Paschal John Dismas

«■ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CIVIL APPEAL NO. 23883 OF 2024 {Arising from Civii Case No. 9 of223 before The District Court of Kiiombero at Ifakara) PASCHAL JOHN DISMAS APPELLANT VERSUS ISRAEL ERICK MWAKA3ISI RESPONDENT Date of Last Order: 11.12.2024 Date of Judgement: 28.02.2025 JUDGEMENT MAGOIGA.J. The appellant, PASCAL JOHN DISMAS being aggrieved by the decision of the District Court of Kiiombero (the trial court) at Ifakara in Civil Case No. 09 of 2024 in which it was among others declared that the appellant operating religious activities in the name of Overcomers Gospel Mission (O.G.M.) was not legally operating his religious services at Ifakara for want of registration. Aggrieved with the decision, the appellant now appeals to this honourable court on the following grounds: - 1. That, the learned trial Magistrate erred In law and fact by failure to properly analyze and evaluate the evidence adduced by the cannot- operate legally while navigating registration process. 2. That, the learned trial magistrate erred In law and fact by entertaining a suit by a member of the unincorporated association suing the appellant for damages for Injuries purportedly sustained by the respondent as a consequence ofa wrongful act committed by an office bearer of fellow member acting on behalf of the association. 3. That, the learned trial magistrate erred In law and fact by failure to properly analyze evidence adduced by the appellant, hence, ruling against the appellant to the effect that failure by the appellant to ate laws allowing afflTiations Is synonymous to lack thereof. The brief facts pertaining to this appeai are not compiicated to grasp. The pieadings are ioud and at no issue between that, parties herein met in 2001 and agreed to jointiy preach and spread the Christian gospel at Mchombe ward within Kilombero district. The respondent was ordained to be the pastor to oversee and supervise of ail religious activities at Mchombe ward in the name of Overcomers Gospel Mission (O.G.M). The business went on well between parties until on 23''^ day of December, 2018 when the appellant announced and excommunicated the respondent from the service. — The respondent not amused with the decision of being excommunicated, ended up In court asking the trial court, among others, to nullify the decision of the appellant because It abrogates his constitutional right and freedom to worship and associate with members, an order to maintain status quo the position of the respondent, declare the appellant not archbishop of Overcome Gospel Mlsslon(O.G.M), declare O.G.M. not registered and with no constitution, declare that the appellant had no powers to excommunicate the respondent, payment of Tshs.15,000,000/= as general damages and cost of the suit. In his written statement of defence, the appellant alleged to have full powers of Archbishop and overseer of the O.G.M church In the country through the affiliation under' the Deliverance Assemblies of God International (DAGI). In essence the appellant denied to have abrogated any right of the respondent constitutional right at all and asserts that as Bishop had all powers of what he did to the respondent and prayed that the suit be dismissed with an order for the respondent to pay him Tshs.15,000,000/-as costs of the case. At the trial court, before hearing started, the trial court framed the following issues, namely: - 1. Whether the O.G.M was legally operating and registered? 2. Whether the defendant had any power to controi the church, revoke and punish the plaintiff as the Archbishop of O.G.M church? 3. Whether the plaintiff deserve any reiief caused by the defendant's ■action?- . -vr;; ■ ■ 4. And what reliefs parties are entitled to? After hearing both parties on merits^ theitrial court determined the first and second issues in the negative that; 0:G.Mv was not operating legally for want of registration and that both parties were serving an unregistered church, so both had no power to serve and control under that unregistered church respectively. And as to the third issue, was equally denied as both parties were at fault for operating an unregistered organization and consequently denied to grant costs to both parties. In essence, the present appear intends-to fault the trial court findings and request this court to finds that the appellant is the lawful office bearer and trustee of O.G.M, restrained the respondent and his agents from interference with ongoing registration process and condemn the respondent to pay costs of this appeal and the suit before trial court. When this appeal was called on for hearing parties appeared in persons. They prayed that an appeal be grgued by way of written submissions. I granted the prayer. As it turns out Mr. Bahati Hacks, learned advocate drew and filed submission in support of this appeal for the appellant. In the first ground of appeal, which was couched that the trial court failed to properly analyse and-evaluate evidence adduced by the appellant consequently ruled that unregistered associations carinot operate legally while navigating registration. Relying heavily on the decision of the Court of Appeal decision in The Registered Trustees of Islamic Propagation Centre(IRC)y. The Registered Trustees of Thaaqib Islamic Centre Civil Appeal No.2 of 2020 at Tanzlii, particularly at pages 22 to 23 the learned advocate for the appel|ant concluded that office bearers for unregistered institution can enter into verbal or written contractual agreement or affiliations for purposes of furthering their objectives, pursuing and nayjgating process for complying with the laws of the land including pursuit for registradon. Guided by the above case law, the learned advocate for the appellant pointed out that it was further held in the above cited case that while an unregistered association, was a non-entity in the eyes of the law, it nonetheless operated through its officials who entered into verbal agreements for the purposes of furthering the association's objectives^ even before final registration. According to Mr. Hacks, the above decision was directly relevant to the matter at hand, where