Chairman Pentecostal Church of Mbeya vs Gabriel Bisangwa and 4 Another (DC Civil Appeal No. 28 of 1999) [1999] TZHC 291 (29 November 1999)

AT MBEYA (DC) CIVIL APPEAL NO. 28 OF 1999 (FROM DISTRICT COURT OF MBEYA, ORIGINAL CIVIL CASE NO. 15 OF 1998 B~FORE: S.V.G·, KAAUA - S.R.M.) THE ·cHAIRMAl\J ~ . PE.l\JTECOSTAL CHURCH OF MBEY.tt •••••••••.• • • • VERSUS

1. GABRIEL BISAl\JGWA )
2. ABROS JOHN
3. f'ICHAEL JACKSON
4. MRS. YUSUFU NYAMKUSWA
5. ISAKWISA WASILE ON BEHALF OF THE cor;¥.ITTEE ¥EMBERS JUDGEMENT ............... ••• .APPELLANT , · This is . an appeal by the Chairman f _Pertteoo-stal Cl,uMti of Mbeya the appeilant represented by the learned Mr. Mwakolo (.Adv.) against purportedly five respodents.n9-medi 1. Gabriel .... .. ~ Bisangwa 2. Aibros John, 3. :Michael Jackson, ,.4. Mrs.· Yusufu Nyarrkuswa and 5. Isakwisa.Kwasile supposed to.act on behalf. of the ~ . .Committee Members who ·are represented by the eaed Mr. Naali ( .. :..c1v.-). · · The memorandum of Appeal has wrongly included the original ~ . ~ 3rd plaintiff MicGael Jackson,the 4th plaintiff Mrs. Yusufu I Nyamkuswa and· the 5th plaintiff Isakwisa Mwasi.e whereas the ·trial court·prsided over by the learned Vir. fa~~ (s.R.M.) already dismissed their clairr:s in this case against the appellant . . . have frof!l which· dectsi9h_ they L not appeal'ed so tar. So, this appeal :then,is oly against the 1st Responden Gabriel Bisangwa . ' and Aibros John as the second Respondent only. The rest of the · ' • • ''! file and names in the Memo of•· ..:~peal are :;hereby struck off this court's L ' . . . •. . /2 . '

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• 2 - register and off the written merorandum of appeal • . The trial court held that the. issues·f~amed at the start o_f · j;he 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 hims.elf in: determining the ., issues framed was that he y.ras f'oll<:>W'in·g the presedt.nt of
• . . 1. . the case of Rev. Canon Onesmo Kashishi Vs. Rev,. John Changae: 2 • .ArP.11:i.:-:l?_shop of the Anglican Churs:Ji .. :!A.t._Tanzania · Civil Cas?.,.,..;T\Jo, 34 of 1994 Mwanza High C;our,.1 Registry ·, · . . . · His L,.,rdship the ( unreported) quoted in the speech• of -. -L · .. :. Chief Justice 9i-:'.fanz::lnia Francis L. Nyal:ali titled:- I. 11 ]iotuba ya Jaji 1'-'kuu Francis L!-JiY:alali kuhusu ,U.tatuzi wa Mig.ogoro ya kidini 1VLahakar:1ani Iliyotolewa Mbele ya ~kutano.l'Jk,_μu wa Kikristo _Tanzania Dodoma 9 Juni, 1999:, which speech,the learned Mr. Karu.a (SR.M.,) quoted in.full in his judgement • . The first two grounds of this appeal specifically '•. ,, deal with the desistance of the trial court to deternμ.ne the ,·, . case on the basis of· the framed issues and the full citation of the Hon .. Chief Justice's speech abovementioned . . ' in. ·these worct·s: I quote from the Memoranclun of Appea1::- , 0 1; That the trial court erred both in law and fact when it ued te spech of His· : t · Lorc:1.ship Chief Ju_stice Ny·lali as &n authority to de9i~e the suit against the' . '. defendant. \ ·,

2. That the judgement of the trial court js bad iri '.L'aw for it has been decided out of the issues framed." • • . • /3 ". •

• 3 - ' . Tne tria1 court'~ :fd i..ssue.a wore as .follows:- · ; t. . I quote them in full:- · I n1. Whether the plaintiffs are members. of -' · the Pentecostal Church of Mbey an~ members of the Executive ComrrJ.ttee ..

