Citation and Joinder re: Party Acting in Official Capacity, Statutory or Peremptory Citation and Delegated Authority

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.

Findings of Fact re: Witness Testimony iro Approach & the Presumption of Clarity of Events Nearer the Date of the Event

All the three witnesses for the plaintiff impressed the court as credible witnesses who gave their evidence very well, more particularly the Chief....,.

The defence witnesses..., deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence...,.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

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....,.

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.

Prevaricative or Inconsistent Evidence and Approbating and Reprobating a Course in Proceedings

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.

Summary of Evidence

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.

Registration. Legal Personality and Operational Autonomy of Governance Mechanisms

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Findings of Fact re: Assessment of Evidence and Inferences iro Approach, Facta Probantia and Facta Probanda

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.

To him, the plaintiff is still the same as in the first defendant formation but had gone through transformation.

He also blamed the Chief as causing problems between the plaintiff and the first defendant.

The first defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare.

According to him, the dispute between the plaintiff and the first defendant started when the Archbishop and his council was summoned by the Chief. To the witness, there is no distinction between the plaintiff and the first defendant to talk about, they are one no matter what names are being used.

Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church's succession policy.

The suffix “International” or prefix to the first defendant was proposed by ACCZ to distinguish the first defendant from previously registered churches with the name “Jekenisheni” he added. However, besides the addition of 'International' nothing changed; the first defendant is the same as the plaintiff.

According to this witness, the plaintiff is the breakaway church. The first defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.

The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence, more particularly the effect of registration of the first defendant relating to its identity vis-a-vis the plaintiff.

Whether, by registering a new name and creating a new Constitution, they were still within the old traditional norm maintained previously by the leadership of the plaintiff and its predecessors?

The witnesses for the first defendant chose to underscore those nagging questions and pretended as if the introduction of the first defendant was a non-event.

APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

The plaintiff's Constitution provides that the church's headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “The Regiment.”

Clause 6 of the Constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day; after that day, the Passover is then spread to different centres and to those centres outside Zimbabwe.

Clause 7 of the Constitution is also important to mention, dealing with the holding of an Annual Conference; this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the Constitution.

The leader of the church is called Church Leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership.

Clause 12(b) of the Constitution provides, that, the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.

INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

Clause 1 of the first defendant's Constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, Creed, Funds and Succession are similar, word by word, to the plaintiff's clauses.

However, the first defendant's Constitution introduces new clauses:

In clause 13 'Roles of Women' clause 14 'Roles of the Youth' clause 15 'Marriage' clauses 16 and 17 on 'Expansion and Growth' and on 'Amendments' briefly spell out the factors for growth and that the Constitution is open to amendments.

It is important to note, that, the first defendant's Constitution, in clauses 13-15, creates totally new provisions as compared to the plaintiff's Constitution.

The clause dealing with church leadership hierarchy is not included at all.

The following issues are common cause to this matter:

1. The plaintiff and the first defendant have different constitutions and the earlier formed church is the plaintiff, formed in 1932, and the first defendant, whose Constitution was introduced in 2013.

2. Currently, the two, the plaintiff and the first defendant have distinct leadership; the plaintiff is led by Bishop Changonona and the first defendant is led by Bishop Mafukidze.

3. The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.

4. Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.

5. Both parties have irreconcilable differences relating to the way the church must be managed.

6. The lease agreement, relating to Mabiya Shrine, registered with the Mutare Rural District Council, was initially applied for and registered in the predecessor of the plaintiff, Jekenisheni Church - up to now, the registered name had not yet changed.

7. The receipts produced by the first defendant, for payment of lease rentals to the local authority, relates to the year 2018 only.

There are two issues outlined by the parties for this court to decide:

(a) Between the plaintiff and the first defendant, which is the splinter group from the main church?

(b) Who, between the plaintiff and the first defendant, is the legitimate holder of rights and custodian of Mabiya Shrine?

BETWEEN PLAINTIFF AND FIRST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?

Jekenisheni Church was formed long back in 1932, by Luke Pferedzai Mutendamambo; and, using that name, the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine.

The lease, exhibit 1, is still in the name of Jekenisheni Church; that aspect is uncontroverted.

