20180725 TZHC Mwanza 1

,, ·- ..if, THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA " LAND CASE NO. 1~. OF 2015 THE REGISTERED TRUSTEES OF THE METHODIST CHURCH IN TANZANIA ........................ PLAINTIFF VERSUS 1. CHARLES . MATIKO MONTO ~ . . . 2. MILTON TINKA '.DALALI 3. JOSEPHAT OMUYANJA 4. FESTUS OMINDE . , . . . .......................... DEFENDANTS 5. LISTA WINANl. _:· 6. RICHARD 'MAZlRA i ,· ~;·}·;: /.·_- Last Order. 29/04/2?18_'.. Closing WrittedSUoiniss,ons. 04/05/2018 -. .·. . Supplementary qral Argu'mehts: 17/07/2018 Judgment 25/07/2018 JUDGMENT MAKARAMBA( J. Initially, the Plaintiff-lodged this suit in this Court on the 23 rd day of February, 2015 against . iw~lve (12) ·Defendants.--'. But on 02nd . '\ .. · .' . day of June; 2016, the Plaintiff filed an Amended Plaint !1 ~hich the number of Defendants dropped from the initial twelve to'. ~i?' (6). In . p·aragraph 1 of the Amended Plaint, the Plaintiff is described as "a registered institution if!corporated in Tanzania under the Trustees . ~ Incorporation Act [Cap.318 R.E 2002." And in paragraph 4 of the Amended Plaint, the Plaintiff is ''registered to conduct religious I ~ ceremonies and amon"g others to own properties and do other physical , I Page 1 of 44 and spiritual subscriptions of mankind "The Plaintiff avers in paragraph 5 of the Amended Plaint that, together with its Constitution, the Plaintiff applied for and was granted a Certificate of Registration from the Ministry of Home Affairs on 29th day of March, 1988, and as per paragraph 6 of the Amended Plaint, on 6 th day of 1993, the Plaintiff applied and was granted a Certificate of Incorporation from the Administrator General. As per paragraph 7 of the Amended Plaint, the Plaintiff avers that to date, the registered trustees of the Plaintiff are Leopold Ernest Ndaki, Steven Makena, Bernard Korosso, Elkana Sima and Mary Habi. In paragraph 2 of the Amended Plaint, the Defendants are described as ''natural persons residing in different places of the Region of Mara/ Tanzania. " The Plaintiff's claim against the six defendants both severally and jointly as set out in paragraph 3 of the Amended Plaint is as follows: ".. .permanent injunction from utilizing/ trespassing and tempering with the houses and churches situated on registered plots No. 181 and 185 Block "C" Kamnyonge Musoma, Plot No. 133 Block ''L" Maga Maga Area at Tarime/ and unregistered (squatter) land measuring one acre at Chalinge-Bunda Urban Mara Region/ and a three quarters acres of land at Karukekere Bunda all the properties of the plaintiff/ a declaration that the defendants are not ministers of the plaintiff, payments of general damages and costs of the suit" The Plaintiff avers further in paragraph 9 of the Amended Plaint as follows: "That in its lifespan of service/ the Plaintiff acquired and was able to install both Churches and buildings for service providers, among others in Bunda/ Musoma/ Tarime, Magu and Mwanza Areas on the following disruptions.- Page 2 of 44 (a) That, in Musoma, two plots were acquired and registered in Plaintiff's name, namely Plot No. 181 Block "C" Kamnyonge Musoma where the church was installed, and plot No. 185 Block "C" Kamnyonge Musoma where the residential building was constructed,· (b) That, in Tar/me, Plot No. 133 Block ''L" Magamaga Area - Tarime, the church and residential building were constructed and so religious services are currently conducted; (c) That, at Chalinge-Bunda Urban, a church and a house were constructed and to date are in use for the same intended purpose. The premise is one acre (squatter), and the plaintiff is in the process of registering the same to date. ( d) That, at Karukekere-Bunda, the plaintiff acquired land sizing ¾ acres thereafter constructed church thereon, hall and other buildings and all properties are of the plaintiff. " In this suit, the Plaintiff prays for Judgment and decree against the six defendants both severally and jointly for the following orders: (a) The declaration that the plaintiff is the true owner of the suit premises, that is Plot No. 181 and 185 Block "C" Kamnyonge Musoma, Plot No. 133 Block ''L "Magamaga Area in Tarime, One acre at Chilinge in Bunda Urban where the church and a house is situated. ¾ acres of land at Kamukekere- Bunda where the Church is installed; (b) The permanent injunction against the defendants severally and jointly from putting to use the suit premises or other properties of the plaintiff and from utilizing, trespassing and tempering Page 3 of 44 with the houses, Churches or any other buildings on the suit premises or any other premises of the plaintiff; (c) The permanent injunction against the defendants both jointly and severally from using the status and name of the Methodist Church in Tanzania to accomplish the defendant's missions not approved by the plaintiff; (d) The declaration that the defendants are not severally and jointly Ministers of the Methodist Church in Tanzania; (e) Payment of General Damages; and (f) The Costs of the suit be borne by the Defendants. " On the 11th day of July, 2016, the Defendants filed their Joint Written Statement of Defence in which they stated as follows: i) The contents of paragraph 1 and 2 of the Plaintiff's Amended Plaint are noted; ii) The contents ofparagraph 4, 5, and 6 are not at issue; iii) The contents ofparagraph 3 of the Amended Plaint are baseless; iv) The contents of paragraph B of the Amended Plaint are admitted;. v) The contents of paragraph 9 of the Amended Plaint are not disputed; vi) The contents of paragraph 7 of the Amended Plaint are vehemently disputed; vii) That the current registered trustees of the Methodist Church in Tanzania are namely, Presiding Bishop Charles M. Monto, Bishop Festus Ominde, Reverend Milton T. Dalali, Reverend Joseph Omuyanja, Reverend Lista Winani and Reverend Richard Mazira; Page 4 of 44 viii) The contents of paragraph 9 of the Plaintiff's Amended Plaint are not disputed. ix) The contents of paragraph 11 of the plaint are partly admitted to the extent that the i5t Defendant was ordained the Reverend and then made the superintendent of the Methodist Church in Tanzania and was further ordained into the position of Presiding Bishop of the Methodist Church in Tanzania. On the 10th of April 2018, when the matter came for first hearing, Mr. Mushobozi learned Counsel for the Plaintiff prayed under Order XV r. 1 of the Civil Procedure Code, Cap. 33 R.E 2002, that before the framing of issues for the determination of this suit, the matter could be disposed of at this stage with respect to the undisputed facts and Judgment on admission pronounced at once on the admission of facts by the Defendants in several paragraphs in their Joint Written Statement of Defence to the Amended Plaint. Mr. Mushobozi elaborated that, the parties are not at issue either on facts or on the law because paragraphs 4, 5, 6, 8 and 9 of the Amended Plaint dated 02/06/2016 have been admitted by the Defendants in paragraphs 3, 5 and 6 of their Joint Written Statement of Defence to the Amended Plaint which they filed in this Court on the 11th day of July, 2016. Mr. Sayi, learned Counsel for the Defendants conceded that indeed what Mr. Mushobozi stated is true. The Defendants admit the facts stated in paragraphs 4, 5, 6, 8 and 9 of the Plaintiff's claim. But, concerning membership of the Board of Trustees of the Plaintiff, the Defendants have denied the facts stated in paragraph 7 of the Amended Plaint, which mentions Leopold Ernest Ndaki, Steven Makena, Bernard Korosso, Elikana Sima and Mary Habi. Page 5 of 44 According to the Defendants these are not members of Board of Trustees of the Plaintiff. In paragraph 4 of the Joint Written Statement of Defence to the Amended Plaint, the Defendants have mentioned other persons who are the lawful Members of the Board of Trustees of the Plaintiff. These are Bishop Charles Monto, Bishop Festus Ominde, Reverend Milton T. Dalali, Reverend Joseph Omuyanja, Reverend Lista Winani and Reverend Richard Mazira. Mr. Sayi further submitted that, there is therefore an issue to be determined by this Court. As between the persons mentioned in para 7 of the Amended Plaint and para 4 of the Joint Written Statement of Defence to the Amended Plaint, who are the lawful members of the Board of Trustees of the Methodist Church in Tanzania. Mr. Mushobozi, agreed with Mr. Sayi on the central issue for determination by this Court in this suit. Accordingly this Court entered the following orders: 1. The Defendants are not at issue in respect of the facts as stated by the Plaintiff in paragraphs 5, 6, B and 9 of the Amended Plaint/ and as admitted by the Defendants in paragraphs 3, 5 and 6 of the Joint Written Statement of Defence to the Amended Plaint 2. That, the only issue for determination in this suit shall be ''as between the persons mentioned in paragraph 7 of the Amended Plaint and those mentioned in paragraph 4 of the Joint Written Statement of Defence, who