19900525 TZCA Dar es Salaam

/ •. (COR ,H: .MAK,\t-lE~.;; J./,., KI.Si,NGi,, J./1., And OMt,R, J.i,.) Cl VIL J\PPEi,L NO. 12 . OF 198 9 BE'I'i:JEEN ·' THE hE,GISTERED TRUSTEES OF T,,Nz,·,NIJ1 i1SSEt-.ELIES. OF bOD. .• • • • • • • • • • APPELLANT AND \\lILihM LUSITO • • RESPONDENTS. El'·.l''.}INUED. L,\Z,\R0 (J,ppeal from the Judgment and Decree of the Hi~h Court ~f Tanzania at . TabOra) (o:1ipeta, J.) dated the 10th day Of March, 1989 in I Civil Ca!!,e No. 23 of 1987 ------ JUDGEMENT OF THE COURT rh8 appeal to this court i::i· fro:n the judgement ·of CHIPETI,, J. ir. th~ High Court at Tabora· in a suit inv~lving men of 0Jd belonging to .-t. d3nor.1inaticn ·oJlled the Tanzania i\ssemblie!!, .of ou.d whin:1 , ... r. f•i: f.;1ci.lity_ Of refc:rcno~, we shall oall T.l\.O. As .the learnec,1 triai' ji.1dgc observed this was "an unusual and rare suit. 11 ~vid~ntly th~rc·wa!!, !!,imrnering di!!,content in the Church and this :i;V.:?lOpud into n~matkable acrimony, 'Jiving ri:.8 tn a fractious divisicri, open hat~edy and at times even physical viol3nc2. In at l~ast two instances, at Tabora and at Temeke, _!!,Om':! m,?mbers of the:; ChttI'ff!"l are said to have sought to make and emphasiz•3 • '.:heir view-·points by. manhandling the opposite party . 'fJi~"lin the:? precincts of the house of prayer. ••••o••/2. --· 2.: F::>llowing a_ll thi ~,· . the parbl-es, took each other to •Purt: The pr Jsent appellant~··· sued in the Hi~~- Court and prayed for, / ' :· among other thing5, a Deolaration than T.J\&CI. was incorporated as a trust and thc,i::efcre that it» .. registra~ion as a sOaiety was ~ p 3 r ; and an Injunction perpe~ually to restrain the present ... first r3spondent, \t,lLLIJ\M LUSITO, from aoting as minister· to T.A • •►.. ·lhurch at Kitcte in Tabon· Region. At the end of the day the present appellants faile:d in the suit and were condemned in costs. A count:ir-claim by the present r8spondent·s substantially succeeded. The appellants and all ministers in their group, declared dissident· by th•:! trial court, ,;,ere found to' have been lawfully removP.d from offic3; they and their followers· were restrain£!d ·from conducting prayer ma..:?tings in all T.A.G. Churches without the authority of what Wal!· f•.),md to be the. authentic li:?adership of T.A.G., and they were ordera1 to vacate 1,dth immediate effect all T.J\.G. Churches· and fJ.1ur~h premis~s they were found to ha?e unlawfully seized. A pr-:1y~r for general dama~es. for trespass· in the coun~er-ela.im was how3var not allowed, beeause of the learned trial judge I i. expr:iss3d hope that the dissention -would heal and because of the particular nature of the clai~. ,fa find it necessary to say a few words by way of background.· The .\ss3mblius of Gcd is said to have been first introduced into the c."Junt~y in 1927 0 It was incorporated as a trust in 1963 and had a ~'Jnstitution. This· Constitution wa~ amended in 1966 and under the amc-~ded Ccnstitution a };)ishop. called EMMANUEL LAZAR• c,'?ntinuad .·~:-; to be the head of the Chure'1, the superintendent, which he h-:1d ll:ccn. since 1963. This man Lazaro is now the s~cond •••••• /3. j respOniant • . His a.ssistant wa~ MOSES KULOLA, also. e bishop. Kulola and Laza.eo-.:fal,!_ out 1'1ith• each other in 1982 and there has been a spl1 t ainea- then • .\t. the tri~l cf the suiil in. the •Hi~h Court the present appellants ·were ,liv;>cat".::id fer by Mr. Kwikima, lear~ed counsel, while Mr. __ Muhul!l, ·'1earn~:l advocate,. represented the· present respondents. Before us the appellants• ridvoccte was Mr. BallOnzi while the lawyer for the re:spOniants wc:1s Dr. ~emwai. l'h-a appellants are complaining again~t the trial·' ■ ourt• s. findings that th~ cperative and valid aonsti•ution was the 1978 COftstl tu.ti on, t'1hich replaced the 1966 o'.ne; thait the registration of T• .