On 22 May 2019, the plaintiff issued summons against the seven (7) defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya, Andrew Mashamaire, Chief Zimunya and Mutare Rural District Council) claiming the following:
“(a) That, the plaintiff be declared the legitimate legal and bona fide holder of a lease of a piece of land measuring seventeen (17) hectares at Garai Village, Mabiya, Chief Zimunya under Mutare Rural District Council;
(b) That, plaintiff and its members regard and hold the said land as its sacred religious shrine;
(c) That 1st defendant and its members have no right or claim to the Mabiya Shrine;
(d) That the 2nd- 5th defendants pay the costs of this action.”
On 4 June 2019, the first to fifth defendants (the International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) filed their appearance to defend the matter.
BACKGROUND
In the plaintiff's declaration, the plaintiff is an Apostolic Ejuwell Jekenisheni Church, a religious and Christian Church. The first defendant is The International Apostolic Ejuwell Jekenisheni Church. The plaintiff describes the first defendant as an off-shoot of the plaintiff.
The second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) are the church leaders of the first defendant.
The sixth and seventh defendants (Chief Zimunya and Mutare Rural District Council) were cited in their official capacities.
Sometime in 2013, Bishop Elijah Dzingai Nyikambaranda formed the first defendant constituted by the second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) as its co-leaders.
The first to fifth defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) registered its own Constitution, and, from the date of the first defendant's formation, in 2013, the plaintiff and the first defendant existed as two distinct entities.
The plaintiff contends, that, it holds a lease with the sixth defendant (Chief Zimunya) for a 17 hectare piece of land situated in the communal area of Chief Zimunya under Village Garai where Mabiya is situated.
The plaintiff regards that place as its shrine and sacred for its religious ceremonies since 1985.
After the formation of first defendant (The International Apostolic Ejuwell Jekenisheni Church), the second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) and the first defendant (The International Apostolic Ejuwell Jekenisheni Church) congregation incidentally also regards the same 17 hectare shrine as sacred and clash with the congregants of the plaintiff during festivities.
The parties ended up in court; involved the police; and had had clashes pertaining to the use of the shrine.
The first to fifth defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) filed their plea, and, in addition, filed a counter claim.
In their plea, the first to fifth defendants deny that the first defendant is an off-shoot of the plaintiff to the first to fifth defendants. It is the plaintiff who is a renegade and the first defendant is the mother church.
To the first defendant, it's the plaintiff who broke away from the first defendant in 2018.
The first to fifth defendants deny that Bishop Elijah D. Nyikambaranda did not form the first defendant as a breakaway church but that the original church only changed its name and Constitution to add the word “International.”
Otherwise, the first defendant retained the same membership of the original church; as such, the first defendant is the appropriate lessee of the 17 hectares piece of land at Garai Village which is its shrine.
The plaintiff should be the organisational church body which must be barred from interfering of the shrine, not the first defendant.
The first defendant adds, in its pleadings, that, it is the one which had been paying lease rentals to the sixth defendant (Chief Zimunya).
The first defendant admits that the parties have been both to this court as well as to the Magistrate's Court relating to the dispute over the use of the shrine during the church's festivities.
The first defendant also concedes that there have been wrangles and hostility amongst members of the plaintiff and the first defendant.
It prays for a declaratory order identical to the relief being sought by the plaintiff, and that the defendant be declared the appropriate user of the sacred place at Garai Village.
On 7 November 2019, the minutes of the joint pre-trial conference identified two issues for trial:
(i) Between the plaintiff and the first defendant, which one is the main church or the splinter group?
(ii) Between the plaintiff and the first defendant, which one is the holder of rights of Mabiya Shrine?
These two issues constitute issues for trial and for this court to decide.
PLAINTIFF'S CASE
The plaintiff opened its case by calling Mr Gwinyai Gabriel Banganwa of House No.983 Chikanganwa, Mutare.
He was born in the plaintiff church.
The plaintiff and the first defendant's congregants used to belong to one religious organisation called Jekenisheni Church stretching from 1932 until 2013 when High Priest, Zabron Chitakatira, had died. According to the church's norm, after the death of a leader, they have to have time to search for a new leader of the church.
The witness used to be a Secretary for Mutare Centre.
After the death of a leader, members have to have a mourning period of a year before they choose a new leader.
According to Mr Banganwa's evidence, in 2013, one Dzingai Elijah Tom Nyikambaranda returned from Botswana where he had been staying since 1957, and, upon his return, he went to the church and announced his intention to transform the plaintiff church. His return and ordination as an Archbishop resulted in a dispute, dividing the congregants into two warring factions.
