reg trustees of the kanisa la wabaptist tanzania vs nicholas luselele nzela 7 others 2023 tzhc 18108 12 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO 13 OF 2020 REG. TRUSTEES OF THE KANISA LA WABAPTIST TANZANIA...................................................................... PLAINTIFF VERSUS NICHOLAS LUSELELE NZELLA...................................................................... 1STDEFENDANT ELIAS KASHAMBAGANI............................................................................... 2NDDEFENDANT MICHAEL BARNABA NGUSA........................................................................ 3RDDEFENDANT SYLVANUS PETER CHEYO........................................................................... 4THDEFENDANT SAMWELI MUSA LUSHINGE....................................................................... 5THDEFENDANT NELSON PENFORD MADAMANYA............................................................... 6THDEFENDANT JAMES KASWAHILI.................................................................................... 7THDEFENDANT DIONIS KARWANI....................................................................................... 8THDEFENDANT JUDGMENT 31/3/2023 & 12/5/2023 ROBERT, J:- This matter pertains to a dispute between the Registered Trustees of the KANISA LA WABAPTIST TANZANIA (THE BAPTIST CHURCH OF TANZANIA) formerly known as JUMUIYA KUU YA WABAPTIST TANZANIA (THE BAPTIST CONVENTION OF TANZANIA) and the eight Defendants sued jointly and severally. The Plaintiff alleges that the Defendants, along with individuals acting under their instructions have engaged in unlawful and fraudulent i activities by utilizing the Plaintiff's former name, which allegedly caused disharmony within the church and interfered with the Plaintiff's affairs. The Plaintiff seeks various reliefs including; a declaration that the Defendants acted fraudulently and have no authority to use the Plaintiff's former name, an injunction restraining the defendants from exercising any rights vested to the plaintiff's name(s), an order compelling the Defendants to publish retraction and a public apology for wrongful use of the Plaintiff's former name, special damages to the tune of TZS 375,000,000/=, general damages and punitive damages. The following issues were framed for the determination of this matter:- 1) Whether the Plaintiff was formerly registered as Baptist Convention of Tanzania (BCT) or in Kiswahili language "Jumuiya Kuu ya Wabaptist - Tanzania; 2) Whether the Defendants used the Plaintiffs formerly registered name fraudulently 3) If the second issue is not answered in affirmative, whether the defendants' use of the plaintiffs' former name is prohibited 2 4) Whether the Plaintiff suffered damages as a result of the Defendants actions 5) To what reliefs are the parties entitled to. During the hearing, Mr. Boniface A.K. Mwabukusi, learned counsel represented the Plaintiff whereas Mr. Magezi Justus represented the Defendants. The Plaintiff presented four witnesses, while each Defendant testified individually. Starting with the first issue, whether the Plaintiff was previously registered as the Baptist Convention of Tanzania (BCT) or "Jumuiya Kuu ya Wabaptist - Tanzania" in Kiswahili language. The Plaintiffs General Secretary, Michael Peter Mhonya (PW1), testified that the Plaintiff, as a religious institution, was initially known as "Jumuiya Kuu ya Wabaptist Mbeya" since June, 1971. In 2009, it changed its name to "Jumuiya Kuu ya Wabaptist Tanzania" (the Baptist Convention of Tanzania). In 2020, it changed its name once again to "Kanisa la Wabaptist Tanzania" (the Baptist Church of Tanzania). He recounted further that, in 2015, the Plaintiff held a General Meeting where a decision to change the Constitution and name of the church was 3 made. The minutes of this meeting were admitted in Court as exhibit P2. The church then applied for the change of constitution and name through the Registrar of Societies, who approved the changes and notified the church through a letter dated 24/4/2020 (exhibit P3). PW1 further stated that after receiving the approval letter, the church began operating under the new Constitution and name. The new Constitution of the Baptist Church of Tanzania was admitted in Court as exhibit P4, and the new name was reflected on page 1 of the constitution. The original Constitution of the Baptist Convention of Tanzania and the registration certificate were surrendered to the Registrar of Societies after the approval of the new constitution. Additionally, PW1 mentioned that the church relocated its headquarters to Dodoma, changed the address, and informed all members and stakeholders, including the Tanzania Revenue Authority (TRA), about the changes. As a result, the TRA updated the church's name in the