19991129 TZHC Mbeya1

\ r' I :tt'f ~ fiJi:'-Jf QG~~ ~ '.t'l..:W:Z.,IJ.,IJ;,4 .. AT ~1BEYA (DC) CIVIL APPEAL NO. 28 OF 1999 { FROM DISTRICT COURT OF MBEYA, ORIGINAL CIVIL CASE NO f 15 OF. 1998 BEFORE:. s.v.a. KAAUA - S.R.M.)' . THE CHAIR.MA~ - PENTECOSTAL CHURCH OF MBEYh ••••••••••••• .APPELLli.~T ',, VERSUS GABRIEL BISAll{GWA ) ABROS JOHN r-'ICHAEL JACKSON MRS •. WSUFU NYAMKUSWA • • • RESPONDE.~TS ISAKWISA 1":WASILE ON BEHALF.OF THE CO:tJ:¥.ITTEE ¥EMBERS .JUDGEMENT MWIPOJ?O ,. l• : ·· This is an appe~i by ··~he Chairman of Penteoost.al ~ l i of Mbeya·the appellant represented by the learned Mr. Mwakolo (Adv.) :against purportedly· five· ·;espondents named: 1. Gabriel Bisangwa; 2. Ai bros John, 3. 'Michael Jackson, 4. Mrs. Yusufu Nya~kuswa and 5. Isakwisa Nwasile supposed to act on behalf of the Committee Members who are represented by the learned Mr. Naali .. (Adv~). The memorandum of Appeal has wrongly included the 017iginal 3rd plaintiff Michael Jackson,the 4th plaintiff ~;rs. Yusufu . . Nyamkuswa and the· St~ plaintiff Isakwisa Mwasile whereas _the trial· court presided over by the lea~ned rr1r. Karua (S~:~.M.) already dismissed their clain:s in this c~se against the· appellant have from which· decision theY L not appealed so far. So·, this appeal then,is only against the 1st Respondent· Gabriel Bisangwa and Aibros John as the-second Respondent only. The rest of the ,,:: file and _·. :p,;emes 1n the Memo of i~ppeal are ·;hereby struck off this court's L ·.,i~!>/·:· ••• /2 ·"'·' - 2 - register and off the. written meoorandum of appeal. The trial court held . . that.the issues framed at the · start of,the trial 'would. riot be resolved and made .the basis of the analysis of ·the judgement. The reason. given by the trial court for not ·indudging himself in determining the ' .. ' issues framed. __ was·, ;th_at _he . was fpllowin~ the p}:'eseda.nt of . ;' . . 1. ' the cas? o~ Rev. Canon Onesv,o Kashishi V[.,.__Jtev. John Changae: 2 • .Ar:9.~~:-:~?;_shop of the Anglican ChurcJ1~- :Y~ ..f.~_Tanzania Civil CasG..J~o. 34 · of 1994 Viwanza High ~our_1 _Registry " His Lr:•rdship the \.( unreported) quot~d in the _speech of - . L ··- Chief Justice 9.tJ2.nz:mia Francis L; Nyalali titled:- l. ' n).iotu.ba ya Jaji Jl-'.kuu Francis L. Jiyalali kuhusu U.tatuzi wa Migogoro ya kidini ~~hakanani. Iliyotolewa 1"1bele ya l.V'kutanc l\~uu wa Kikristo . \ ~ :ranzania Dodoma 9 Juni 1 1999 11 which speech the learned Mr. Karua (s.R.M._) ,_quoted in full in his judgement. ' The first two grounds of this appeal speqificalJ..y · deal with the desistance of the trial court to determine the .. c'ase on the basis of the framed issues and the full ci taticin' of the Hon. Chief Justice's speec~~ · abovemeni;ioned·. in these words: I quote from the Memqranclum of_ Appe9l:':"' 11 1. That the trial court err?d l:>9th in law and I• fact when it used the speech, of His i · · Lordship ~hief Justice Nyalali a~ an authority to, ~ecide the suit against·the ' defendant. 2. That the judgement of the trial court is bad in law for it has been decided out of· the issues fran:ed." \ ••• /3 ·' 3 -.• .'l'ne trial .court t-~ ·f'i-etneo. usu.ea· were .as .fallows:- I quote them in full:- rt1. Whether the plaintif.fs are mem0ers of _the Pentecostal Church of ~beya and members of the Exequtive Committee. 2. Whether Reverent Jackson Mwalyego was sacked by the executive committee. 3. Whether the. reinstatement of the Rev. Jackson ~'Walyego was lawful. 