\. 3. as a Society was lawful and i,nfact oJ-Ugatory; and that the 1-.?,plly registered trustees are those who existed after the 1981 al.?ctions. T!:e learned trial judg,e' s finding that Pan Afriean &vangelism as-an org~nization·did not" exi~t wae alee complained N~ wish to say that we found.this appeal ~o~~ involv?.d and intric:1.·te and thet the various submissi.ons by le~rned counsel deman1.~1 close comprehension and a:tt~ful analysis., We are grateful to i~th learned Counsel for their well organized·efforts to assist us. ,~ wish alsc t~ refrai~ frvm expressing cur own views on the inechou'lics and cynt;.rr,ic~ cf T.A.G. such as seem to us to emerge f~om the r'.!C-:>rd of nppcal. We must limit ourselves ito obserrlng· that the-sorry and u•al development~- in T.A~G. might well •ea . ~ . manifestation of the failufe of the'· expected deep q,1't1tuality of dev:>et men to gain domin~nee over the human ego and vanity. •·• •••• /4. - . 4 ... The structure and history of T.A.G. might have been •ontributive ...,_ to the pr3s3nt situzticn we have to deal with. It occurs to us that ;i1e pr)bl.:im is net quite novel in T.,\.G. Fer •.ixample as early as S3pt3mbGr, 1969. the Mbeya Ccnferene~ of T.,\.G. had o ■ =asion to note, ~lbcit in a slightly different context: .'.1!1s:;.:.r.;::~ry ouarrels-Some-times the missionary group~ senrls a missionary back to the State$. ~ater t~at man returns as an independent rnissi•)nary. Ii:. ~-:o.s agreed by the ~~nference that the missionary shOu11 l').otify the. Exe.cutive ft:mmi ttee and \'le Pr<:?sbyter~ when something like this cccurs •••• ,•• ", and further on~ under "Missionaries -.;_~sit~~9'1.'A~.c.h.9.§.! "- Because of t_he things th;:it happened at the Dodoma Corifar3nce two years ago, the Mbeya Section decided that missionaries f!)Ul~ not visit' Churches. in their Section without special permission from the Pr,c!sbyter ••••••••• If any missionary_ causes trou_ble or creat~s a problem, then he will be disciplined a ■ ~ordin~ to the Constitution." On3 would ha':'e expected that men in reli!Jfous.: c1oak5. would .... · spend th,dr spiritual endowme11,t5, their time, and their energies, on jJy)us self-le.ss service to others.and tha\;_by their devoted disphy .of the m<'.ljcr virtues of hi1h thinking, right living, and ,. 1oving action, they wculrl illumi~e the le~s· enli~htened .,., mer9al~ and radi~t3 the lqving care of Hi~ they pru;ess to follow and ·~erve • .~ . In conducting this appeal we acceded w:> Mr •. ,J;3allonai' s requ-:?st that ho _shC-uld star-, by 9ubmitting on a eartain aspP.ct of ◄ the r?spondents• ccunter-•laim.. Dr. Lamwai did not obj8ct to that c Jurse of octi<-n,·· The: a!tpP.~t Mr. B;:illonzi 'lf~shed to address ..... • . . . • /5. 5 ,... us _o_n, a preliminc~. aspect as it were,.fwns whether th.e respondents had th: l~gal cap~city .to bring the cou?ter-claim in the fir$t place. . . I He. want3d us to say -the.t ·the responrlent:l should not have coi.mter- elaim2a at ull·, so. thet if we upheld hij oi;t~!1is the re~t: of _the appeal w0ulcl proccc.G tc be argued on thj basis that there. was no f. eounter-claim at ell. Dr. Lamwai vigorc;>usly rc~ponded to: Mr. 83llJnzi's ~rguments. Immedia~ely !fter the end of that exercis·a the court rcs.e so as to o~nsidir learned 0Junsel 1 s in , submissi~ns thut far,J.. ~rder to o~nstru6t its own view. 