This is an appeal against the whole judgment of the High Court, sitting at Harare, handed down on 29 July 2020 as judgment number HH495-20, wherein the court a quo granted a declaratory order to the effect, that, the appellants were no longer members of the respondent and were thus not entitled to the use of the respondent's name and properties.
FACTUAL BACKGROUND
The appellants are former members of the respondent. Most of them held different leadership positions within its ranks.
The respondent is a common law universitas with various ecclesiastical branches nationwide. It is a voluntary association of a religious character whose business and conduct are governed by its Constitution.
The genesis of the dispute between the parties followed the expiration of the first appellant's five-year term as Bishop, on 31 August 2014. The first appellant had been appointed Bishop in 2009, irregularly, as he did not possess the educational qualification prescribed by the respondent's Constitution.
He was nevertheless allowed to complete his term.
It is common cause, that, towards the end of the first appellant's term as Bishop, a nomination process was initiated to shortlist candidates for the vacant office in terms of the respondent's Constitution.
Five nominees declined to participate in the election process.
The first appellant, along with another nominee, were then removed from the shortlist as they did not possess the requisite educational qualification of a theological degree, or its equivalent, approved by the Annual General Conference (AGC) as the Supreme Board. Another hurdle in the first appellant's way was that he was also ineligible as he was past the retirement age of 65 years.
The first appellant was aggrieved by this decision.
He disputed his disqualification and refused to be removed from the list of nominees.
The respondent's Church Council (Council) resolved to hold an Annual General Conference (AGC) for the purpose, inter alia, of electing a Bishop.
The Annual General Conference (AGC) was initially set for November 2014, and, when there was no quorum of paid up members, the conference was aborted. The conference was eventually set for 20-21 March 2015.
The first appellant, as the outgoing Bishop and chairperson of the Council, duly convened the Annual General Conference (AGC) for 20–21 March 2015.
However, the first to eighth appellants (Benson Makachi, Mr. Mugava, Simon Nota, Silas Gweshe, Gibson Mutsaka, Everson Breakfast, Davison Chiveso and Fredson Gama), with the exception of the fifth appellant (Gibson Mutsaka), boycotted the Annual General Conference (AGC).
In the result, the congregants who attended the aforementioned conference did not form a quorum in terms of the respondent's Constitution. The attendees resolved to continue with the Annual General Conference (AGC) and invoked Article IIIC(ii) of their Constitution, which states that:
“The AGC shall be vested with powers to deal with and dispose of any matters which may arise and for which no provisions exist.”
It was at this Annual General Conference (AGC) that a new Bishop, Isaac Soda, was elected.
The appellants then clandestinely organised an alternate conference, on 28 March 2015, which they termed the 'Emergency Extra-Ordinary General Conference'.
The outcome of that conference was the renunciation of Isaac Soda's election as the Bishop, the excommunication of various members of the Council who had proceeded with the Annual General Conference (AGC) on 20-21 March 2015, and the declaration of the first appellant as the substantive Bishop of the respondent till the election of a new Bishop.
The appellants established their own structures, replacing the excommunicated leaders. The ex-communicated members were notified of their expulsion from the church.
Thereafter, the two sides became embroiled in a dispute to identify the bona fide representatives of the church.
The acting Bishop, Reverend Amos Mateva, then convened an Extraordinary General Conference on 10 September 2016 to hold regularised elections. Isaac Soda won the majority vote and was elected Bishop.
However, his victory was disputed by the appellants who argued that it was unconstitutional and they continued to champion the first appellant as the legitimate leader of the church.
In effect, there now existed two parallel structures utilising the name of the respondent.
This resulted in the respondent issuing summons in the court a quo for a declaratory order, under HC10163/15, to confirm the secession of the appellants.
BEFORE THE COURT A QUO
In the court a quo, besides seeking a declarator, the respondent also sought an order interdicting the appellants from using its name, uniforms, and various church buildings, and an order evicting them from its aforesaid buildings.
The appellants, on their part, contested the relief sought contending that they were still members of the respondent.
It is, however, apposite to note that before the court a quo, and as confirmed by a joint pre-trial conference (PTC) minute dated 16 March 2018, the parties agreed that they were now two separate entities.
They also agreed, that, the first appellant's term of office as Bishop, expired and he had not been re-elected; that the qualifications for a Bishop are as set out in the Constitution; and that all other ancillary matters between them would be resolved by a determination of the legitimate faction between the two.
The joint joint pretrial conference minute, of March 2018, inexplicably identifies the sole issue referred to trial as whether or not Bishop Isaac Soda was the legitimate leader of the original church - which issue is not supported by the pleadings.
