The Registered Trustees of The Islamic Solidarity Center vs Jabir swalehe Koosa & 4 others, civil Appeal No 245 of 2022.

The main issue was The issue of exhausting local remedies before referring matter to court? Read the facts carefully and have holding of a court.

The factual allegations constituting the claim briefly stated, are as follows. The appellant is a religious institution duly incorporated under the laws of Tanzania. In that capacity, it owns and runs Mudio Islamic English Medium Primary School and Mudio Islamic Seminary School both of which being located within the District of Hai.

 It was alleged that purporting to be members and leaders of the appellant, the respondents have been unlawful interfering with the appellant’s operation of the schools to the extent of disrupting the management thereof and causing some parents losing confidence in the same.

In the written statement of defence, the respondents, aside from refuting the claim, they raised a notice of preliminary containing four points. Of relevancy, for the purpose of this appeal, is the first point that 

“the court has no jurisdiction to hear and determine the matter at hand.In their submissions before the trial court, the respondents through their counsel argued the said point based on two propositions. 

First,because the value of the claim was based on general damages which 

couid not be the basis for determining the pecuniary jurisdiction of the trial court, the proper forum should have been the primary court in terms of section 18 of the Magistrate’s Courts Act. 

Second, since in accordance with clause 26 of the appellant’s constitution which was pleaded and attached to the amended plaint, the disputes of the appellant have first to be resolved by the Supreme Council of Organizations and Institutions

of Tanzania (BARAZA KUU) or any other Islamic organization authorised by the said BARAZA KUU, the matter at the trial court was brought prematurely. 

COURT HAD THIS TO SAY:

Much as we are in agreement with the counsel for the appellant on the principle that parties cannot refer a dispute in an ordinary court without exhausting the available dispute settlement machineries, it is our view that, for such principle to apply, the respective dispute settlement

machinery must be capable of dealing with the dispute.

 In this case, the dispute pertains to a tort of trespass and interference with properties. The appellant is claiming declaratory judgment, injunction and damages. 

The said dispute, we have no doubt, cannot be resolved by BARAZA KUU under article 26.0 of the appellant’s constitution. We took the same position in

AN Said Kurungu (supra) and in reaching thereto, we observed:

“The relief sought included generaI and specific damages. How would BAKWATA deal with this issue of tort? We understand the second respondent (the Registered Trustees of Masjid Mabox Mtoni Sokoni) is a legal person which can sue or being sued. So is BWAKA TA Guided by the above principle, therefore, we are of the view that,  because the dispute at issue is based on tort wherein the appellant as a 

juristic person is claiming declaratory judgment, injunction and general 

damages, the same does not fall within the disputes envisaged in clause  26.0 of the appellant’s constitution. The fourth and fifth grounds of appeal  thus have merit.

In the final result and for the foregoing reasons, the appeal  succeeds to the extent of the fourth and fifth grounds and it is hereby allowed. Consequently, we quash and set aside both the ruling and orders  of the trial court and the decision of the High Court and remit the matter to the trial court for hearing starting with the remaining three points of  preliminary objections which were not heard. Costs in the present appeal  shall abide the outcome of the suit.