19980528 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY . AT DAR ES SALAAM CIVIL CASE NO. 60 OF 1990 THE TRUSTEE OF SUNNI MUSLlM JAMAAT {HANA.FI SECT) # WITH LEAVE OF THE ATTORNEY GENERAL & MINISTER FOR JUSTICE ... ............. , ................ PLAINTIFF ~.. SAYED MAZAR KADRI IQBAL HALDAY . .. IBRAHIM SANGAY & OTHERS .................... DEFENDANT ,.... ~ ' ' I I l R U L I N G MSUMI, JK: According to the applicants, this application arises from the judgment issued in the determination of the main suit. It is notable that the parties in both, main suit and in this application are the same. Furthermore, in both proceedings the dispute is based on the administration of Suqni Jamaat Mosque, 1 hereinafter • • referred as the mosque. Prior • to the present suit, this issue had been subject for determination by this court in Civil Case No.30 of 1927 which henceforth will be referred as the pr~vtous suit. Indeed both in the main suit and in this application extensive reference to the judgment on the previous suit has been made by both parties. • With~this factual background in mind, applicants are praying for the fullowing specific reliefs . • • 2 1 .L • That an injunction be issued to the respondents restraining them from conducting the General Election set down for 14th September 1997; ·q. ~ l. . That a sch~me o f management ano acm1n1strat1on 0e . i 2. worked out giving equal representation to all sects in the affairs of the mosqp~.i and its property in · ~st- . accordance with the High Court judgment Civil Case No.30 of 1$27. In support of the application the chamber summons is accompanied with the affidavit 6£ the third applicant one Ibrahim Sangay. This is what the third applicant deponed in his affidavit.- As a branch of "Islamic Community, Sunni Jamaat consists of four sects which are Hanafi, Shafii, Maliki and Hambali. The mosque in question was built by the contributions of Sunni members of all these four sects. ApplicaQts belong to Shafii sect while respondents belong to Hanafii sect. The judgment in the previous case decided that t~~ suit mosque was a waqf property and placed l under the management an! administration of a scheme whereby members of all four sects would be represented. But contrary to this decision respondents have been repeatedly attempting to mar~_ ge and administer the mosque anQ its proi:>erty to the exclusion of members of the other sects claiming that °ih<e suit mosque and its property exclusively belonged to Hanafi sect. At present the,re is no scheme of management and administration of -~·- and its property as ordered the mosqu:e •·"· ·~ by the court. ~ .,. . Consequently there has been persistent quarrels and chaos in the mosque. In their attempt to take over the management and administration of th~ mosque and its property respondents called . a general meeting of the office bearers who exclusively consist of members of Hanafii sect. In addition counsel for the arplicants filed another chamber summons under Order 37, sections 97 and 95 of the Civil Procedure Code again supported by a supplementary affidavit of Ibrahim Sangay. In this chamber summons applicants added three more prayers to the ones requested earlier. These are: 4. The Board of Trustees of all Hanafi Sect members be dissolved as the management conflicts with the 1927 judgment. 5. The Management and office bearers who are all Hanafii members be also dJssolved as the Management conflicts with the 1927 ', judgment. 6. The constitution of the Sunni Muslim Jamaat which is ' ) discriminatory ~nd is not in line with the 1927 High i ) Court judgment and accepts members on the basis of payment of the fee in order to worship God be set aside. Respondents replied these contentions through the affidavit of one Abdallah Dawood Zakaria who described himself as one of the registered trustees of Sunni Muslim Jamaat. This is what he deponed. This application is incompetent because it is based on 4 the main suit which was dismissed for being res judicata. He referred the court to the judgment of Mkude J. delivered in the said suit. The order for creation of a scheme which would have ·~ been responsible for the management and administration of the mosque and its prop~rty was made because the Sunni members in Dar es Salaam had no formal organ1satr0n at that time. With the creation of Sunni Muslim Jamaat, Dar es Salaam in 1959 duly registered under the Societies Ordinance Cap 337 the said order became obselele. What the judgment in the previous case said is that all Sunni members of different sects have a right of worship in the mosque and not that the mosque belong to members of all sects. It is not true that the mosque and its property are being managed by members of Hanafii sects only; they are managed by elected leaders irrespective of their sects. Lastly it is not true that there is quarrel and misunderstanding in the mosque. After pleadings were completed counsels for both parties were directed to make their submissions in writing. Each of them was given a date on which his submission was to be presented and ruling was scheduled about one month after the last presentation. Though each counsel was given a period of about two weeks to file his submission, counsel for the respondent was unable, without sufficient reason, to do so even about a month later when the matter was called for mention to find out why his submission had not been filed. Natuially his belated request for extention of time to file the said submission was refused. So what we have on record is an unrepliecl submission of Mr Muccadam, counsel for the applicants. To begin with, the respondents argument that this application is incompetent because the main suit on which it is based has been dismissed for being res judicata is legally and rationally faulty. The fact that a case is dismissed at any stage and for whatever reason does not bar reference to it provided such reference is relevant. In the main suit the present respondents sued the present applicants requesting for court declaration that the administration of the suit mosque be done exclusively by Hanafii Sect of Sunni members. On the preliminary point the