are the lawful members of the Board of Trustees of the Methodist Church in Tanzania. " Page 6 of 44 ,;, 3. Judgment in respect of the admitted facts in the said paragraphs to be deferred until after Judgment in the suit after hearing of the evidence on the matter in dispute, to wit, membership to the _ Board of Trustees of the Plaintiff's Church. " As from the 11th day of July 2016, the only issue for determination by this Court was with regard to contest between the persons mentioned in paragraph 7 of the Amended Plaint, namely, Leopold Ernest Ndaki, Steven Makena, Bernard Korosso, Elikana Sima and Mary Habi, and the persons mentioned in paragraph 4 of the Joint Written Statement of Defence, namely, Bishop Charles Monto, Bishop Festus Ominde, Reverend Milton T. Dalali, Reverend Joseph Omuyanja, Reverend Lista Winani and Reverend Richard Mazira. This suit as initially instituted was a claim by the Plaintiff against, first twelve (12) but later six (6) Defendants. The cause of action was a claim by the Plaintiff over the properties mentioned in paragraph 9(a) to (d) of the Amended Plaint. The Plaintiff claims that the Defendants had been utilizing those properties wrongly, trespassed on them and tempered with. But, based on the admission by the Defendants in their Joint Written Statement of Defence to some of the facts in the Plaintiff's Amended Plaint, the parties are no longer at issue concerning the initial dispute of ownership by the Plaintiff of the properties mentioned in paragraph 9(a) to (d) of the Amended Plaint. The contest now remains between the persons mentioned in paragraph 7 of the Amended Plaint and the persons mentioned in paragraph 4 of the Joint Written Statement of Defence over the Page 7 of 44 lawfulness of the trustees of the Plaintiff. This Court therefore is to . determine as between the two groups, which one is the lawful registered trustees of the Plaintiff, the Methodist Church in Tanzania. The initial land dispute has now turned into a contest between two groups over the "vesting or divesting" of the properties of the Plaintiff, a registered association under the Societies Ordinance and incorporated in Tanzania under the Trustees' Incorporation Act; [Cap.318 R.E. 2002. One group comprised of Leopold Ernest Ndaki, Steven Makena, Bernard Korosso, Elikana Sima and Mary Habi claim to be the lawfully registered trustees of the Plaintiff. The other group is comprised of the six Defendants in this SL!lt, namely, Bishop Charles Monto, Bishop Festus Ominde, Reverend Milton T. Dalali, Reverend Joseph Omuyanja, Reverend Lista Winani and Reverend Richard Mazira, claim that they are also the lawful registered trustees of the Plaintiff. The Plaintiff's claim against the Defendants is that they have "vested and divested' some of the properties of the Plaintiff mentioned in paragraph 9(a) to (d) of the Amended Plaint. The Defendants maintain that they are entitled to those properties, which are in their hands by virtue of being the lawfully registered trustees of the Plaintiff. In this suit, the contest by the two groups over the lawfulness of trustees of the Plaintiff falls squarely under purview of the Trustees' Incorporation Act;. Cap.318 R.E 2002. Section 26 of the Act provides for the procedure for applying to the High Court by any person interested in such question for its opinion. The Act stipulates further in section 26 that, the opinion of the High Court when given "shall be deemed to have the force of a declaratory decree. "In his closing submissions, Page 8 of 44 Mr. Mushobozi cited the provisions of Section 26 of the Trustees Incorporation Act; [Cap. 318 R.E. 20021, which is couched as follows: "When any question arises as to whether a person is a member of a body corporate or as to the vesting or divesting of any property under . the provisions of this Act, any person interested in such question may apply to the High Court for its opinion on such question and notice of hearing shall be given to such persons and in such manner as the court shall think fit;. and any opinion given by the court on an application under this section shall be deemed to have the force of a declaratory decree. "(Emphasis supplied). On the facts in this suit, this Court has to determine as to which of the two groups is the lawful trustees and to which group the properties of the Plaintiff are to be vested or whether such properties have been divested by one of the groups. These are matters which fall squarely within the ambit of the provisions of Trustees' Incorporation Act;. Cap.318 R.E 2002. But the instant proceedings were initiated by a Plaint, not by application as envisaged under section 26 of the Trustees' Incorporation Act;. Cap.318 R.E 2002. This Court therefore has to determine whether it has been properly moved to determine such matters and to grant the orders sought by the Plaintiff. The dispute is over the lawfulness of the trustees of the Plaintiff between the two contesting groups in this suit. In terms of the Trustees' Incorporation Act; Cap.375 R.E. 2002, trustees are to be "elected" by a body or association in accordance with its registered Page 9 of 44 constituent instruments. After being so elected, the trustees apply for registration to the Administrator General. The Administrator General registers the trustees and issues them with a Certificate of Incorporation. The registered trustees thereby become an incorporated body, capable of among things, suing or being sued on behalf of the body or association which elected them, and in whom the properties of the body or association become vested. The trustees hold such properties on trust for and on behalf of the beneficiaries of the incorporated body or association. In the instant suit, this Court is enjoined to determine as between the two contesting groups, which one is the lawfully registered trustees of the Methodist Church in Tanzania, and in whom the properties of the Plaintiff, whose ownership is not in dispute, shall be vested. The fact that the Methodist Church in Tanzania is an incorporated religious body and that it owns properties including those mentioned in paragraph 9(a) to ( d) of the Amended Plaint is not in dispute. This Court has to determine whether initially having been moved by way of a Plaint to determine a land dispute concerning the ownership of the Church properties, it can now validly proceed to determine the issue of the lawfulness of the trustees of the Plaintiff. This Court has already received evidence from the two contesting parties. The issue is whether on the basis of that evidence this Court can proceed to determine issue of the lawfulness of trustees of the Methodist Church in Tanzania between the two groups, which ·are matters that fall under the purview of the Trustees' Incorporation Act, Cap.318 R.E. 2002. Section 26 of the Act requires an application by any interested person to the High Court for its opinion on such Page 10 of 44 questions, whose opinion "shall be deemed to be a declaratory decree." The issue is whether this Court may proceed to determine the matter in the absence of such application. It is for the above reasons, this Court issued an order on the 11th day of July, 2018 that the learned Counsels of the parties address it on the following issues: 1. Whether it will be proper for this Court to proceed to determine the issue of the lawfulness of the Trustees of the Plaintiff among the two rival groups on the basis of a land dispute given that matters pertaining to issues of trustees are governed by a different procedure under the Trustees Incorporation AcC Cap. 318 R.£ 2002/ 2. What will be the effect in the event this Court proceed to give Judgment on admission with regard to the main suit and proceed with an application in respect of the issue of trustees/ and 3. What will be the consequences in terms of the limitation period in the event an application is brought under Section 26 of the Trustees' Incorporation Act. On the 17th day of July, 2018, Mr. Mushobozi learned Counsel for the Plaintiff and Mr. Sayi learned Counsel for the Defendants appeared before this Court and addressed it orally. In their respective submissions the learned Counsels seem to have parted ways on the issue whether this Court may proceed to determine the lawfulness of the trustees of the Plaintiff among the two contesting groups even if it is Page 11 of 44 governed by the Trustees' Incorporation Act. They gave their reasons, which I endeavour to summarize below. First, Mr. Mushobozi submitted, the issue that the Defendants are Registered Trustees of the Plaintiff came as a defence, which this Court may determine on the basis of the weight of evidence on record- on a balance of probabilities. Secondly, as per Section 7 {2) of the Civil Procedure Code, Cap. 33 R.E. 2002, this Court has jurisdiction to do so, Mr. Mushobozi further submitted. He supported his argument by citing to this Court the decision of my Brother Learned Judge Maige, J. in