CHIWESHE
JA: This
is an appeal against the whole judgment of the High Court sitting at
Harare granting a declaratur in favour of the respondent.
The
judgment appealed against set aside the nomination of the first
appellant as successor to the Archbishop Ernest Paul Mamvura Mwazha,
the head of the tenth appellant and, resultantly, proceeded to set
aside as null and void any decisions or actions taken by the first
appellant as Archbishop of the tenth appellant. It also directed the
tenth appellant's Priesthood Council to convene and nominate a
successor to the Archbishop.
FACTUAL
BACKGROUND
The
first to ninth appellants and the respondent are all senior members
of the tenth appellant (“the Church”).
The
tenth appellant is a voluntary association of members of a church
whose main objective is to hold the faith of Jesus Christ and to act
in accordance with its doctrines. The Church operates as a
universitas under the provisions of its Constitution.
It
is led by Archbishop Ernest Paul Mamvura Mwazha.
The
Archbishop is 102 years old and is perceived by some Church members
as being afflicted with dementia and for that reason no longer
competent to lead the Church.
The
supreme governing organs of the Church are established under Article
9 of its Constitution. The office of the Archbishop is provided for
under Articles 9.2 and 9.2.1 which articles read as follows:
“9.2
Office of the Archbishop
9.2.1 Archbishop
Ernest Paul Mamvura Mwazha is the permanent head of the African
Apostolic Church (VaApostora veAfrica) and has the final say on all
church matters relating to succession.
9.2.2 In
the absence of Archbishop Ernest Paul Mamvura Mwazha by apology,
illness or death, a council of Bishops (hereinafter referred as the
Priesthood Council), constituted by the biological sons of Archbishop
Paul Mwazha, who are bishops, shall preside on his behalf, with the
full Delegated Authority, of the Archbishop. Binding decisions made
by this Priesthood Council shall only be by a unanimous vote (not
Majority Vote) of a full council sitting.”
From
the foregoing, it is clear that a would-be successor to the office of
Archbishop must satisfy either of the two conditions:
(i)
the blessing or approval of the incumbent Archbishop; or
alternatively
(ii)
should the Archbishop be incapacitated, the unanimous vote of a full
Priesthood Council meeting.
It
is common cause that on account of his age and infirmity the
Archbishop is unable to physically attend to the day to day business
of the Church. He has consequently delegated some of his functions
to his bishops who are his biological sons.
A
debate has now arisen within the Church as to who his successor
should be in the event of his demise.
The
first appellant has taken centre stage in the race to succeed the
Archbishop. He relies in this regard on a note handwritten by the
Archbishops aide, one Evangelist Kasema, the contents of which were,
according to Kasema, dictated to him by the Archbishop himself.
The
first appellant contends that this handwritten note is the vehicle
through which the Archbishop has appointed him as his successor. He
has publicly announced himself, on the basis of that note, as the
successor to the Archbishop and has purported to have taken over the
reins of the Church. He is fervently supported in that regard by the
second to ninth appellants.
Being
of the firm belief and conviction that the conduct and actions of the
first appellant amount to a usurpation of the powers and position of
the Archbishop and that such conduct was in violation of the Church's
constitution, specifically Article 9 thereof, the respondent, who is
a reverend of the tenth appellant, approached the court a
quo
seeking a declaratur in the following terms:
“IT
IS ORDERED THAT:
1.
The purported appointment of the 1st
respondent as the Archbishop of the African Apostolic Faith
(Vaapostora VeAfrica) was unconstitutional therefore null and void.
2.
All appointments and/or reassignments and actions of the 1st
respondent in his purported capacity as Archbishop were
unconstitutional and therefore null and void.
3.
The respondents be and are hereby ordered to comply with Article
9.2.2 of the Constitution and convene a meeting of Bishops who
constitute the Priesthood Council for the purpose of exercising the
full delegated authority assigned to them by the Archbishop, in terms
of the aforementioned article of the Constitution within seven (7)
days of the date of this order.