'After . I . careful c-.:>nsi•c:craticn however, and b·ec~hse both Coun.!el understandbly wenil!jf»yo~d tl1e n,stricted scope of tha~ Particular exer•ise: and , t<>uchei upon issues prcperly wit>:,in the/ province of bhe re•t of the appa al, we c1.ecic'ed that ("S.)unsel ~ho,µld go on and ar!Jue the I .• re'st Jf. the appeal, on merit. Indeed a,s it turned out, , e,·en after that recess beth learned Counsel _found themselv~s:toing ,.. . ,' back to some of their earlier submissidn!l. '.lhat was ha_rd_. ly ' '". .' . . . ' i ·, ;_. surprising, becau~e the various ·comple~ part5 of the mat~er ~re so j intertwinedo ., On o~r part we do not wi6h to make a s~t',~r~ d_ivisiO" and tr~at the first portion ot· the leaJned argument.s as though it is . I, I not cl;Jsely relc:tec'. tc the +est of th_Giar~uments; because ~~_ ia.' Mro Ballonzi submitted that '!'!hilt hi~ cli,=mts wer~ legallf enti, tled to bririg the suit, :the respotident,~ had no )eg9l -:Clapac.ity .I .- , to rasp~n-J b~yond ·the· plaint. and bnin?fi their own counte1'-cla:lm. 1, I! f -The ;:,,ppallants ~ere trustee~, Mr~ Bal_lpnzi ·submitted, a~d to remove them :>n3 w::iuld h.:ve tc.. proceed -~nder . sLction 115 of t:1e Tr1J~tees 1 Incotj>:>ration Orclinci'noe ~ap.379, and. iek ~an opinion o(, b!1e_ High . i:· . I' . court: Such opinic~ by the· High 0:Jurt: would be deemed b~ -1'.ave ' .., 'he forc~jtf n de~•lc ratory decree. Mr~ Ballonzi aiso·· submitted that. th~C3Spondonts· were nc~ enti'tled to 'bounter.falaim in. the manner they did, in any event, becnu••·•:~. did not coiiply with Section 67 of the . .: .'.·. ,.~. 1,\ it:l.vil ?r=>ce<lure Cc.c!e~ He 'further slibtnitted that under thl\t ·sec.tion, the rasp::>ndents WC\ll<: first ha~e· ito obtain the wriwten consent of the ·•... Dr. Lcmwoi's respcnse was. briefly that there was no need to resort to Section 18 ~f th~ Trustees' Incorporation Ordinanee b0c~use, a~ far as the respcndents were aoncerned, this was no oceasion, ., ·•~when '-"Y qucsticn arises a9 to whether any pereon is a membeJ:• of 11ueh b.,dy corpo~etE.d. • ••• 11 eilc. in tams of the seid Section 18.- •':1tr. L'.\TWai sUbJ'!littec'. thpt_ CALLlST Mi,SALU DIONIS., the man ·who signed .;._ . ~ .. ·the sac,nd Arncric.1ed f·laint., was not a trustee, as is clearly ev~rlenced ~y Exh. 0.1, the dccument entitl•d'JNotification Of 'A Chtjge Of or ·,Cohc-3i'ning The Trustees." ;t show~ that Calli st Masalu Dicnisi had b,3~n diSr.liSsE:c: in April, 1982. /4s for the argument that the responl.:mts clic.1 net have the i\ttorney General'~ fi.-•.\• Dr. Lrunwei sub1T1itt·J·:l thc:it th<'t Sect1cn deals ·with an allcgerl breach of trust -· but n,w bocnuse the r~spnn~ents were not alleging.that the appellant pers.lns were truste~s, er beeause in the counter-clai~ the allegation that -th'3 appellant perscns were tn:stees w_=3s not conceded., the Attorn~y Generol's c~nsent cannot be a pre~requisite. · . . . •N . It seems tc us frcm the foregoing 1:hat the - - •1"1~3'11.~~n, effectively encompass the substantive area of controversy eo that w•3 can now bring cut into ~:,harper and more definite relief the c3ntral qu~sti~ns upon which·t_.e outcome of this appeal seem t·.l us to depenc1 ~ .••••. /7. . ' '~ l '-- :!" ! I 1 II l In our view the·issue3 are defined py the following questions:, j1 What W::lS at the rnc:ter1· al time the operatiiv',·e an d val i d Const i tut 1on 11 I, of T. -\.G., and what pcwer.:i if any, did thh. seconcl re·.:iI)Ondent, i1 we.tie :1 really the regis"t8red truste:s when the plaint wa~ filed? ThJ' other questi<>r.s anti i possibl3 answers wculd flow from the foregoing. These would be !I 1 such issues as whether Callist Masalu wJs entitlecl to re.sist ,the 11 transf ar to Mwanza· anc' what part the res4l tant confront.:itj,on playerl? . j ' What w3re th.:i circt;mstances leacHn?. to tne r,~gistration of i I, • ~.A.