the case of Amos Njile Lili vs. Mwanza City Council & Others, Land Case No. 58 of 2015 {High Court}{Mwanza}{unreported} at pp. 7 - 8 of the typed Judgment. In that case, the Court found out that what had been brought by Plaint as ordinary suit was supposed to have been brought by way of Chamber Summons under Section 99 {1) of the Land Registration Act, Cap.334 R.E. 2002. But at page 8 of the Judgment, the Judge having dismissed the suit resorted to Section 7 {2) of the Civil Procedure Act, Cap.33 R.E. 2002 and granted a declaration of the rights of the two parties. Thirdly, Mr. Mushobozi cited to this Court the case of AGRO Industry Limited vs. AG. [1994] T.L.R. 43 where the Court of Appeal of Tanzania stated as follows: "When a trial Court allows parties to address it on any issues, the Court must conclusively determine these issues, notwithstanding that the issues were not in the pleadings. " Page 12 of 44 Mr. Mushobozi surmised that, during the trial, the parties framed the only issue for determination for which this Court allowed them to bring evidence, and in a very sophisticated way. This Court may therefore conclusively determine the framed issue on the basis of the evidence on record, despite the fact that the issue was not in the pleadings. On the second limb of the issues, that is, the effect of Judgment on admission being given and the matter to proceed otherwise, obviously the effect will be in the negative, Mr. Mushobozi submitted. He reasoned that aside from allowing unnecessary litigation, it may pave way for the fishing of evidence by the defence so as to amend the shortcomings in the evidence on record on their side, and also it may prolong the litigation period for this matter. As for the limitation of time, Mr. Mushobozi submitted that the application mentioned under Section 26 of the Trustees' Incorporation Act, Cap. 318 R.E. 2002, like any other application, attracts a limitation of fixed period of sixty (60) days as per Part Ill of Item 21 of the Law of Limitation Act, Cap.89 R.E. 2002. In his rather brief but focused reply, Mr. Sayi learned Counsel for the Defendants maintained very strongly that, the reach and import of Section 7 (2) of the Civil Procedure Code, Cap.33 R.E. 2002 is still controversial, but he did not elaborate further. After having distinguished the two cases cited by Mr. Mushobozi in his submissions in chief, Amos Njile Lili vs. Mwanza City Council & Others and AGRO Industry Limited vs. AG. [1994] T.L.R. 43 respectively, Mr. Sayi concluded that, since section 26 of the Trustees' Incorporation Act, Cap. 318 R.E. 2002, which provides for a specific procedure was Page 13 of 44 not complied with, this Court cannot resort to section 7(2) of the Civil ..-- -1 '• Procedure Code, Cap. 33 R.E. 2002, which is a general law providing for the procedure in civil actions, to determine the framed issue. As to the effect of judgment on admission being entered and this Court to proceed to determine the issue of lawfulness of the trustees as between the two groups, Mr. Sayi submitted that this will depend on the determination as to who among the two groups will have been declared the lawful trustees of the Plaintiff. Mr. Sayi amplified that in so far as limitation of time is concerned, in the event judgment on admission is pronounced by this Court, the properties which will have been adjudged to be owned by the Methodist Church in Tanzania, and the members of the Board of Trustees who will have been declared to be lawful, will therefore have to follow the procedure stipulated under 26 of the Trustees' Incorporation Act, Cap. 318 R.E. 2002 by bringing application to Court for the determination as in whose hands the properties adjudged to be owned by the Methodist Church in Tanzania will be vested. According to Mr. Sayi, judgment on admission will only weigh in, in the event it is determined in whose hands the Church properties are to be vested, an issue which will not have been determined in the absence of an application under the provisions of section 26 of the Trustees' Incorporation Act, Cap.318 R.E. 2002. On the respective submissions by learned Counsels for the parties in answer to the issues this Court had ordered them to submit on, it seems to me that, the aftermath of how this Court is to proceed in determining the issue of the lawfulness of the trustees as between the two groups has been left in the hands of this Court. But as Mr. Page 14 of 44 Mushobozi rightly submitted, in the event this Court make a determination on noncompliance to section 26 of the Trustees' Incorporation Act, Cap.318 R.E. 2002, this decision not only will have a negative effect as it may allow multiplicity of actions, but will unnecessarily prolong the already protracted litigation. Furthermore, it will make the application envisaged under section 26 of the Trustees' Incorporation Act, Cap. 318 to be caught in the limitation period as it will have been out of the prescribed period of 60 days for bringing such applications. I am of the strong view, and as Mr. Mushobozi rightly observed in his submissions, given that the issue concerning the lawfulness of membership to the Board of Trustees arose by way of defence, and since the evidence on record suffices for purposes of determining that very issue, this makes the instant case a fit candidate for this Court to validly resort to section 7(2) of the Civil Procedure Code, Cap. 33 R.E. 2002 and make a declaratory judgment. In terms of section 7 (2) of the Civil Procedure Code Cap.33 R.E. 2002, a Court may make a binding declaration of right whether or not any consequential relief is or could be claimed and no suit "shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby." I shall revert to the reach and import of section 7(2) of the Civil Procedure Code, Cap. 33 R.E. 2002 in due course, but let me albeit very briefly discuss the decision in Amos Njile Lili vs. Mwanza City Council & Others, Land Case No. 58 of 2015 {above}. I have no qualms with the statement of principle by my learned Brother Judge Maige, J. in Amos Njile Lili vs. Mwanza City Council & Others {above}. In that case, the matter which came under Page 15 of 44 consideration had been brought by way of a Plaint as an ordinary suit instead of being brought by way of Chamber Summons under Section 99 (1) of the Land Registration Act, Cap.334 R.E. 2002. In the instant case, the suit initially had been brought under a proper procedure by way of a Plaint, but in the course of the pleadings the Defendants brought to the fore in their Joint Written Statement of Defence the issue of existence of another group claiming also to be the lawful registered trustees of the Plaintiff. Much as the Defendants are not to ride on the horse of the Plaintiff's pleadings, which never sought any declaration in respect of the lawfulness or otherwise of the trustees of the Plaintiff, but since this Court by consent of both parties has drawn for determination the issue as between the two groups who is the lawful registered trustees of the Plaintiff, this Court may proceed and make a binding declaration of right whether or not any consequential relief is or could be claimed by either party in the main suit as envisaged under section 7(2) of the Civil Procedure Code, Cap.33 R.E.2002. That being the case, this Court may enter a declaratory judgment with respect to the drawn issue regarding the lawfulness of the trustees from, which declaratory judgment in my considered view will pave way for a drawn declaratory decree. Since the Chief Justice has not promulgated any rules of procedure for carrying into effect the provisions of section 26 of the Trustees' Incorporation Act, Cap.318 R.E. 2002, clearly there is a procedural vacuum. This will technically render the submissions of Mr. Sayi that, where there is specific procedure resort cannot be had to a general law to be without any firm foundation. This also gives credence to this Court Page 16 of 44 ,.