court rejected the suit for being res judicata because the declaratory order which the respondents were seeking had already been finally adjudicated upon in the previous suit. In the present application the applicants are asking for court's intervention against attempts by the respondents to achieve the reliefs which they had been unsuccessfully trying to get from the court both in the previous suit and in the main ( \ suit. It is thus obvious that what transpired in the main suit is essentially relevant for the appreciation of the complaints raised in this application. The respondents' argument that this application is incompetent is therefore unsustainable. Through the counter affidavit of one of its trustees, respondents are submitting that the court order made in the previous case directing for creation of a Scheme whereby members 6 of all sects of Sunni Muslim would share in the management and administration of the Mosque and its property was only relevant before the creation and registration of Sunni Muslim Jamaat in which the said managerial responsibility is now vested. Attractive as it may sound, this view is respectfully incorrect. Among others, the court in the previous suit made a finding that the Sunni members of the four sects who contributed to the construction of the mosque had created a wakf for the said Mosque and that members of each sects have equal right in the management and administration of the mosque. What the respondents are, quite wrongly, saying is that the said wakf has been replaced by the trust registered in the name of Sunni Muslim Jamaat. Trusts and Wakf do not wholly have common features. There are three essential features f6r a valid waqf. They are, a permanent dedication of property, the dedicator known as waqf should be a person professing Isl&mic faith and the dedication should be for a purpose recognised by Islamic law as religious, pious or charitable. The administration of the wakf property is by a () manager known as Mutaw~lli who unlie a trustee, does not have alienation power over the property. Ownership of the property is not vested in Mutawalli but in God. And unlike trust property, wakf property is inalienable; irrevocable and necessarily perpetual. Hence it is not legally proper to convert a wakf property into an ordinary trust property. In the present case the dedicators of the wakf are the 7 various members of Sunni Jamaat of all four sects who contributed money for the construction of the mosque, and the manager or Mutawalli of the wakf is the proposed scheme in which all sunni sects would be represented. This arrangement is still valid today as it has been in 1927 when the court pronounced Its relevancy or validity cannot, as argued by the respondents, be overtaken by the creation of Sunni Muslim Jamaat. As wakf property the mosque arid its property can only be managed and ; - ') ( administered in accordance to with the provisions of Wakf commission Ordinance Cap 326 together with the directions set by the court in the previous suit. Any attempt, as demonstrated by the persistent conducts of the respondents, to administer the mosque and its property under the provisions of the Societies Ordinance is null and void. From the contents of the counter affidavit of Abdallah Dawood Zakaria it is clear that the management and administration of the mosque is under the trustees and office bearers of Sunni Muslim Jamaat. But as noted earlier that as wakf property the !') suit mosque and its property can only be managed by Mut.awalli as provided under Islamic law. And it is in recognition of this fact that the court in the previous suit directed the creation of a scheme in which the ~anagement of the mosque would be vested. All sects of Sunni Community would be represented in the said scheme. Such scheme would be characterised as Mutawalli of the wakf in respect of the mosque and its property. Hence in so far • ,_, 0 as the trustees and office bearers of sunni muslim jamaat purport to assume the duties of Mutawalli under different arrangements from that provided by.the court in the previous suit and under Islamic law, their existence is legally impugnable. For this reason, therefore, additional prayers number four and five are granted. The board of trustees and office bearers management of sunni Muslim Jamaat are her~by dissolved. As far as relief ;number six is concerned there is no evidence in support of the contention that the constitution of Sunni Muslim Jamaat is discriminatory. On the contrary, through the counter affidavit of Abdallah Dawood Zakaria applicants are contending that all Muslims irrespective of their sects are allowed to worship in the suit mosque. Accordingly relief number six is refused. In conclusion this application is upheld by granting the following reliefs. First as ordered by this court in the Civil ¼'/ Case No. 30 of 1927 and repeated in the present main suit, a scheme of management and administration for the mosque and its property be worked out. The creation of the said scheme to be done by representatives· of all sunni SBCts in Dar es Salaam under the guidance of the Registrar of the High Court. Members of the . • 9 said management and administration scheme should be registered asMutawa1li cum trustees under section 5 of the Wakf Commission Ordinance Cap 326 as amended by Ordinance 9 of 1956. The scheme shall manage and administer the mosque and its property in accordance to Islamic law and the provisions of the Wakf Commission Ordinance. Secondly, since the creation of the Board of Trustees and Office bearers management of sunni Muslim Jamaat and the functions for which they we~e created are in conflict with the decision of this court made in the previous suit and reiterated by Mkude Jin the present main suit, both the Board of Trustees and Office bearers management of Sunni Muslim Jamaat are hereby declared dissolved. Pending the creation and registration of the said scheme, the management and administration of the mosque and its property be conducted by a committee consisting of the applicants and trustees of the defunct sunni Muslim Jamaat. Each party to bear its costs. ,JA,JI KIONGOZI. • I