4~ Whether the constitution annexed is ·the constitution of the church. , 5. Whether the pl_aintiffs were defamed . . and sufferre~ damages._ 6. What reliefs:are the parties ·entitled to, if any. " Out of these 6 issues fra~ed by the triaJ: court the first four issues deal specifically with·the religeous sect of Pentecostal Church in its executive membership, powers of the executive committee in sacking their pastor Rev. Mwalyego', his reinstatement by the church chairman Rev. Nelson Shango and the prope_r constitution of the church. These are specific matters relating the ac·tivi ties and management o:f the religious organisation tc,rmed Mbeya Pentecostal Church. Lordship the .. The speech of ldi.s ·Lr.. Ch~ef Justiqe q1.:1.oted above dealt in detail exactly wi'th the problems involving activities and management o:f religious organs being brought into courts for an adjudication with a cited court case asLexample: with its •·· . LordshJ.p the holding thereof.. The cited case in H-.Ls 1 _. Chief Justice I s speech was of th~s Court,yet to be reported,which is binding upon the trial court of ~beya Distriet Ccurt/RoM.'s Court. ll e ./4 4 As such, in disposing· off 'the first written ground of this memo of appeal I hold.that· the iearned Mr. Karua ( s.R.M.) was quite justified to quote, about two rr.onths later on 3/8/1999; the entire speech of His Lordship the Chi~f Justice delivered to the ¥eeting of the Christian Courtcil of Tanzania at Dodoma on 9/6/1999.· ,In disposing off the 2nd ground of appeal I hold .. that. the 4 above. quoted framed issu:es No. 1 ... 4 in this case at the trial court's level were similar issues as those drawn in the- ~J.wanza High Court decision of Rev. Canon OnesniO Kashishi Vs. The ArchiBishop o£ the .Anglio.an Church in. Tanzania and Rev. Jobn Changae as both cases are dealing with the activities of church and its manage- . . , ment of religeous and adrriniStrative affairs which should best be left to be ' run by the religious agencies them-- selves. For ease of reference the issues framed µi the Mwanza cited High Court-Case inter aJ..ia were:- 11(a) A declaration that ·the election of the 2nd Defendant .to the office of Bishop of .the Diocese of Victoria Nyanza is null and void. (b) A declaration that tqe second Defendant, by his conduct, has disqualified . ~imself . . frorr, holding the.office of Bishop of the. Diocese of Victoria Nyanza or any other diocese in the Anglic~.Cbure:h. (c) An order compelling the 1st Defendant to use His constitutional powers and .. demand the resignation of the 2nd .. ' . i defendant as Bishop Victoria Nyanza ••• " These issues when corrpared.with.thbse frarnec.l in this case -·· '. look similar in essence and serrblance ••. '·' · ''l'he other two remain<:le~ framed issues in this case at the trial court which read as fol.lows:.- ••• /5 . • • La 5 - h5. Whether the plaintiff's were defamed 'and have suffered damages. '6• What reliefs are the parties entitled to, if any" are not religeously oriented issues, as they are based on and J tortious liability L, defamation. The 5th issue was properly filed before the trial court and it could only be handled by a court or law(not otherwise within the walls of the church)unless they would settle it out of court on their own free agreement. However, in this particular appeal the person to complain should have been the respondents whose claim for darr.ages for being defamed had been dismissed by the trial court~ The appellant cannot appeal on behalf of the respondents in this regarde The third and last _ground of appeal .raised by the Chairman of the Pentecostal Church of Mbey_a in the memorandum of appeal is that to quote it·exactly as it is:- 113. 'rhat the trial Magistrate totally misdire- ' cted himself when he directed the appellant to abide with the verdict of· UMPT to which the .Pentecostal Church-fl.':beya is not a member and is not listed.in the constitution.," This point was hotly contested by both sides through their advocates. With the terminated proceedings of the case having been done by the District Cour:t "the trial magistrate feared to leave 'a vacuum that would prolong the conflict which appeared to be potentially violent as indicated by th~-- comments in. the last para of the judge- ment of the tr.i.al court in these words:- •.