Taxpayer Identification Number (TIN) certificate, which was submitted as exhibit P5. The testimony of PW1 was corroborated by Thomas John Sanira (PW4), a Legal officer from the Registrar of Societies' office, who confirmed that the 4 records at the Registrar's office indicated the end of the name "Jumuiya Kuu ya Wabaptist Tanzania" after the change to "Kanisa la Wabaptist Tanzania." On the defense side, Sylivanus Peter Cheyo (DW1) claimed that Kanisa la Wabaptist Tanzania was a group that separated from Jumuiya Kuu ya Wabaptist Tanzania and attempted to change the name of the latter through the Registrar of Societies. However, the attempt was objected to, and an appeal was filed with the Minister of Home Affairs. The Plaintiff filed this lawsuit while the Defendants were awaiting the Minister's response to the appeal. DW2, Mr. Elias Kashambagani, argued that Jumuiya Kuu ya Wabaptist Tanzania is a union of approximately 1,200 Baptist churches in Tanzania, and any changes within the union begins with a proposal to the central committee, followed by consideration at the national convention. The proposal requires three-quarters affirmative votes from the total number of members present to be passed. DW2 further claimed that the Plaintiff's alleged change of name was objected to by 800 out of 1,200 churches because it contradicted their faith as Wabaptists, and the procedure was not followed. He mentioned that after 5 the changes were approved by the Registrar of Societies, they objected and later appealed to the Minister through the Permanent Secretary of the Ministry of Home Affairs on 3/9/2020. He maintained that, a national convention was convened in Mwanza in 2020, where they agreed to continue using the name of Jumuiya Kuu ya Wabaptist Tanzania. His testimony was supported by that of Nicholaus Luselele Nzela (DW3). DW4, Dionis Luteiwa Karwani, admitted during cross-examination that he was unaware of the change from Jumuiya Kuu ya Wabaptist Tanzania to Kanisa Kuu la Wabaptist Tanzania, as he was not shown the letter from the Registrar of Societies (exhibit P3) at the church. DW5, Samwel Musa Lushinge, confirmed that he joined Jumuiya Kuu ya Wabaptist Tanzania in 1979, but the Plaintiff later decided to split and call themselves Kanisa la Wabaptist Tanzania. DW6, James Kaswahili, testified that Jumuiya Kuu ya Wabaptist Tanzania is a union of churches in Tanzania, and the name does not belong to the plaintiff. The plaintiff was previously part of Jumuiya Kuu ya Wabaptist Tanzania before the split. 6 DW7, Barnaba Michael Ngusa, stated that the name "Jumuiya Kuu ya Wabaptist Tanzania" had been in use since 1971. The change of name to Kanisa la Wabaptist Tanzania caused conflict within the church as it was made by a few individuals. DW8, Nelson Penford Madamanya, testified during cross-examination that he learned about the alleged name change of Jumuiya Kuu ya Wabaptist Tanzania to Kanisa Kuu la Wabaptist Tanzania through social networks, but he had no official information about the change. Considering the evidence presented, this Court finds that, the Plaintiff's evidence, including the testimony of Michael Peter Mhonya (PW1), the General Secretary of the Baptist Church Tanzania, establishes that the plaintiff was formerly registered as Jumuiya Kuu ya Wabaptist Tanzania (The Baptist Convention of Tanzania). The change of name and constitution was approved by the Registrar of Societies, and the plaintiff began operating under the new name, Kanisa la Wabaptist Tanzania (The Baptist Church of Tanzania). This evidence is supported by minutes of the general meeting, the new constitution, and a certificate of registration for a taxpayer identification number. The defendants' arguments that the change of name did not follow the required procedure or that they were not aware of the 7 alleged changes and their alleged appeal against the decision of the Registrar of Societies have not provided any evidence to contradict the fact that the plaintiff was formerly registered as "Jumuiya Kuu ya Wabaptist Tanzania." Thus, this issue is decided in the affirmative. In relation to the second issue, which pertains to the alleged fraudulent use of the Plaintiff's formerly registered name by the Defendants, the following facts were presented: The Plaintiff asserts that the Defendants utilized its former name without authorization for various purposes. These include organizing a general meeting of the Plaintiff, self-proclaiming themselves as transitional leaders of the Plaintiff, inciting disharmony, impeding the Plaintiffs activities by obstructing constitution sensitization and awareness programs in churches, collecting funds from the Plaintiffs members with the intent to sabotage lawful activities conducted by the Plaintiff in its churches, and