In 2009, the name of Jekenisheni was introduced is not disputed by the first defendant. In 2013, the first defendant was introduced, born out of the Constitution whose provisions have already been alluded to hereinabove.

However, of great importance to this matter, the first defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church.

There was now a new title to the leader of the church, by the name of Archbishop; he now wore an emblem or badge; and, as already highlighted in the Constitution of the first defendant, there were clauses addressing women, youth, and marriages - these aspects were totally alien to the plaintiff.

To quote the evidence of the defendant's witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader.

Unfortunately, there is no evidence led by the first defendant to the effect of the plaintiff's Constitution was repealed and replaced by the first defendant.

The plaintiff still uses that Constitution as its supreme law.

There is no evidence led by the first defendant, in the form of recorded minutes, recorded during an Annual Meeting, where the plaintiff's Constitution was amended or repealed.

There is virtually no connection between the plaintiff's Constitution vis-a-vis the first defendant's.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Earlier on, on p17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:

“The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain; in other words, their creed. If an association of Christians adopt one creed as the basis of their association, no one can cut and carve it without altering the foundation upon which that body has been associated: see Free Church of England v Lord Overtoun [1904] AC 515 at 577.”

On the same page of the same judgment, His Lordship added:

“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”

The plaintiff took over from Jekenisheni Church, founded by Luke Mutendamambo, and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies.

The introductions of the Constitution, in 2009, was done by consent; that is why there was never a dispute in the plaintiff church.

Indeed, in 2013, ArchBishop Nyikambaranda introduced a new Constitution which clearly defined the realm and spectrum of its congregants.

As already mentioned above, the first defendant's Constitution borrowed some clauses from the plaintiff's; and the first defendant went on to add some new clauses relating to youth, women, and marriages.

It is not in dispute that the first defendant has its own Constitution distinct from the plaintiff.

In Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, it was held that:

“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”

I am convinced, on a balance of probabilities, that, the conduct of the first defendant; the badge; the Constitution it introduced; as well as the new title for its leader pointed to one conclusion - Archbishop Nyikambaranda formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff.

The new Constitution constitutes an agreement between its members, that, the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders.

The plaintiff is the root, the first defendant is an off-shoot - albeit with the church doctrine well founded upon that of the plaintiff.

The first defendant's Arch-bishop, Nyikambaranda, seceded from the plaintiff; consecrated and enthroned by ACCZ as Archbishop of the first defendant.

I cannot accept the first defendant's argument, that, the plaintiff and the first defendant are one; nor can it be said that there are factions in the church.

The truth proved before me is that the first defendant was formed as a new church by Archbishop Nyikambaranda and enjoys total autonomy from the plaintiff.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Approach

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.

To him, the plaintiff is still the same as in the first defendant formation but had gone through transformation.

He also blamed the Chief as causing problems between the plaintiff and the first defendant.

The first defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare.

According to him, the dispute between the plaintiff and the first defendant started when the Archbishop and his council was summoned by the Chief. To the witness, there is no distinction between the plaintiff and the first defendant to talk about, they are one no matter what names are being used.

Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church's succession policy.

The suffix “International” or prefix to the first defendant was proposed by ACCZ to distinguish the first defendant from previously registered churches with the name “Jekenisheni” he added. However, besides the addition of 'International' nothing changed; the first defendant is the same as the plaintiff.

According to this witness, the plaintiff is the breakaway church. The first defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.

The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence, more particularly the effect of registration of the first defendant relating to its identity vis-a-vis the plaintiff.

Whether, by registering a new name and creating a new Constitution, they were still within the old traditional norm maintained previously by the leadership of the plaintiff and its predecessors?

The witnesses for the first defendant chose to underscore those nagging questions and pretended as if the introduction of the first defendant was a non-event.

APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

The plaintiff's Constitution provides that the church's headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “The Regiment.”

Clause 6 of the Constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day; after that day, the Passover is then spread to different centres and to those centres outside Zimbabwe.

Clause 7 of the Constitution is also important to mention, dealing with the holding of an Annual Conference; this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the Constitution.

The leader of the church is called Church Leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership.