~-- . c1:, ... ,1 a Soci ~ty under the Sccieties -'Ordinance and whether suo!l reqistration 11 ' - i -was illJgal and or ·mela fide? Whether fmmanuel Lazaro-had formed . I an £rcu,Q.i.Z~q.JJ...011 called Pan-Afr_ic:m EYangel' lisni; whether he was entitled to • . I I . cto so if he did, and what was the effactjcf that organization on T.A.G. and on LcJ.zaro' s cwn pc: s1.tion, It was cc•mrr.cin grcund -at the trial 1that the original Constitution 1 i: registarad at the time of the incorporation waa replaced by the I I, .1966 C.>nstitutiono The appellanb' o.3sJ was that that 196€i .. .· I a-:mstitution was never replao3ci by any 6ther one and i_t is_ thus . . j 1; the l "?g·al ane: v;,lid cne to date. The relev1:1nt and materia'l r:, __ -tsignific;_incc of this ccntentic:n, if· truf, would be. t_hat Emmanuel 1' Lazar~ shouU. net h~ve cc•nti~ut,d as th'e!I Chief Bishop non-stop after two terms, tc-date, and that . · t her( · I f was nv pro_vi:non or ·· the trmsfcr of. I-'dni:sters unrl.er the saJ1 1966 Constitution.: _.This ' I II woul~:::.;t-1 b1rn rnc:nn thc1t it wa:s i:O.:.~agular to purport to transfer -~ .·· 11 . I Cc11list Mnso.lu D~.e:nis and so he was no~ obliged to obey the transfer Or(1cr :t0 gc. tc Bugand<;>. I Ila thin_k with resp~ct, that the iearned trial· judge _mar!!halled I .7 "'apabl:i :irgumcnts tc i,upporb his findi?g that the 1_966 Consti tuticn i 1: •••••• /8 1 I f 11 - a. - . is not the valid ccn~titution. of• T •. A~G. t1date. He fo·und,. 4n good ~1::- · ... . . . . h a/ a 1 . ; . ev i •..•.~nee in our view,. t at there wa._ v•l11ct. appi-oied· ~nsti~ution••, · . .• -1. . .. . ! , the 1978 Con~t.5.tuticn, which was. regist.erf~ in 1981. _Logicblly Callist Mu.salu ccnce:ces as much, ,by impliJation, because un'oier the . I • . I 1966 C~nstitution a person haloing a T.A.G. Office would h~ve to lie . I . · .fallow f6r two yec.1rs after two two..::year t~rns, ~'o how else iwould . I . J· Lazaro still be the heao, the superintenn ';,mt·, ae,late as 1988 as 1 · a:s-sert-a1 by Calli?: _; Mc1salu himself at Plge 26 of the typ~~- . . l· i . p•o~.e·a iings'l The letter, Exh •.. D~ 3, whicl;l wa~· !ligned joint!ly by i . . , !' Emmanuel Lazaro c::nc' _l',cses K0 16la,. ai!· late a!l 8th November,: 1983, wa~-- .. ~I . I • • inviting pastors tc a conference the fOliowing month t? have another · 100k at the Constitution befor~ going tJ the ·General. ConfJre~e to . thrash out the crisi~ already in existejce •. ·The lette• rl:i.rect,s that tha) s<~?-:1d -rcspcndent Emmanuel La:alro ~hall in the meantb1e I · Ii _,,,ontinu,e as the Head cf T.A.G·. with Mo~rl ]$:ulola a~ his Qeputy.· I' I ,. This latter of invitation·~igned by.~oth Lazaro and Kulo~a as . I f' . ! I afores3i•.!, says: ''Katiba Yetu 1:1.iyop:i,vshwa na t:1kutano r;,tkuu wa I I ::::k:~::h:~yasimamia Ka:~•• letu hat/ ma mpaka itakafofa~iwa · Calli st. ?-~t.1selu belong-n to M9se.sl Kulola I B· portion /of the Chur(4 0£ ' ·, : and· Exh.03 was· put in a·s par\{. · ...t;ne re.sponrlente-'· o,ase. ,we think H: is ~i-Jnificant t})at Moses Kulola wJs n0t s,1.lled to testify on the app~llants behalf. While we. are on this~ we wi~h al~o to I ! remark that it hc::.s nc.