- to proceed under the provisions of section 7(2) of the Civil ::>rocedure ' \I Code, Cap.33 R.E. 2002. The instant suit appropriately was brought by way of a Plaint. The issue of the lawfulness of the trustees between the two groups arose by way defence. The parties are not at issue over the ownership of the properties of the Plaintiff, the Methodist Church in Tanzania. This being the case and as Mr. Mushobozi had earlier on prayed, this Court can enter judgment on admission in respect of the prayer by of the Plaintiff in paragraph (a) of the Amended Plaint with respect to the ownership by the Plaintiff of the properties mentioned in paragraph 9(a) to (d) of the Amended Plaint. As I have alluded to earlier in this Judgment, this Court has already received evidence from both sides. It is my considered view that the evidence on record suffices for this Court to determine the drawn with regard to the lawfulness of the trustees of the Plaintiff, without requiring the adduction by the parties of fresh evidence and make a declaratory judgment. Perhaps I should emphasis here that, and on the strength of Article 107A of the 1977 Constitution of the United Rlt!public of Tanzania, Cap. 2 R.E. 2002, as amended from time to time that, which enjoins Courts of Law not to be unduly bound by legal technicalities, this Court being both a court of law and of equity, is therefore to carry out not only its constitutional mandate but also the intention of the Legislature. When promulgating section 26 of the Trustees' Incorporation Act, Cap. 318 R.E. 2002, it is my belief that the Legislature had in mind also the provisions of section 7(2) of the Civil Procedure Code, Page 17 of 44 /f -. ), . Cap.33 R.E. 2002. It is common knowledge now that our Civil I Procedure Code was received in this Country by way of India. This is why section 7(2) in our Code is in pari materia with section of the 1908 Indian Civil Procedure Code. This provision found its way into the Indian Civil Procedure Code having been drawn by the drafters of the Code from the Chancery Court in England [See Declaratory Decrees by LP. Delves Broughton, Calcutta Central Press Co. Ltd., 1875 at p.4]. The aim of the drafters was to cure the mischief of the Common Law which did not allow for such procedure. The intention of the Legislature therefore was to allow parties in a civil suit to seek declaratory orders irrespective of whether or not any consequential relief is or could be claimed. Perhaps I should also mention here in passing that, the declaratory judgment was meant to be an alternative remedy, to be used, in the court's discretion either where no remedy existed, or where adequate but less appropriate remedies already existed either at law or in equity and hence the rendering in the law that the declaration of rights of the parties is given whether or not any consequential relief is or could be claimed. But the court has discretion to grant a declaratory judgment depending on the justices and circumstances of the case. It is for the above rea~ons this Court declares its competency to determine the framed issue in this suit on the basis of the parties' evidence on record and proceed to give a declaratory judgment under the provisions of section 7(2) of the Civil Procedure Code Cap.33 R.E. 2002. I shall now traverse the evidence of both sides on record with regard to the lawfulness of the trustees of the Plaintiff between the two groups. Page 18 of 44 In this suit, the Plaintiff brought two witnesses, Leonard Ernest Ndaki (PW1) and Steven Makena (PW2). The Plaintiff tendered in evidence in total eleven (11) exhibits. The Defendants brought only one witness, Bishop Charles Matiko Monto (DWl). The Defendants tendered in evidence in total thirteen (13) exhibits. As per the Amended Plaint, the Plaintiff is a registered institution incorporated in Tanzania under the Trustees' Incorporation Act; Cap.318 R.E. 2002. This fact has not been disputed by the Defendants. During the trial, PW1 tendered the Certificate of Incorporation of the Methodist Church in Tanzania, Exhibit P1. According to PW1, by virtue of Exhibit P1, the Methodist Church in Tanzania is allowed to conduct its business in Tanzania. PW1 also tendered a Taxpayer's Identification Number (TIN) issued by the Tanzania Revenue Authority (TRA), Exhibit P2, and proof of incorporation, Exhibit P3. According to PW1, the activities of the Methodist Church in Tanzania are governed by its Constitution, a certified copy of which PW1 tendered as Exhibit P4. On his part, 0W1, Bishop Charles Matiko Monto tendered Exhibit 01 as proof of the registration of the Methodist Church in Tanzania in 1988. 0W1 also tendered Exhibit D2, as proof that the Methodist Church in Tanzania was incorporated in 1992. According to 0W1, the Methodist Church in Tanzania made payment of fees for incorporation and as proof thereof DW1 tendered Exhibit 03, Exchequer receipt payments of fees for incorporation. DW1 also tendered Exhibit D4, being the original of the Constitution of the Methodist Church in Tanzania. 0W1 stated that the said Constitution (Exhibit 01) was amended through Mkutano Mkuu wa Page 19 of44 Kamati ya Utendaji Kanisa la Methodist Tanzania held on 13.09.2008 which DWl tendered as Exhibit D5, resulting to the Constitution of the Church (with amendments made in 2008), which DW1 tendered as Exhibit D6. PW1 vehemently denies the existence of the Constitution as amended in 2008 (Exhibit D6). In his closing submissions, Mr. Mushobozi, learned. Counsel for the Plaintiff submitted that the purported amendments of 2008 to the 1987 Constitution of the Methodist Church in Tanzania (Exhibit D6) through the Mkutano Mkuu wa Kamati ya Utendaji Kanisa la Methodist Tanzania held on 13.09.2008 (Exhibit D5) were contrary to the provisions of the 1987 Constitution of the Methodist Church of Tanzania, under which amendments to the Constitution could only be effected either through the Annual General Meeting or Special General Meeting. Besides, Mr. Mushobozi further submitted, in the said meeting the Constitution was not amended but was proposed to be amended as evident in the Minutes of the Kikao cha Kamati Kuu dated 14.02.2015, Exhibit D11. According to Mr. Mushobozi, in the Minutes of the Kikao cha Kamati Kuu (Exhibit D11) it was proposed that it will be in the Mkutano Mkuu which was to take place from 03.07.2015 to 04.07.2015, in which the Constitution of the Methodist Church in Tanzania "shall be verified and approved." But, Mr. Mushobozi maintained, the said Constitution with amendments seems to have been forwarded to the Administrator General even before being approved. Furthermore, Mr. Mushobozi submitted, the 2008 amendments to the Constitution of the Methodist Church in Tanzania (Exhibit D6) has the seal and was verified by Charles Matiko Monto - Bishop, Page 20 of 44 Josephine Majabe - General Secretary, Joseph Omuyanja - Trustee and Richard M. Mazira - Trustee. Mr. Mushobozi submitted further that when cross-examined DW1 admitted that the names, signatures and positions were done in 2009 but DW1 could not remember the date and month when this was done. Mr. Mushobozi submitted further that it was also stated that DW1 became Bishop in 2010, which means that DW1 wrote in the Constitution with Amendments as "the Bishop" even before he became the Bishop. As to the name of Josephine Majabe, which appear5 as one of the verifiers of the amended Constitution, Mr. Mushobozi submitted that when DW1 was cross-examined he insisted that the Plaintiff had never had a woman Secretary but the name of Josephine Majabe, a woman as Secretary, appears in the 1987 Constitution of the Methodist Church in Tanzania as amended in 2008 (Exhibit D6). Even the period it was said that the Secretary had passed away does not tally with the estimated month the Constitution was amended, Mr. Mushobozi further submitted. As for the two purported trustees, namely Josephat Omuyanja and Richard Mazira, Mr. Mushobozi submitted that they referred themselves as Trustees in 2008 even before being appointed by the so called meeting for 2010, whose minutes were never brought in Court. Lastly, Mr. Mushobozi submitted that, the 1987 Constitution of the Methodist Church in Tanzania as amended in 2008 (Exhibit D6) bears the seal and the names of Josephat Omuyanja and Richard Mazira as trustees before whom the seal was affixed. Mr. Mushobozi submitted further that, by virtue of Clause 9 of Exhibit; D2, the Page 21 of 44 Application for Incorporation, the common seal was to be affixed to the documents in the presence of two trustees as per Article 8 of the 1987 Constitution (Exhibit D4). Since the purported Josephat Omuyanja and Richard Mazira were not trustees, then the affixation of the seal was -not proper and subsequently the 1987 Constitution of the Methodist Church in Tanzania with its 2008 amendments was not proper and therefore had no legal force. The evidence on record as per the Minutes of the Kikao cha Kamati Kuu (Exhibit D11) is that it was proposed that it will be in the Mkutano Mkuu, which was to take place from 03.07.2015 to 04.07.2015, in which the 1987 Constitution of the Methodist Church in Tanzania ''shall be verified and approved" Furthermore, according to the 1987 Constitution of the Methodist Church of Tanzania (Exhibit D4), amendments to the Constitution could only be effected either through the Annual General Meeting or Special General Meeting. The purported amendments of 2008 to the 1987 Constitution of the Methodist Church in Tanzania (Exhibit D4) were done through the Mkutano Mkuu wa Kamati ya Utendaji Kanisa la Methodist Tanzania held on 13.09.2008. This clearly was contrary to the provisions of the 1987 Constitution of the Methodist Church of Tanzania (Exhibit D4). This contravention therefore renders the 2008 Amendments to the 1987 Constitution of the Methodist Church in Tanzania to be without any legal force. This Court finds and hold that the Methodist Church in Tanzania