4.
The 1st
– 9th
respondents are ordered to pay the costs of this application on an
attorney and client scale, jointly and severally, the one paying, the
other to be absolved.”
The
first appellant vigorously opposed the granting of the application in
the court a
quo.
He did so on two fronts:
(i)
Firstly, he averred that he was duly appointed by the Archbishop to
be his successor. The Archbishop so appointed him through the note
written by the personal aide to the Archbishop. The contents of the
note had been dictated by the Archbishop himself. He therefore
argued that his appointment as successor was proper, valid and in
accordance with the provisions of Article 9.2.1 of the Constitution
of the Church.
(ii)
Secondly, he argued that the respondent (applicant in the court a
quo),
should have cited the Archbishop, a party that had a direct and
substantial interest in the outcome of the matter. He contended that
this non-joinder was fatal to the application as the participation of
the Archbishop was indispensable to the resolution of the matter
before the court a
quo.
After
hearing arguments the court a
quo
found in favour of the respondent and ordered as follows:
“1.
The purported nomination and/or appointment of the first respondent
as the Archbishop or successor to the Archbishop of the tenth
respondent presently Ernest Paul Mamvura Mwazha is unconstitutional
vis-à-vis
the 10th
respondent's constitution and resultantly is null and void.
2.
Any appointments and reassignments of personnel made by
the 1st
respondent and other actions which changed the administration of the
Church made by the 1st
respondent in the purported position of Archbishop are null and void.
3.
The respondents are each and all of them ordered to comply
with the provisions of clause 9.2.2 of the 10th
respondent's constitution in regard to the succession dispute
bedevilling the 10th
respondent. The respondents must comply with this order within seven
(7) days of the date of this order.
4.
The 1st
to 9th
respondents jointly and severally, the one
paying the others to be absolved shall pay costs of this application
on a party and party scale.”
Although
the order of the court a
quo
departs from the exact wording of the relief sought by the applicant
in the draft order, it does in substance, grant the relief sought
save for costs which it grants on the ordinary scale instead of the
higher scale sought by the applicant.
Allegations
by the appellants that the court a
quo
granted relief not sought by the respondent are not supported by the
facts.
GROUNDS
OF APPEAL
Dissatisfied
with the decision of the court a
quo
the appellants filed the present appeal on the following grounds:
“1.
The court a
quo
erred and misdirected itself in not finding that the non-joinder of
the Archbishop was fatal.
2.
The court a quo erred and misdirected itself by holding, in disregard
of the evidence, that the nomination of the first appellant as
successor to the Archbishop was unconstitutional.
3.
The court a
quo
erred by ordering putative compliance with clause 9.2.2 of the
Constitution of the tenth appellant in the absence of a finding as to
the incapacitation or resignation of the Archbishop.”
It
is the appellants prayer that this Court allows the appeal with costs
and that the order of the court a
quo
be set aside and be substituted with an order dismissing the
application with costs.
THE
ISSUES
The
issues to be determined arising from the grounds of appeal are:
1.
Whether the non-joinder
of
the
Archbishop
was fatal.
2.
Whether the nomination of the first appellant as successor to the
Archbishop was unconstitutional.
3.
Whether it was competent to order compliance with clause 9.2.2 of the
Constitution of the tenth appellant in the absence of a finding as to
the incapacitation of the Archbishop.
THE
LAW
The
first and second grounds of appeal have no merit.
Firstly,
the appellants have argued that the non-joinder of the Archbishop was
fatal to the proceedings. The effect of non-joinder is a well
traversed subject in this jurisdiction. The law in this regard was
succinctly spelt out by GARWE JA (as he then was) in the case of
Wakatama
and Others vs Madamombe
2011
(1) ZLR at p18 A-D when he stated thus:
“Whether
the non-joinder of the Minister is fatal need not detain the court
and can easily be disposed of by reference to Rule 87 of the High
Court Rules which provides:
'1.
