diocese of ruvuma anglican church vs adelhlm titus gama 2008 tzhc 303 24 july 2008

IN THE HIGH COURT OF TANZANIA AT SONGEA (DC) CIVIL APPEAL NO. 14 OF 2007 SONGEA D/C CIVIL CASE N0.16/2005 DIOCESE OF RUVUMA ANGLICAN CHURCH...................... APPELLANT VERSUS: REV. FR. ADELHLM TITUS GAMA.................................. RESPONDENT DATE OF LAST ORDER 22.4.2008 DATE OF JUDGMENT 24.7.2008 JUDGMENT L.K.M. UZIA, J. In this appeal the appellant Diocese of Ruvuma Anglican Church is appealing against the decision of the District Court (Lemboko RM), who ordered the appellant to pay the respondent Rev.Fr. Adelhm Titus Gama shs. 10,800,000/= being terminal benefits. In short, the facts were that the respondent, Rev. Fr. Adelhm Titus Gama, employed as a priest was therefore entitled to such amount of money because there was-a_contract- of service between him and-,the appellant. Dissatisfied with the decision of the District Court, the appellant had preferred an appeal to this Court. The memorandum of appeal contained a total of four grounds, namely; 1) That the learned magistrate erred in law and ~ fact to he sliit: because ^ internal dispute between the appellant and the respondent whereas it had no jurisdiction as per Chief Justice Circular dated 9th/6/1999 and Article 19 (2) of the United Republic of Tanzania Constitution. 2) That the learned Resident Magistrate erred in law and fact to hold that the Respondent was employed by the appellant under the Law of employment Act. 3) That the learned Resident Magistrate erred in law and fact to hold that the appellant was entitled to shs. 10,800,000/= with — interests without evidence to-support— the quantum. 4) That the learned Resident Magistrate erred in law and fact when he failed to consider that the Respondent was a priest who willingly agreed to serve the Appellant on freely waiver of some rights or what would be expected to an ordinary employee. During the hearing of the appeal, this Court granted leave to both counsels, Mr. Mbogoro, for the respondent and Mr. Waryuba, for the appellant to argue by way of written submissions. Mr Waryuba, learned Counsel, submitted on behalf of the appellant that, ordinary courts lack jurisdiction to entertain and determine such category of cases because there are treated as internal matters of the church. The trial court erred in law to overrule the preliminary objection raised by the appellant. Citing Article 19 (2) (3) of the Constitution of the United Republic of Tanzania and the case of Rev. Canon Onesmo Kashishi vrs: the Ardibishop church of the Province of (T) in the Anglican Community and Rev. John Chang^=CiVll Cdse Nor~34/1994 in the High. : Court of Tanzania, Mwanza Registry (unreported), the learned Counsel was of the view that, the case would not be adjudicated in the ordinary Courts because it is a private affair which would be resolved internally by church itself. Furthermore, the respondent, being a pastor, entered into an ; **" --is.— — '--- ......... agreement freely while knowing that was serving God, he would not be heard complaining over the low pay and meager terminal benefits. The church being a private matter, its conduct and management is also private, and solutions to problems are found internally. Mr. Mbogoro, learned Counsel, submitted on behalf of the respondent, he argued from a different angle with regard to Article 19 (2) of the Constitution of the United Republic, that despite the fact that freedom is granted by the Constitution to religious institutions to conduct their religious activities freely, they are not allowed to contravene any existing law for instance the Employment Act. In this appeal the Anglican Church encroached the rights of the respondent by denying him a just return for the work he did as a priest. To support his argument he also cited Article 23 (2) of the same constitution which puts clearly that, the -respondents right to vm£k_^aM= ^eceive.4ust return of ones labour i s ,,, fundamental and should not be violated. Having considered the appellant's submissions and that of the respondent, I now face the crucial issue, whether the subordinate court had jurisdiction to entertain the suit filed by the labour officer on behalf of Father Adelhm Titus Gama. ~"I will start with’ Article* 19 (2) of the Constitution which provides as ^ follows; " Kazi ya kutangaza dini, kufanya ibada ya kueneza dini itakuwa ni huru na jambo la hiari ya mtu binafsi, na shughuli na uendeshaji wa jumuiya za dini zitakuwa nje ya shughuli za mamlaka ya Nchi." From the foregoing provision, the respondent clearly knows that religious matters are conducted freely without interference of the state and more so the conduct and management of their business are free without interference from the state. I think, by invoking civil law,the respondent clearly wanted to mix two things at a go, civil law and church regulations which regulate the activities of the church. In the case of Rev. Canon Onesmo Kashishi vs the-Jkrchbishop the Anglican Community to J£\^ John Changae, Civil Case No. 34/1994 in the High Court of Tanzania, Mwanza Registry (unreported) Justice Mrema, said; = "Clearly therefore, the constitution of the United Republic, which is the supreme law of the land categorically makes religion a completely private matter it means every religious denominations is free to conduct and manage its own religions affairs. This includes the making of its own law and regulation to mean control and regulate their own affairs." In the present appeal, I am sure Anglican Church has its own law and regulations concerning engagement of Priests and their allowances. It is wrong to my view, to treat the issue of the respondent as an ordinary civil case because he was a priest subjected to such regulations. To treat him as an ordinary employee would be tantamount to interfering with religious private matters. regacd Jtoi .the....argument-- rajsad==by M l . Mbogoro for _the respondent based on Article 23 (2) of the constitution, that, the respondent had been denied his rights, because was entitled to a just return of his labour, being the fundamental right enshrined in the constitution of the United Republic of Tanzania; I also find the Article not relevant to this case at hand because the respondent was not an ordinarily employee as it is shown in the Employment Act, the truth is that, he was a Priest, his engagement was controlled by Church regulations; if he would have been serving as an Engineer or an Accountant employed by Anglican Church on contractual basis that would have been a different case. On the basis of the foregoing, the appellant has substantiated that the trial court lacked jurisdiction, the case was not fit to be entertained in ordinary court like the District Court; the magistrate was required to sustain the objection raised by the appellant in that court. For the stated reasons, I quash the decision of the District Court and sustain the Preliminary objection raised by the appellant that the court lacked jurisdiction. Having taken into account the preliminary circumstances, I make no order for costs. JUDGE 24/7/2008 Right of Appeal of explained — .....— LlNlTK. u z i a JUDGE 24/7/2008 Judgment delivered in open court in the presence of the parties. UM.K. UZIA JUDGE 24/7/2008.