The High Court has annulled a default judgement of eviction passed against Assemblies of God-Spiritual Movement (AoG-SM) leaders for them to be removed from the church premises in Marondera.
AoG-SM led by Mr Phillip Zinyama was taken to court by a group called Assemblies of God Back To God led by Mr Nathan Sethlako.
The Sethlako camp allegedly accused the Zinyama camp of refusing to vacate church premises located in Cherima, Marondera. However the lawyers representing the
Zinyama’s camp bungled and failed to defend their clients leading to a default judgement being passed in favour of the Sethlako camp.
The Zinyama camp then approached the High Court seeking to challenge the default judgement by highlighting their lawyers shortcomings, which prevented them from defendeding themselves.
According to a judgement dated September 23, 2024, High Court Judge Justice Priscilla Munangati-Manongwa said the applicants, in this case AoG-SM, cannot be punished by an error made by their legal practitioners.
She said that the church has the right to a full trial.
“The error was not deliberate on the part of the applicants, they had instructed the legal practitioners to defend and the error in filing a defective appearance to defend was done by the legal practitioners,” she said.
“If it were not for that error, the applicants could have properly defended the matter and avoided the granting of a default judgment against them. “It is the court’s finding that the default was not willful on the part of the applicants.
“On their part the 3rd and 4th applicants had taken steps to approach legal practitioners timeously and rendered instructions to contest the matter, and the legal practitioners had acted timeously only that one thing went wrong when a mistake was made.”
Justice Munangati Manongwa ruled that AoG-SM produced evidence in court that their denomination is currently the one legally occupying the church premises.
“This court is satisfied that the applicants have met the requirement of the existence of a good defence, and that the application is bona fide,” she said.
“The applicant has placed before the court an agreement of sale of the stand in issue entered into with Marondera Municipality signed for on one part by the 2nd respondent and witnessed by 3rd and 4th applicants.
“Further, receipts for the payment of rent and water services have been provided by the applicants. The applicants further attest to the construction of the Church building on the disputed stand. “The respondent has not placed before the court any evidence on acquisition of the property serve to allege that it has exclusive rights to the property in issue where eviction is being sought.
“It is the court’s view that the applicants have a triable case warranting the setting aside of the default judgment. There is need to facilitate the matter to proceed to trial to enable clarity on whether Extension of Assemblies of God which was represented by the 2nd applicant upon purchase of the property with the Municipality is the same as the respondent.”
She added that such clarity is relevant as eviction being sought ought to be done by someone who holds rights to the property in question.
She went on to say the applicants have good prospects of success and certainly the court is convinced that this application is genuinely made and is thus bona fide.
“Given the aforegoing and the fact that respondent had sued 1st applicant in HC5359/23 as a separate entity, and even conceded that the 1st applicant and respondent are distinct churches it is in the interest of justice that the judgment be rescinded and proffer the applicants a legal opportunity to defend their right to the property,” she said.
“Apparently, the 3rd and 4th applicants prayed for upliftment of bar and condonation and such relief was not contested at the hearing.”
AoG-BTG is being represented by its secretary general Mr Silas Mhazo.
AoG Spiritual Movement leader Francis Nyika died and was succeeded by his youthful aide Phillip Zinyama, igniting a backlash from the old guard which is allegedly attempting to seize the church’s assets.
On July 16, 2020 just before his death, Nyika allegedly instructed secretary-general Zinyama on how church business would be conducted after his death.
Zinyama was inaugurated on August 30, 2020 sparking a wrangle with other senior congregants.
Source: Herald