•• /6 - 6 "Howev_er, the current conflict has potent threat to public tranguility to which I am so concerned about. Happily enough, as an organ to which the church accepted by both parties,. .. ,' :i' ~ the UM.PT resolved the dispute in favour of the plaintiff, in the course of these proceedings~ after the court referred the dispute to it. The question here is whether the decision of UM.PT could stand or pass the test of fairness and is endowed wi.th sound judgement,. I think, it does, because it tends , to give many a reparation and spiritual restoration. I think, it could be proper, at this juncture, and I stand to be · corrected, if its verdict which is incorporated in these proceedings, is backed by this court and ordained by the force of the law. The parties are accordingly directed to abide by the verdict, of the lJlVliPT, The UM.PT itself shall see to it that its orders and directions are obeyed, and elections, if necessary, ar~ conducted according to the constitution of the church. The police are, -accordingly directed to assist UMPT, in carrying out its directions. It is so ordered and directed." Fror.1 the record of the trial court th,~re are letters from both sides and from UMPT Mbeya Zone showing that during midway l the trial in the lower court both sides agreed to try to reconcile their differences outside the court and an order was made to that effect on 3/12/98 in these words:- 11.~s the parties are waiting to resolve the matter by reconciliation, 'and as they are obliged to submit themselves to the aw,pices of their National Organization, tqe ill'IPT Mbeya Zone, and as the lJlVJPT, wishes to attempt to. resolve the conflict by reconciliation, I accordingly yield to the parties wishes, and accordingly forward the parties to the patronage of Rev. A.mos !/Jakoye and their National Organization J\i;beya Zone • . . •/7 / - 7 - "The defendant, however, is directed to call a special session of the el1uroh Executive ·c9mmittee with dispatch and.I and perhaps, all of us, shall oblige if this matter is finalized before Christmas. On the circumstances I accordingly adjourn this . case sine· die, pending reconciliation. It is so;ordered and directed." After many meetings were done and many letters weP.e cross writterl b~tween the three parties ·i.e. the adversary parties anct·UMPT. Mbeya Zone the lJlVl.PT Mbeya Zone reached a ' reconciliation· resolution as follow·s, as contained in .;,.,~e letter with ref. UMl?T/KNSK/12 of 18/3/1999:- 11 Itakurnbukwa kwamba shauri Na. 15/1998 .. ~ . . ;· } 'l. • '._!'. • ·.. arribalo lilitolewa mahakarnani tarehe 3/12/1998 .. j • ~: : na kupewa uongozi wa K~~da (UMPT) na ya kwamba '' · .. ,. katika barua hiyo iliagizwa mgogoro uwe umerna- lizika kabla ya Krismasi 1998 • .. Baada ya hatua mbalimbali zilizochukuliwa . : ....... · kwa kufanya vikao mbalimbali vya usuluhishi~ ucharnbuzi ulifanywa na uongozi ~~ Kancla ( lWJ>T) katika kumaliza mgogoro huoc Kwa upan.de wetu Kanda (UMPT) ·imc~fikia uamuzi ufuatao, kwamba ifikapo tarehe 2.8/3/1999 muwe mrnerudi Kanisani bila masharti. 11 The quoted_Swahili version above means that the reconcia- tion by UT-'IPT could not be done by Christmas as directed •·. by the court. Nevertheless,after many meetings etc. the ~ Zonal ill'lPT had reached a resolution that by 28/3/1999 all the plaintiffs (Church members of about 40 in number) should return back to their church without any conditions. This reconciliatory resolution was the best ever ••• /8 . any . r that could be accomplishecl by.reutral reconciliation in this face of the earth. . In Shakespe:Bre's terms the Gods too.. ~ust -.. _. . have stood up and admired this resolution_ ' yfhy'? From the b~ckground o_f this dispute this short but brave reconciliatory ·reso.luti6n meant that the status to~'rtbrm which existed quo of all the parties in the dispute should~return