2. Whether Reverent Jackson Mwalyego was ,1. sacked by the executive comrriittee.
3. Whether the reinstatement o~, the Rev. Jackson walyego was lawful ;.4. Whether the constitution anneed is ' '' the constitution of the church. 5• Whether the plalntiffs were defamed and sufferred·damages.
4. What reliefs are the parties entitled to, if any. " Out of these 6 issues fraed by the. trial court the first four issues deal· specifically witl::- the religeous sect of Pentecostal Church in its executve membership, .. . ; . powers of the executive committee in sacl:ing their pastor Rev. Mwalyego, his reinstatement by tq~ church chairman Rev. Nelson Shango and the proper constitution· of the church. ' These are specific matters relating the activities and . . . l . . management of the religious organisation termed Mbeya • ·1 Pentecostal ehurch. . Lordship the The speech of Mis 'Lr .. Chief _Justic'e quoted above dealt in detail exactly with the problems involving activities and management of religios organs being broght into courts for ·an adjudication with a cited court _case sLexamp1e with its · - . Lordship the holding thereof. The cited case in R~ 1. : Chief Justice I s speech.was of this Court,yet to be re~orted,which is binding upon the trial court of ¥:beya District Court/R.M.'s Court.

• 4 - As such, in disposing off the first written ground of -this memo of· appeal I hold that the learned :Mr. Karua ( s.R.M.) was· quit€ justi£ied to quote, about two months later on 3/8/1999, the entire speech of .His Lordship the . Chief Just.ice delivered to the eeting of the Christian Council of Tanzania at Dodoma on 9/6/1999. ·In disposing off the 2nd ground of appeal I hold that the 4 above. quoted framed issues No.- l ... 4 in this case at the trial court's. level were similar issues as those drawn in the _Manza Hig Court decision of Rev. Canon Onesmo Kashishi Vs. The ArchiB.ishop 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 Mwanza cited High Court Case inter alia were:-· n(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 frorr. holding the office of Bishop of the ,. Diocese of Victoria Nyanza or any other docese in the An._glican Church~ (c) An order compelling the 1st Defendant to use His.eoμstitutional powers and demand the resignation of the 2nd defendant as Bishop Victoria Nya:nza •• .-" These-issues _y.rhen corr:pared with those framed in this case -· look sirnilar in essence· and serrblance. i 'l'he other two· remainder framed issues in this case at the trial court which read as follows:- ••• /5

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• 5 - ·u5. Whether the plaintiff~s were defamed and have suffered damages.

6. What reliefs are the partiJs entitled to, if any" are not re.ligeously oriented issues, as they are based on and tortious liability ]_. defamation. The 5th 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 agreemento However, in this.particular appeal the person to complain should have been the respondents whose. claim for darr.ages for being defamed had been dismissed by the trial court. The appellant cannot appeal on behalf of the respondents in this regard. i The third and last ground of appeal raised by the Chairman of the Pentecostal Church of Mbcya in the memorandum of appeal is that to quote it exactly as it is:- .· 11
7. That the trial Magistrate totally misdire- , .. cted himself when he directed· t::1e appellant to abide with the verC:.ict·of UMPT to which the PentecostaI Church-Il':beya is not a member and is not listed in the constitution." This point was hotly contested by both sides through their advocates. With the terminc3ted 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:-

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• 6 - VIHowever, the current conflict has potent threat to public tranguility to which I am so concerned about.· Happily enough, as an organ to which the chill:ch 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 ito The question here is whether the decision of UMPT could stand or pass the test of fairness and is endowed with .sound judgement. I think,· it does, because it ends 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 UMPT itself shall see to it that its orders and directios are obeyed, and elections, <· if necessary, are conducted accordin 6 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. ti From the record of the trial court there are letters rom both sides and from UMPT Mbeya Zone showing that during midway L the trial in the lower court both sides agreed to try to reconcile their differences outside th2 court and an order was made to that effect on 3/12/98 in these words:- n.'...s 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 ffilJP'r Mbeya Zone, and as th UMPT, wishes to attempt to resolve the conflict by reconciliation, I accordingly yield to the parties wishes, and accordingly forward the parties to the patr 0 nage of Rev. Amos Makoye and their National Organization l'(beya Zone • . . • /7

• 7 - "The defendant, however, is directed to call a sp§:cil _ 9 ession of the 5i1urch Executive Committee with disatch 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." After many meetings were done and many letters weP.e cross written between the- three parties i.e. \he adversary I?arties and UMPT Mbeya Zone the lW'i.PT Mbeya, Zone reached a . . . ' t + re.conciliation resolution as follows, as contained in -.he ·; letter with ref. UMPT/KNSK/12 of l~/3/1999:-· 0 Itakumbukwa kwamba 'shauri Na. 15/1998 ➔· " ambalo 1ilitolewa mahakamani tarehe 3/12/1998 na kupewa uong'ozi wa Kanda (UMPT) na ya kwamba katika barua hiyo il:i.agizwa m·gogoro uwe umema- lizika kabla ya Krismasi 1998 • . · Baada ya hatua mbalimbali zilizochukuliwa kwa kufanya vikao mbalimbali vya usuluhishi, uchambuzi ulif anywa na ·uongozi wa Kaneta ( lW'iPT) katika kumaliza mgogoro huo. Kwa upande wetu Kanda (UMPT) imcfikia uamuzi ufuatao, kwamba ifikapo tarehe 28/3/1999 muwe mmerudi Kanisani bila masharti. 11 The quoted Swahili version above means that the reconcia- tion by ur,'JPT could not be done by Christmas as directed :· by the court. Nevertheless, after many meetings etc. the Zonal ill'lPT had reached: a resolution that by 28/3/1999 all __ the plaintiffs ( chur.ch members of about 40 in number) should r\eturn back to their church without any conditions. : .. ·, '' .. • This reconciliatory resolution was the best ever ., .. /8 ... -,.