engaging legal representation to prepare legal documents. The first witness (PW1) informed the Court that the Defendants used the Plaintiffs former name when introducing themselves at various government offices, causing confusion in society. He also stated that a 8 segment of individuals within the church received instructions from the Defendants and caused disharmony by opposing the use of the new name, "the Baptist Church of Tanzania." According to PW1, the Plaintiff sent a Demand Notice to the Defendants requesting them to desist from using the Plaintiffs former name and registration number. However, the Defendants replied to the Demand Notice, refusing to comply with the Plaintiffs demands. The Demand Notice, dated October 2, 2020, and the Defendants' reply, dated October 8, 2020, were submitted as evidence (exhibit P6). During cross-examination, PW1 mentioned that a new Certificate of Registration was issued to the Plaintiff on February 4, 2021, following the approval of an application for a change of constitution and change of name. However, the Plaintiff had already filed this case in court on October 29, 2020, before obtaining the Certificate of Registration. The second witness (PW2) stated that a group of individuals within the church, using the Plaintiff's former name, emerged and operated unlawfully. This group elected its leaders using the former name of the Plaintiff, contrary 9 to the law, while the Plaintiff had already elected its leaders. However, he did not provide the names of the individuals constituting the alleged group. PW2 further alleged that the group went to Makwale orphanage in Kyela, Mbeya, and expelled the children from the orphanage. Consequently, the children's sponsor discontinued their support, resulting in the orphanage's dysfunction. The group also disrupted operations at the Makwale Dispensary, leading to its improper functioning. He alleged that, these incidents were reported to the police, and a pending case exists. However, no evidence was provided regarding the alleged police case or the names of individuals charged in that case. Additionally, PW2 claimed that disturbances occurred at Mwanza Baptist Secondary School, where timber was taken during ongoing construction. However, no names of individuals involved in the incident were provided, nor was a connection established between the Defendants and the alleged disturbance. PW2 further testified that the group demolished a building under construction and reported the event to the police. Another disorder allegedly occurred at the children center at Kasamwa, Geita, where the fifth 10 Defendant, Pastor Lushinge, allegedly prohibited the use of the Tax Identification Number of the Baptist Church of Tanzania. However, no report was made to the police, and no evidence was presented in Court to support these allegations. In his testimony, James Kasomi (PW2) stated that the Baptist Convention of Tanzania's change of name, led to the emergence of a group within the church that started operating illegally under the plaintiffs former name. This group elected leaders using the plaintiffs former name, which is contrary to the law. Consequently, there are now two sets of leaders within the church. However, Mr. Kasomi did not provide the names of the individuals constituting this alleged group. Mr. Kasomi also testified about a group allegedly led by Mr. Elias Kashambagani (second defendant) that caused disturbance at the church at Hamugembe in Bukoba, in the year 2021. He claimed that the group was taken to Bukoba Primary Court, and the case is ongoing. However, this Court noted that this incident occurred after the case was already filed in Court in the year 2020. Furthermore, there is no evidence of the existence of a case at Bukoba Primary Court, the names of individuals charged in that case, or their connection to the second defendant. 11 He further testified that another group led by Nicholaus Luselele Nzela went to the Baptist church in Magu District and demanded that the pastor vacate the church, claiming that it belonged to the Baptist Convention. When the pastor refused to leave, they reported the matter to the police, resulting in the pastor's arrest. However, the case was not taken to court. Again, this Court finds that there is no evidence to support this allegation by the Plaintiff, and Mr. Kasomi did not clarify whether he was personally present during these incidents or was informed by others who were present. In his prayer, Mr. Kasomi requested that the defendant be prohibited from using the plaintiff's former name and from announcing themselves as the leaders of the church and its institutions. Another testimony was that of Anthony Athanas Rwineneye (PW3), a pastor at Hamugembe, Bukoba who revealed that in one occasion, Mr. Kashambagani and Peter Nzella went to his church in a car belonging to Mr. Sylvanus Cheyo. He saw them but he refused to engage in a conversation with them. He wanted to report them to the police but they left before he could report them. He believed that their intent was to cause violence although they didn't cause any violence. 