l befor~ the dispute arose, that is the Pentecostal Church of and spiritual pastorated and i l'fbeya would remain intact in physical; form i.e. th:a="'-;.._ · ·h; 1 '- c11.urc ~ premises etc. as, well as in personnel, ::. · ~ administiation . l!I and congregation. Ali the 40 c>'r so members .of the church would have returned to their normal worshipping practices under the leadership <;>f Rev. Shango as Chairman and Rev_. Mwalyego as Secretary~ . .. All the . pas_t would_ have been ' ' buried aside _as if nothing had happened between them. What better repentance and reconciliation before Man and God could be found than this? None, in my secular and judicial view. The loggerheads an,d actual_disputes between them which would have been b~ried once and for all and blessed most likely with a comrn9n forgiveness prayer and celebration~_of their church solidarity are the following:- The initial allegation that Rev. Mwalyego had not or had dealt with a request for a loan of 30,000/= by one Yusto which loan was meant to have come from Rev. Lackson- r-r:wanjali . would have been buried and forgiven.. The action of the congregation and Executive Committee L.J . of the churct to suspend Rev. Mwalyego which wa? done with ' ~- the full participation and signature of the Chairman Rev. Nelson Shango would have been buried and forgiven.· ••• /9 ✓ - 9 ... . The hypocritical action o.f Rev. Nelson Shango of thereaftel') all alone,reinstating Rev. Jackson Mwalyego the . back intd church leadership behindLback and joint under-- taking of the. Executive Committee and Congregation would · · · ·•. - ·---nave___ ~_een buried and forgiven~ The action of both Rev. Shango - ·as Chairman and Rev. Iviwalyego of ex-_cornmun,icating all the 40 or so congre- gation from the church would have been buried and fo~~iven. 'lhe expulsion of Rev! Shango by UMPT -- Headquarters from being the_ Chairman_ of ·Mbeya Pentecostal Church would have been buried and forgiven., ·rhe case would have been terminated from the courts peace and and • L __ tranguili ty would have .. flowed ·back ·to the chure-11 al:i.ke as and all its flock and p~stors ·z before. This reconciliatory resolution was accepted by the . ·•.• -·1 '\ respondentss but unaccepted by the appellant. In between, the trial court endorsed the reconciliation resolution and . police•· ordered J. t to be executed by -the . _L. l The. appellant· and his secretary Rev~ Mwalyego were evicted from the •,'' church premises by the polic.e by orders of the lower·· eourt • • The appellai.i.t ran to this court for. ·interventi-on. I ordered a temporary suspension of the eviction pending-the this hearing of L : . appeal and this i_s the judgement which will determine the fate of the ,suspended eviction. ·I already irJ.dicated in my previous ruling of 19/10/99 that . in this same appeal LI would. not deliberate on the preli- . minary points raised until I do so in this judgement in these words:- nLest we start dragging our feet, hands and brains Into the very matters which will crop •••. /10 ' _) ( - 16 - up in the argµment,s of the appeal itself,_ ·I reserve my determination and reasons of these preliminarypo;i.nts . . which will be given in the. main judgement of the appeal itself. So, for the time being we can proceed with the hearing .of the main appeal. 