The application came before me on 1ih May 2017, by way of an ex-parte summons and I ordered it to come by way of inter-parties hearing on 23rd May 2017. On 23rd May 2017, the Respondent did not appear by counsel. Being a legal

entity, the Respondent was given 7 days within which to find a lawyer of its choice to represent it in this matter. The case was adjourned to 29th May 2017 and hearing took place on the set hearing date.

Affidavit Evidence

The application was accompanied by an affidavit, sworn by the 1st Applicant [Hereinafter referred to as the "Applicants' Affidavit"]. The Applicants' Affidavit reads as follows:

"1. THAT I am the practising member and Reverend of the Malawi United Methodist church (MUMC) and by the virtue thereof I am duly authorised to swear this affidavit.

2. THAT unless otherwise stated, I depone to all the facts personally known to me and of which I verily believe to be true to the best of my knowledge and information.

3. THAT the Respondent allegedly held what they called an Easter Annual Conference from the J/h -l 61h day of April 2017 where they came up with a number of Resolutions. I attach and exhibit a copy of the Resolutions 'marked "DM 1".

4. THAT I was not invited to the said Easter Annual conference nor were the other Applicants invited to such a conference.

5. THAT the Resolutions from the Easter Annual conference were to the effect that I be excommunicated alongside Rev. Copeland Nkhata, Pastor Rose Chitsonga, .Pastor S. Chisale, Pastor D. Maidoni from the Malawi . United Methodist Church for the alleged gross violations of Ministerial conduct. I attach and exhibit a copy of the Memorandum of Excommunication marked "DM2".

6. THAT as per the memorandum marked "DM2" the headed letter has the office of the Bishop of the Malawi Methodist Church and that there has been no election of a Bishop to the Malawi Annual conference by the Africa Central Conference.

7. THAT there has been no Resolution to declare Malawi as an Annual Conference by the General Conference and as such there can never have been an Easter annual conference as was purportedly done by the Respondent.

8. THAT the only authority with powers to call for an Annual Conference as per the Book of Discipline is the Bishop and that the only Bishop that we have is Bishop

E.K Nhiwatiwa and not the self-acclaimed Bishop Jawati. I shall produce the said Book of Discipline for the Inspection of the Judge during the hearing of the Ex-Parte Application as it is bulky.

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9. THAT as per the Book of Discipline of the Church the Easter Period is not the time to hold an Annual Conference and as such the acclaimed Annual Conference is invalid and the Resolutions passedfrom there have no legal effect.

10. THAT I together with the other Pastors were never invited and we just learnt of the Annual conference upon receipt of the documents and that even considering the alleged Resolutions, they could not have been made and effected without hearing the affected parties.

11. THAT the Respondent proceed to cause Publication of excommunication in the newspaper. I attach and exhibit a newspaper cut for he said Publication marked as "DM3".

12. THAT Resolution number 3 has been deliberately crafted to introduce the position of a Bishop and then Reverend Jawati fills the position for the office of the Bishop without following the governance procedures of the Church, and that the said act is unconstitutional and flawed.

13. THAT in the year 2012 the Malawi United Methodist Church became a Provisional Annual Conference within the Zimbabwe Episcopal Area.

14. THAT a provisional Annual conference is organised in the same manner and has the same powers and functions as an Annual Conference subject to the approval of the Presiding Bishop.

15. THAT Bishop Eben Nhiwatiwa Presides and superintends over the Malawi Provisional Annual Conference.

16. THAT after attaining the status of Provisional Annual Conference in the year 2012, Bishop Eben Nhiwatiwa appointed me to be the provisional Annual Conference Superintend for a term of 6 years.

17. THAT the United Methodist Church is a connectional church and its Bishop is not resident here and Bishops are elected at Africa Central Conference and for the Provisional Annual Conference the College of Bishops assigns a Bishop to a Provisional Annual Conference and in our case Bishop Eben Nhiwatiwa of the Zimbabwe Episcopal Area is the one who has been assigned to oversee the Malawi Provisional Annual Conference.

18. THAT as the Conference Superintendent of the Provisional Annual Conference I am the overseer of the Malawi United Methodist Church responsible directly to the Bishop, appointed to administer the work in the Episcopal area and to make adequate reports of the work and needs of the Malawi United Methodist Church to the Bishop and to the Secretary of the General Board of Global Ministries.