• that could be accomplished in this face ,of the earth, any byreutral reconciiiation In Shakespe;are's terms the Gods too must have stood up an_d admired this resolution. Why? Fro·m the backgroun?- of this dispute this short but·brave reconciliatory-resolution· meant th'?t the status . totrfbrm which existed quo of all the parties in the dispute should~ return l before the dispute arose, that is the Pentecostal Church o:f and spiritual . pa$tort· ted and Jifbeya would remain intact in physical, form i. e ~ the.:~ : h ···-''11. t J.. c1.urc.i:~ premises etc. as well as in personnel,:: - i: administration and congregation.. All the 40 or so members of· the church would have returned to their normal worshipping practices under the leaders.hip of Rev. Shango .as Chaiman and Rev. Mwalyego as Secretary. All the pas 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. Kwalyego 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 1.\1'.wanjali would have been .buried and forgiven. The action of the congreg~tion 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 • . . • /9

L 9 - The hypocritical action of Rev. Nelson Shango of ,, i; thereafter; all alone, reinstating Rev. Jackson Mwalyego · the . . · - back into church leadership ·behindLback d jo_int under- tak;ing of the Executive Committee and Congregation would -· ··-----nave ___ b._en 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,!orgiven. I • , 1he expulsion of Rev, Shango by UMPT '"!' Headquarters from being the Chairman of Mbeya Pentecostal Church would have been: buried and forgiven. The case would have been terminated peace and and . L · .: tranguili ty would have flowed alike as from the courts back to the churoh and ail its flock and pastors 'L before. This reconciliatory resolution was accepted by the ' . . respondentss but unaccepted by the appellant. In between, the trial court endorsed the reconciliation resolution and . polic•, ordered it to be executed by the ·L '- The appellant and his secret~ry Rev. JVfwalyego were evicted from the, church premises by the police by orders· of the lower ourt. The appellant ran to this court for intervenion. I ordered hearing a temporary suspension of the eviction pending the this of L __ 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 LI would not deliberate on the preli- minary points raised until I do so in this judgement in these words:- 11 Lest we start dragging our feet, hands and C brains into the very matters which will crop ••• /10

• 10 ' 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. So, for the time being we can proceed with the hearing . . . · of the main appeal. 11 ., : , :'- b;i This judgement covers the points touchd uponfoth 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 flbeya in the lJIViPT and the legality of the UMPT dismissing the appellant from being the Chairman of the Pentecostal Church of Mbeya and th po-sition of the constitutions of the Pentecostal Church of l\fue'ya and the • I • UMPT and whetner the Pentecostal Church of Mbeya is under UMPT or n0t are matters . them . deliberate upoll_L in this which this court is not going to by doing so the court appeal becauseLI will be indudgingL into the activities and management of the religeous ·organ~ in a suit not properly filed in this court for that purpose. This court can still deal with religious organs on matters falling within the prerogative orders of this cour't or on matter~ 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 · · .. RpublicLConstitution clearly provides in article 19 (2) as follows:- 11(2) Bila kuathiri Sheria zinazohusika na Jamhuri ya Muungano, kazi ya kutangaza dini, kufana ibada na kueneza dini itakuwa ni huru na jambo la hiari ya mtu binafsi, ~ ••• /11

• 11 .l}u,ghμJ..i.., na uendeshaji wa jumuia za dini zi-t·-akuwa nje ___ ya shghuli za Mamlaka ya Nchi. 11 The underlining is mine to stress the _express. constitutional proS1ription .that the activities ( shughuli) and .manage- ment (uendeshaji) of religious organs shall be outside tha . activities of the sovereign powers of the state. Under Article 4 of the constitution the Judiciary is one of the . three p-j) •. l.~~ 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 ared are n touch with the activities of the leaders and members of the Church of Petecostal t--'ibeya into which this. court can I 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 ouch 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 illJJPT l'lJ,eya 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 l'fbeya. After the umpire made his reconciliation resolution and tranquility to the parties for them to implement it for the peace L solution the _church,which in my view was the best1ever reachable as explained above,~ one party decdd to disagree with · ennui ties it thereby .JJ.in@:::ta:.-theqμ:aa:tL and old :t'eclamations existed urior . ·. that .:.. _ L . 1 ·""·1 to the dispute being solved by reconciliation • ••• /12