has only one legal Constitution, the 1987 Constitution (original copy - Exhibit D4 and certified copy- Exhibit P4) respectively. Page 22 of 44 I shall revert in due course to the issue of affixation of the common seal to the documents before Josephat Omuyanja and Richard Mazira, the trustees, before whom the seal to the 1987 Constitution of the Methodist Church in Tanzania as amended in 2008 (Exhibit D6) was affixed. On the evidence on record, it is without dispute that the Methodist Church in Tanzania was registered in 1988 (Exhibit Pl and Exhibit D1 respectively). The Church was also incorporated in 1992 (Exhibit P3 and Exhibit D2 respectively). As for the Taxpayers Identification Number (TIN) from the Tanzania Revenue Authority (TRA) which PW1 tendered as Exhibit P2 and DW1 as Exhibit D7, and the Exchequer receipt payments of fees for incorporation which DW1 tendered as Exhibit D3, I shall revert in due course when addressing the issue of the authenticity of the documentary evidence the parties tendered at the trial of this suit. The evidence on record has established on a balance of probabilities that, the Methodist Church in Tanzania is an incorporated entity with a Certificate of Incorporation, which allows it to conduct its business in Tanzania and also it has one Constitution which has legal force, the 1987 Constitution, which governs its activities. On the above conclusion, let me now proceed to determine the main issue in this suit which is, "as between the two groups/ which one is the lawful registered trustees of the Plaintift the Methodist Church in Tanzania. In his testimony PW1, Leopold Ernest Ndaki stated that he is one among the members of the Registered Trustees of the Plaintiff, the Page 23 of 44 Methodist Church in Tanzania. PWl maintains that he became a trustee -, since the year 2012 after being elected by the Annual General Meetings of 11th May, 2012 and 17th December, 2016 (Exhibit PS and Exhibit P9) respectively. PWl stated further that according to the 1987 Constitution of the Methodist Church in Tanzania (Exhibit P4), it is the Annual General Meeting and the Special General Meeting which may warrant amendment of the Constitution and elect the trustees. PWl stated further that the Chairman of the Annual and Special General Meeting capable of effecting changes to the membership of the trustees of the Plaintiff must have been elected by the members of the Board of Trustees. PWl stated further that by virtue of the 1987 Constitution, (Exhibit P4) Clause 6(i) and (b), the trustees must be not more than five (5). PWl stated further that by virtue of Clause 4 and ll(iii) of the 1987 Constitution (Exhibit P4) all members of the Association "shall have right to attend the meeting/ and the members of the Association shall be composed of persons who are admitted to the membership of the Association' according to the Association's records and any may become a member only when he accepts to follow the doctrines of the Association. PWl stated further that he had notified the Administrator General of the new changes of the elected trustees on 18th August 2012 as per Exhibit PS, and the said changes had the Exchequer Receipt No.4784560. PWl also stated that the annual returns of trustees had been filed to the Administrator General and the exchequer receipt for annual returns, notification of change were admitted as Exhibits P6, P7, PS, and Pll. PWl insisted that some of the documents for returns and exchequer receipts for annual fees and for Page 24 of 44 filing of the same with Administrator General are in the hands of the Defendants (DW1) as pleaded in Paragraph 13 of the Amended Plaint. PW1 stated further that following the termination of the 1st Defendant, Mr. Charles Matiko Monto from working in the Ministry of the Plaintiff he withheld all necessary documents of the Plaintiff. PW1 tendered Exhibit P11 collectively being a letter dated 10.08.2009 notifying the Association not to proceed with the services of the 1st Defendant. According to PW1, the 1st Defendant was terminated due to baptizing himself the presiding Bishop and likewise being anointed by the Bishop who does not belong to the Plaintiff's Church as well as for randomly ordaining other people 'The Reverend" without first following the curriculum and practice of the Plaintiff. I have had a look at Exhibit P11 collectively, particularly the letter dated 10th of August 2009. It is addressed to "Whom it May Concern: Rev. Charles Monto. "It states that, the said Rev. Charles Manto "is not allowed to represent the Methodist Church in Tanzania anywhere" and appointing Rev. Stephen Makena "to oversee the Administrative and pastoral oversight of Tanzania mission as Superintendent Minister." The other letter dated 10th of August 2009 and addressed to Rev. Charles Monto titled "Handing Over of Methodist Church in Tanzania", informed the addressee that "you are no longer the Superintendent Minister of Methodist Church in Tanzania'' and further that "I request you to hand over the office and the Church property to Rev. Stephen Makena who is the new Superintendent Minister. " Both letters were written by one Rev. Dr. Stephen Kanyaru M'Impwii, Presiding Bishop of the Methodist Church in Kenya. There is nowhere in the said two letters it is Page 25 of 44 expressly stated that Rev. Charles Monto has been expelled from the , , Methodist Church in Tanzania. Besides, the two letters (Exhibit P11 collectively) were written by the Presiding Bishop of the Methodist Church in Kenya one a Rev. Dr. Stephen Kanyaru M'Impwii. In any event, it is Rev. Stephen Makena (PW2) who was to have complained of being denied the opportunity to exercise the rights bestowed upon him as the new Superintendent Minister and not PW1. DW1 tendered in evidence Exhibit P11 being a Letter dated 23 rd November, 2010 from the Magu District Commissioner's Office titled "Handing Over of Methodist Church in Tanzania'' which was addressed to Rev. Dr. Kanyalu M'Impwii of the Methodist Church in Kenya and Rev. Bishop Samwel Kathia of the Nairobi Synod. This letter essentially was to the effect that since the 29th day of March 1988 when the Registrar of Societies within the Ministry of Home Affairs registered the Methodist Church in Tanzania, it means that the Methodist Church in Tanzania was a free independent church with no legal links to the Methodist Church in Kenya. That being the case therefore the letters contained in Exhibit P11 collectively are of no effect since they were written by a person without the legal capacity to dictate terms over persons who were members of the Methodist Church in Tanzania. DW1 also tendered in evidence copies of letters from the Magu District Commissioner's Office addressed to the Regional Immigration Officer, Mwanza, Exhibit D13 and D14 respectively. Exhibits D13 dated 26th May, 2011 is titled "Viongozi Halali wa Kanisa la Methodist Church of Tanzania Kupewa Hati ya Ukaazi Rev. Page 26 of 44 Moses Kaimenyi Gichira." Exhibit D14 a letter dated 25th November, 2010 addressed to Dr. Stephen Kanyalu M'Impli, Presiding Bishop, Methodist Church in Kenya and Rev. Bishop Samwel Kathia of Nairobi Synod, is titled "Handing Over of Methodist Church in Tanzania." I have already determined the fate of these letters when deliberating on Exhibit P11 collectively and therefore find no good reason to repeat myself in this regard. In his testimony PW2 Steven Makena, introduced himself as the true trustee and as being among the founders of the Methodist Church in Tanzania from 1992 and 1987 to this date. PW2 insisted that he has been a trustee of the Methodist Church in Tanzania and the trustees have been re-elected from time to time for the lifespan of five years. As I have pointed out above, PW2 did not state anything about being denied the opportunity to function properly as the newly appointed Superintendent Minister of the Methodist Church in Tanzania or not being handed over office and Church property as per Exhibit P11 collectively, which as I have pointed out above, the two letters were written by a person with no legal authority over the management of the Methodist Church in Tanzania. According to DW1, Bishop Charles Matiko Monto, by virtue of Exhibit D3, the initial registered trustees of the Methodist Church in Tanzania were Rev. Eugine Lubanda, Rev. James Busongo, Rev. Steven Makena and Mr. Pius Zawadi Masasi. According to DW1 when cross-examined by Mr. Mushobozi learned Counsel for the Plaintiff, DW1 substantiated that the person referred to as Steven Makena is the same one as PW2, and also as the one referred to as being among the current members of the registered trustees as pleaded Page 27 of 44 by the Plaintiff. While being led in examination by Mr. Sayi, learned Counsel for the Defendants, DW1 told this Court that he (DWl) discovered that the Methodist Church in Tanzania had no members in existence in 2010. DW1 stated further that it is upon approaching the Administrator