Clause 12(b) of the Constitution provides, that, the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.

INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

Clause 1 of the first defendant's Constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, Creed, Funds and Succession are similar, word by word, to the plaintiff's clauses.

However, the first defendant's Constitution introduces new clauses:

In clause 13 'Roles of Women' clause 14 'Roles of the Youth' clause 15 'Marriage' clauses 16 and 17 on 'Expansion and Growth' and on 'Amendments' briefly spell out the factors for growth and that the Constitution is open to amendments.

It is important to note, that, the first defendant's Constitution, in clauses 13-15, creates totally new provisions as compared to the plaintiff's Constitution.

The clause dealing with church leadership hierarchy is not included at all.

The following issues are common cause to this matter:

1. The plaintiff and the first defendant have different constitutions and the earlier formed church is the plaintiff, formed in 1932, and the first defendant, whose Constitution was introduced in 2013.

2. Currently, the two, the plaintiff and the first defendant have distinct leadership; the plaintiff is led by Bishop Changonona and the first defendant is led by Bishop Mafukidze.

3. The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.

4. Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.

5. Both parties have irreconcilable differences relating to the way the church must be managed.

6. The lease agreement, relating to Mabiya Shrine, registered with the Mutare Rural District Council, was initially applied for and registered in the predecessor of the plaintiff, Jekenisheni Church - up to now, the registered name had not yet changed.

7. The receipts produced by the first defendant, for payment of lease rentals to the local authority, relates to the year 2018 only.

There are two issues outlined by the parties for this court to decide:

(a) Between the plaintiff and the first defendant, which is the splinter group from the main church?

(b) Who, between the plaintiff and the first defendant, is the legitimate holder of rights and custodian of Mabiya Shrine?

BETWEEN PLAINTIFF AND FIRST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?

Jekenisheni Church was formed long back in 1932, by Luke Pferedzai Mutendamambo; and, using that name, the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine.

The lease, exhibit 1, is still in the name of Jekenisheni Church; that aspect is uncontroverted.

In 2009, the name of Jekenisheni was introduced is not disputed by the first defendant. In 2013, the first defendant was introduced, born out of the Constitution whose provisions have already been alluded to hereinabove.

However, of great importance to this matter, the first defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church.

There was now a new title to the leader of the church, by the name of Archbishop; he now wore an emblem or badge; and, as already highlighted in the Constitution of the first defendant, there were clauses addressing women, youth, and marriages - these aspects were totally alien to the plaintiff.

To quote the evidence of the defendant's witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader.

Unfortunately, there is no evidence led by the first defendant to the effect of the plaintiff's Constitution was repealed and replaced by the first defendant.

The plaintiff still uses that Constitution as its supreme law.

There is no evidence led by the first defendant, in the form of recorded minutes, recorded during an Annual Meeting, where the plaintiff's Constitution was amended or repealed.

There is virtually no connection between the plaintiff's Constitution vis-a-vis the first defendant's.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Earlier on, on p17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:

“The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain; in other words, their creed. If an association of Christians adopt one creed as the basis of their association, no one can cut and carve it without altering the foundation upon which that body has been associated: see Free Church of England v Lord Overtoun [1904] AC 515 at 577.”

On the same page of the same judgment, His Lordship added:

“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”

The plaintiff took over from Jekenisheni Church, founded by Luke Mutendamambo, and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies.

The introductions of the Constitution, in 2009, was done by consent; that is why there was never a dispute in the plaintiff church.

Indeed, in 2013, ArchBishop Nyikambaranda introduced a new Constitution which clearly defined the realm and spectrum of its congregants.

As already mentioned above, the first defendant's Constitution borrowed some clauses from the plaintiff's; and the first defendant went on to add some new clauses relating to youth, women, and marriages.

It is not in dispute that the first defendant has its own Constitution distinct from the plaintiff.

In Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, it was held that:

“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”

I am convinced, on a balance of probabilities, that, the conduct of the first defendant; the badge; the Constitution it introduced; as well as the new title for its leader pointed to one conclusion - Archbishop Nyikambaranda formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff.

The new Constitution constitutes an agreement between its members, that, the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders.