11 • bY. . This judgement covers the points touched upon_eoth sides on the.preliminary points raised and argued previously. The questions of the third point of the memo of appeal and the preliminary points raised covering :the status ·of the Pentecostal Church of r-'beya in the.lWJPT and the legality of the UIVJPT dismissing the appellant ·from being the Chairman ·"" of the Pentecostal Church of Mbeya and· the· position of the constitutions o~ the Pentecostal Church of Mbeya and the UMPT and whether the Pentecostal Church of M.beya is under UMPT or n0t are matters which this court is not going to them by doing so the court deliberate upon.L_in this appeal becauseLI will be indud.gingL into the activities and · management o·f the religeous organs. in a suit. not properly filed in this ·court for that ~rpose. This court can still deal with religious ·organs on matters falling within the prerogative orders of this .court or on matters filed· relating the infri-ngement of the --constitution of the country or legality of the laws of the country dealing with religeous affairs etc. The United of Tanzania . ·. RepublicLConstitution clearly provides in article 19 (2) as follows=- 11(2) ·Bila kuathiri Sheria zinazohusika na Jamhuri ya Muungano, kazi ya kutangaza dirti, kufanya_ ibada na kueneza dini itakuwa ni huru na jambo la hiari ya mtu binafsi, ~ ••• /11 - 11 fi;)1U.&~aj.i na uendeshaji wa jurrn.iia za dini zi takuwa ........ ,' nje·- ya ·shughuli za Ma~aka ya Nchi. II The l.ll1-derlining is ~ine to stress the _express constitutional proeP-ription that the activities ( shughuli) and manage- ment ( uendeshaji) of religious _ _ organs shall be outside the · activities of the sovereign powers of the state. Under Article 4 of. the consti tutio:t1 the Judiciary is one of the three p-il.l_~ of th~ Sovereign organs of the State the other .two being the Executive and the Parliament. So; .Article 19 (2) .of the Constitution excludes the Judiciary as well as the Executive and the Parliament from meddling and running the qay to day affairs of the religeous organs, iUl the grounds of is·sue being raised i~ this appeal as well as the pr~liminary poi~ts raised and argued are n touch with the activities of'the- leaders and members of the Church of Pentecostal _:r.'tpeya· into which this court can I t deep its pen and hands at this sta·~e in the w·ay this suit was filed in court. On the other hand,the 3rd ground of appeal touch on the reconciliation overtures ordered by the court as a result of a con::foht agreement reached by the adversary parties in court. 'Both parties were agreed that they should reconcile their differences before ·a specific neutral umpire the UMPT }'beya Zone and an order of the trial court to that effect'was made and acted upon by all "the three parties the appellant, the respondent and the umpire UMPT ., ¥·beya. After the umpire made his reconciliation resolution · . and tranquility to the parties·· for them to implement it for· the peace LJ. · · , solution - the church,which in my view was the bestLever reachable • 1 ' as explained above,_M one party dec~d~d to disagree with . · . . eri.nuities it thereby :c:.~Jrin,.;:L:ta:.··ti1eLpoot-1 arid old reclamations existed orior . . that .:. _ L . ' ·--1 to the dispute being solved by reconciliation • ••• /12 --) - 12 - The quoted order of the court for the UMPT umpired resolu- . :.•.·tion to be followed and implemented by force of the court and police is not an interference into religeous affairs. It was an implementation of a resolution. se_t_~l;ed.out of court and recorded into the. court by consent of both passing parties. The :..legality:,-..:..: (?f the court inLthe -resolution stem:s, from the fair agreement by consent of both ·parties . ' ':-'; who were· represented by advocates to call UMPT IV:beya · Zone as 'the reconciliator of the parties. Both parties are bound to follow their own stances to have their dispute reconciled ·by UMPT Mbeya Zone. This is not dependen.tun the legality of the UMPT constitution over the }V;beya Per:itecostal . Church or member.ship of r--:beya . . Pentecostal . .Church into the UlV:PT etc.This is binding resolution on judicial both ·parties as a result of ·theirLconsent agreement to have UMPT llfueya Zone recortcil~·-,them which job was commenda:blyv done. Therefore,this appeal is dismissed with costs. The status quo returns to the one ordered by the trial court that is the