registered trustee of jumaa mosque mwanza vs the registered trustee of thaqaafa education foundation 2020 tzhc 4199 14 december 2020

IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA REVIEW NO. 02 OF 2020 (Arising from the HC. Civil Appeal No. 30 of 2020) THE REGISTERED TRUSTEES OF JUMAA MOSQUE MWANZA APPLICANT VERSUS THE REGISTERED TRUSTEES OF THAQAAFA EDUCATION FOUNDATION RESPONDENT RULING Last Order: 08. 12. 2020 Date of Ruling: 14. 12. 2020 AZ.MGEYEKWA, J The Registered Trustees of Jumaa Mosque, the applicant is seeking for review of the decision of this Court in Civil Appeal No. 30 of 2020 on the reason among others that the respondent in the said appeal was not represented, as the alleged Principal Officer who appeared and defended the appeal had no legal authorization from the applicant 1 herein. The applicant has raised the following five grounds for review as follows:- 1. That, the Respondent in Civil Appeal No. 30 of 2020 was unrepresented as the alleged Principal Officer who appeared and defended the Appeal had no legal authorization from Applicant herein nor the interim Committee. Annexture "A" is annexed to support the ground. 2. That, there was a conflict of interest due to the fact that ldrissa Hayeshi who appeared on behalf of the Respondent (Applicant herein) is a board member of the Appellant (Respondent herein) Annexure "B" is annexed to support this ground. 3. That, Mr. ldrissa Hayeshi impersonated himself as a Secretary of the Applicant and conspired with the Respondent wherein he conceded to all the grounds of appeal in the quest of not honoring the lease agreement as between the applicant and the Respondent while in fact he beneficiary who signed the lease agreement on behalf of the Appellant (The Respondent herein) as a treasurer. Annexure "C" annexed to support this ground. 4. That there is an interim committee which is alleged to have taken over the functions, duties and status of the Applicant (The Registered Trustees of Jumaa Mosque) but the records of Appeal are silent that matter. Refer to Annexure "A". 5. That there is an interim order from the High Court of Tanzania at Oar es Salaam by Hon. B. Masoud J. Maintain the status quo of the Board of the Applicant. Annexure "D" is annexed to support this ground. 2 At all the material time the applicants were represented by Mr. Godfrey Martin and Mr. Msafiri learned counsels while the respondent enjoyed the legal service of Mr. Kilenzi, learned counsel. Before I proceed to record the submissions made by both learned counsels, I find it prudence to acknowledge and extend my appreciation to the learned counsels for their useful and length submissions on the grounds for review. However, this court will concentrate on the main issue which is whether the applicant in Appeal No.30 of 2020 was properly represented. Mr. Godfrey Martin was the first one to kick the ball rolling. He submitted that the so called Principal Officer, one ldrisa Ramadhani Hayeshi who introduced himself as a Secretary to the Registered Trustee of Jumaa Mosque had no authorization to appear before this Court. In his opinion, the authorized Principal Officer is the one who appeared before the District Court, Abdallah Amin Abdallah, the proper Secretary to the Registered Trustee of Jumaa Mosque. The learned counsel for the applicant contended that in the circumstance of the matter, the Registered Trustees of Jumaa Mosque was not heard and was not represented. Mr. Godfrey argued that in a case where there is a personal representative there is a need to have a Board Resolution from the Board to allow the personal representative to 3 appear on behalf of the Board. He added that in the present case there was no any Board Resolution from Board members, no Board Resolution from the interim Committee, and the Principal Officer was not known if he was a Board member of Jumaa Mosque or not. Mr. Godfrey Martin did not end there, he stated that the Registered of Trustees of Jumaa Mosque was not served to appear in court. He added that the record reveals that the memorandum of appeal was served through Fairmarks Advocate Chambers however, the said summons was never served to the applicant. Mr. Msafiri, learned counsel for the applicant stated that Mr. ldrisa Hayaeshi conceded all the grounds of appeal while he is the one