the OGM Church, though unregistered, similarly entered into agreements through its officials while in the process of registration. On that note, therefore, urged this court to find merits in this ground. On the second ground of appeal, it was Mr. Hacks'argument that the trial court erred in law and fact to entertain a suit by a member of an unincorporated association against another' member for damages for injuries purportedly sustained by the respondent as consequences of the member acting on behalf of the association. According to Mh Hacks;±he holding of the Court of Appeal of Tanzania in the case of IPC Vs. TIC (supra) at page 23 was loud member cannot sue for damages for injuries sustained as consequence of wrongful act committed by any office-bearer or fellow rnember while acting on behalf of the association..." In essence, Mr. Hacks is challenging'the allegations in the plainVon breach of constitutional rights of the respondent in two fronts: one, for suing a fellow member of unregistered association, and two, for allegations that his constitutional rights have been abrogated. As such he concluded that such reliefs cannot be entertained by the trial court, and- according to him, such suit was to be dismissed for want of cause of action. On that note, therefore, prayed that this ground be allowed as well. On the third ground of appeal the main complaint was that the trial Magistrate failed to analyse evidence as adduced by the appellant, hence, ruling against the Appellant to the effect that failure to'dte laws allowing affiliations Is synonymous to lack of proof thereofi'In this. It was the argument of Mr. Hacks that much as the trial Magistrate found that the respondent (plaintiff by then) gave no evidence on what he claimed by failure to testify on all his allegations, the respondent' suit was to be dismissed but to his surprise the appellant was, adjudged that association O.G.M was not registered and denied the appellant costs. On the above grounds as expounded by the appellant's learned advocate, prayed that this appeal be allowed and the decision of the trial court be set aside, the appellant be declared a lawful office-bearer arid trustee of O.G.M., restrained order to the respondent arid It agents from interfering ongoing registration process of O.G.M, cost of the appeal and at the trial and any other relief. In response, the respondent was brief and jointly argued the three grounds of appeal and told this court that all grounds of appeal and authorities cited are devoid of any useful merits and distinguishable in the circumstance of this appeal. According to the respondent, it was the duty of the appeliant to prove registration of O.G.M, his archbishop, lawful affiliation between DAGI and O.G.M but all of which he failed. The respondent pointed out that, he was able to prove that O.G.M was not registered as such no way could operate an association which is not registered. On that note, the respondent prayed that this court uphold the decision of the trial court and consequently dismiss this appeal with costs. No rejoinder submissions were filed. The paramount duty of this cou|t now in this appeal, is to determine the merits or otherwise of this appeal. However, before going into the merits or demerits of the rivaling submissions, I wish to make few remarks. In my examination of the plaint and prayers before the trial court, the respondent's cause of action against the appellant before trial court was founded on the excommunication of the respondent from the clergy services. This means, the determination of the suit was upon him proving that his constitutional rights of worship and - association has-been breached. In essence reading from the pleadings, the respondent was alleging the breach of his constitutional right to worship and association, which have their own way of being dealt with under the Basic Rights and Duties Enforcement Act,[Cap 3 R.E 2019]. In the circumstances, the trial magistrate, therefore, once an issue relating to one's constitutional rights has arisen in the plaint or in the proceedings ought to apply and comply with the provisions of section 9 of the Basic Rights and Duties Enforcement Act,[Cap 3 R.E. 2019]. Unfortunately, this was not done in this this appeal. For easy of reference the said provision provides as follows: ''Section 9(1) Where in anyproceedingsin a subordinate court anyissue arises as to the contravention ofany ofthe provision of articles 12 to 29 of the Constitution, the presiding Magistrate shaii, unless the parties to the proceedings agrees to the contrary or the magistrate is ofthe opinion thatthatthe raising ofthe question is merely frivolous and vexatious, refer the matter to the High court for decision; save question arises before a primary magistrate, the magistrate shall refer the question to the court of Resident Magistrate which shalldetermine whether or notthere exists a matterfor reference to the High Court, (2)Where any matterisreferred to the High Courtin pursuance ofsubsection (1)^ the High Courtshallgive the its decision upon the question, and the subordinate court in which the question arose shaiidispose ofthe case in accordance with that decision,^' Literal reading from the above provision of the lavy, which pose no ambiguity, and guide how to handle issues relating to the constitutionai rights as enumerated under articles 12 to 29 pf the Constitution, two things are clear and the parliament intended that upon corning into force of the provision of Basic Rights and Duties Enforcement Act,[Cap 3 R.E. 2019] where in the proceedings before subordinate court or primary court any issue arises relating to constitutionality of articles 12 to 29,then, one; the subordinate court 'unless parties agree to the contrary' or 'the magistrate is of the opinion that the issue is frivolous and vexatiouS/ must mandatorily refer the matter to the High Court for decision of the issue because under section 8 of[Cap 3 R.E 2019] it Is only the High Court with exclusive jurisdiction to try issue pertaining to the constitutionality of any rights. Two,that the trial court can only stop from referring the issue to the High Court on two