General who instructed him (DW1) to pay the penalty fee of Tshs. 350,000/ =, but due to financial instability in the Methodist Church in Tanzania, DW1 made the 1st payment of the penalty fees on 06th March, 2015 as per Exhibit D9. DW1 stated further that the returns of trustees dated 14th February, 2014 and 14th February 2015 respectively (Exhibit D10) were all filed to the Administrator General. When cross-examined by Mr. Mushobozi, learned Counsel for the Plaintiff, DW1 conceded that the returns of trustees for 14th February 2014, and which had been annexed in the additional list of documents to be relied upon dated 10.04.2014, did not have a name of body corporate, but the one tendered and admitted as Exhibit D10 collectively, which were not retrieved from DWl's general file had the name of body corporate as the Methodist Church in Tanzania. DW1 stated further that on 14.02.2015, the Kikao cha Kamati Kuu-MCT- Tanzania, (Exhibit D11), was conducted and new trustees were elected namely, Bishop Charles Matiko Monto, Bishop Festo Ominde, Rev. Milton Tinka Dalali, Rev. Lister Winani, Rev. Josephat Omuyanja and Mr. Richard M. Mazira. It is worth noting here that, as per the minutes of the Kikao cha Kamati Kuu-MCT-Tanzania (Exhibit D11) dated 14.02.2015 six persons were appointed to be the new trustees, namely; Bishop Charles Matiko Monto, Bishop Festus Ominde, Rev. Milton Tinka Dalali, Rev. Lister Winani, Rev. Josephat Omuyanja and Mr. Page 28 of 44 Richard M. Mazira. This was contrary to the 1987 Constitution of the , , Methodist Church in Tanzania (Exhibit P4) which provides under Clause 6(i) and (b), that the trustees must be not more than five (5). As per Kikao cha Kamati Kuu-MCT-Tanzania, (Exhibit D11), held on 14.02.2015, six (6) persons were elected as the new trustees namely; Bishop Charles Matiko Monto, ·Bishop Festus Ominde, Rev. Milton Tinka Dalali, Rev. Lister Winani, Rev. Josephat Omuyanja and Mr. Richard M. Mazira. These six names were submitted to the Administrator General vide Return of Trustees dated 14.02.2015 (Exhibit D10) and also Return of Trustees dated 21.06.2016 (Exhibit D12). It is curious that whereas in the Minutes of Kamati Kuu - MCT dated 14.02.2015 (Exhibit D11) six new trustees were elected namely, Bishop Charles Matiko Monto, Bishop Festus Ominde, Rev. Milton Tinka Dalali, Rev. Lister Winani, Rev. Josephat Omuyanja and Mr. Richard M. Mazira, as accordingly reflected in the Return of Trustees dated 14.02.2015 (Exhibit D10 collectively), and Return of Trustees dated 21.06.2016 (Exhibit 12 collectively), in the Return of Trustees dated 14.02.2014 (also Exhibit D10 collectively), only five names appear, namely, Bishop Charles Matiko Monto, Bishop Festus Ominde, Rev. Miiton Tinka Dalali, Rev. Josephat Omuyanja and Mr. Richard M. Mazira. The name of Rev. Lister Winani does not therefore appear on the list of the new trustees. DW1 stated further that due to the increase in the names of trustees, DW1 decided to lodge the new six names on 02nd day of Page 29 of 44 June, 2016 instead of five names. In his closing submissions, Mr. Mushobozi picked on the issue of the six names of the new trustees as per Exhibit D12 collectively, which were not listed and registered with RITA since 06.03.2015. Furthermore, Mr. Mushobozi picked on the issue of the titling of the "Methodist Church in Tz." in Exhibit D9, arguing that it is not the same as what is reflected in the Return of Trustees. I have examined the Exchequer receipt (Exhibit D9) on record. Indeed as Mr. Mushobozi rightly submitted, it is titled for the body corporate as "Methodist Church in Tz." Mr. Mushobozi maintains that what appears on Exhibit D9 is not the same as the Methodist Church in Tanzania, which appears in the Exchequer receipt for 1st payment of the penalty fee. With due respect to Mr. Mushobozi, I find no force of logic in his argument on this particular point. The Exchequer receipt (Exhibit D9) only echoes the payment made with respect to Return of Trustees dated 21.06.2016 (Exhibits D12 collectively), and for the Return of Trustees dated 14.02.2015 and 14.02.2014 (Exhibit D10 collectively) respectively, all of which bear the title "The Methodist Church in Tanzania." As per the testimony of DW1, Bishop Charles Matiko Monto, and as it is reflected in the Application for Incorporati,on which was signed and attested before a Magistrate on 30th November, 1992 (Exhibit 03), the initial registered trustees of the Methodist Church in Tanzania were Rev. Eugine Lubanda, Rev. James Busongo, Rev. Steven Makena and Mr. Pius Zawadi Masasi. DW1 maintained that he came to discover that the Methodist Church in Tanzania had no members of board of trustees in existence in 2010. In their respective Page 30 of 44 ' testimonies before this Court during the trial, both PWl and PW2 insisted that there had been a continuous existence of trustees from the initial trustees who continued exercising their powers until 2012, when they handed over to Leopold Ernest Ndaki, Steven Makena, Bernard Korosso, Elikana Sim and Mary Habi. But PWl could not bring any evidence in Court to establish the continued existence of trustees from the initial trustees in 1992 to 2012. According to PWl and PW2, the Returns of Trustees together with other related documents such as Exchequer Receipts for annual fees were in the hands of DWl, who upon being notified of his termination, did not do the handing over of the documents. PWl stated that DWl was expelled from the Church for having ordained himself and ordaining other Reverends contrary to curriculum and church practice, and having been. But PWl did not bring any evidence to establish the fact of DW1 being expelled from the Church so as to prove that it was one of the reasons for his expulsion from the Church. In his reply, DWl denied having such documents in his possession otherwise if he had them he would have handed them over to Steven Makena, the new Superintendent Minister of the Plaintiff. But when prompted further during cross-examination DWl admitted that at one time the documents were being kept by his Secretary, whose whereabouts DWl said he did not know. But, DWl emphasized that the Secretary-General went to Korean countries, and that he left the office closed, and could not tell exactly when the Secretary General went to Korean Countries, and when he will be back to open the office for ministerial functions. But curiously while DWl maintaining that all the documents are in the custody of the Secretary General how has gone on Page 31 of 44 · a Korean trip, DW1 managed to bring and tender a number of documents including the originals such as the 1987 Constitution (Exhibit D4) and its 2008 Amendment (Exhibit D6), the original of the Application for Incorporation (Exhibit D3 collectively), the original of TRA Certificate TIN (Exhibit D7), the original of Certificate of Incorporation (Exhibit D2), certified copy of Certificate of Registration (Exhibit D1) and Return of Trustees with Exchequer Receipts (Exhibit D10 collectively). DW1 maintained that the Return of Trustees was with another person who is neither the Secretary nor the person DWl said was the custodian of the documents. When cross-examined on the documents he tendered and asked as how he had obtained them DWl insisted that they were in the general file which had been with him. In my considered opinion, the wavering explanation given by DWl before this Court during the trial as to the possession of the documents he tendered in evidence raise suspicion as to his credibility as a witness of truth under oath. In this suit out of very good intention to ensure that justice is seen to be done and the trial to be fair to both sides, this Court allowed the parties to bring a list of additional documents. Little did it occur to this Court that this paved a leeway for the parties to bring documents some of which were as latest as 2015, 2016, 2017 and even 2018, way after the suit had been lodged in this Court. This has made this Court to witness, and for lack of a better expression, what one may refer to as "a contest of original, certified ,copies and certified copies of certified copies of documents." Let me try to discern through the forest of the additional documents some of which found their way into the record in this suit, so as to try to get the good wood out of the trees in that forest. Page 32 of 44 According to PW1, the Methodist Church in Tanzania was registered under the Societies.Ordinance on 29 th day of March, 1988. This is evidenced by the Certificate of Registration {Exhibit Pl). DW1 tendered in evidence a nicely laminated "Certified true copy of the original" Certificate of Registration issued on 29.03.1988. Apparently, this copy was certified by a "Magistrate" on 02/01/1992. It was received in evidence as Exhibit D1. PW1 tendered a "copy of certified copy" of the 1987 Constitution of Methodist Church in Tanzania. It was admitted as Exhibit P4. It shows that it was