12 He stated further that, in another occasion, a group of approximately 20 individuals, including Clavery Buguzi, Pastor Temistokores Sebastian, Deus Sebastian, and Sunday Mwakaboko, stormed into the church while he was in the course of proceedings. They declared themselves as leaders of the Muleba convention and expressed their desire to address the congregation. However, he instructed them to sit down since the church service was ongoing. Later when the Ward Executive Officer inquired about the leader of the group, they pointed to Clavery Buguzi. This Court has noted that none of the individuals mentioned by the witness as invaders or their alleged leader are defendants in this case. Furthermore, PW3 testified that on May 30th, 2021, another invasion occurred at the church. The invaders, including Jovestus Sebastian, Simon Ngamba, and others unknown to Rwineneye, entered the church armed and demanded the person conducting the service to leave, claiming to be followers of the Baptist Convention of Tanzania. They proceeded to engage in a fight with those attending the service. The individuals in question were subsequently arrested and charged with causing violence at the church. It should be emphasized that this alleged incident took place after the initiation of this case, and none of the individuals involved in the invasion are 13 defendants in this matter. There is insufficient evidence connecting them to the defendants. On the defense's side, Sylivanus Peter Cheyo (DW1) refuted the allegations, claiming they are untrue. He denied using the name "Kanisa la Wabaptist Tanzania" to solicit funds but admitted to using the name Jumuiya Kuu ya Wabaptist Tanzania for fundraising purposes, including financing ongoing legal cases, initiating new activities, and providing aid to surrounding communities. Furthermore, DW1 denied allegations of visiting Makwale orphanage center and evicting children from the premises. He stated that he had never been to Makwale and, therefore, could not have evicted the orphanage's staff. DW1 also denied accusations of taking timber from Mwanza Baptist Secondary School and demolishing a building. He requested the court to dismiss the lawsuit and award costs in their favor. DW2 Elias Kashambagani denied engaging in any violence related to the change of name. He claimed to be unaware of the dispensary alleged to have been invaded and confirmed that he had never been there. He refuted 14 claims of visiting Makwale orphanage or causing disturbances there. Additionally, he denied collecting funds using the plaintiffs name. His testimony was supported by that of DW3 Nicholaus Luselele Nzela who equally denied allegations of collecting funds using the plaintiffs name or causing disruptions at Makwale orphanage by chasing children and workers. DW4 Dionis Luteiwa Karwani testified that he uses the name Jumuiya Kuu ya Wabaptist Tanzania when preaching as it reflects his faith since childhood. He denied collecting donations in the plaintiffs name and denied being present at Makwale. Thus, the allegations concerning his actions at Makwale are baseless. He prayed for the dismissal of the suit with costs. DW5 Samwel Musa Lushinge refuted the allegations, asserting that he never composed a letter using the former name of the plaintiff as he is not a leader. He denied collecting donations using the name of Jumuiya Kuu ya Wabaptist Tanzania. He maintained that, accusations of visiting Makwale orphanage and evicting children and workers are false, as he had never been to Makwale. Additionally, he denied disrupting services at Kasamwa orphanage and chasing the director, emphasizing that he has never resided in Kasamwa. 15 DW6 James Kaswahili attested that the allegations of chasing children and taking control of buildings at Makware orphanage center are untrue, as he had never been to Makwale. The claims of chasing workers at Makwale dispensary are also false because he has never been there. DW7 Barnaba Michael Ngusa denied collecting donations in the plaintiff's name. All donations were given willingly to Jumuiya Kuu ya Wabaptist Tanzania. He denied ever visiting Makware orphanage center. Thus, the allegations concerning his actions at Makware are unfounded. This was also supported by DW8 Nelson Penford Madamanya who affirmed that he never collected donations using the plaintiffs name. He denied other allegations made against him. Having examined evidence adduced, this Court