Chairman of Pentecostal Church of Mbeya who is the appellant ?n this case who is namely one Rev. Nelson ,3hango and his secretary Rev. Jackson l½walyego are to be evicted from.the ,church premises of the Pentecostoal Church of l'-'.beya and to which church the rest of the congregation of 40 members or so shall return and continue with their religious activities under the supervision of UMPT J\T.beya Zone until new church leaders are found. It should be made clear that the same Rev. Nelson Shango and Rev. Jackson Mwalyego sh~uld be free to contest for .. leadership into the church at IV:beya when that stage has . . ·-·: been reached. • •• /13 l • 0 1~ chance So as to give another:lf?r reo.:mciliation to be attempted while the status quo 'directed above subsists I allow the following steps to be taken: ·1. Since the respondents ~ere willing to implement the reconciliatory· resoluti._~_r_i of · the UMPT Mbey~ Zone as explained.above they are found .by their agreet1ent to implement that..( resolution.; Since the \ if~' appellant and his secre-eary 'Rev •. Jackson Kwalyego were the ones not ready to implement the reso1ut;i.on of U:MPT I1~beya they are now free and allowed to agree with it and implement it. If so, they shall indicate so to the trial court and the trial court shall order the resolution to be implemented the effects of which I have shakes~ears explained in detail above and I am sure l - God's will stand•:up·r'. to see it and be pleased with:·its· bravity and soundness in solving this problem. 2. To give a second chance of reconcil~at:bon~nt a higher level than the UMPT 1-fueya Zone the if they want, appellant and Rev. Jackson Mwalyego are, L hereby allowed to go back to the District C0urt and ask for :another attempt at reconciliations to he made at a higher level tha~_ before. If they·do so the District Court shall convena all the two parties as well as the UMPT !Vibeya Zone and direct th.at UMPT at Nation·a1 level and the '• •• /14 i;. 14 - Headquarters shall-deal with the reconciliation in the following mannert.-, - 3 of its office bearers as assigned by UMPT National level shall deal with . . the reconciliation together,with 3 members appointed by the appe~lant and Rev. Jackson Mwalyego and another 3 members appointed by the respondent. The Nine members of the Reconciliation chaired · Team shall be ~ L. .: . by the Chairman from the WlPT a:r:9T1g the three menbers of shall again come the team aJ:?-d a secretaryLfrom tb,e__1 1. .! same three members of UMPT National level in the team~ ·rhe ·tbeya Zone mr~T will not to. be allowed /_-pa;nticipate in the UMPT National Team. Both parties the appellant,Rev. l'-'.b.'lalyego and the · , respondents in this appeal court shall _be· allow.ed to be heard • . ShDll 'rhe decisiori of the 9 mens: Team. - be L---~ · or: decided on simplemajori ty vote 8ncythe same decision shall be filed by tp.e rc~conci- liation team in the trial court £or execution. Pro,bably, these steps explained ·above will solve the - by .·crisis of this problem reconciliation outside the court 1 but as executed by the court due to the binding ,. · •••• /15 ... t - 15 - agreement at the trial stage that there shouid be a reconc;Lliation between them • ... E. L. K. MVHPOPO JUDGE 29/11/1999 29/11/99 Coram: Hon. E. L.·K. Kwipopo, J. For Appellant: Mr. ¥iwakolo, Adv. - Absent Rev. Nelson Shango - Present in person For Respondents: Mr. Naali, Advocate - Absent 1st Resp. Gabriel Bisngwa - present in person 2nd Resp. Aibros John - Abpent 3rd Resp. Mic~ael Jackson - present in person 4th Resp. lfirs. Yusufu Nyamkuswa ~ Absent 5th Resp. Isakwisa Mwa~ile - present in person Rev. Jackson V.walyego - present in person Both Advocates are absent~ COURT: Judgement delivered in the presence of both sides and in the absence of both advocates. ¥-'Walyego. E. L. K. MWIPO.PO JUDGE 29TH NOVEl1iBER, 1999 ELKM/JJM