REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD v WILLIAM LUSITO AND EMMANUEL LAZARO 1990 TLR 26 (CA)

REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD v WILLIAM LUSITO AND EMMANUEL LAZARO 1990 TLR 26 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

B 25 May, 1990

Flynote

Societies Law - Organizations required to register as societies - Applicability of the

Societies Ordinance (Application) C Order, 1954 - Meaning of "Congregations

exclusively for the purpose of religious teaching and worship".

Civil Practice and Procedure - Trust - Breach of - Written consent from Attorney-

General - When necessary - Section 67 D Civil Procedure Code, 1966, section 18 of

Trustees Incorporation Ordinance, Cap. 375.

-Headnote

In a suit before the High Court, the appellants had contended that the Tanzania

Assemblies of God was incorporated as a trust and that its subsequent registration as a

society was improper. The appellants also sought a E permanent injunction against

the first respondent not to act as Minister to the Tanzania Assemblies of God. The

respondents counterclaimed that the appellants and all Ministers in their group had

been lawfully removed from office and should be restrained from conducting prayer

meetings in all Tanzania Assemblies of God Churches F without the authority of the

authentic leadership of the Tanzania Assemblies of God. The trial judge found that

the registration of the Tanzania Assemblies of God as a society was proper in law and

was not done in bad faith, and that the appellants had been properly removed from

office. The trial judgment was in favour of the respondents. The G Court of Appeal

upheld the trial judge's decision.

Held: (i) Tanzania Assemblies of God is one of the organizations required to register

as a society. The Minister has the discretion under the Societies Ordinance, cap. 337

to requite such an organization to register as a society.

H (ii) the Tanzania Assemblies of God was not one of the organizations exempted

from such registration by paragraph 4 of the Societies Ordinance (Application) Order,

1954 as it was not a "Congregation exclusively for the I purpose of religious teaching

and worship".

1990 TLR p27

MAKAME JJA, KISANGA JJA, and OMAR JJA

(iii) the contention that the respondents could not properly counterclaim

against the appellants for breach of A crust without first seeking the written consent

of the Attorney General lacked basis, because the relevant section 67 of the Civil

Procedure Code and Section 18 of the Trustees' Incorporation Ordinance, Cap 375

only apply if the other party is a trustee; B

(iv) since it was properly found that the appellants had been lawfully removed

from office, the said requirement of obtaining a written consent of the Attorney

General was not applicable.

Case Information

Ballonzi, for appellants C

Lamwai, for respondents

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A.: The appeal to this court is from the judgment of

Chipeta, J. in the High Court at Tabora in a suit involving men of God belonging to a

denomination called the Tanzania Assemblies of God D which, for facility of

reference, we shall call T.A.G. As the learned trial judge observed this was "an

unusual and rare suit."

Evidently there was simmering discontent in the Church and this developed into

remarkable acrimony, giving rise to a fractious division, open hated, and at times even

physical violence. In at least two instances, at Tabora and at E Temeke, some

members of the Church are said to have sought to make and emphasize their viewpoints

by manhandling the opposite party within the precincts of the house of prayer.

Following all this, the parties took each other to court.

The present appellants sued in the High Court and prayed for, among other things, a

Declaration that T.A.G. was F incorporated as a trust and therefore its registration as

society was improper; and an injunction perpetually to restrain the present first

respondent, William Lusito, from acting as minister to T.A.G. church at Kitete in

Tabora Region. At the end of the day the present appellants failed in the suit and

were condemned in costs. A counterclaim G by the present respondents

substantially succeeded. The appellants and all ministers in their group, declared

dissident by the trial court, were found to have been lawfully removed from office;

they and their followers were restrained from conducting prayer meetings in all

T.A.G churches without the authority of what was found to be the H authentic

leadership of T.A.G, and they were ordered to vacate with immediate effect all T.A.G.

churches and church premises they were found to have unlawfully seized. A prayer

for general damages for trespass in the counterclaim was however not allowed,

because of the learned trial judges expressed hope that the dissention I would heal

and because of the particular nature of the claim.