The plaintiff is the root, the first defendant is an off-shoot - albeit with the church doctrine well founded upon that of the plaintiff.

The first defendant's Arch-bishop, Nyikambaranda, seceded from the plaintiff; consecrated and enthroned by ACCZ as Archbishop of the first defendant.

I cannot accept the first defendant's argument, that, the plaintiff and the first defendant are one; nor can it be said that there are factions in the church.

The truth proved before me is that the first defendant was formed as a new church by Archbishop Nyikambaranda and enjoys total autonomy from the plaintiff.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

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.

To him, the plaintiff is still the same as in the first defendant formation but had gone through transformation.

He also blamed the Chief as causing problems between the plaintiff and the first defendant.

The first defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare.

According to him, the dispute between the plaintiff and the first defendant started when the Archbishop and his council was summoned by the Chief. To the witness, there is no distinction between the plaintiff and the first defendant to talk about, they are one no matter what names are being used.

Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church's succession policy.

The suffix “International” or prefix to the first defendant was proposed by ACCZ to distinguish the first defendant from previously registered churches with the name “Jekenisheni” he added. However, besides the addition of 'International' nothing changed; the first defendant is the same as the plaintiff.

According to this witness, the plaintiff is the breakaway church. The first defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.

The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence, more particularly the effect of registration of the first defendant relating to its identity vis-a-vis the plaintiff.

Whether, by registering a new name and creating a new Constitution, they were still within the old traditional norm maintained previously by the leadership of the plaintiff and its predecessors?

The witnesses for the first defendant chose to underscore those nagging questions and pretended as if the introduction of the first defendant was a non-event.

APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

The plaintiff's Constitution provides that the church's headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “The Regiment.”

Clause 6 of the Constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day; after that day, the Passover is then spread to different centres and to those centres outside Zimbabwe.

Clause 7 of the Constitution is also important to mention, dealing with the holding of an Annual Conference; this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the Constitution.

The leader of the church is called Church Leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership.

Clause 12(b) of the Constitution provides, that, the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.

INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

Clause 1 of the first defendant's Constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, Creed, Funds and Succession are similar, word by word, to the plaintiff's clauses.

However, the first defendant's Constitution introduces new clauses:

In clause 13 'Roles of Women' clause 14 'Roles of the Youth' clause 15 'Marriage' clauses 16 and 17 on 'Expansion and Growth' and on 'Amendments' briefly spell out the factors for growth and that the Constitution is open to amendments.

It is important to note, that, the first defendant's Constitution, in clauses 13-15, creates totally new provisions as compared to the plaintiff's Constitution.

The clause dealing with church leadership hierarchy is not included at all.

The following issues are common cause to this matter:

1. The plaintiff and the first defendant have different constitutions and the earlier formed church is the plaintiff, formed in 1932, and the first defendant, whose Constitution was introduced in 2013.

2. Currently, the two, the plaintiff and the first defendant have distinct leadership; the plaintiff is led by Bishop Changonona and the first defendant is led by Bishop Mafukidze.

3. The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.

4. Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.

5. Both parties have irreconcilable differences relating to the way the church must be managed.

6. The lease agreement, relating to Mabiya Shrine, registered with the Mutare Rural District Council, was initially applied for and registered in the predecessor of the plaintiff, Jekenisheni Church - up to now, the registered name had not yet changed.

7. The receipts produced by the first defendant, for payment of lease rentals to the local authority, relates to the year 2018 only.

There are two issues outlined by the parties for this court to decide:

(a) Between the plaintiff and the first defendant, which is the splinter group from the main church?

(b) Who, between the plaintiff and the first defendant, is the legitimate holder of rights and custodian of Mabiya Shrine?

BETWEEN PLAINTIFF AND FIRST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?

Jekenisheni Church was formed long back in 1932, by Luke Pferedzai Mutendamambo; and, using that name, the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine.

The lease, exhibit 1, is still in the name of Jekenisheni Church; that aspect is uncontroverted.

In 2009, the name of Jekenisheni was introduced is not disputed by the first defendant. In 2013, the first defendant was introduced, born out of the Constitution whose provisions have already been alluded to hereinabove.

However, of great importance to this matter, the first defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church.

