the registered trustees of masjid hidaya mlalakuwa vs abilah hussein swalehe 2 others 2023 tzhc 15854 28 february 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 131 OF 2022 (Appeal from the Ruling of Kinondoni District Court in Civil Case No. 90 of 2022 delivered on 16/08/2022 before Hon. Msongo, SRM) THE REGISTRERED TRUSTEES OF MASJID HIDAYA MLALAKUWA …………………………...….……......……….… APPELLANT VERSUS ABILLAH HUSSEIN SWALEHE ……...….………………………... 1ST RESPONDENT BAKARI RASHID SHEMZITO …………………….………………... 2ND RESPONDENT RABII SHAFII …………………………….…………………………. 3RD RESPONDENT JUDGMENT 17th & 28th February, 2023 MWANGA, J. This is an appeal against ruling of the trial magistrate in the District Court of Kinondoni at Kinondoni in Civil Case No. 90 of 2022. The defendant in that suit had raised a preliminary objection that the plaintiff 1 had no locus standi to institute the suit, hence the same should be dismissed with costs. In his decision dismissing the suit the trial magistrate stated that; “The Company being the corporate entity which is incorporated and registered, applies same to the registered trustees that before commencement of any suit in the court of law, there must be a board resolution signed by Trustees to allow the registered board to commence suit in the court of law. In this regard, I concur with the submission of the defendant that, the plaintiff ought to attach the Board resolution authorising it to sue as it was stated in the case of Kati General Enterprises Vs Equity Bank and another, civil case No. 22 of 2018” In the cited case of Kati General Enterprises Vs Equity Bank and Another(supra), the trial magistrate made reference to the following paragraph; “Requirement of board resolution is mandatory and emphasized and the same must be pleaded in the plaint, even the minutes of the Board resolution if not 2 attached it renders the suit incompetent before the court.” On the basis of such authority and without hesitation, the trial court hammered the plaint as it was truck out with no order to costs. The appellant who enjoyed the service of Mr. Abdallah Matumla, the learned counsel raised three grounds of appeal that; 1. the trial court erred in law and facts by trucking out the case for the need of Board Resolution of trustees which does not apply at all in the matter and therefore entered into wrong decision in favour of the respondents. 2. the trial court erred in law and facts for mixing two different statutes laws that is; The Trustees Incorporation Act, Cap. 318 R.E. 2012 and the Companies Act, Cap. 212 of which is totally a great confusion of the trial court. 3. the trial court erred in law and facts by citing irrelevant case of which belong to Companies Act and not Trustee Incorporation Act. Mr. Matumla submitted that Section 6(2) of the Trustees Incorporation Act, Cap. 318 requires that name of everybody corporate created under the 3 Act shall include the words “Registered Trustees”. According to the counsel, the appellant qualified to institute a suit because she identified herself as REGISTERED TRUSTEES OF MASJID HIDAYA MLALAKUWA. In response to the second ground of appeal, Mr. Matumla argued that there was confusion of the applicable laws. The requirements of board resolution would have been a requirement if the matter at hand were couched under the Companies Act. Apart from that, while arguing 3rd ground of appeal the learned counsel contended that the authorities cited by the trial court were irrelevant to the circumstances as far as trustee laws are concerned. The respondents who appeared unrepresented supported the trial court decision on the basis that there was no board resolution authorizing Board of Trustees to file a suit against the appellant. On a careful consideration, I have found out that the law under Section 6 (2) of the Trustees Incorporation Act, Cap. 318 requires that, in every body corporate created under the Act shall include the words “Registered Trustees”. Under the circumstances, the suit/plaint filed by the 4 appellant who was the respondent at the trial court is entitled “THE REGISTRERED TRUSTEES OF MASJID HIDAYA MLALAKUWA.” According to section 8 (1) (b) of the said Act, once Trustee or Trustees becomes a body corporate it has the power to sue and be sued in such corporate name. The relevant section reads; S. 8 (1) – ‘’Upon the grant of certificate under subsection (1) of section 5 the trustee or trustees shall become a body corporate by the name described in the certificate and shall have: - (a) N/A (b) Power to sue and be sued in such corporate name’’. In light of the foregoing, I agree with the learned counsel Mr. Matumla that the trial court erred in law to hold that the appellant had no locus standi due to lack of Board Resolution. This is not a suit under Companies Act, therefore there was no need of board resolution. In furtherance to that, trial court misapplied the law. The case cited in support of the trial court decision falls squarely under the Companies Act, 5 Cap. 212 R.E 2022. In that case, both plaintiff and the defendant were limited liability companies registered under the Companies Act. In the present appeal, the appellant who was the plaintiff at the trial court is described as the Board of Registered Trustees of Masjid Hidaya Mlalakuwa. These are different matters altogether, hence highly distinguishable. In the results, I find that apart from blending of issues in the ruling of the trial court, there was total confusion with regard to application of the laws and authorities on the issues raised. For the reasons stated, I find that both grounds of appeal filed in this court are meritorious. Therefore, the appeal is allowed and the ruling of the trial court is quashed and set side. Further orders that, case file in Civil Case No. 9 of 2022 be remitted to the District Court of Kinondoni at Kinondoni to proceed with the matter accordingly. Considering circumstances and nature of the case, I issue no order to costs. Order accordingly. 6 H. R. MWANGA JUDGE 28/02/2023 COURT: Judgement delivered in the presence of the learned counsel Mr. Abdallah Matumla for appellant and respondents in persons. H. R. MWANGA JUDGE 28/02/2023 7