At the trial, it was argued that the election of Bishop Soda, on 10 September 2016, was invalid as the church's Constitution did not provide for a re-run.
The first appellant begrudgingly admitted that he was over the constitutional retirement age of 65 years.
He also alleged that he boycotted the Annual General Conference (AGC) held on 20–21 March 2015 due to threats on his person - despite being the convenor of that conference.
He also conceded, that, the clandestine meeting held on 28 March 2015 was irregular.
It was also common cause, that, the appellants had formed parallel structures from the respondent which included opening separate bank accounts and leadership posts.
After hearing evidence from the parties, the court a quo ruled in favour of the respondent.
It found that the appellants had created a schism in that in their opposition to the election of Isaac Soda, and insistence on the validity of the first appellant's candidacy, they had proceeded to allocate themselves positions in the church and purportedly dismissed members of the Church Council. They, in effect, proceeded to create their own structure contrary to the dictates of the Constitution, and defied attempts to be disciplined by the respondent.
The court held, that, as the appellants had abandoned the canons of the church and its Constitution, they were no longer members of the respondent.
The appellants were interdicted from using the respondent's name and regalia. They were also barred from using the respondent's properties previously in their possession and ordered to vacate its premises.
Aggrieved by the court a quo's decision, the appellants noted this appeal on the following grounds of appeal:
GROUNDS OF APPEAL
1. Having correctly found that Isaac Soda had not been properly elected as the Bishop of the respondent, the court a quo erred in holding that the appellants, by opposing Isaac Soda's supposed leadership, had seceded from the respondent.
2. The court a quo erred in holding, that, the faction of the respondent led by Isaac Soda was the correct church for purposes of the dispute that was before it.
3. The court a quo further fell into error at law in holding that the appellants were no longer members of the respondent, when, in terms of the respondent's Constitution, only local congregations and not natural persons are capable of acquiring and/or relinquishing membership in the respondent.
4. The court a quo erred in granting eviction of the appellants at the instance of a faction of the respondent, which faction had no properly elected leadership.
5. The court a quo fell into error in holding that the assets of local churches belonged to the respondent when the listed assets belonged to individual autonomous local churches, and, some instances, to individuals.
6. The court a quo erred in granting an interdict against the appellants restraining them from calling themselves the Evangelical Church of Zimbabwe and using the respondent's uniforms when such issue was never referred to it for determination.
SUBMISSIONS BEFORE THIS COURT
Counsel for the respondent raised a preliminary point, that, the appeal had been deemed abandoned as the appellants heads of argument did not address the grounds of appeal.
Per contra, counsel for the appellants submitted that they had motivated each ground of appeal.
He submitted that the issue is really one of style rather than failure to motivate the grounds of appeal.
Resultantly, counsel for the respondent abandoned the preliminary point.
It is, however, this court's view that whilst legal practitioners have different styles of presenting their heads of argument, whatever style adopted must surely be clear and consistent with the grounds of appeal.
In casu, the heads of argument were convoluted and not easy to relate to particular grounds of appeal. The appellants heads of argument could have been drafted in a better way. We nevertheless opted to painstakingly peruse the convoluted heads of argument as, in our view, the real issues were clear from the record of proceedings.
On the merits, counsel for the appellants submitted that the faction led by Isaac Soda is the one which seceded from the church. This was because Isaac Soda had not been properly elected as the Bishop and his re-election itself was a nullity.
Counsel for the appellants submitted, that, the first appellant remained the Bishop until an election was held in accordance with the Constitution of the church.
As to the appointment of people to the Council under the faction led by the first appellant, counsel for the appellants submitted, that, they were rightfully appointed in accordance with the position that the first appellant was the legitimate Bishop until a valid election was held.
Counsel for the appellants also submitted, that, once the court found that Isaac Soda had not been rightfully elected, the members who were not in support of his election could not be said to have seceded.
Counsel further submitted, that, the finding by the court a quo that the appellants were no longer members of the church was against the church's Constitution which provides that affiliate branches of the church are the ones considered as members of the church and not natural persons such as the appellants.
In motivating the fourth ground of appeal, counsel submitted that as Isaac Soda was found not to be duly elected as Bishop, he could not seek the eviction of other members of the church.
On the fifth ground of appeal, counsel submitted that the court a quo's order that the appellants surrender properties to the respondent violated the church's Constitution.
In summation, counsel submitted that once a finding had been made, that Bishop Isaac Soda had not been duly elected, it followed that the appellants could not be said to have broken away from the church despite the accepted position that they had created a parallel structure and allocated themselves leadership positions in that structure.
He maintained that there was therefore no basis for the grant of the interdict against the appellants by the court a quo.