1990 TLR p28

MAKAME JJA, KISANGA JJA, and OMAR JJA

A We find it necessary to say a few words by way of background. The Assemblies of

God is said to have been first introduced into the country in 1927. It was incorporated

as a trust in 1963 and had a constitution. This constitution was amended in 1966 and

under the amended constitution a bishop called Emmanuel Lazaro continued to be

the head of the Church, the superintendent, which he had been since 1963. This man

Lazaro is now the B second respondent. His assistant was Moses Kulola, also a

bishop. Kulola and Lazaro fell out with each other in 1982 and there has been a split

since then.

C At the trial of the suit in the High Court the present appellants were advocated

for by Mr. Kwikima, learned counsel, while Mr. Muhula, learned advocate,

represented the present respondents. Before us the appellants' advocate was Mr.

Ballonzi while the lawyer for the respondents was Dr. Lamwai.

D The appellants are complaining against the trial court's findings that the

operative and valid constitution was the 1978 Constitution, which replaced the 1966

one; that the registration of T.A.G. as a society was lawful and in fact obligatory; and

that the legally registered trustees are those who existed after the 1981 elections. The

learned trial E judge's finding that Pan African Evangelism as an organization did

not exist was also complained against.

We wish to say that we found this appeal both involved and intricate and that the

various submissions by learned counsel demanded close comprehension and careful

analysis. We are grateful to both learned counsel for their well organized efforts to

assist us.

F We wish also to refrain from expressing our own views on the mechanics and

dynamics of T.A.G such as seem to us to emerge from the record of appeal. We must

limit ourselves to observing that the sorry and unusual developments in T.A G. might

well be a manifestation of the failure of the expected deep spirituality of devout men

G to gain dominance over the human ego and vanity. The structure and history of

T.A.G. might have been contributive to the present situation we have to deal with. It

occurs to us that the problem is not quite novel in T.A.G. For example as early as

September, 1969 the Mbeya Conference of T.A.G. had occasion to note, albeit in a

slightly different context:

H Missionary quarrels - Sometimes a missionary groups sends missionary back to

the States. Later that man returns as an independent missionary. It was agreed by the

conference that the missionary should notify the Executive I committee and the

Presbyters when something like this occurs ...

1990 TLR p29

MAKAME JJA, KISANGA JJA, and OMAR JJA

and further on, under Missionaries visiting Churches - A

because of the things that happened at the Dodoma Conference two years ago, the

Mbeya Section decided that missionaries could not visit Churches in their Section

without special permission from the Presbyter ... If any missionary B causes trouble

or creates a problem, then he will be disciplined according to the Constitution.

One would have expected that men is religious cloaks would spend their spiritual

endowments, their time, and their energies, on joyous selfless service to others and

that by their devoted display of the major virtues of high thinking, C right living,

and loving action, they would illumine the less enlightened mortals and radiate the

loving care of Him they profess to follow and serve.

In conducting this appeal we acceded to Mr. Ballonzi's request that he should start by

submitting on a certain aspect of respondents' counterclaim. Dr. Lamwai did not

object to that course of action. The aspect Mr. Ballonzi wished D to address us on, a

preliminary aspect as it were, was whether the respondents had no legal capacity to

bring the counterclaim in the first place. He wanted us to say that the respondents

should not have counterclaimed at all, so that if we upheld him on this the rest of the

appeal would proceed to be argued on the basis that there was no E counterclaim at

all. Dr. Lamwai vigorously responded to Mr. Ballonzi's arguments. Immediately after

the end of that exercise the court rose so as to consider learned counsel's submissions

that far in order to construct its own view. After careful consideration however, and

because both counsel understandably went beyond the restricted scope of F that

particular exercise, and touched upon issues properly within the province of the rest

of the appeal, we decided that counsel should go on and argue the rest of the appeal,

on merit. Indeed as it turned out, even after that recess both learned counsel found

themselves going back to some of their earlier submissions. That was hardly G

surprising, because the various complex parts of the matter are so intertwined. On our

part we do not wish to make a severe division, and treat the first portion of the

learned arguments as though it is not closed to the rest of the arguments; because it is.