finds that, the evidence presented by the Plaintiff, including the testimony of the witnesses, primarily relies on allegations and unsupported claims. While the Plaintiff alleges that the Defendants used its former name without authorization, there is a lack of concrete evidence linking the Defendants to the specific acts alleged. The testimony of the witnesses, such as PW2 and PW3, does not provide sufficient evidence to establish that the Defendants fraudulently used the Plaintiffs formerly registered name. 16 Additionally, the Plaintiff's own witness, PW1, admitted during cross- examination that a new Certificate of Registration was issued to the Plaintiff after the filing of this case. This raises questions about the relevance and timing of the allegations, as the Defendants' use of the Plaintiffs former name may have occurred before the issuance of the new certificate. Furthermore, the Plaintiff failed to provide substantial evidence connecting the Defendants to the alleged disturbances at various locations, including the Makwale orphanage, Makwale Dispensary, Mwanza Baptist Secondary School, and the children's center at Kasamwa, Geita. The lack of specific names of individuals involved, absence of police reports or evidence of pending cases and lack specific details establishing a direct connection between the defendants and the alleged fraudulent activities means the court cannot affirm the fraudulent use of the plaintiffs former name by the defendants. Further to that, the incidents described by the witnesses occurred after the filing of this case, making them unrelated to the dispute at hand. Therefore, based on the evidence presented, it cannot be sufficiently established that the defendants fraudulently used the plaintiffs former name. 17 In light of the insufficient evidence presented by the plaintiff, it cannot be concluded that the defendants fraudulently used the plaintiffs former name. Coming to the third issue on prohibition on the Defendants' use of the Plaintiffs former name, in the absence of sufficient evidence to establish fraudulent use, it is necessary to consider whether the defendants' use of the plaintiffs former name is prohibited. The plaintiff argues that the defendants' use of the former name is unauthorized and should be restrained. However, the evidence presented does not support the contention that the defendants are prohibited from using the plaintiffs former name. PW4 testified that, after changing its name the Plaintiff surrendered its original certificate of registration and was issued with a new certificate under its changed name. He stated that, any society which seeks to utilize the Plaintiff's former name must apply to the Registrar of Societies for Registration in that name. The registrar will assess the potential impact and effects of granting permission to use the said name before granting authorization. 18 This means the Plaintiff may not have enforceable rights to prevent others from using its previous name without its authorization unless it has certain rights to the previous name which would prevent others from using that name. Nevertheless, it is worth noting that under section 3 of the Societies Act, Cap. 337, as amended by section 40 of the Written Laws (Miscellaneous Amendment) Act, No. 3 of 2019, it is unlawful for an association to operate as a society within the meaning of the Societies Act unless it is registered with the Registrar of societies in accordance with the requirement of the law. Section 7(2) of the Act makes it an offence for a society which is not registered to conduct its operations as a society which means, an association may only function under the Plaintiff's former name if it registered by the Registrar of societies under that name. Therefore, it cannot be concluded that the defendants' use of the plaintiffs former name is prohibited. Coming to the fourth issue, whether the Plaintiff suffered damages due to the Defendants' actions. The Plaintiffs witnesses testified about various disturbances and disruptions allegedly caused by certain individuals within the church who used the Plaintiffs former name. However, the Plaintiff failed to provide concrete evidence to substantiate these allegations or establish a 19 direct connection between the Defendants and the damages suffered. The Court finds that the Plaintiff has not sufficiently proven that it suffered damages as a result of the Defendants' actions. Having determined that there is no sufficient evidence of fraudulent use of the plaintiffs former name and no damages suffered by the plaintiff, the plaintiff's claims for remedies, including a declaration, an injunction, and damages, are not warranted and are hereby dismissed accordingly. Each party to bear its own costs. It is so ordered. 20