There was now a new title to the leader of the church, by the name of Archbishop; he now wore an emblem or badge; and, as already highlighted in the Constitution of the first defendant, there were clauses addressing women, youth, and marriages - these aspects were totally alien to the plaintiff.

To quote the evidence of the defendant's witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader.

Unfortunately, there is no evidence led by the first defendant to the effect of the plaintiff's Constitution was repealed and replaced by the first defendant.

The plaintiff still uses that Constitution as its supreme law.

There is no evidence led by the first defendant, in the form of recorded minutes, recorded during an Annual Meeting, where the plaintiff's Constitution was amended or repealed.

There is virtually no connection between the plaintiff's Constitution vis-a-vis the first defendant's.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Earlier on, on p17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:

“The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain; in other words, their creed. If an association of Christians adopt one creed as the basis of their association, no one can cut and carve it without altering the foundation upon which that body has been associated: see Free Church of England v Lord Overtoun [1904] AC 515 at 577.”

On the same page of the same judgment, His Lordship added:

“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”

The plaintiff took over from Jekenisheni Church, founded by Luke Mutendamambo, and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies.

The introductions of the Constitution, in 2009, was done by consent; that is why there was never a dispute in the plaintiff church.

Indeed, in 2013, ArchBishop Nyikambaranda introduced a new Constitution which clearly defined the realm and spectrum of its congregants.

As already mentioned above, the first defendant's Constitution borrowed some clauses from the plaintiff's; and the first defendant went on to add some new clauses relating to youth, women, and marriages.

It is not in dispute that the first defendant has its own Constitution distinct from the plaintiff.

In Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, it was held that:

“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”

I am convinced, on a balance of probabilities, that, the conduct of the first defendant; the badge; the Constitution it introduced; as well as the new title for its leader pointed to one conclusion - Archbishop Nyikambaranda formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff.

The new Constitution constitutes an agreement between its members, that, the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders.

The plaintiff is the root, the first defendant is an off-shoot - albeit with the church doctrine well founded upon that of the plaintiff.

The first defendant's Arch-bishop, Nyikambaranda, seceded from the plaintiff; consecrated and enthroned by ACCZ as Archbishop of the first defendant.

I cannot accept the first defendant's argument, that, the plaintiff and the first defendant are one; nor can it be said that there are factions in the church.

The truth proved before me is that the first defendant was formed as a new church by Archbishop Nyikambaranda and enjoys total autonomy from the plaintiff.

Vindicatory Action or Rei Vindicatio re: Possessory Rights

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.

To him, the plaintiff is still the same as in the first defendant formation but had gone through transformation.

He also blamed the Chief as causing problems between the plaintiff and the first defendant.

The first defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare.

According to him, the dispute between the plaintiff and the first defendant started when the Archbishop and his council was summoned by the Chief. To the witness, there is no distinction between the plaintiff and the first defendant to talk about, they are one no matter what names are being used.

Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church's succession policy.

The suffix “International” or prefix to the first defendant was proposed by ACCZ to distinguish the first defendant from previously registered churches with the name “Jekenisheni” he added. However, besides the addition of 'International' nothing changed; the first defendant is the same as the plaintiff.

According to this witness, the plaintiff is the breakaway church. The first defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.

The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence, more particularly the effect of registration of the first defendant relating to its identity vis-a-vis the plaintiff.

Whether, by registering a new name and creating a new Constitution, they were still within the old traditional norm maintained previously by the leadership of the plaintiff and its predecessors?

The witnesses for the first defendant chose to underscore those nagging questions and pretended as if the introduction of the first defendant was a non-event.

APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

The plaintiff's Constitution provides that the church's headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “The Regiment.”

Clause 6 of the Constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day; after that day, the Passover is then spread to different centres and to those centres outside Zimbabwe.

Clause 7 of the Constitution is also important to mention, dealing with the holding of an Annual Conference; this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the Constitution.

The leader of the church is called Church Leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership.

Clause 12(b) of the Constitution provides, that, the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.

INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

Clause 1 of the first defendant's Constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, Creed, Funds and Succession are similar, word by word, to the plaintiff's clauses.

