Musa Menk and Others v Ibrahim Musa Asmal Materia and Others

The appellants and respondents were trustees of the Al Falaah Trust, a trust established on 29 January 2013 for educational, charitable and religious purposes relating to the Islamic faith. The Trust operated a Madrasah (Islamic Religious School) and a Mosque in Belvedere, Harare. Personal differences arose among the trustees along family lines. The appellants established an Executive Committee that assumed control over various aspects of running the Mosque and Madrasah without the approval of the respondents. An Advisory Committee was initially agreed to operate temporarily for three months from October 2015 to January 2016, but the appellants later converted it to a permanent Executive Committee with sub-committees exercising powers previously held by the trustees. The respondents claimed this was contrary to the Deed of Trust. The situation deteriorated, with the appellants dismissing the third respondent as a teacher and the first respondent from voluntary services. The respondents approached the High Court in their personal capacities seeking declarations that the Executive Committee was invalidly established. The appellants raised a point in limine regarding locus standi, arguing that trustees could only bring claims in their official capacity, not personal capacity. The High Court granted relief in favour of the respondents but failed to deal with the locus standi issue raised by the appellants.

• Whether the High Court's failure to determine the issue of locus standi raised by the appellants constituted an irregularity vitiating the proceedings
• Whether trustees acting in their personal capacity (rather than official capacity) have locus standi to bring claims on behalf of a trust
• Whether a court must determine all issues raised by parties before making a final determination
• Whether the establishment of the Executive Committee was in accordance with the Deed of Trust

1. The appeal was allowed with costs. 2. The judgment of the High Court under case number HH 706/15 dated 16 November 2016 was set aside. 3. The matter was remitted to the High Court for a hearing de novo, including a determination on the issue of locus standi.

Where a court is presented with a preliminary issue such as locus standi, it must make a determination on that issue before proceeding to determine the substantive matters. The failure to determine a dispute on a question of law or fact vitiates the proceedings and the order made pursuant to such failure. A court cannot simply ignore or wish away issues raised by litigants. While a court is not obliged to deal with every issue where one issue can finally dispose of the matter, the issue determined in such circumstances must be one capable of finally disposing of the matter. Where a court tacitly accepts that a party has locus standi, reasons for such acceptance must be given. The failure to resolve a dispute or give reasons for a determination constitutes a gross irregularity that vitiates the order given at the end of the proceedings.

The Court noted that the appellants had argued that in actions involving trust affairs, only trustees acting in their official capacity and not personal capacity had locus standi to bring claims on behalf of the trust. However, the Court did not determine this substantive issue, leaving it for determination by the High Court on remittal. The Court also noted that it was urged during the hearing to determine the locus standi issue itself but declined to do so, holding that this would not be proper given that the failure by the court a quo to deal with the issue was a gross irregularity that vitiated the proceedings. The Court observed that the substantive issues concerning whether the Executive Committee was validly established under the Deed of Trust and the other grounds of appeal were not addressed, as the procedural irregularity regarding locus standi was dispositive of the appeal.

This case is significant in Zimbabwean civil procedure as it reinforces the principle that courts have an obligation to determine all preliminary issues raised by parties, particularly issues relating to locus standi, before proceeding to the merits of a case. The judgment emphasizes that failure to determine a dispute on a question of law or fact constitutes a misdirection that vitiates proceedings. The case is also important in trust law for highlighting the distinction between trustees acting in their personal capacity versus their official capacity, and the potential impact this has on their standing to bring claims on behalf of a trust. The judgment establishes that locus standi is not an issue that can be tacitly determined or ignored, and if a court accepts standing, it must provide reasons for doing so. The case demonstrates the appellate court's willingness to set aside lower court decisions and remit matters where fundamental procedural irregularities have occurred.