certified as "true copy" by the Administrator General on 23 Jan. 2015. DW1 tendered in evidence the "original" of the 1987 Constitution of Methodist Church in Tanzania. It shows that it was certified by a "Magistrate," Exhibit D4. Furthermore, PW1 tendered in evidence a nicely laminated "certified true copy" of the Certificate of Incorporation of the Registered Trustees of the Methodist Church in Tanzania. It was admitted as Exhibit P3. It is dated 6 th day of January, 1993 and was certified by the Administrator General on 12 Sept 2012. DW1 on his part tendered in evidence a nicely laminated "original" Certificate of Incorporation {Exhibit D2). It is dated 6th day of January, 1993. The contest of documents did not end there. Both parties exhibited nicely laminated "original" Certificates of Registration for Taxpayer Identification Number (TIN) for the Methodist Church in Tanzania (KABITA) each bearing TIN Number 101-307-859 and each dated 21-01-2012. They were admitted as Exhibit P2 (by PW1) and Exhibit D7 (by DW1) respectively. The most intriguing part of these TRA TIN Certificates is that they were issued by two different TRA Page 33 of 44 'I' Officials, one Joannes N.A. Mally in respect of Exhibit P2, and one Ms. Christine Shekidete in respect of Exhibit D7. It beats anyone's imagination therefore how possibly the same TRA TIN Certificate with the same number could be issued to the same taxpayer but by two different officials from the same TRA and on the same date. It is neither PWl nor DWl was able to unravel this mystery during the trial. This however creates doubts as to the authenticity of the TRA TIN Certificates (Exhibit P2 and Exhibit D7) respectively. Furthermore, as per the "Kikao cha Mkutano Mkuu wa Kanisa la Methodist Tanzania'' dated 11/05/2012 (Exhibit PS), five (5) names were elected as trustees, namely, (1) Leopold Ernest Ndaki, (2) Stephen Makena (3) Bernard Cassian Koroso ( 4) Elikana · Sima and (5) Mary Habi. In the same meeting the following names were removed as trustees, (1) Eugen Rubanda (who had proceeded for studies in Canada), (2) Pius Zawadi Masasi (who had moved to another Church and (3) James Busongo. It seems that as per Exhibit PS, of the four initial trustees as per Exhibit D3, only the name of Steven Makena remained on the list of trustees, having been re- elected as per Exhibit PS. It appears that as per the laminated "certified copy" of Notification of Change of or Concerning the Trustees (Exhibit P6) dated 06th of May, 2012 apparently it reflects the change of the names of trustees which occurred on 12th day of May 2012. But as per Exhibit PS, the change of the names of the . trustees occurred on 11.05.2012. Exhibit P6 reflects the five names of the elected trustees comprising the Registered Trustees of the Methodist Church in Tanzania, namely, (1) Leopold Ernest Ndaki, (2) Stephen Makena (3) Bernard Cassian Koroso (4) Elikana Sima Page 34 of44 f and (5) Mary Habi. These five names also appear in the Return of Trustees dated 23 rd January 2015 (Exhibit PS collectively) which also comprise of ERV. No. 4503834 for Tshs. 10,000/ = dated 23/01/2015 being payment for the same. PWl tendered in evidence Exhibit P9 being the Minutes of "Mkutano Mkuu wa Kanisa la Methodist Church in Tanzania'' dated 17/12/2016 held at Magu Kanisani. The Minutes are signed by Bishop Leopold Ernest Ndaki and one Emmanuel Lubacha as Secretary. It appears that at that meeting, Elkana Sima and Mary Habi were removed as trustees, and George Opiyo and Joel Mathias Michemba were elected to fill in. PW1 denies the existence of vacuum in the trustees of the Methodist Church in Tanzania from 1993 to 2012, when the new trustees were registered, namely, Stephen Makena, Bernard Cassian Koroso, Elikana Sima and Mary Habi. But as per Exhibit P9 the Minutes of "Mkutano Mkuu wa Kanisa la Methodist Church in Tanzania'' dated 17/12/2016, Elkana Sima and Mary Habi were removed as trustees. And in their place George Opiyo and Joel Mathias Michemba were elected to take over as trustees. The Return of Trustees dated 10th January 2018 with ERV. 19272295 dated 09/01/2018 showing the names of the new trustees, namely, Leopold Ernest Ndaki, Stephen Makena, Bernard C. Koroso, Joel M. Mchembe and George Opiyo was received as ID"l" for Identification only. But of the five persons PW1 claim to be the lawfully registered trustees of the Plaintiff as reflected in the Return of Trustees dated 23 rd January 2015 (Exhibit PS collectively) only Leopold Ernest Ndaki and Steven Makena came to Court to testify. Page 35 of 44 PWl also tendered in evidence Exchequer receipts Exhibit PS collectively as evidencing payment of annual fees; ERV No.38571920 dated 24/05/2013 for Tshs. 50,000/= being annual fees for 1998/1999 up to 2011/2012 and 2012/2013; ERV No.385772563 dated 10/04/2014 for Tshs.20,000/= being annual fee for 2013/14; ERV No.6489339 dated 27/01/2016 for Tshs.20,000/= being annual fees for 2015/16; ERV No.38576694 dated 01/02/2017 for Tshs.20,000/= being annual fees for 2016/2017; ERV No.157884929 dated 19/01/2018 for Tshs.20,000/= being annual fees for 2017 /2018. On the evidence on record the issue is whether there were lawful members of trustees of the Plaintiff for the period between 1996 and 2015. The first batch of trustees, namely, Rev. Eugine Lubanda, Re. James Busongo, Rev. Steven Makena, and Rev. Pius Zawadi Masasi applied for Incorporation in 1992 (Exhibit D3). In terms of Clause 6 of the 1987 Constitution (Exhibit D4), the trustees shall be not less than two (2) not more than five (5) and as per Clause 6(c), their tenure of office is five years and are eligible for re-election in the coming new term. Furthermore, as per Clause 6(a) the trustees shall be elected by the members of the Association during the Annual General Meeting or Special General Meeting. That being the case then reckoning five years from 1992 it will translate to 1995 when the tenure of the first batch of trustees will have expired. This means that as from 1996 there was supposed to have been new trustees. But according to DWl, for the period between 1996 and 2010 the Plaintiff had been without the trustees. According to PWl, the new trustees for the Plaintiff were elected at the Annual Page 36 of 44 l General Meeting held on 11/05/2012 (Exhibit PS) where the three initial trustees, namely Eugen Rubanda, Pius Zawadi Masasi and lames Busongo were removed and new members were elected,. namely, Leopold Ernest Ndaki, Bernard Cassian Koroso, Elikana Sima and Mary Habi, including Rev. Stephen Makena who was re- elected. Clearly as from 1996 when the tenure of office the first bearers of office of trustees expired to 2012, when the Annual General Meeting (Exhibit PS) elected new trustees, the Plaintiff had been without registered trustees. This confirms the truth of the testimony of DWl that as from 1996 to 2012 there were no registered trustees of the Plaintiff. In his closing submissions, Mr. Mushobozi submitted that the Administrator General never complained over the Plaintiff remaining without trustees. DW1 stated that due to this vacuum, DW1 had to pay penalty fees. Expounding on the legal position as stipulated in section 16(1), (2) and (3) of the Trustees' Incorporation Act; Cap. 318 R.E. 2002, which provides for the procedures on how new trustees should be appointed and/or when a person ceases to be a trustee, Mr. Mushobozi submitted that as per subsection 2 of section 16 of the Act, a notification in writing should be made to the Administrator General within one month of the happening. But subsection (3) of section 16 of the Act gives leeway when the notification has not been made within 30 days by stipulating thus: "Whenever required in writing by the Administrator General, and in any event within one month after the expiration of each period of twelve months after the grant of Certificate of Incorporation, a return shall be made to the Administrator General by then trustee Page 37 of 44 or trustees of the names of trustee or trustees at such time as may be required or at the expiration of each period as the case may be with his or their residences and postal addresses. " It is without dispute that on the evidence on record, the tenure of office of the initial trustees of the Plaintiff expired in 1996. DW1 stated that he applied with the Administrator General for registration of new trustees in 2010. This was a period of fourteen (14) years from the date the tenure of office of the initial trustees of the Methodist Church in Tanzania had expired Mr. Mushobozi pointed out. If this be true, Mr. Mushobozi further submitted, then in terms of section 16(3) of the Trustees' Incorporation Act; Cap. 318 R.E. 2012, Steven Makena (PW2) being among the initial trustees was the one who wa::; eligible to apply for registration of new trustees and not for DW1 or the other Defendants to do the same. On the submissions that, PW2 being one of the initial trustees clearly failed in his