·t escaped our no~ice tlle fact that: Moses ! ;' MWArilan:ia, one .of the people wi:io ,eought to eue the re~pbndents, -iid - . I . i I •· not sign the finc1l version of the Amehrien Plaint: an~ tl:la• the only /., •• /9 I other. witness for the a·ppellarits·,,. that. i's oth~r · tilan Masalu hims,elf, " wa! Al:!XJ.nder Simbili who dici · not g·et' on board until 1982 ,. ~fter . . . 1 he hai left the Rcmah Catholic,''0:1~.rch, ond wh 0 could only talk; of thq_. • ramificntioni cf the conflict,· rather th,m .the root c::\use which . . I' . • '. is whc3t would provide answe»! to the :i.s~ues lhe.~tialo-:>urt was looking for • . His b€i.ng a member of Kamat:J Maalum rlid not improve his sb.tus nor mcke hi,m more informed as;. to 1lrhat was the 111'.:)nstitutional position of T.h.G. If there was ._nc duly approved 197(1 Constitution, w,hich was -~e one r9gistercd in 1981, how ··a·5me Callist:' M,asalu and others under Kulola, were trying to amend -the very sam~ IConstitution behind.-the .back ·::,f the rost- of -the ·~embefa, of T.A.G., ,only that, the relevant ,', authorities refusec to register the amendm~nts beeau~e they _had-not , been apr;>rovcc.~ by th(, reo-Jgnizerf General. Gonfereno:? of T.A.G._ Masai\l does nJt say thc::t he- cid not atteri<l the 1978 O0nference. Lazaro clearly_ assc1;tcd that Ma·salu attended that '1eneral Conference and that h3 had infc::ct . partie!.pated in preparing for i-t. •. We acree.with '. •!'le Lnrnjd tric:Jl juc!ge that in 197B a Copsti tution to replace ·J:ke '·. ~- . ~ 1,1.6 on3 .was c1pprcved and we agree also th~t at the 1982 ·neneral i' .., 1·. ..O...mf>:lr:?nce it WuS thi-s 1978 ~onsti tution ;Whid~ was used. T.1e Lazaro Kulol3 j'.)int le:ttcr was muo~- later, in Nqvel!l.ber, 198~, as·-.,-,e have alrea1y secno I '· . 1' . The rcgistn:tic.n of T.A.O. a8 a i!O_ciP.b:f was also th~ I 8 \-!bject matter of ccmpiain'e~ It was alleged. by the appel_iants that it wns· clone in.::bad faith; -~o ~s to !,facilitate L~zaro,,.s gcheme to tr:1nsfer ministers from their· statio'.ns, fer which the;e was ... -.o/te ,, l 11 i j - 10·- ,. net provision under the 1966 Cono_ti tu_tio1:3. . It ~q)5 aise submitted r t Ii t was i rregu l ar, ·.by the appellant~•-Counsel, Mr.-Ballo,1z1._,. t ha! ' • I • I, ~ any _way,._ to i;egister" T.A;G. under t:.he Soci~tie ~ Ordinance Cap.337~ 1 t . . ·l'he responcents' cia~e wa::i ·that the tran:ffers were· sanc'ticned ( I' 'I by. the ~xscutive G:omrnittee to wh~ch tt:e General Cc-nference had· ,! i, . deleg.3t~:l powers under. the 1978 CcnstitutlonJ . I . We are satisfied I . tl'!-lat the operative Constitution did provide• sua:h po11ers _and ~at I . ·. . ·. Lazaro was on;t.y • carrying nut the ·Executi-re Ct-mmittee' ~ decisic-n. Whether or not th£: transfers them·selve!i wei:e[ in bad faith is in I, Ii · •ur vi'3W a different. issue, distinct from the contention ~~at the I !i . registration of T.;..G. as a so6:!:e.ty was i ts~lf in bad faith !1 and irr,3gular. \'ie now wish to turn to.. b!iis/ latter contention and w13 have to start with· the rele·,,.ant law.J 3ac:tion 2(1) of the ~oci•.?ties-Ordinance definAs what ;i ;: I sO~iety iso Section ~ pr.ovi.?es that an organization whio]:1 is ( not othsrwisEl . a s<>cle:~y .. a:; defi~ed 7 beo3ulse of l;,artain" reason!: .. 11 -specifi'3d under the Act, may neve,rtheless ,ibe required· -b? a!)piy 1, . I . for r'3gistra"tion _as a society, within the Ii period specified in . . . . f ~ I tJ"!e oi;:ler. This me:an5 tha·il the requireme rt is compulsory \-::: 1 the orJ3nization. What_i~ rliscretion~ry/is_ the decisio~ to requir3, and that i_s by the Minister. 