H

Mr. Ballozi submitted that while his clients were legally entitled to bring the suit, the

respondents had no legal capacity to respond beyond the plaint and bring their own

counterclaim The appellants were trustees, Mr. Ballozi submitted, and to remove

them one would have to proceed under section 18 of the Trustees' Incorporation I

Ordinance cap.375, and seek an opinion of the High Court: Such opinion by the High

Court

1990 TLR p30

MAKAME JJA, KISANGA JJA, and OMAR JJA

A would be deemed to have the force of a declaratory decree. Mr. Ballozi also

submitted that the respondents were not entitled to counterclaim in the manner they

did, in any event, because they did not comply with section 67 of the Civil Procedure

Code. He further submitted that under that section, the respondents would first have

to B obtain the written consent, of the Attorney General.

Dr. Lamwai's response was briefly that there was need to resort to section 18 of the

Trustee's Incorporation Ordinance because, as far as the respondents were concerned,

this was on occasion, "when any question arises as C to whether any person is a

member of such body corporated..." etc. in terms of the said section 18. Dr. Lamwai

submitted that Callist Masulu Dionisi, the man who signed the second Amended

plaint, was not a trustee, as is clearly evidenced by Exh. D.1, the document entitled

"Notification of A Change of or concerning The Trustees". It D shows that Callist

Masalu Dionisi had been dismissed in April, 1982. As for the argument that the

respondent did not have the Attorney General's consent, Dr. Lamwai submitted that

the section deals with an alleged breach of trust but now because the respondents

were not alleging that the appellant persons were trustees, or because in the

counterclaim the allegation that the appellant persons were trustees was not

conceded, the Attorney General's E consent cannot be a prerequisite.

It seems to us from the foregoing that the rival submission effectively encompass the

substantive area of controversy so that central question upon which the outcome of

this appeal seem to us to depend.

F In our view the issues are defined by the following questions:

What was at the material time the operative and valid constitution of T.A.G. and

what powers if any, did the second respondent, Emmanuel Lazaro, therefore have?

Who were really the registered trustees when the plaint was filed? The other

questions and possible answers would flow from the foregoing. These would be such

issues as whether G Callist Masalu was entitled to resist the transfer to Mwanza and

what part the resultant confrontation played? What were the circumstances leading

to the registration of T.A.G. as a Society under the Societies Ordinance and whether

such registration was illegal and or mala fide? Whether Emmanuel Lazaro had formed

an Organization H called Pan-African Evangelism; whether he was entitled to do so

if he did, and what was the effect of that organization on T.A. G. and on Lazaro's own

position?

It was common ground at the trial that the original constitution registered at the time

of the incorporation was replaced by the 1966 Constitution. The appellants' case was

that 1966 Constitution was never replaced by any I other one and it is thus the legal

and valid one to date.

1990 TLR p31

MAKAME JJA, KISANGA JJA, and OMAR JJA

The relevant and material significance of this contention, if true, would be that

Emmanuel Lazaro should not have A continued as the Chief Bishop non stop after

two terms, to-date, and that there was no provision for the transfer of Ministers under

the said 1966 Constitution. This would in turn mean that it was irregular to purport

to transfer Callist Masalu Dionisi and so he was not obliged to obey the transfer order

to go to Bugando. B

We think with respect that the learned trial judge marshalled capable arguments to

support his finding that the 1966 Constitution is not the valid constitution of T.A.G.

to date. He found on good evidence in our view, that there was a C valid approved

constitution the 1978 Constitution a person holding a T.A.G. Office would have to lie

fallow for two years after two two-year terms, so how else would Lazaro still be the

head, the superintendent, as late as 1988 as asserted by Callist Masalu himself at Page