scenarios: one, if parties agree to the contrary. which means they agree to drop the issue of constitutionality before the subordinate court and an order to that effect be recorded in the proceedings, and two, if the court find-and determine the issue-to-be frivolous and vexatious and that order has to be reflected in the proceedings. Having scanned through the trial court proceedings, none of the two steps were done on the issue of the constitutionality of the rights to worship and association of the respondent as claimed in the proceedings. Before going into another remarks, I wish to point out that the expression ^'unless parties to the proceedings agree to the contrary" as used in the section 9(1) of the [Cap 3 R.E.2019], in my own view, it means, if the issue is raised in the course of the proceedings parties may agree to drop it or if it is pleaded, same must be dropped by way of amendment of the pleadings. This was no done in these proceedings. Another remark I noted is that, the court framed issues but in my respective view, the third issue which was the sources of ail controversy, did no strictly reflect the gist of the dispute giving rise to this suit before the subordinate court. The way the third issue was framed was too general while the respondent in this appeal was very specific that for being excommunicated by the appellant, his constitutional right to worship and association has been abrogated, so it was not any relief but specific relief 11 . as provided for under article 19 of the Constitution. Had the thai Magistrate framed properly the said issue as pleaded I guess it could have assisted her in taking a pose and seek the intervention of the High-Court. Guided by the above remarks and in my research guided by the Court of Appeal firm holding in the case of Director of Public Prosecutions Vs. Anjelina Ojare, Criminal Appeal No.21 of 1997 TZCA in July 1999 at tanziii and equally reported at[1999]TLR 163. In this criminal case, an issue of constitutionality of section 148 of the CPA on bail arose before subordinate court. The thai subordinate court determined the matter without complying with the provision of section 9(1) of the BRADEA^^^ appeal was preferred to the High Court, which affirmed the decision of the trial subordinate court. Further appeal by Director of Public Prosecutions to the Court of Appeal was allowed and the Court of sppssl was loud and clear by holding that: - . , "... we take the view that when the issue of constitutionality of the provisions of articles 12 to 29 arises in the subordinate court, the trial magistrate shoulcl proceed under the procedure laid down under the provision of section 9(1)of[Cap 3 R.E.2019]and not to consider that matter and decide because he has no jurisdiction to deal 12 with constitutionality of any matter arising from constitutionality of any provision on human rights". Gonsequently, the Court of Appeal declared the whole proceedings null and void for want of jurisdiction as the triai Magistrate acted without jurisdiction. It was against the above background and guidance, on 11-02-2025 invited parties to address me on whether the triai District court had jurisdiction to deai with constitutionaiity of the rights of the respondent without referring the matter to the High Court. Mr. Bahati Hacks when invited to address the court, readiiy conceded that guided by the provision of section 9(1) of Basic Rights and Duties Enforcement Act, the triai court had no jurisdiction to try the matter and invited this court to pse its revision powers to deciare the whoie triai, judgement and decree a nuiiity and consequentiy nuiiify the proceedings and judgement resuited from a nuiiity. . . The respondent being a iayman had nothing to submit and ieft everything to the court to give proper directions. Much as this is a point of iaw, and it suffices to dispose of this appeai, this cqurt wouidn't induige itseif to the merits of the grounds of appeai. It is trite and indeed the position of the iaw that where an issue rpiating to the constitutionaiity of any rights of any iitigant arose in subordinate courts same has to be referred to the High Court for its determination unless such a point is decided otherwise by the court or agreed by parties to drop it. The decision in the case of DPP Vs. Anjelina Ojare (supra)- is very loud on this point and I can do no better than reproducing the relevant part of that decision at page 11 had this conclusion: - "'it follows, therefore, that the trial magistrate had no competence or jurisdiction to hear and decide on the constitutionality of section 148(5) of the Criminal Procedure Act, which was raised before him. That was a matter to be referred to the High Court for decision, which was not doi|ie. To the extent of such omission pr error, the proceedings in the district court were nuH and void." On the same parity, in this appeal, the trial, magistrate did not comply with the mandatory procure as provided for under section 9(1) of the BRADEA and consequently she acted without competence or jurisdiction on this matter. Without, much ado, I,find the whole trial and resultant judgement and decree in this appeal are wanting of jurisdiction. That said and done I hereby exercise this court's power under the provisions of section 44(1)(b) of the Magistrates'Courts Act,[Cap 11 R.E 2022] doth hereby declare the whole trial and judgement of the 14 trial court null and void. Consequently, the trial proceedings, judgement and decree are hereby quashed and set aside. Further, I hereby order that this case file be remitted back to the trial court to be determined by another magistrate who shall comply with the provisions of section 9(1)of BRADEA with no order as to costs because the legal issue was raised by the court suo motto. It is so ordered. , ; .. , ^ Dated at Morogoro this day of February, 2025 u S. AGCHGA JUDGE 28/02/2025 COURT: Judgement delivered this 28^^ day of February, 2025 before Mr. Bahati Hael«fTiithed\advocate for the appellant and Mr. Israel Erick Mwal^iS^lj^fspr^^^ ' \ "N. Ci( oifc r" /S.Ml vH GA JUDGE 28/02/2025 COURT: Right of appeal fully ex 3la ^ed. 1 VrM sM m GA JUDGE 28/02/2025 v; 15 n-r:.