who filed the grounds for appeal. Mr. Msafiri referred this court to the letters dated 27 March, 2018 and 24 May, 2018 which reveal that Mr. Idrisa Hayaeshi is currently a member of Thaqaafa Education Foundation. He forcefully argued that the same means that ldrisa Hayaeshi impersonated himself and had personal interests. In reply thereof, the learned counsel for the respondent stated that there was an interim committee of Jumaa Mosque formed on 15 January, 2020 to take over the responsibilities of the applicant. According to the respondent's submissions, ldrisa Hayeshi was one of the members of the Committee indorsed by RITA empowered to deal 4 with the affairs of the applicant. Mr. Kilenzi continued to state that the interim committee had a legal personality to represent the applicant herein. He admitted that the Jumaa Mosque of Mwanza is a legal entity but insisted that the Board was dissolved. In his rejoinder, Mr. Godfrey reiterated his submission in chief and insisted that the applicant was not represented during the appeal. He urged this court to uphold the decision of the District Court or issue any order which this court may think fit to grant. I have considered the submissions made by both parties, the bottom line of the application for review is the fact that the applicant was not duly served and thus did not appear or be represented during the hearing of the Appeal. According to the learned counsels for the applicant's submissions, the person who purported to represent them had no authorization from them. I have gone through the proceedings in Civil Appeal No. 20 of 2020 and found that the person who appeared before this court was one ldrisa Hayeshi while the one who appeared before the trial Court was one Abdallah Amin Abdallah. I have also examined the lower court records and found that the Registered Trustees of Thaqaafa Education Foundation instituted a suit on 25° January, 2019 and the defendant, the Registered Trustees of 5 Jumaa Mosque ( current applicant) was represented by Abdallah Amin Abdallah, the secretary to the Registered Trustees of Jumaa Mosque. Nevertheless, I have revisited the lower court records specifically the contract between the Registered Trustees of Jumaa Mosque and the Registered Trustees of Thaqaafa Education Foundation, and found that the trustees for the Registered Trustees of Thaqaafa Education Foundation were Maruzaku Bombeni and ldrisa Ramadhani Hayeshi signed the contract as a Trustee/Treasurer. On the other hand, the trustees for the Registered Trustees of Jumaa Mosque were Abdallah Amin Abdallah and Khalid Abdallah. The information contained in the contract and the representation at this court creates doubt specifically the issue of locus standi of the person who appeared for the respondent. I have also noted from the proceedings that there was no proof as to whether the said ldrisa Hayeshi was duly authorized to represent the applicant. According to Order Ill Rule 6 (2) of the Civil Procedure Code, Cap.33 [R.E 2019], the appointment of a recognized agent must be in writing signed by the principal appointing such agent. In the instant case, the person who appeared before this court purporting to defend the appeal on behalf of the present applicant did not produce any written authorization. In the circumstance, I think there is a vivid doubt as to the appointment of ldrisa Hayeshi as an agent of 6 ' . the applicant during the hearing of the appeal. This doubt has to benefit the applicants. The fact that the said agent had no written authorization to defend the appeal, is as good as the matter proceeded exparte against the applicants during the trial of Civil Appeal No 20 of 2020. In the interests of justice, I proceed to set aside the Judgment and Decree of this Court in Civil Appeal No.30 of 2020 and allow the appeal to be determined interparties after issuing a proper summons. The submissions in Appeal No.30 of 2020 made by the parties are hereby quashed. I order the matter to be re-determined afresh interparties. Each party to bear its own costs. It is so ordered. Dated at MWANZA this date of 14° December, 2020. A.Z.MG,KWA JUDGE 14.12.2020 Ruling holding brief for Mr. Godfrey Martin, learned counsel for the applicant, and Mr. Denis Dendera, learned counsel for the respondent. A.Z.MGAKWA JUDGE 14.12.2020 7