26 of the typed proceedings? The letter, exh. D.3, which was signed jointly by

Emmanuel Lazaro and Moses Kulola, as late as 8th November, 1983, was inviting

pastors to a D conference the following month to have another look at the

Constitution before going to the General Conference to thrash out the crisis already

in existence. The letter directs that the second respondent Emmanuel Lazaro shall in

the meantime continue as the Head of T.A.G. with Moses Kulola as his Deputy. This

letter of invitation signed by both Lazaro and Kulola as aforesaid, says: E

Katiba Yetu iliyopitishwa na Mkutano Mkuu wa 1978 aliyosimamia Kanisa letu hata

sasa mpaka itakapofanyiwa marekebisho. F

Callist Masalu belonged to Moses Kulola's portion of the Church and Exh. D.3 was put

in as part of the respondents' case. We think it is significant that Moses Kulola was

not called to testify on the appellants behalf. G While we are on this, we wish also to

remark that it has not escaped our notice the fact that Moses Mwamenda, one of the

people ought to sue the respondents, did not sign the final version of the Amended

Plaint and that the only other witness for the appellants, that is other than Masalu

himself, was Alexander Simbila who did not get on board until 1982, after he had left

the Roman Catholic Church, and who could only talk of the ramifications of the

conflict, rather than the root cause which is what would provide answers to the issues

the trial court was looking for. H His being a member of Kamati Maalum did not

improve his status nor make him more informed as to what was the constitutional

position of T.A.G.

If there was no duly approved 1978 Constitution, which was the one registered in

1981, how come Callist Masalu and others under I

1990 TLR p32

MAKAME JJA, KISANGA JJA, and OMAR JJA

A Kulola, were trying to amend the very same Constitution behind the back of the

rest of the members of T.A.G., only that the relevant authorities refused to register

the amendments because they had not been approved by the recognized General

Conference of T.A.G. Masalu does not say that he did not attend the 1978 conference.

Lazaro B clearly asserted that Masalu attended that General Conference and that he

had in fact participated in preparing for it. We agree with the learned trial judge that

in 1978 a Constitution to replace the 1966 one was approved and we agree also that at

the 1982 General Conference it was this 1978 constitution which was used. The

Lazaro-Kulola C joint letter was much later, in November, 1983, as we have already

seen.

The registration of T.A.G as a society was also the subject matter of complaint. It was

alleged by the appellants that it was done in bad faith, so as to facilitate Lazaro's

scheme to transfer ministers from their stations, for which there D was no provision

under the 1966 Constitution. It was also submitted by the appellants' counsel, Mr.

Balonzi, that it was irregular, any way, to register T.A.G. under the Societies

Ordinance Cap. 375.

The respondents' case was that the transfers were sanctioned by the Executive

Committee to which the General E Conference has delegated powers under the

1978 Constitution. We are satisfied that the operative constitution did provide such

powers and that Lazaro was only carrying out the Executive Committee's decision.

Whether or not the transfers themselves were in bad faith is in our view a different

issue, distinct from the contention that the registration F of T.A.G. as a society was

itself done in bad faith and irregular. We now wish to turn to this latter contention

and we have to start with the relevant law.

Section 2(1) of the Societies Ordinance defines what society is. Section 6 provides that

an organization which is not G otherwise a society as defined, because of certain

reasons specified under the Act, may nevertheless be required to apply for registration

as a society, within the period specified in the order. This means that the requirement

is compulsory to the organisation. What is discretionary is the decision to require, and

that is by the Minister. The type of organizations which are not societies but which

may nonetheless be required to apply for registration are those H organizations

which are not societies because they are exempted under specific situations. T.A.G. as

an organization was obliged to have itself registered as a society. It appears that Mr.

