Chairman Pemtecostal Church of Mbeya vs Gabriel Bisangwa & Others (DC Civil Appeal No. 28 of 1999) [1999] TZHC 39 (29 November 1999)

• AT MBEYA (DC) CIVIL APPEAL NO, 28 OF 1999 (FROM DISTRICT COURT OF MBEYA, ORIGINAL CIVIL CASE NO! 15 OF 1998 BEFORE; S.V.G. KARUA - S.R.M.) THE CHAIRMAN - PENTECOSTAL CHURCH OF M B E Y A ............ APPELLANT VERSUS 1* GABRIEL BISANGWA ) 2. AIBROS JOHN ‘ 3 . FICHAEL JACKSON ) RESPONDFMT^ 4 . MRS. YUSUFU NYAMKUSWA) • • • ISAKWISA KWASILE ON BEHALF OF THE COMMITTEE MEMBERS JUDGEMENT MWIPOPQ. J » This is an appeal by the Chairman of Penteoostal Chnieh of Mbeya the appellant represented by the learned Mr. Mwakolo (Adv.) against purportedly five respondents named: 1 . Gabriel Bisangwaj 2» Aibros John, 3. Michael Jackson, 4. Mrs. Yusufu Nyairkuswa and 5 Isakwisa Mwasile supposed to act on behalf of the Committee Members who are represented by the learned Mr. Naali (Adv*)« The memorandum of Appeal has wrongly included the original 3 rd plaintiff Michael Jackson, the 4th plaintiff Mrs. Yusufu Nyamkuswa and the 5th plaintiff Isakwisa Mwasile whereas the trial court presided over by the learned Mr. Karua (S.R.M.) already dismissed their claims in this case against the appellant have from which decision they ^ not appealed so far. So, this appeal then,is only against the 1st Respondent Gabriel Bisangwa and Aibros John as the second Respondent only. The rest of the file and names in the Memo of Appeal are ;hereby struck off this court’s ^ .../2

register and off the written memorandum of appeal. The trial court held that, the issues framed at the - start of the trial would not be resolved and made the basis of the analysis of 'the judgement. The reason given by the trial court for not indudging himself in determining the issues framed was that he was following the presedant of 1. the case of Rev. Canon Onesmo Kashishi Vs . , Rev* John Changae: 2 . Archi-Bishop ofLthe Anglican Church i n L Tanzania Civil Case No. 34 of 1994 kwanza High “ Court "Registry S/ » His Lordship the Aunreported) quoted in the speech of . ^ Chief Justice Q j fJfsnzsnia Francis L. Nyalali titled:~ ; 7 Hotuba ya Ja.ji Kkuu Francis L . Nyalali kuhusu Utatuzi wa Figogoro ya kidini Mahakanani Iliyotolewa Mbele ya Kkutanc Kkuu wa Kikristo , Tanzania Dodoma 9 Juni. 1999n which speech the learned Mr, Karua (S.R,M.) quoted in full in his judgement. The first two grounds of this appeal specifically deal with the desistance of the trial court to determine the case on the basis of the framed issues and the full citation’of the Hon. Chief Justicefs speech abovementioned in these words: I quote from the Memorandum of appeal:— ”1. That the trial court erred both in law and fact when it used the speech of His Lordship Chief Justice Nyalali as an authority to decide the suit against the defendant. 2. That the judgement of the trial court is bad in law for it has been decided out of the issues framed."

• 3 - The tpial court; ' - at fretted issues were as follows : - • I quote them in full:- , f l. Whether the plaintiffs are members of the Pentecostal Church of Kbeya and members of the Executive Committee.