However, the first defendant's Constitution introduces new clauses:

In clause 13 'Roles of Women' clause 14 'Roles of the Youth' clause 15 'Marriage' clauses 16 and 17 on 'Expansion and Growth' and on 'Amendments' briefly spell out the factors for growth and that the Constitution is open to amendments.

It is important to note, that, the first defendant's Constitution, in clauses 13-15, creates totally new provisions as compared to the plaintiff's Constitution.

The clause dealing with church leadership hierarchy is not included at all.

The following issues are common cause to this matter:

1. The plaintiff and the first defendant have different constitutions and the earlier formed church is the plaintiff, formed in 1932, and the first defendant, whose Constitution was introduced in 2013.

2. Currently, the two, the plaintiff and the first defendant have distinct leadership; the plaintiff is led by Bishop Changonona and the first defendant is led by Bishop Mafukidze.

3. The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.

4. Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.

5. Both parties have irreconcilable differences relating to the way the church must be managed.

6. The lease agreement, relating to Mabiya Shrine, registered with the Mutare Rural District Council, was initially applied for and registered in the predecessor of the plaintiff, Jekenisheni Church - up to now, the registered name had not yet changed.

7. The receipts produced by the first defendant, for payment of lease rentals to the local authority, relates to the year 2018 only.

There are two issues outlined by the parties for this court to decide:

(a) Between the plaintiff and the first defendant, which is the splinter group from the main church?

(b) Who, between the plaintiff and the first defendant, is the legitimate holder of rights and custodian of Mabiya Shrine?

BETWEEN PLAINTIFF AND FIRST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?

Jekenisheni Church was formed long back in 1932, by Luke Pferedzai Mutendamambo; and, using that name, the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine.

The lease, exhibit 1, is still in the name of Jekenisheni Church; that aspect is uncontroverted.

In 2009, the name of Jekenisheni was introduced is not disputed by the first defendant. In 2013, the first defendant was introduced, born out of the Constitution whose provisions have already been alluded to hereinabove.

However, of great importance to this matter, the first defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church.

There was now a new title to the leader of the church, by the name of Archbishop; he now wore an emblem or badge; and, as already highlighted in the Constitution of the first defendant, there were clauses addressing women, youth, and marriages - these aspects were totally alien to the plaintiff.

To quote the evidence of the defendant's witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader.

Unfortunately, there is no evidence led by the first defendant to the effect of the plaintiff's Constitution was repealed and replaced by the first defendant.

The plaintiff still uses that Constitution as its supreme law.

There is no evidence led by the first defendant, in the form of recorded minutes, recorded during an Annual Meeting, where the plaintiff's Constitution was amended or repealed.

There is virtually no connection between the plaintiff's Constitution vis-a-vis the first defendant's.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Earlier on, on p17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:

“The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain; in other words, their creed. If an association of Christians adopt one creed as the basis of their association, no one can cut and carve it without altering the foundation upon which that body has been associated: see Free Church of England v Lord Overtoun [1904] AC 515 at 577.”

On the same page of the same judgment, His Lordship added:

“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”

The plaintiff took over from Jekenisheni Church, founded by Luke Mutendamambo, and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies.

The introductions of the Constitution, in 2009, was done by consent; that is why there was never a dispute in the plaintiff church.

Indeed, in 2013, ArchBishop Nyikambaranda introduced a new Constitution which clearly defined the realm and spectrum of its congregants.

As already mentioned above, the first defendant's Constitution borrowed some clauses from the plaintiff's; and the first defendant went on to add some new clauses relating to youth, women, and marriages.

It is not in dispute that the first defendant has its own Constitution distinct from the plaintiff.

In Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, it was held that:

“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”

I am convinced, on a balance of probabilities, that, the conduct of the first defendant; the badge; the Constitution it introduced; as well as the new title for its leader pointed to one conclusion - Archbishop Nyikambaranda formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff.

The new Constitution constitutes an agreement between its members, that, the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders.

The plaintiff is the root, the first defendant is an off-shoot - albeit with the church doctrine well founded upon that of the plaintiff.

The first defendant's Arch-bishop, Nyikambaranda, seceded from the plaintiff; consecrated and enthroned by ACCZ as Archbishop of the first defendant.