12· - The quoted order of the court for the UMPT 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 .. se_ttled out of court and recorded into the court by consent of both passins parties. The :..le[Eality::1~.:. of the court inLthe resolution stem:s, from the fair agreement by consent of: both parties who were represented by advocates to call UMP.T ~ 1 'beya Zone as the reconciliator of the parties. Both parties are bound to follow their own stances to have their dispue reconciled by l!M"J?T IVlbeya Zone. This is not dependen.t1.tn the legality of the WiPT constitution over the }V;beya Pentecostal Church or membership of Mbeya Pentecostal Church into the both parties as UIVPT etc This is bin.ding resolution on judicial a result of theirLconsent agreement to ! have UffiPT Mbeya Zone reconcile them which job was commendablf'l 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 Mbeya who is the appellant on this case who is namely one Rev. Nelson 3hango and his secretary Rev. Jackson ¥.twalyego are to be evicted from the church premises of the Pentecostoal Church of l<beya 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 UMPT Mbeya Zone until new church leaders are found. It should be made clemr. that the same Rev. Nelson Shango and ., Rev. Jacks?n V.iwalyego should be free to contest for leadership into the church at Jv:beya when that stage has been reached. • •• /13

• 1i - .. chance So as to give .anotherLfor re~onciliation 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 re-solu.tJ:,m of the UMPT Mbeya·zone;as explained above i .. they are found by their·cigreeDent to implement that resoution. Since the appellant and his secretary Rev. Jackson . i ,,,. . :tJiwalyego were the ones not fe·ady to implement the resolution of'UIVJPT I(beya 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 shakesears explained in detail above -and I arn sure L ,_ God 1 s will stand up·r to see it and be i pleased with its bravity and soundness in solving this problem.
2. To give a second chance of reconcil~atilontnt a higher level than the UJYlPT J".lbeya Zone the if they want, appellant and Rev. Jackson ~ralyego are, L hereby allowed to go back to the District Cnurt and ask for another attempt at reconciliations to be made at·- a higher level than before. If they do so the District Court shall convena all the two parties as well as the lJlVfPT Ivibeya Zone and direct that UMPT at National level and the ••• /14

! : .... 14 - Headquarters shall deal with the reconciliation in the following manner:- 3 of its office bea:t:ers as assigned by UMPT Ntional level shall deal with the recon9iliation together with 3 members appointed by the appellant and Rev •. Jackson Ivwalyego 9:nd, another .. 3 members appointed by the respondent. The Nine memb.ers of the Reconciliation chaired Team shall be -: - -L -"~ by the Chairman from the UMPT an;mg the three members of

• shall again come the team and a secretary Lfrom tl:;le __ 1 -- ·1! . i same three members of UMPT National level in the team. ·rhe tv:beya Zone Ul 1 lPT will not to be allowed L-p$1'\ticiae in the ill'!PT National Team, Both parties the appellant,Rev. iwalyego and the -· . , respondents in this appeal cour shall be allowed to be heard: shell 'rhe decision of the 9 mens Team · L---l ?e
• • -or. decided on simplemajority vote an~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 problemLreconciliation outside the court but as executed by the court due to the binding •••• /15

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• 15 - agreement at the trial stage that there should be a reconciliation between them. ' / E, L. K. MVHPOPO JUDGE 29/11/1999 29/11/99 Coram: Hon. E.L.K. Mipopo, J. For Appellant: Mr. Mwakolo, Adv. - Absent Rev Nelson Shango - Present in person For Respondents: r. Naali, Advocate - Absent 1st Resp. Gabriel Bisngwa - present in person 2nd Resp. Aibros John - Absent 3rd Resp. Michael Jackson - present in person 4th Resp. Ifirs. Yusufu Nyamkuswa - Absent 5th Resp. Isakwisa Mwasile - present in person Rev. Jackson walyego ~ present in person Both Advocates are absent. COURT: Judgement delivered in the presence of both sides and in the absence of both advocates. l'!Jwalyego ., ,.,--·o·u k;r.·-4,so in the presence of Rev •. Jackson .•. '--o<lt:- R.9-t of Appeal is explained •. ·. ·'\ \ii X ~ \z Ill It: . " ·• i I 4- i ; \ \ , . \ . E., L .. K. MWIPOPO ,, . ·,, JUDGE

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~;s.-' ... ~ '",: ,. AT ~BEYA 29TH NOVEFillER, . 1999 ELKM/JJM