2. Whether Reverent Jackson Kwalyego was sacked by the executive committee. 3m Whether the reinstatement of the Rev. Jackson Mtyalyego was lawful. 4’ , Whether the constitution annexed is the constitution of the church. •
3. Whether the plaintiffs were defamed and sufferred damages* 6 * What reliefs are the parties entitled to, if any.” Out of these 6 issues framed by tho trial court the first four issues deal specifically with the religeous sect of Pentecostal Church in its executive membership, powers of the executive committee in sacking their pastor Rev. Mv/alyego, his reinstatement by the church chairman Rev. Nelson Shango and the proper constitution of the church. These are specific matters relating the activities and management of the religious organisation termed Kbeya Pentecostal Church. Lordship the The speech of His Chief Justice quoted above dealt in detail exactly with the problems involving activities and management of religious organs being brought into courts for an adjudication with a cited court case as/example" with its .-' Lordship the holding thereof. The cited case in H jls ^ - Chief Justice's speech was of this Court,yet to be reported, which is binding upon the trial court of Kbeya District Court/R*M.rs Court. c../4

• A - As such, in disposing off the first written ground of this memo of appeal I hold that the learned Mr. Karua ) was quite justified to quote, about two months later on 3/8/1999, the entire speech of His Lordship the Chief Justice delivered to the Meeting of the Christian Council of r I l anzania at Dodoma on 9/6/1999. .In disposing off the 2 nd ground of appeal I hold that the 4 above quoted framed issues No. 1 - 4 in this case at the trial courts level were similar issues as those drawn in the Miwanza High Court decision of Rev Canon Onesmo Kashishi Vs. The ArchiBishop of the Anglican Church in Tanzania and Rev. John Changae as both cases are dealing with the activities of church and its manage ment of religeous and administrative affairs which should best be left to be run by the religious agencies them selves. For ease of reference the issues framed in the Kwanza cited High Court Case inter alia were:- S i (a) A declaration that the election of the 2nd Defendant to the office of Bishop of the Diocese of Victoria Nyanza is null and void. (b) A declaration that the second Defendant, by his conduct, has disqualified himself from holding the office of Bishop of the Diocese of Victoria Nyanza or any other diocese in the Anglican Church. (c) An order compelling the 1 st Defendant to use His constitutional powers and demand the resignation of the 2 nd defendant as Bishop Victoria Nyanza*..” These issues when compared with those framed in this case look similar in essence and semblance.* The other two remainder framed issues in this case at the trial court which read as follows:-

n 5 » Whether the plaintiff's were defamed and have suffered damages. 64 What reliefs are the parties entitled to, if any” are not religeously oriented issues, as they are based on and tortious liability defamation. The 5 th issue was properly filed before the trial court and it could only be handled by a court of law(not otherwise within the walls of the church)unless they would settle it out of court on their own free agreement. However, in this particular appeal the person to complain should have been the respondents whose claim for damages for being defamed had been dismissed by the trial court* The appellant cannot appeal on behalf of the respondents in this regard. The third and last ground of appeal raised by the Chairman of the Pentecostal Church of Wbeya in the memorandum of appeal is that to quote it exactly as it is:- { T 3. That the trial Magistrate totally misdire cted himself when he directed the appellant to abide with the verdict of U I V IPT to which the Pentecostal Church-Kbeya is not a member and is not listed in the constitution*l ! This point was hotly contested by both sides through their advocates. With the terminated proceedings of the case having been done by the District Court 'the trial magistrate feared to leave a vacuum that would prolong the conflict which appeared to be potentially violent as indicated by the_^ comments in^the last para of the judge ment of the trial court in these words:-

"However, the current conflict has potent threat to public tranguility to which I am so concerned about. Happily enough, as an organ to which the church accepted by both parties, ' \ the UMPT resolved the dispute in favour of the plaintiff, in the course of these proceedings, after the court referred the dispute to it. The question here is whether the decision of UHPT could stand or pass the test of fairness and is endowed with sound judgement. I think, it does, because it tends to give many a reparation and spiritual restoration. I think, it could be proper, at this juncture, and I stand to be corrected, if its verdict which is incorporated in these proceedings, is backed by this court and ordained by the force of the law. The parties are accordingly directed to abide by the verdict * of the UMPT* The UHPT itself shall see to it that its orders and directions are obeyed, and elections, if necessary, are conducted according to the constitution of the church. The police are, accordingly directed to assist UMPT, in carrying out its directions. It is so ordered and directed." From the record of the trial court thore are letters from both sides and from UMPT Mbeya Zone showing that during midway the trial in the lower court both sides agreed to try to reconcile their differences outside the court and an order was made to that effect on 3/12/98 in these words KAs the parties are waiting to resolve the matter by reconciliation, ’ and as they are obliged to submit themselves to the auspices of their National Organization, the UKE'T Mbeya Zone, and as the UMPT, wishes to attempt to resolve the conflict by reconciliation, I accordingly yield to the parties wishes, and accordingly forward the parties to the patronage of Rev. Amos Makoye and their National Organization Mbeya Zone.