In 2015, in July, during a passover, Dzingai Elijah Tom Nyikambaranda was ordained by ACCZ from Harare, and, in terms of the first defendant's constitutional provisions, he was ordained as the leader of the first defendant with a position of an Arch-bishop.
After the ordination of Archbishop Nyikambaranda, part of the congregants refused to recognise him as a leader; allegedly because of the Arch-bishop's autocratic leadership.
The group approached Chief Zimunya, the sixth defendant, and lodged a complaint.
The faction had previously consulted the local traditional leadership but could not get assistance.
The witness stated, that, contrary to the plaintiff's Constitution, the post of Arch-bishop was new to them; the regalia had been altered; the insignia/badge given to Archbishop was alien to the plaintiff; and the very process of having ACCZ coming to ordain a church leader was foreign to the plaintiff.
The plaintiff's name came into being in 2009 when a new Constitution was introduced and the church abandoned the Jekenisheni Church name.
He disagreed that the plaintiff church consented to the new name by the first defendant's title.
As a result of the formation of the first defendant, some of the leadership crossed the bridge and joined the first defendant where they were given leadership posts.
The plaintiff, according to the witness, is the legitimate beneficiary of Mabiya Shrine.
According to legend, High Priest Luke Mutendamambo, the founder, was led by the Holy Spirit to this hill in Garai Village, under Chief Zimunya, and was shown, in a vision, that the place was holy; even members of the other church denominations acknowledge the sanctity of the place.
This is the place which had triggered the dispute as to who should use it during Passover annually held in July.
They have to go and worship until Jesus comes, as the witness said in court.
The shrine is compared to Jerusalem in Israel and the members of the church believe that they get their salvation and healing at Mabiya Shrine. Without Mabiya Shrine, one cannot state that he is a member of Jekenisheni Church.
The witness appeared in court to be well indoctrinated and added, that, even the teachings of the church centralises Mabiya Shrine.
Mabiya Centre was previously leased to Jekenisheni Church measuring 4,000 square metres.
The place was identified after the church leaders had visited the village head, headman, and chief.
Later, the church was given a lease agreement by the local authority, now called Mutare Rural District Council.
Given the growth of the church, the area was extended to cover an expanse of 17 hectares.
The witness produced receipts in court which are marked exhibit 3. The lease agreement, as well as the plaintiff's Constitution, were produced as exhibits 2 and 1 respectively.
The witness denied the contention by the first defendant, that, the plaintiff is the one which broke away from the first defendant.
During cross examination by counsel for the first defendant, Mr Banganwa admitted, that, in 2015, members belonging to the plaintiff and the first defendant were present when Archbishop Nyikambaranda was ordained; however, the factional group did not recognise him as a leader to them, he was an ordinary person. To them, their leader was Phillip Changonona.
He was also asked as to how leaders were chosen, and he indicated, that, upon the death of a leader, his deputy succeeds.
He repeated, that, when Dzingai Elijah Tom Nyikambaranda was ordained, he was the leader of the first defendant, and, as far as the witness is concerned, the plaintiff and the first defendant are two distinct church entities.
He also added, that, that was the reason the first defendant was holding service at a different centre when Arch-bishop Nyikambaranda summoned the leadership of the plaintiff, who were assembled at Mabiya Shrine, to go and explain to the Archbishop the meaning of the two gatherings.
The second witness called by the plaintiff was Chief Zimunya (Kibben Bvirindi).
He is a member of the Seventh Day Adventist Church. He knows both the plaintiff and the first defendant. He also knows the sacrilege of Mabiya Shrine and that the plaintiff worships there.
The chief allocated Mabiya place to Jekenisheni as a worship centre.
When the dispute between the plaintiff and the first defendant erupted, he was accompanied by police and local legislator to go there and ordered that none of the two should use the shrine until the dispute between them had been resolved.
He later on summoned Archbishop Nyikambaranda to his court and instructed the church leader to resolve the impasse.
Arch-bishop Nyikambaranda later on reported back to the Chief his unwillingness to change his council; he bade farewell to the Chief and indicated to the witness that he was going to establish his own centres at Chaseyama in Chakohwa in Chipinge District, one in Mutasa, and the other one in Masvingo.
When the Archbishop died, he opted to be interred at Mutasa Centre.
He also told the court, that, when the founder of Jekenisheni Church died, his sons formed their own churches whilst originating from Mabiya Shrine. They left the shrine and established themselves in Chipinge; the other son went as far as Mozambique and established his centre in Manica Province.
