20161114 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 141 OF 2013 (Originating from the Decision of Temeke District Court in Civil Case No. 2 of 2010) SAID NDAMBWE & OTHERS ...................................APPELLANTS VERSUS THE REGISTERED TRUSTEES OF MASJID QUADIM ................................................. RESPONDENT JUDGMENT MKASIMONGWA, J. SAID MOHAMED NDAMBWE, SAID MOHAMED MLANZI, ADAMU SABURI RAMADHANI and SALUM SELEMAN came before Temeke District Court and instituted a suit against THE REGISTERED TRUSTEES OF MASJID QADIM. The plaintiffs' (Appellants in this appeal) claim was for the cancellation of the Defendant's Registration as the Trustees of the Mosque known as Masjid Qadim situated at Mbagala- Charambe which said registration, was done secretly. The plaintiffs' claim was also for the removal from leadership of the new mosque management which was imposed by the defendants without support of majority worshippers. The P,laintiffs prayed for judgment and decree against the 1 Defendants for cancellation of the Defendants as the Registered Trustees of the Mosque in issue; a declaration to the effect that the Constitution which led into the defendant's registration is null and void; removal of the new Mosques Management and restoration of the former leaders in office and costs and any other relief may the court deem fit and just to grant. The suit was not successful. It was therefore dismissed with costs Being aggrieved by the decision of the trial court the plaintiffs (Appellants) preferred this appeal on the following grounds:- 1. The trial Resident Magistrate erred in law and fact in creating her own issues for determination and leaving out the other framed issues undetermined. 2. The trial Resident Magistrate erred in law and fact in holding that the plaintiff before bringing the suit they did not pass before BAKWATA while actually evidence was adduced that they passed to that body and the reconciliation was not successful. 3. The trial Resident Magistrate erred in law and fact in not appreciating that the plaintiffs had proved their case on balance of probabilities as per the evidence on record. 4. The resident magistrate delivered a problematic judgment and decree. Going by the pleadings the adduced evidence and final submissions made by the parties the facts of this case are as short as that at Mianzini area of Mbagala Charambe, there exists a Mosque for more than 62 years now. From its age the Mosque is named MASJID QADIM. The plaintiffs 2 • r were among the members of Management team of the mosque. On the 30th September, 2004 the Mosque became the TRUST under TRUSTEES. This came following the incorporation of the same by the Registration, Insolvency and Trusteeship Agency (RITA) which issued a Certificate of Incorporation No. 289. The plaintiffs/appellants alleged that towards registration of the Mosque with RITA, there was not followed legally known procedure hence this matter was brought to the court. When the appeal came up for hearing before me there appeared Mr. Kyaruzi and Mr. Hamidu the respective learned advocates for the Appellants and Respondents. The two counsels argued the appeal and made valuable submissions which the court has to consider in determining the appeal. However upon considering the pleadings and the adduced evidence, it is evident that the appellants came before the trial court challenging the registration of the Mosque (Masjid Qadim) as the Trustees which registration was effected by the Administrator General. They thus claimed for the cancellation of the Registration. The reason as to why the registration should be cancelled is that the same did not follow the appropriate procedure. This is, in my view, a serious allegation against the Administrator General. An order of this court directing for the cancellation of the registration, touches the powers of the Administrator General in Incorporating/Registering Trustees. This necessitated for a need that the Administrator General should be heard. It is unfortunate that the plaintiff did not join the Administrator General as one of the Defendants in the suit. As the reliefs sought by the appellants tend to affect the legal functions of the Administrator General and since the Administrator General was not 3 • made a party to the suit instituted by the Appellants (plaintiffs), any order made or which can be made in favour of the appellants as per relief(s) sought in the plaint suffer a risk of being null and void for being in contravention of one of the Principles of National Justice that is no one should be condemned un heard. Having this in mind I find the matter before the court below was bad in law for non-joinder of necessary parties. As such under the revisional powers of this Court, I declare the proceedings below the lower court null a_nd void and_ they are hereby nullJfied. The plaintiffs, subject to the law of limitation, are at liberty to commence the matter afresh. Dated at Dar es Salaam this 14th of November, 2016. r-~ E. J.~mongwa JUDGE 14/11/2016 4