Ballonzi himself otherwise agreed with this but he submitted that T.A.G. is exempted

from the obligation by virtue of the Societies Ordinance (Application) Order I 1954

and he relies on Paragraph 4 of the said Order. Paragraph 4 is "Congregations which

assemble exclusively for

1990 TLR p33

MAKAME JJA, KISANGA JJA, and OMAR JJA

the purpose of religious teaching and worship." But is T.A.G. really such an

organization - A congregation A exclusively for the purpose of religious teaching

and worship? Our view is that it is not. In the Concise Oxford Dictionary the nearest

'Congregation' to T.A.G. as an outfit is a lot more than that, even to the knowledge of

the appellants. See the Application for Registration - Exh D.7. A group of people not

have a church which is B self-supporting self-propagating etc. If all that it does is to

assemble exclusively for the purpose of religious teaching and worship.

Mr. Balonzi pointed out that the letter from the Ministry of Home Affairs, Ref. No.

SO.6246/29 of 4th August, 1984, that is Exh.p.12 recalled an earlier letter dated 9th

February, 1983, (Annxr. J to the Written Statement of C Defence) which said that,

among other things, Callist Masalu and certain other named persons were no longer

trustees. Even if one was to read Exh. p.12 literally and very strictly, and say that the

withdrawal also referred to the compulsory registration, and was not only limited to

the leadership crisis the Ministry was handling, the trial judge's D finding was

correct that T.A.G was obliged to register as a society in view of our finding that the

Societies Ordinance (Application) Order 1954 did not apply. So that even if Chipeta, J.

had considered the said order we are satisfied that he would have come to the same

conclusion he did and with this court is in agreement. The E evidence was that the

Executive Committee was unsure about the legal position of T.A.G., and that their

enquiry because of that is what lead to their discovering that they had to register. We

see no evidence from which to agree with the appellants that the step to register

T.A.G. as a society was done in bad faith. F

The next big question is who the trustees of T.A.G. at the time the appellant

instituted the proceedings were, and, more specifically, whether Callist Masalu was

one of the trustees at the material time. We share the learned trial judge's view that

"This issue goes to the root of the matter". G

Having not been persuaded by the appellants to fault the High Court finding that the

1978 Constitution was the operative one at the material time and is the valid

constitution to date, we have no difficulty in finding, as did the trial court, that

Emmanuel Lazaro was the Superintendent the Askosfu Mkuu, of the T.A.G. according

to the H Constitution. There is no evidence that he has been lawfully replaced.

Callist Masalu became a T.A.G. trustee in 1974 as evidenced by the notification signed

by the second respondent himself and by one Glenn Ford. The Notification Form is

the Form T.1.4 we heard so much about during the hearing of this appeal. Another

T.1.4 Form, signed by the second respondent and another person, dated October,

1984 I

1990 TLR p34

MAKAME JJA, KISANGA JJA, and OMAR JJA

A was refused registration by the Administrator-General because, the

Administrator-General contended, evidence had surfaced that the meeting alleged to

have taken place at Dodoma on 11th and 12th October, 1984 at which the new

trustees were appointed had not taken place and that in any event an October, 1984

meeting could not have B effected a change of trustee the previous August, that is

August 1984. In that Notification, Callist Masalu was mentioned as one of the trustees

'dismissed' but the form shows that his name is cancelled as one of the dismissed

trustees and he does not appear in the new list of trustees. So one has to look at other

evidence to see whether or C not Masalu had been removed as a trustee. Such

evidence is available. The second respondent testified at the trial that after Masalu

had refused to obey the transfer to Bugando the General Presbytery called him to a

meeting so as to consider the issue but Masalu refused to attend, whereupon the

Presbytery decided to remove him from T.A.G. D It was after that dismissal that a

Notification of change Exh. D.1 was sent to the Administrator General. The change

was said to have taken place on 23rd April, 1982 and signed on 17th January, 1983.

Dr. Lamwai was at pains to point out that this Notification was not the one that was

rejected, and he was right. The Notification was E sent in after the Iringa conference

which got rid of Masalu. We are of the view that the learned trial judge was entitled

to arrive at the conclusion that Masalu was not a T.A.G. trustee at the time the

proceedings were instituted.