"The defendant, however, is directed to call a special session of the eiiurch Executive Committee with dispatch and I and

• perhaps, all of us, shall oblige if this matter is finalized before Christmas, On the circumstances I accordingly adjourn this case sine die, pending reconciliation. It is so ordered and directed.'1 After many meetings were done and many letters wese cross written' between the three parties i.e. the adversary parties and UF j PT Kbeya Zone the UKPT Mbeya Zone reached a reconciliation resolution as follows, as contained in i s l i e letter with ref. UK£T/KNSK/12 of 18/3/1999:- nItakuir>bukwa kwamba shauri Na. 15/1998 ambalo lilitolewa mahakamani tarehe 3/12/1998 na kupewa uongozi wa Kanda (UMPT) na ya kwamba katika barua hiyo iliagizwa mgogoro uwe umema- lizika kabla ya Krismasi 1998. Baada ya hatua mbalimbali zilizochukuliwa kwa kufanya vikao mbalimbali vya usuluhishi, uchambuzi ulifanywa na uongozi wa Kanda (UMPT) katika kumaliza mgogoro huoe Kwa upande wetu Kanda (UMPT) im^fikia uamuzi ufuatao, kwamba ifikapo tarehe 28/3/1999 muwe mmerudi Kanisani bila masharti.” The quoted Swahili version above means that ‘ che reconcia- tion by UL3PT could not be done by Christinas as directed by the court. Nevertheless, after many meetings etc. the Zonal UKPT had reached a resolution that by 28/3/1999 all the plaintiffs (Church members of about 40 in number) should return back to their church without any conditions. This reconciliatory resolution was the best ever

• . any ■ that could be accomplished byr^pyneutral reconciliation in this face of the earth. In Shakespeare’ s terms the Gods too.must have stood up and admired this resolution* Why? From the background of this dispute this short but brave reconciliatory resolution meant that the status to^rform which existec quo of all the parties in the dispute should- -return ^ before the dispute arose, that is the Pentecostal Church of and spiritual pastorated and Fbeya would remain intact in physic aliform i.e. th&.r^V^ch/ premises etc. as well as in personnel, . administration and congregation. All the 40 or so members of the church would have returned to their normal worshipping practices under the leadership of Rev. Shango as Chairman and Rev. Mwalyego as Secretary. . All the past would have been buried aside as if nothing had happened between them. What better repentance and reconciliation before Man and God could be found than this? None, in my secular and judicial view. The loggerheads and actual disputes between them which would have been b <ried once and for all and blessed most likely with a common forgiveness prayer and celebrations of their church solidarity are the following The initial allegation that Rev. Mwalyego had not or had dealt with a request for a loan of 30,000/=* by one Yusto which loan was meant to have come from Rev. Lackson Mwanjali would have been buried and forgiven. The action of the congregation and Executive Committee of the church to suspend Rev. Mwalyego which was done with the full participation and signature of the Chairman Rev. Nelson Shango would have been buried and forgiven.