duty as envisaged under section 16(3) of the Trustees' Incorporation Act; Cap.31B R.E. 2012. But DW1 cannot now be blamed for taking action to have new trustees registered. If anything then it is PW1 and PW2 who should explain why it took almost fourteen (14) years to call the purported meeting (Exhibit PS) to elect the new trustees. Mr. Mushobozi also submitted in his closing submissions, that in terms of section 23(l)(b) and (d) of the Trustees' Incorporation Act; Cap. 318 R.E. 2002, the Administrator General is empowered to give notice either physically or in the gazette to revoke the incorporation if by virtue of section 23(1)(b) of the same Act, the incorporation has for one month been running without trustees, and under section 23(1)(d) of the same Act, the body has not complied with the required conditions in the Page 38 of 44 Certificate of Incorporation. Mr. Mushobozi submitted that if indeed as per the testimony of DW1, the Methodist Church in Tanzania had been without trustees for 14 years, the Administrator General would have issued Notice for revocation instead of pleading with DW1 to just pay penalty fees and renew the registration of the new trustees. I must say that with due respect, I find the argument by Mr. Mushobozi on failure by the Administrator General to take action against the Plaintiff to be at odds with the very purpose of the main suit, which has been brought by the Registered Trustees of the Plaintiff. Were this to have happened, then neither the Plaintiff nor the Defendants would have been able to come to Court today to contest over the lawfulness of the trustees. In any case DW1 has nothing to do with failure by the Administrator General to exercise his statutory powers or to exrcise his discretion not to deregister the trustees of the Plaintiff or to allow DW1 to perfect the registration of the trustees. On the evidence on record it is without dispute whatsoever that, the Methodist Church in Tanzania remained without trustees for fourteen years from 1996 to 2012. DW1 or any member of the Methodist Church cannot therefore be blamed for taking action to fill the vacuum in the office of trustees. If anything then it is the initial trustees including PW2, Steven Makena who is to blame for being laisez faire by not taking action to fill in the vacuum in office of the trustees of the Plaintiff. On the above I shall now traverse the evidence on record to determine which one of the two groups is the lawful trustees of the Plaintiff. PW1 tendered in evidence a laminated "copy of the copy" of Page 39 of 44 Notification of Change of or Concerning the Trustees and ERV. No.47384560 dated 06th day of Monday 2012 (Exhibit P6 collectively). It comprises the names of the trustees as being Leopold Ernest Ndaki, Steven Makena, Bernard Koroso, Elikana Sima and Mary Habi. PWl also tendered in evidence a Return of Trustees dated 23/01/2015 together with ERV. No. 4503834 dated 23/01/2015. Notably, in the "Kikao cha Mkutano Mkuu wa Kanisa la Methodist Church Tanzania"held on 11/05/2012 (Exhibit PS) th~ names of the trustees contained in Exhibit P6 collectively were elected. But the Notification of Change of/or Concerning the Trustees, Exhibit P6 collectively is dated 06 day of Monday (!) 2012. It is stamped to show that it was received in the Office of the Administrator General on 18th August 2012. PW1 has not been able to explain to this Court why it took almost three (3) years from 11/05/2012 to 23/01/2015 to lodge the Return of Trustees with the Administrator General. DWl on his part tendered in evidence a photocopy of "Kikao cha Kamati Kuu-MCT" held at Bunda Methodist Church on 14/02/2015 (Exhibit D11), in which six persons were elected as trustees, namely, Bishop· Charles Matiko Monto, Bishop Festo Ominde, Rev. Milton Tinka Dalali, Rev. Lister Winani, Rev. Josephat Omuyanja and Mr. Richard M. Mazira. It is curious that in the Return of Trustees dated 14th day of February 2015 (Exhibit D10 collectively), it does not reflect the same number of persons as trustees - one of the Return of Trustees has five (5) names, while the other has six (6) names .. This anomaly raises serious doubts over the authenticity of Exhibit D10 collectively and thus does reflect the truth of what is stated therein concerning the names of the trustees. Page 40 of 44 1.1 Furthermore, the Return of Trustees (Exhibit D10 collectively) is not accompanied with Exchequer receipts as proof of payment and that they were lodged with the Administrator General. There is therefore no proof that the Return of Trustees was lodged with the Administrator General. As Mr. Mushobozi rightly submitted in his closing submissions, the six trustees were elected at "Kikao cha Kamati Kuu- MCT" and not at Annual General Meeting or Special General Meeting as provided for in the 1987 Constitution of the Methodist Church in Tanzania and the number of the trustees being six clearly it is more than the maximum of five allowed under the 1987 Constitution of the Methodist Church in Tanzania. As I have determined above, the 2008 Amendment to the 1987 Constitution of the Methodist Church in Tanzania (Exhibit D6) having resulted from a "Mkutano Maalum wa Kamati ya Utendaji Kanisa la Methodist Church Tanzania'' held on 13.09.2008 (Exhibit D5), is bereft of any legitimacy and hence the Amended Constitution is without any legal force. The only Constitution of the Methodist Church in Tanzania with legal force is the 1987 Constitution (Exhibit D4). It is for the above reasons the Plaintiff's suit partly succeeds and partly fails to the extent as indicated herein above. Declaratory judgment is hereby entered as follows: i) It is hereby declared that the Plaintiff is the true owner of the suit premises, that is, Plot No. 181 and 185 Block "C" Kamnyonge Musoma, Plot No. 133 Block "L" Magamaga Area in Tarime, One acre at Chilinge in Bunda Urban Page 41 of 44 where the church and a house is situatecl and ¾ acres of land at Kamukekere- Bunda where the Church is installer;l· ii) It is hereby declared that the Plaintiff has been without lawful registered trustees from 1996 to 2012; iii) The Administrator-General is hereby directed in consultation with the relevant supreme authority of the Methodist Church in Tanzania, to investigate the activities and the legitimacy of the group of persons mentioned in paragraph 7 of the Amended Plaint, namely, Leopold Ernest Ndaki, Steven Makana, Bernard Korosso, Elikana Sima and Mary Habi, and the group of persons mentioned in paragraph 4 of the Joint Written Statement of Defence namely, Bishop Charles Monto, Bishop Festus Ominde, Reverend Milton T. Dalali, Reverend Joseph Omuyanja, Reverend Lista Winani and Reverend Richard Mazira, who claim to be the lawful registered trustees of the Methodist Church in Tanzania; iv) It is hereby declared that the Methodist Church in Tanzania has only one Constitution, the 1987 Constitution; v) It is hereby declared that the purported 2008 Amendment to the 1987 Constitution of the Methodist Church in Tanzania lack any legal force; vi) It is hereby declared that the election and the purported registration of the trustees mentioned in paragraph 7 of the Amended Plaint and the trustees mentioned in paragraph 4 of the Joint Written Statement of Defence did not comply with the requirements of the 1987 Constitution of the Methodist Church in Tanzania and also did not abide by the relevant Page 42 of 44 statutory provisions in the Trustees' Incorporation Act Cap.318 R.E. 2018 and its Regulations; vii) It is hereby declared that all the properties of the Methodist Church in Tanzania shall vest in the Public Trustee until such time as members of the Methodist Church in Tanzania in an Annual General Meeting or Special General Meeting elect their trustees in accordance with the 1987 Constitution of the Methodist Church in Tanzania; viii) It is hereby declared that the persons mentioned in paragraph 7 of the Amended Plaint and the· persons mentioned in paragraph 4 of the Joint Written Statement of Defence are hereby permanently restrained from vesting or divesting the properties of the Methodist Church in Tanzania; ix) Each party shall bear its own costs for this suit It is so ordered. SGD: R.V. MAKARAMBA JUDGE 25/07/2018 Date: 25/07/2018 Coram: Hon. Makaramba, J. Plaintiff: Mr. Leopold Ernest Ndaki · Defendants: Mr. Charles Matiko Mento B/C: S. Isangi Page 43 of 44 I Mr. Charles Matiko Monto: My Lord, our Counsel, Mr. Sayi could not , appear. He is attending to his sick parent who has been admitted. · Mr. Mwita Emmanuel: My Lord, I am appearing on behalf of the Plaintiff holding the brief of Mr. Julius Mushobozi who has proceeded to Dar es Salaam to attend to his sick child. However, my Lord, I am not ·properly dressed to appear and receive the Judgment. I- Mr. Leopold Ernest Ndaki: I am ready to receive the Judgment. Mr. Charles Matiko Monto: I am also ready to receive the Judgment Court: 1. Judgment delivered. Page 44 of 44 I I,_