F The arguments on section 10 of the Trustees' Incorporation Ordinance and section

67 of the Civil Procedure Code can be taken together and need be dealt with only

briefly. We think Dr. Lamwai's reaction to both arguments has merit. You do not

need to seek an opinion when you are satisfied what your position on the matter is

and you are not in doubt. The-respondents' stand was that Masalu was not a trustee

and they proceeded on that basis. It G would be inconsistent and self-contradictory

to start off by wondering whether Masalu was a trustee. What the respondents did

was to respond to Masalu's contention, a pretence as far as they were concerned, and

assert that Masalu was not a trustee.

H Regarding the counterclaim Mr. Ballonzi submitted that if at all, the respondents

should have proceeded in compliance with section 67 of the Civil Procedure code

which required first the written consent of the Attorney General. Mr. Ballonzi's

arguments was that what the respondents were counterclaiming was covered under

subsections (a), (b) and (c) of section 67. Under the said subsections a party would

seek a High Court decree for I one of the following:

1990 TLR p35

MAKAME JJA, KISANGA JJA, and OMAR JJA

(a) To remove a trustee, A

(b) To appoint a new trustee and

(c) To vest property in a trustee;

When the party alleges a breach of trust created for the purpose of a public charity. B

One has to ask oneself, to get an able answer to Mr. Ballonzi's submissions, whether

the respondents were seeking any of the three (a) and (c); and whether the

respondents were saying Masalu was in breach of trust. Their position was that

Masalu had ceased to be a trustee so he could not be in breach of trust and there was

no question of C removing him etc. The trustees were the ones mentioned in the

Notification Exh. D. 1. We uphold Dr. Lamwai on this. The respondents were entitled

to counterclaim and, on the necessary balance of probabilities, they successfully

proved their case in our view.

We shall now consider, very briefly the issue of Pan African Evangelism. We further

think it is subsidiary. Subsidiary D in that it did not go to the basic issues.

Some people were unhappy and unconformable about Lazaro's Pan African

Evangelism. Certainly one such person was Callist Masalu. The matter was discussed

by the relevant authorities in T.A.G. and these were satisfied that Pan E African

Evangelism was not an organization as such. "BUT", to use Lazaro's own words, "I was

asked to change my ministry to "Bishop Lazaro". This was to avoid confusion among

Christians and thus preserve tranquillity within the Church". So that was the advice

the Askofu Mkuu got from the collective wisdom as the General Presbytry. It F is

noteworthy that we have no evidence that Lazaro continued with the term "Pan

African Evangelism" for what he called his Ministry. But the damage might have been

done. When you have Askofu Mkuu ending his 'Ministry' bulletins by signing himself

as "Ni sisi Pan African Evangelism" one may be tempted to ask the quest who are the

G plural 'Sisi'. Why in the name of good reason and sober calculation use Pan African

Evangelism letter heads when transacting purely T.A.G. business as Askofu Mkuu,

including such things as the transfers of pastors? Pastors could justly have been

confused and unsettled by this, just as they could have been by Lazaro's proven and

conceded H association with Morris Cerullo whose bulletin billed Emmanuel Lazaro

as "a great living example of the teachings Morris Cerullo." Morris Cerullo may be

entitled to the view he expresses in his "AFRICA IS IN OUR HANDS" but when he

talks of his encounter with the 'Communist Government' and 'Communist

Authorities' in Dar es Salaam in 1974, one need not be very surprised if some

members in Lazaro's flock, anxious I

1990 TLR p36

A not to mix religion with politics, felt uncomfortable and perhaps misunderstood

their superintended.

We agree with the analysis made and the conclusions reached by the court below and

we have no reason to upset the decision. We wish to add that in our view it was quite

balanced and judicious not to award to general damages B prayed for.

We dismiss the appeal in its entirety but in the careful exercise of our discretion we

order each party to bear his own costs.

We wish to end by expressing our earnest hope that the living faith the parties profess

to have will enable them to C forget and forgive, embrace one another again, and

take up from where they parted ways, and then seek to improve things from within.

Appeal dismissed.

1990 TLR 36

E