The hypocritical action of Rev. Nelson Shango of thereafter^ all alone, reinstating Rev. Jackson Mwalyego the back into1 church leadership behind^back and joint under taking of the Executive Committee and Congregation would ■have, been buried and forgiven; The action of both Rev. Shango - as Chairman and Rev. Mwalyego of ex-communicating all the 40 or so congre gation from the church would have been buried and forgiven. ■ f y i e expulsion of Revi Shango by UMPT - Headquarters from being the Chairman of Mbeya Pentecostal Church would have been buried and forgiven. The case would have been terminated from the courts peace and and . ./ tranguility would have flowed back to the church < alike as and all its flock and pastors y before. This reconciliatory resolution was accejited by the respondents^- but unaccepted by the appellant. In between, the trial court endorsed the reconciliation resolution and ordered it to be executed by the^0” ? * ^ 0^ The appellant and his secretary Rev. Fwalyego were evicted from the church premises by the police by orders of the lower eourt. The appellant ran to this court for intervention* I ordered a temporary suspension of the eviction pending the hearing o f ^ ^ f appeal and this is the judgement which will determine the fate of the suspended eviction. I already indicated in my previous ruling of 19/10/99 that in this same appeal^I would not deliberate on the preli- 1minary points raised until I do so in this judgement in these words:- : i Lest we start dragging our feet, hands and brains into the very matters which will crop

up in the arguments of the appeal itself, I reserve my determination and reasons of these preliminary points which will be given in the main judgement of the appeal itself. 3o, for the time being we can proceed with the hearing of the main appeal.” m by This judgement covers the points touched upon^both sides on the preliminary points raised and argued previously* The questions of the third point of the memo of appeal and the preliminary points raised covering -the status of the Pentecostal Church of Mbeya in the UKPT and the legality of the UKPT dismissing the appellant from being the Chairman of the Pentecostal Church of Kbeya and the position of the constitutions of the Pentecostal Church of Kbeya and the UKPT and whether the Pentecostal Church of Kbeya is under UKPT or not are matters which this court is not going to them by doing so the court deliberate upon^in this appeal because^I will be indudging^ into the activities and management of the religeous organs in a suit not properly filed in this court for that j*irpose. This court can still deal with religious organs on matters falling within the prerogative orders of this court or on matters filed relating the infringement of the •constitution of the country or legality of the laws of the country dealing with religeous affairs etc. The United of Tanzania Republic^Constitution clearly provides in article 19 (2) as follows "(2) Bila kuathiri Sheria zinazohusika na Jamhuri ya Kuungano, kazi ya kutangaza dini, kufanya ibada na kueneza dini itakuwa ni huru na jambo la hiari ya mtu binafsi, na

shughuli na uendesha.ji wa .jumuia za dini zitakuwa nje ya shughuli za Famlaka ya Nchi.n The underlining is mine to stress the express constitutional proscription that the activities (shughuli) and manage ment (uendeshaji) of religious organs shall be outside the activities of the sovereign powers of the state. Under Article 4 of the constitution the Judiciary is one of the three piJOJ^rs- of the Sovereign organs of the State the other two being the Executive and the Parliament. So, Article 19 (2) of the Constitution excludes the Judiciary as well as the Executive and the Parliament from meddling and running the day to day affairs of the religeous organs. All the grounds of issue being raised in this appeal as well as the preliminary points raised and argued are n touch with the activities of the leaders and members of the Church of Pentecostal Mbeya into which this court can!t deep its pen and hands at this stage in the way this suit was filed in court. On the other hand, the 3rd ground of appeal touch on the reconciliation overtures ordered by the court as a result of a consent agreement reached by the adversary parties in court. Both parties were agreed that they should reconcile their differences before a specific neutral umpire the UKPT Fbeya Zone and an order of the trial court to that effect*was made and acted upon by all the three parties the appellant, the respondent and the umpire UMPT Fbeya. After the umpire made his reconciliation resolution and tranquility to the parties'for them to implement it for the peace solution the church,which in my view was the best^ever reachable as explained above, _ * • one party decided to disagree with ennuities it thereby }:in^ j t . a "the^.paialr and old reclamations existed "orior that ~ ■ £ * ** * " k ° dispute being solved by reconciliation.