'ti\e type of organizations I which_ ar<? not socie.ties but whia:1 may no1hethe1e~s be required t<llt~ ~pply for r6gistratior. are those orJ'anizations whi<t~ are 11 !lot societies because they are exceptedlunder ~pecific situations, ' ) T~A.G. ·as an orgsnization was obliged tb have itself registered a~ a ,,I society. It appeert that Mr~ Ballonzifhim~elf otherwise agreed ( f ..... 111 j' I I I ,! I 11 t 11 11 I, I 1,I with this but he submitted that T.A~G• is exempted from the obli::gation I, · by ·virtue of· the Sccieties Ordinance (Applicad.on) Order 1954 arid he relies 'on Paragraph 4 of the. said Order. ParJ~raph 4 is "Congr¢gations 11 11 ' which ass.;:imble exclusively for the purpose of :!religious teachin,g and . . . I~ . ; worshipo II But i s 'l'.A.G. really I,uch an organization - A congregation !1 ' i i exclusively for the: purpose of religious teaching and worship?· I11 . . • · · . : Our vi·3W is that it is not. In the Concise 'i'xford Dictionary .the II I 11 ' · n3arcst •congregation• to T.A.G. wou1dl1 be a "Body assembled 11 ' 11 / for religious worship" whereas certainly T.IA.G. as an outfit i is ' ' ~ I allot m:,r2 than that, even to the knowledge ,'.of the appellants~ . i . Se'::! .thd Ap::.,lication for Registration - Exh. ii' D. 7.. A group of . 11 people ~-11e>t have a e!'lurch whi~!-1 is seljf-supporting self-:'. 11 . i propagating ·etc. if all that it does is to /assemble. exclusivkly for th3 purpose cf religious teaching and worship. I . 11 jl I Mr., Ballonzi pcinted oµt that the le·tter ·trom the Min;stry of Hom~ Affairs, hEf. No. So.6246/29 of 4th August, 1984~ that i I • I, 1s Exhol?.12 rccallE:d .an earlier letter dated 9th February, ;1983, I, . . • i1 , (Anmcro J to the \•,ritten Statement of Defience) which said that, . I Ii among other things, Callist Masalu and Certain other namea. 11 . ; j, : per~ons were no longer trustees! Even if one was to read : I, . Exh. P.12 literally a~d very strictly, ~hd say that the w~thdrawal I, ; also •r::!ferred to the co~pulsory registr1tion~ and was not·only 11rilib1 to the ·1e:acership crisis the Mi~istry was harirlling,the !1 ; ··trial judge's finding was correct that IT./\~G• was oblige1 to ' 1: regist~r as a soci~·ty .in view of our fl(~ding that t}:le Societies /1 Ordinance (Application) Orc1er 19.54 did!'i'not apply. :1 I if Chipeta,. J. had ccr:1sidered the said;! Orner w~ :,~.e !•·· satisfied .. 11 -J II ....... /12 I, I / ,, 11 12 f that. he woul<'. ha Ve com• to the Same conclusion e did and with whichthiS Court is in agreement. The evidence was that -the Executive Cc ,,ittee was unsure abOut the legal ositiOn of T._A.G•,. and that their enquiry because of that is what lead· to their discovering that theY had to re!ister We see no evidence from which to agree with the appella.ls that th• step to.reqister T.h.G• as a society was done in bJd faith. ms next big ·question is who th• 'trusteL of T.A••• at the ti,ne the appellant. instituted the proceerl lng;, · were , '· ;nd, moie speC:ificaHY, whether Callist Masalu ,,,J; one of the truSta-as at the material tim•• We share the iearned trial Judge• s ·, '· '" that "'fl, is h sue goes to the root of the matter" • Having net b~cn persuaded by the appelants to ·tault the High court finding that the 1978 constitutiL was the operative one at the material time and io the v;lid cLsutution to date, we·ha•• no <lifficulty in finding, as did thl trial court, that tmmanual L•zaro was the superintendent ...., Askofu MkUU, of it.