No cause or matter shall be defeated by reason of the misjoinder or
non-joinder of any party, and the court may in any cause or matter
determine the issues or question in dispute so far as they affect the
rights and interests of the persons who are parties to the cause or
matter.
2.
At any stage of the proceedings in any cause or matter the court may
on such terms as it thinks just and either of its own motion or on
application-
(a)…………………………
(b)
Order any person who ought to have been joined as a party or whose
presence before the court is necessary to ensure that all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, to be added as a party.'
The
above provision is clear and allows of no ambiguity. The
non-citation of the Minister is not in the circumstances fatal.
Indeed the court restated this position in the recent decision in
Gula
Ndebele vs Bhunu NO SC29/11.”
Similarly
in
casu
the non-joinder of the Archbishop was not fatal to the application
before the court a
quo.
The
remedy for non-joinder is provided for in Rule 87 itself.
A
party who is aggrieved by the non-joinder of another party must
proceed in terms of Rule 87(2) and make the necessary application for
the joinder of that other party.
It
is thus permissible for a court to order the joinder of any party
either on its own motion or on the application of any of the parties
before it, or, for that matter, any other party who may have an
interest in the outcome of the matter.
The
appellants, being of the view that the Archbishop ought to have been
joined in the proceedings before the court a
quo
chose not to apply for the Archbishop's joinder. They cannot now
be heard to cry foul and seek to rely on their own inadvertence as a
ground of appeal to this Court.
Having
chosen not to apply for the Archbishop's joinder the least the
appellants could have done was to file a supporting affidavit sworn
to by the Archbishop confirming that he had appointed the first
appellant as his successor.
No
such affidavit was filed.
The
onus
lay upon the first appellant to prove on a balance of probabilities
that he had been so appointed to succeed the Archbishop as head of
the Church.
In
any event the order sought does not prejudice the Archbishop or any
of the parties.
On
the contrary, what was sought by the respondent (applicant in the
court a
quo)
is a declaratur to the effect that the question of succession be
dealt with in accordance with the Constitution of the Church.
No
prejudice against anyone could possibly arise out of such a
declaration.
On
the contrary the first appellant's contention is that he was
appointed successor in accordance with that Constitution. By
inference therefore the first appellant agrees that the question of
succession must proceed in terms of the Constitution. That is
precisely the position declared by the court a
quo.
At
any rate what in essence the court a
quo
sought
to do was to interpret the provisions of the Church's constitution.
In that regard it did not need the assistance of the Archbishop –
the document to be interpreted spoke for itself.
Thus
the first ground of appeal falls by the way side. It must be
dismissed.
With
regards the second ground of appeal the court a
quo
ruled, correctly in our view, which the handwritten note presented to
it in order to prove that the Archbishop had chosen the first
appellant as his successor was silent on the issue. The translated
version of the contents of the note reads:
“Date
28 February 2020
Do
not change the one who administer the Holy Communion, is the one to
keep administering. My child Tawanda Mwazha it is because he has
experience. I know that he is the one I had assigned this task since
long back.
When
you are going to buy the Holy Communion, you all go with your leader
when you are at Church. The elder Mwazha Alfred Kushamisa is the
eldest and one is above him, he is the elder. So he is the one to
lead you to buy the Holy Communion at town with all the Board of
Trustee.
His
elder Ngoni will not lead the church, it is because he was lost a
lot, he is polygamous and why he did that, one wife the rule.
I
was told by God when I was at Howard, Recreation of Africa write to
all children at Universities to assist in the work of creating this
new Africa. They will assist me Paul Mwazha. I am the one to
Recreate Africa. All these other ones are assisting me. They all know
it.
I
am their leader all of them.
Why
they also not use Majon'oro?”
The
learned judge a
quo
analysed
the text of this note and came to the inevitable conclusion that
there was nothing in it which spoke to the nomination of anyone (let
alone the first appellant) as the successor to the Archbishop.