I cannot accept the first defendant's argument, that, the plaintiff and the first defendant are one; nor can it be said that there are factions in the church.

The truth proved before me is that the first defendant was formed as a new church by Archbishop Nyikambaranda and enjoys total autonomy from the plaintiff.

WHO BETWEEN PLAINTIFF AND FIRST DEFENDANT IS THE LEGITIMATE HOLDER OF RIGHTS AND CUSTODIAN OF MABIYA SHRINE

Having ruled that the first defendant seceded from the plaintiff, this second issue smoothly flows from the above.

The plaintiff contended, in its summons, that, when its congregants meet annually, at Mabiya Shrine, the first defendant's congregants also converge at the shrine and conduct their church business simultaneously with the functions of the plaintiff church.

Obviously, the use of the shrine by the parties, at the same time, had created friction and turmoil which ended in legal battles in the courts.

It is true that the doctrine of the two churches is identical, but, the leadership is totally polarised.

What is clear, on paper, and from evidence adduced in court by both parties, is that both claim a right to be at the shrine and the first defendant demands that the plaintiff should come on its knees to beg to rejoin the first defendant.

On the other hand, the plaintiff submitted, that, since the first defendant broke away from the plaintiff, the first defendant has no right to continue using Mabiya Shrine.

Both parties produced receipts which were proof of payments for the lease.

One of the first defendant's receipts shows that the receipt was paid and receipted in a third party's name. The first defendant stated, that, the one who paid that receipt was the payer using ecocash.

However, the first defendant did not produce receipts for 2019 and it explained, that, this was due to the wrangles which were going on between the plaintiff and the first defendant.

The plaintiff produced 2019 receipts.

The receipts produced by the parties do not help either side; in 2018, the first defendant could have paid the rentals, for its leader claimed autonomy over the church.

What is not clear from the evidence is, whether the plaintiff also paid rentals during the same period of 2018.

However, even if the first defendant paid the rentals, they did not change the name of the lessee on the Rural District Council's papers - the name Jekenisheni still remains on the lease document.

I have since ruled, that, it is the first defendant and its leadership which broke away from the mother church - the plaintiff.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, the Supreme Court concluded that:

“Those, however, who, as members of the congregation of the former Hervomde Church of Rustenburg, however small their number might be, have not joined the union, still remain the Hervomde congregation of Rustenburg and are, as such, entitled to all the property and things belonging to or standing registered in the name of Hervomde Church of the Congregation of Rustenburg.”

In Zambezi Conference of Seventh Day Adventists v General Conference of Seventh Day Adventists and Another 2001 (1) ZLR 160 McNALLY JA held…,.:

“These individual members who seceded from the church, even if they be a majority of the member of a particular congregation, have seceded as individuals. They cannot have a claim to property of the Seventh Day Adventist. They have formed a universitas, a new association of individuals. They cannot have a claim to property of the Seventh Day Adventist. It may be that, as individuals, they subscribed towards the funds of the church, but, they did so as members. Having now founded a new universitas, they cannot, in law, claim ownership of church property.”

Chief Zimunya unconditionally stated, in his testimony, that, the plaintiff is the rightful church to use the Mabiya Shrine; the first defendant is at liberty to approach the traditional leadership and be allocated a place for its prayers and annual functions.

The first defendant is a new universitas and it is independent from the plaintiff.

It follows, that, there is no legal basis why the first defendant should go and interfere with the plaintiff at Mabiya Shrine.

Sons of the founder of Jekenisheni, fully conscious of the sanctity of Mabiya Shrine, broke away from Jekenisheni Church and formed their own universitas and established at other centres.

The first defendant ought to follow suit of such a noble move and leave the mother church with its own centre.

The plaintiff has managed to prove its case on a balance of probabilities and it ought to succeed....,.

Accordingly, the following order is granted:

1. The plaintiff is 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.

2. That, the first defendant and its members have no right or claim to the Mabiya Shrine.

3. That, the defendants, jointly and severally, pay the costs of this action.

Canonical Disputes, Resignation or Dismissal from Membership, Schisms, Secession and the Declaration of Independence