaceably associate under their trustee in furtherance of religious purposes and to practise their religion is best attained w here religious disputes are resolved by established religious organs and interference by state organs (which include the courts) should be kept at very bare minimal for purposes of public peace, morality and good order. It is very unfortunate that it is the same religious organizations which have on occasions invited state interferences by failing to first use internal democratic forums provided by their own constitutions and also using dispute resolution forums provided for under the T rustees' Incorporation Act. To my knowledge, the following cases involving the Registered Trustees of Sunni M uslim Jamaat, D ar es Salaam are still pending in this Court: i) 1. Eqbal Ebrahim Halday, 2. Abdallah Abdulkarim, 3. Mussa Osman vs. T he T rustees O f Sunni M uslim Jamaat Civil Case Number 97 o f 2010 (is pending before Juma, J.); 14 ii) M ohammed Rafik Haji Mohamed & 12 Others vs. M ohamed Jalaludin H. Hasham & 10 Others Civil Case Number 2 3 o f 2012 (was filed on 28th February 2012 and is before Juma, J.); iii)Registered T rustees o f Sunni M uslim Jamaat, DSM vs. M ohamed Zamaan Hassan, Civil Case No. 48 o f 2012 (is pending before my sister Aboud, J.) iv)Muhammad Rafik and 11 Others vs. T he Ad Hoc C om m ittee, Sunni M uslim Jamaat Dar es Salaam, Civil Case Num ber 119 o f 2012 (was filed on 13th June 2012 and is before Juma, J.). Some litigants appear in several cases. F or example M uhammad Rafik and Muzamil Khaki are plaintiffs in both Civil Case Num ber 23 o f 2012 and Civil Case Number 119 o f 2012. The filing of so many cases in courts of law; suing over the same subject m atter (e.g. affairs of the T rustees of Sunni Muslim Jamat), constitute improper use of court processes. As I have suggested above, the Trustees' Incorporation A ct has vested in the A dm inistrator-G eneral and BAKWATA (for Islamic 15 Trustees) sufficient statutory power to regulate and bring order in the affairs of Registered Trustees in Tanzania before these disputes reach courts of law. This Court holds in a very high regard the rights of association of persons who in an incorporated trust, have agreed to be bound together by custom, religion, kinship or nationality, or established for any religious, educational, literary, scientific, social or charitable purpose. Am ongst the rights of an incorporated tru st which this Court recognizes is their right to freely hold their meetings even elections in accordance with their own constitutions. A person asking this C ourt to interfere with rights of a Registered T rustee to hold its scheduled m eeting m ust bring compelling reasons and needless to say, the A dm inistrator- General, Registered T rustee and BAKWATA m ust all be duly informed of the intention to stop any such meeting. Article 20 of the Constitution of Tanzania recognizes the freedom of every person to freely and peaceably associate and cooperate w ith other persons, for purposes of preserving or 16 furthering his religious beliefs. The relevant Article 20 of the Constitution states: 20.-( l) Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views publicly and to form and join with associations or organizations formed for purposes of preserving or furthering his beliefs or interests or any other interests. As was stated by the Court of Appeal of Tanzania in the case HAMISI RAJ ABU DIBAGULA vs. R., Court o f Appeal o f Tanzania at Dar Es Salaam (SAMATTA, C.J., MROSO, J.A., and M UNUO, J.A.), the freedom of every person to freely and peaceably associate in furtherance of religious purposes, like other freedoms, is not an absolute freedom. T he exercise of this freedom, ju st as the exercise of other freedoms, is subject to the requirem ents of public peace, morality and good order, which are requisites of the common good of society. I agree with M r. M bugha that the Plaintiffs rather than rushing to courts, they should first exercise their right of membership by attending the meeting and question any acts or conduct of the defendant A d Hoc Committee. 17 M ost of w hat has been submitted upon by Dr. Lamwai regarding for example the question w hether Baluchis should be members can best be addressed not by courts of law, but by members of the Sunni Muslim Jamaat in their meetings convened in accordance w ith their constitution as supervised and monitored by the A dm inistrator-G eneral and BAKWATA. From the foregoing, the present application for injunctive orders lacks serious question to be tried as between the Plaintiffs and the Defendant A d Hoc Committee. M y finding is sufficient to dispose of this present application. This Court shall not therefore exercise its judicial discretion to interfere with the rights of a Registered T rustee to hold a m eeting in an application where that T rustee was not made a party. T he prayers in the Chamber Summons application seeking interim injunction to restrain the defendant/respondent AD HOC C O M M IT T E E , SUNNI M USLIM JAM AAT DAR ES SALAAM are hereby dismissed with costs. DATED at DAR ES SALAAM this 16th day of June. 2012 i I.H.Juma JUDGE 18 Delivered in presence of Mr. Alex Mwita, Advocate (for the Plaintiffs), M r. Tesha, Advocate holding Mr. M bugha’s brief (for the Defendant Ad Hoc Committee) and Mr. Muhoza, State A ttorney (for the Administrator-General).