~• T.,,.G. according to th• constitution. '.'here is no evidence that M has beeri lawfully replaced. Calli-st MasalU became -«, .. . . . ..; . II . . himseH arid by r• T.A•"• trustee in 1974 as eviden""- by the ,.otificatl.oir signed by th• secon<l resp<,nO.ent Notification form is the Form T.1.4 we heard so much about Glenn ford. The during the hearin9 cf this appeal. · .,,o.Jer T.1.4 fort', signed by the socond respcnd<•nt and. ~nother person) ~ated Octobei; 19"4 I. was ref•ised registration by the Administrator-General because, the ~.1ministrator &aneral contended, e.Joence had surfaced .. ·. . . .I - tha t the· meeting allSg<!rl to . have taken place at Dodoma on -11th ······'13 ' . 13 and 12th October, 1984 at which the new ,~- trustees were appoi.nted had not t:1ksn place anc thst in any eve~t -an October_,· 1·984 meeting coul1 n::>t have effecten a change of trustee tJ:ie previous August, that is August, 1984. In that Notification Callist Masalu was inentioned as one, 9f· the· true tees 'dismissed I bu·b the fo,~ shQws • that ·his name is g~celled as one o_f thP._· oismissed trustees and • 'I ' • -he. dOgs ng..t, appear.. in the new list of tru~tee. So one has to lOo'k at oth'-:~r evidence to ,s·ee whether or not Masalu hari been removed as \ - / a trustea. · ·-such evidence is available. The second. re.~pondent \. testifi3rl at:·the trial that after Masalu had refused .to obey the tr:insfer to Bugando the Ger:ieral Presl:ly.teryi called hi_m to I a meeting·so as tc.ccnsider the issue but Mas~lu refused to I • attend, whereupon tho Pr~_stytery decided to riamove him fro~. T.A.G. It was affr•r that dismissal· that a No'tification of . ~""'-~·.,.."'f'-,-t.~ chang~ i:,ch Do l ·wcis_ sent to the ,.,Regi9t~e!', 0 . : ,Gerieral- • 'I • . Gf Tniet,;. , _The chang,a was s,id tc have taken_ place _on 2p.td April,_ 1982 and eigned :>n 17th January, 198~. Dr. Lamwai wc1's at pains to po~nt out th3t th~s Ncti~ication ~as not the one that. was rejncte~., and he was right. The Notification was ~en~ in after the Iringa confer?nce which gPt rid of M~salu. We are of the view that_ the learn~1 trial jucg€ was. entitled· to arrive,' at the conclusion thnt Masalu was not a T.A.G. trustee .at- the timk the proceedings ·were instituted. The arguments en section 11 of the ,Trustees' _ I ncorporation ·, - ~ n-:1nc(? and secticn 67 of.,it!)e Civil Pr~cert~re Cocte can be taken together and need bE: de;:i1-l'with Ol")ly br1efly •. w~ ~ink· Dz::. Lamwai' s reacti~n to both argum~nts hae merit. You dO not need to seek an ,'I. ;i,. /•••••••••• i.l,. . . . /14. ' . I I I. ' I 14 ' I I opini::,n "."hen y0u are satisfierl what your positidn:on,the matter ,I is anrf y::,u are not in ctoubb. The respondents' Jtana·was'that i . basis:· Masalu W3S not a trustee and they proceeded on Ilha·t . It . 1 ·woul,1 b-2 inconsist~-nt ~nd S4'!lf-oontradictory to/ start off by :, wondering whether 1',a sa l u was a· trustee•' \•.',\·at the responcients . ,1 -er-,s{r-"" did~w-3.s to respunc' tc, Masalu' s contenti0n, a pketence ~ as they were concerned, and assert that Masa.~ulf was -not a trustaao .iegarc1.ing the ·ccunter-clailJl Mr. Ballonzi.,I submitted that ) I if at all, thi::: rcspcnc1 ents should have procee:oed in complicrncei . '' I •· ' ' with· S3ction 67 cf the C1 vil Procedure Cone \4hich required fir,~t I . . l . the wri tt'3n consent cf the Attorney Generr1l.1- Mr. Ballonzi I s I ;:irguments was th~t what the respcmdents were cuun t er-c I • i ng ;i ·1 aim ! I was c::>ver,3c.1 unc\er sub-sections (a) (b) anrl (c) of Section 67.; . · 1 I Under the said sub~sections a party woulrl 's~ek a High Court (a) To remcvc? trustee, (b) To appoirit a new trustee an1 (c) To vest prcperty in a trustee; when the I party alleges a ·breach .of/ trust crP.aterl for: the i . purpo s:? of a public charity. O,,c hc1s to ask oneself, to get an abl0. answer to .'