On the contrary, counsel for the respondent submitted that the appeal was devoid of merit as the appellants case was grounded on the mistaken fact that Isaac Soda was not the duly elected Bishop of the church.
He added, that, the real issue for determination by the court a quo was which of the two factions was the legitimate Evangelical Church of Zimbabwe.
He submitted that the court a quo's finding, that the appellants had seceded from the church, resolved the dispute between the parties.
In addition, counsel reiterated that the issue of Isaac Soda's occupation of the office of the Bishop was not the main issue for determination but was merely one of the side issues to be resolved by the court.
He added, that, as the first appellant's term in office had expired, all those in support of him had seceded from the church by forming their own parallel structure.
This Court finds that only one issue commends itself for determination in this matter: it is whether the court a quo erred by finding that the appellants were no longer members of the respondent and were thus not entitled to the properties owned by the respondent.
APPLICATION OF THE LAW TO THE FACTS
It is common cause that in preparation for a pre-trial conference, the parties held a meeting on 24 November 2017. In that meeting, the parties agreed that the issue for referral to trial was “whether or not the plaintiff (sic) is the legitimate leadership of the Evangelical Church of Zimbabwe.”
It was their view, that, a resolution of this issue would resolve the rest of the issues they deemed ancillary.
At that meeting, the respondent, being the church, was represented by Rev Dewah.
Thus, the determination of the legitimate faction was to resolve the dispute.
At the pre-trial conference held on 16 March 2018, both sides acknowledged that the Council had split into two factions. This acknowledgment was made subsequent to the agreement made on 24 November 2017 referred to above.
Despite the identification of the issue as one of legitimacy of the factions, in the joint pretrial conference minute, the parties inexplicably recast the issue to be whether or not Bishop Isaac Soda is the legitimate leader of the original church.
The court a quo aptly observed, that, the respondent had not pleaded for an order declaring Isaac Soda to be the duly elected Bishop.
The court a quo further found that there was no legitimate Bishop for the respondent, as, on 13 June 2016, in case number HH359-16, MANGOTA J had found that the election of Isaac Soda on 21 March 2015 was afflicted with irregularities and so declined to declare him the duly elected Bishop.
Equally, the court a quo held that the election of 28 March 2015, wherein the first appellant was re-elected Bishop suffered the same fate as it was afflicted with fatal irregularities which the appellants conceded.
The court a quo further held, that, the re-election of Isaac Soda, done on 10 September 2016, was afflicted with some irregularities.
The court noted that the Constitution did not provide for a re-run of an election yet this is what the respondent had purported to do without following the laid down procedures.
In noting the above, the court a quo was alive to the fact that the respondent had not specifically pleaded for a declaration of Isaac Soda as a duly elected Bishop hence it did not make such a declaration.
A perusal of the respondent's declaration before the court a quo clearly shows that the respondent did not plead for a declaration of Isaac Soda as the legitimate Bishop of the Evangelical Church of Zimbabwe.
The respondent ought to have amended its declaration so as to include the issue of the legitimacy of Isaac Soda as Bishop.
As the respondent did not do so, the court a quo cannot be faulted for not making a declaration on whether or not Isaac Soda is the legitimate Bishop of the respondent.
In Mashonaland Tobacco Company (Private) Ltd v Mahem Farms (Pvt) Ltd & Another SC152-20..., this Court summed up the general principle regarding the necessity of pleading a cause of action in these words:
“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), at 698, it was explained that:
'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'
In Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holding (Pvt) Ltd 2018 (1) ZLR 449 (S) at 455G, this Court aptly stated the position as follows:
'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'
And, at page 456E-G that:
'25.6 In Jowell v Bramwell-Jones & Ors 1998 (1) SA 836 (W) at 898, the court cited with approval the following remarks by Jacob and Goldrein, Pleadings: Principles and Practice at pp 8-9:
'As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.
Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.
The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.
Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.
To do so would be to enter the realm of speculation….,.
The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.
In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.'”…,.
See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)...,.; City of Harare v Everisto Mungate SC86-22.
In casu, the respondent's pleadings were for a declaration that the appellants had seceded and attendant ancillary relief. The appellants contention, in their pleadings, was that they had not seceded.
The pleadings clearly related to the issue of the legitimacy of the two factions and the attendant consequences.
The issue of Isaac Soda's election was unfortunately let in at the pre-trial conference - even though it did not arise from the pleadings.
This was clearly improper.
The court a quo did not err or misdirect itself when it noted, that, despite the parties agreement on the issue as being on the election of Isaac Soda, the respondent had not pleaded the election of Isaac Soda on 10 September 2016 and so it could not determine an issue not pleaded by the parties.
There was nothing in the pleadings to bring in the issue of Isaac Soda's election.