The Chief added, that, the plaintiff and the first defendant operate in his jurisdiction and his desire is to see peace between them - if the first defendant wishes. Its leaders are free to approach the Chief and be allocated a place for worship.
According to him, the plaintiff is the legitimate user of the shrine. To him, the first defendant must relinquish Mabiya and find a different centre as in 2019 they held their Passover at Chaseyama.
Under cross-examination by the defendant's counsel, the Chief told the court, that, the reason he summoned Archbishop Nyikambaranda to his court was that the Arch-bishop was the one who had caused the violence at Mabiya Centre.
Archbishop Nyikambaranda, to the witness, was the leader of the first defendant and not leader of the plaintiff.
The plaintiff then called Peter Sigauke as its witness.
He resides at 3318 Domboramwari Epworth, Harare. He is now on pension. He is aged 66 years and was born in Jekenisheni Church.
He was present when the plaintiff and the first defendant separated.
He was the one who spearheaded the separation and was the chairman of the splinter group. He participated in the organisation and registration of the first defendant with the ACCZ and arranged for the drafting of the first defendant's Constitution in consultation with the ACCZ.
After registration of the first defendant, Archbishop Nyikambaranda was ordained, in 2015, as the leader of the first defendant.
He later on decided to leave the first defendant because the first defendant's principles had drastically deviated from those of the founding father and he went back to his roots at the plaintiff.
All the three witnesses for the plaintiff impressed the court as credible witnesses who gave their evidence very well, more particularly the Chief.
Before he gave evidence, the court was advised by both counsel to take note that the Chief had been seen talking to some people belonging to the plaintiff church but no details of the discussion was revealed.
The court noted the observation, but, looking at the nature of his evidence, the court detects no bias or otherwise on the part of the Chief.
I will treat his evidence as untainted and basically administrative in a way.
He knows the original church and the leaders who approached him for a place to worship (by this the court infers to his predecessors) and when he became Chief it was the plaintiff who was worshipping at the Mabiya Shrine.
DEFENDANTS CASE
The defence opened its case by calling Bishop Shatirwa Mafukidze, aged 82 years. He succeeded Archbishop Nyikambaranda after the latter's death.
According to him, the plaintiff and the first defendant parted when Arch-bishop Nyikambaranda called for a meeting and the plaintiff's group did not attend.
The first defendant also worships at Mabiya Shrine on 17 July of each year. He told the court that there are, however, other centres belonging to the first defendant.
The witness alluded to the lease agreement produced by the plaintiff as the first defendant's as well.
Although Archbishop Nyikambaranda was ordained, the church remained united.
During cross-examination by counsel for the plaintiff, the witness clarified, that, these people who did not heed the call by Arch-bishop Nyikambaranda did not congregate with him.
He admitted, that, the first defendant has its own Constitution, an Arch-bishop, a badge, and could have its leader ordained by people outside the church.
He refused to leave Mabiya Shrine.
The defendants then called Munetsi Ngwenya as its witness. In 1932, the Holy Spirit visited both Luke Mutendamambo and John Marange instructing them to form an apostolic church.
According to the witness, the dispute between the plaintiff and the first defendant commenced in 2018, on 2 March. Archbishop Nyikambaranda called for a convention at Chinenga but members of the plaintiff rebuffed the meeting. The leader of the church sent four people to go and find out why the members had absconded. The four emissaries found the plaintiff's members assembled at Mabiya holding their own convention.
The witness told the court, that, Nyikambaranda was nominated leader among the four apostles chosen by the Holy Spirit long back in 1951 and was destined to succeed Zabron Chitakatira; also blessed Nyikambaranda when the former was ill, so, after the death of Zabron, it was logical that Nyikambaranda had to take over.
The witness stated further, that, the first defendant's shrine is Mabiya.
From 1970, the original church was Jekenisheni up to 2006. Mr Mutanga was the leader; he also reiterated that the lease agreement produced by the plaintiff is the lease given to the church by Mutare Rural District Council.
To the witness, there is no distinction between the plaintiff and the first defendant.
The reason the name of the church was changed was to protect it from being claimed by the sons of the founding father. All the people agreed to the choice of Nyikambaranda as the new leader and all agreed to change the Constitution and adopt the word “International” to be suffixed to the existing name of the church.
He pointed out that the people who broke away belong to the plaintiff.
During cross-examination, he denied participating in the registration and formation of the first defendant - contrary to what is indicated in the first defendant's summary of evidence.