He
correctly observed that a nomination of such magnitude cannot be
inferred.
It
has to be clear and specific both in terms of the identity of the
nominee and the position to which he is nominated.
In
doing so he gave the words in the document their ordinary grammatical
meaning. He found no ambiguity and came to the conclusion that he
did.
The
learned Judge a
quo
cannot be faulted in that regard. For that reason, the second ground
of appeal stands to be dismissed.
The
third ground of appeal attacks para 3 of the order of the court a
quo
which reads as follows:
“3.
The respondents are each and all of them ordered to comply with the
provisions of clause 9.2.2 of the tenth respondent's constitution
in regard to the succession dispute bedevilling the tenth respondent.
The respondents must comply with this order within seven (7) days of
the date of this order.”
I
agree with the appellants that clause 9.2.2 of the constitution can
only be invoked in the event that the Archbishop is absent “by
apology, illness or death.”
It
is only then that the Council of Bishops (the Priesthood Council),
acting in terms of clause 9.2.2, can sit and deliberate on the
question of succession. In other words it is the incapacitation of
the Archbishop that constitutes the “conditio
sine qua non”
for the invocation of clause 9.2.2 of the constitution.
The
learned Judge a
quo
did not make a finding that the Archbishop was incapacitated to lead
the Church.
In
the absence of that finding the order that the Church proceeds to act
in terms of clause 9.2.2 has no leg to stand on.
I
agree with Mr OChieng
(for the appellants) when he submits in his heads of argument as
follows:
“The
court a
quo
could therefore only ever grant that relief as a result of having
made a finding that the Archbishop was too ill to function. To extend
that relief without that finding was to proceed improperly in the
absence of the jurisdictional facts on which the validity of the
ordered proceedings depended.”
Without
therefore having made a finding as to the incapacity of the
Archbishop the learned Judge erred and misdirected himself in
granting an order for the invocation of clause 9.2.2.
In
any event such an order could not have been made as no cogent
evidence had been placed before the court a
quo
as to the Archbishop's condition.
The
parties views in this regard were divergent.
The
appellants conceded that the Archbishop was frail on account of his
age but were adamant that he was in full control of his faculties and
of sound mind. The respondent on the other hand insisted that the
Archbishop suffered dementia to the point of being incapacitated to
lead the Church.
Every
person is presumed normal and of sound mind until the contrary is
proved.
No
credible evidence was placed before the court a
quo
to enable it to make the finding that would trigger action in terms
of clause 9.2.2.
The
third ground of appeal thus has merit.
DISPOSITION
We
conclude therefore that the non-citation of the Archbishop was not
fatal to the proceedings in the court a
quo.
Further
we are not persuaded by the appellants contention that the court a
quo
erred and misdirected itself in holding, as it did at paragraphs 1
and 2 of its order, that the nomination or appointment of the first
appellant as successor to the Archbishop was unconstitutional and
therefore null and void.
In
our view the court a
quo's
decision in that regard cannot be faulted in light of the provision
of article 9.2 of the 10th
appellant's constitution.
We
however agree with the appellants that para 3 of the order of the
court a
quo,
directing the Priesthood Council to convene and choose a successor to
the Archbishop, cannot be sustained in the absence of a finding that
the Archbishop is incapacitated to lead the church.
To
that extent therefore the appeal partially succeeds. For that reason
this is a case in which each party should bear its own costs.
IT
IS ORDERED AS FOLLOWS:
1.
The appeal succeeds in part.
2.
Paragraphs 1 and 2 of the order of the court a
quo
be and are hereby upheld.
3.
Paragraph 3 of the order of the court a
quo
be and is hereby set aside in its entirety.
4.
Each party shall bear its own costs.
MAVANGIRA
JA: I
agree
UCHENA
JA: I
agree
Mupindu
Legal Practitioners,
appellants legal practitioners
Mushangwe
& Company,
respondent's legal practitioners