· I Mr. d.1.ll->nzi' s ~ubmissivns, whether the n~sponclcnts ·were. . . l seeking any of ..the three (a) to (c); <'!ndJ whether the resp~nrlents , . ~• l f I I were s3ying H,-.salu was in bn~ach of trust. Their positioti Has lo . that M:1salu had ceased to be a truste"? ' he could not b) fn breach ?f trust Eln<' there was no questibn of removing hf~ etc .• I . : -. 15 I, • 1 I, The trustees were the cnes mentioned in the Notification Ex-h. o.,i. i: W~ ·1ph.Jld D:.:. Ltr::\..;:-i c,n -this. The re~pondents.i'were entitled to,' . ' counb?r-clnim anc'. ~ en the nece_ssary bai"ance ofi probabilities, · t~ey 11 1, successfully proved their case _in our view 0 ,II I,. 1, I, .-1-) -~;i::·,l:1.. ::,n-. cc ri~ider,- very briefly thei' issue of Pan I I, African· Svnngelisme We think that the learne b trial judge· gave 1 it th,"? nccussary treatment. We f~rthGr thin~'· it is subsirliary~ · l , Subsi-Uary in thet it did:\r:.ot go to the basic!: issues. • ·I 'I 11 Some. people ~ere- unhappy an<l uncqmfort,~ble aboub Lazaro•. s I, one such /person ,,as Callis~ . \ Masalu. The matter was rliscussed by the reievant authoriti•:?s: I . ~ ' in T. /\.Ge nnr.1 these were sati:;:f~.ei1 that P;;::11 African Evangelism 1 llas n-:>t an org2niz2ticn .~s sl.ic~. t "BUT", t~:' use Lazaro's own :worrls, :, ' "I W3S asked to chrnge my ministry to "Bisrfop Lazaro". This: was to 'I avoid c -,nfusion am,-n~ Christians and thus preserve tranquility within 'I the Church". So that was the advice the AJ~kofu Mkuu got frdm the . i'I ,, collective wisdom as the O~neral Pres!:'· trY:o • 11 It is noteworthy I,' t!'iat W3 hnvc ·no evic'ence that L/'lzaro c,ntinuerl I' with the term i I "Pan ,\frican Evangelism" for what he call~,1 his Ministry. 'But 11 .the d3m~ge might have been done. When yqu have Askofu Mkuu I,' I ending his 'I•linistry 1 bulletins by signing himself as "NI- .SISI 1, I, Pan Africo.n Evangelism" one may be temptb:l ,, to ask the que~tion 11 who 3ra the plural '5isi'. Why in· the rlame of good reasop and 1 i I sober c3.lculnticn use Pan Afri.c:an Evang~lism letter heads when I . trans'lcting purely T.A.G,. business as 1\skofu ,: Mkuu, inclu~ing clS II such thingslthe transfers of pastors? /Pastors could justly i l have b,3an confused and unsettled: by thi5, just as they c:oul<1 11 Ii' •••• /1f: I' have b9an by. Lnzarc-'·s proven ;.;inci conceded associat1on with· Morris Cerull) whose bulletin billed Emmanuel ·Lazaro as "a gr~at living exampl-a of the teachings of Morris Cerullo •• ~"Morris Cerullo ' may be entitled to the views he expresses in .his 1\FHIC,\ ...IS IN 11 OUR H,\NiJS" but when he talks of his encounter with the I Communist Governfil~' and ,'~cmmunist Authorities' in Uar es Salaam.in 1974, one ne3d not be very surprised if some. members in Lazaro's fluck, anxious not to mix·religi9n with politics, felt uncomfortable an<.i perQ~;:,s misunc.erstooa their Superintendent. Ile agree_ with the analysis made and .the conclusions reached by the c~urt below and we have no reason to upset the decision •. We wish to add_ that in cur view it was quite balanced and judicious not t:.) award the gE-ncral damngcs prayed for. tie dismiss the appe_al in its entirety but in the careful exercise or oui:;- c'..iscretion we order each party to bear his own vie wish to end by expressing our earnest. hope that the L. M. MAK,1ME JUSTICE OF APPEJ'\L H. H. KIS,1NGA JU STICE OF i~PEJiL J - . . ... t 17 I certify /~~ '~- ( J. ,',H. MS0FFE ) SENICH DEPUTY HEGISTHJ\H. \