The quoted order of the court for the UKPT umpired resolu tion to be followed and implemented by force of the court and police is not an interference into religeous affairs. It was an implementation of a resolution settled out of court and recorded into the court by consent of both passing parties. The .legality;:of the court in^the resolution stems*: from the fair agreement by consent of both parties who were represented by advocates to call UKPT Fbeya Zone as the reconciliator of the parties. Both parties are bound to follow their own stances to have their dispute reconciled by UKPT Kbeya Zone. This is not dependentlin. the legality of the UKPT constitution over the Kbeya Pentecostal Church or membership of Kbeya Pentecostal Church intc the UKPT etc. This is binding resolution on judicial both parties as a result of their^consent agreement to have UKPT Kbeya Zone reconcile them which job was commenda&lyv done. ' ■ Therefore, this appeal is dismissed with costs. The status quo returns to the one ordered by the trial court that is the Chairman of Pentecostal Church of Kbeya who is the appellant on this case who is namely one Rev. Nelson ;3hango and his secretary Rev. Jackson Mwalyego are to be evicted from the church premises of the Pentecostoal Church of Kbeya and to which church the rest of the congregation of 40 members or so shall return and continue with their religious activities under the supervision of UKPT Kbeya Zone until new church leaders are found. It should be made clear that the same Rev. Nelson Shango and Rev. Jackson Kwalyego shftuld be free to contest for leadership into the church at Kbeya when that stage has been reached.

• 13 - chance So as to give another^for reconciliation to be attempted while the status quo directed above subsists I allow the following steps to be taken:

1. Since the respondents were willing to implement the reconciliatory resolution of the UMPT Kbeya Zone as explained above they are found by their agreement to implement that-' resolution.- Since the

appellant and his secretary 'Rev. Jackson Kwalyego were the ones not ready to implement the resolution of UKPT Kbeya they are now free and allowed to agree with it and implement it. If so, they shall indicate so to the trial court and the trial court shall order the resolution to be implemented the effects of which I have shakespears explained in detail above and I am sure ^ God's will stand up - to see it and be pleased with its bravity and soundness in solving this problem. 2. To give a second chance of reconciliation "-at a higher level than the UKPT Kbeya Zone the if they want, appellant and Rev. Jackson Kwalyego are, ^ hereby allowed to go back to the District Court and ask for another attempt at reconciliations to be made at a higher level than before. If they*do so the District Court shall conve&a all the two parties as well as the UKPT Kbeya Zone and direct that UKPT at National level and the .. ./l4

Headquarters shall deal with the reconciliation in the following manner:- 3 of its office bearers as assigned by UMPT National level shall deal with the reconciliation together with 3 members appointed by the appellant and Rev. Jackson Fwalyego and another 3 members appointed by the respondent. The Nine members of the Reconciliation chaired Team shall be - by the Chairman from the UKPT ac^ng the three members of shall again come the team and a secretary^from the_j ; same three members of UMPT National level in the teami T^e Kbeya Zone U1-1PT will not t o . be allowed ^ P^.ticipate in the UKPT National Team; Both parties the appellant, Rev. Mwalyego and the respondents in this appeal court shall be allowed to be heard. shsll The decision of the 9 mens Team ■ . . be L or: decided on simplemajority vote and^the same decision shall be filed by the reconci liation team in the trial court for execution. Probably, these steps explained above will solve the by crisis of this proble ^reconciliation outside the court but as executed by the court due to the binding

agreement at the trial stage that there should be a reconciliation between them. V » \ \ ■’ • _ t X. / E. L. K. MIPOPO JUDGE 29/11/1999 29/11/99 Coram: Hon* E.L.K. Kwipopo, J. For Appellant: Mr. Fwakolo, Adv. - Absent Rev. Nelson Shango - Present in person For Respondents: Mr. Naali, Advocate - Absent 1st Resp. Gabriel Bisngwa - present in person 2nd Resp. Aibros John - Absent 3rd Resp, Kichael Jackson - present in person 4th Resp. Firs. Yusufu Nyamkuswa - Absent 5th Resp. Isakwisa Kwasile - present in person Rev. Jackson Mwalyego - present in person Both Advocates are absent. COURT: Judgement delivered in the presence of both sides and in the absence of both advocates* Also in the presence of Rev. Jackson Kwalyego. AT KBEYA 29TH NOVEKBER, 1999 ELKM/JJM