19. THAT the General Board of Global Ministries is a Mission Instrument of the United Methodist Church which among others is responsible for planning to establish and strengthen Christian congregations where opportunities and needs are found so that these congregations may be units of mission in their

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places and partners with others in the worldwide mission of the Christian church.

20. THAT the task of superintending the Malawi United Methodist church resides in the office of the Bishop and extends by delegation to the conference superintendent.

21. THAT as a conference superintendent I oversee the total ministry of the clergy and of the churches in Malawi.

22. THAT the Malawi United Methodist Church is obliged to hold an annual conference and the Bishop is the one who appoints the times for holding the annual conference in accordance with the Book of Discipline of the United Methodist Church, 2012.

23. THAT the current Bishop, Bishop Eben Nhiwatiwa has never called for such an Annual Conference.

24. THAT the long standing practice is that an Annual Conference is held in July of each year and is called upon by the Bishop who is resident in Zimbabwe and that the said Bishop Jawati has never been elected nor consecrated as a Bishop through the process as laid down in the Book of Discipline.

25. THAT Bishop's headed letter is an episcopal letter and cannot be signed by a conference secretary and a conference lay leader and that by using or purporting to use a Bishop headed letter when he is not one is fraud 'and any resolutions emanating from the same cannot stand.

26. THAT further the Annual Conference has no Powers to excommunicate Reverends and /or Pastors and that such Powers cannot be exercised before a Recommendation has been made by the Board of Ordained Ministers as is required under Chapter 7 of the Book of Discipline.

27. . THAT the alleged Annual Conference flouted the Provisions of the Book of Discipline as they attempted to purportedly try the Applicants before they could hear them and as such their decisions ought to be nullified by this Court.

28. THAT and as such the Resolutions from the alleged Easter Annual Conference are invalid and void and therefore incapable of enforcement. "

The Respondent is opposed to the application and it, accordingly, filed an affidavit in opposition, sworn by Reverend Maxwell Ben Jawati, [Hereinafter referred to as the "Respondent Affidavit"]. For purposes of parity of treatment, I will also set out in full the Respondent's Affidavit:

"1. THAT I am the current chairman of the Registered Trustees of Malawi United Methodist Church and by reason whereof am duly authorized to swear this affidavit.

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2. THAT the matters I depone to in this affidavit are personally known to me and I believe the same to be true to the best of my knowledge and information.

3.· THAT I have read the affidavit in support and wish to respond as hereunder:

a. The Church did indeed hold its Easter Conference as stated in Paragraph 3 and it did not pass many resolutions for the growth of the Church and development of the Country.

b. The general membership of the Church was invited using known channels and if the Applicants were looking for a special invite in a letter directed to them as individuals then the same was not done as it could be very expensive to individually invite every member of the Church. Further, and alternatively, the Applicants were not given a special invite because they have a tendency of blocking the conferences by the obtaining of injunctions which actions paralyze the word of the Church as evidenced in Civil Cause Number 315 of2011 Principal Registry before Justice Potani and also Civil Cause Number 176 of2013, again principal registry before Justice Manyungwa. I attach copies of injunctions they sought in those matters as MJ1 and MJ2 respectively. It is therefore untrue that the Applicants were not invited, like the general membership they were invited and ifthey were indeed part of the Church they could have through th'e mechanisms known and also by their own previous conduct they did take them out of the Conference.

c. The Applicants were indeed excommunicated from the Church and the reasons are as below:

i. Impersonating themselves as trustees, forging returns at the Registrar General and generally constituting themselves as "New Registered Trustees of Malawi Methodists Church" copy of the return and the action they commenced is attached as MJ 3

ii. Insubordination

iii. Practicing divisive policies in the church that are unbiblical such as nepotism, regionalism, tribalism and cronyism.

iv. Failure to make a full and frank account after being ordered by the Honourable Justice Kamanga to so do after they had acted as Trustees without being appointed so. A copy of the Order is attached as MJ4

v. Starting their own movement/church within the church as can be seen on the application for the injunction.

d. The Applicants were not heard it could be said because whenever they are invited to such hearings they obtain orders of injunctions which they never prosecute and which for some reasons unknown to us would have rulings delivered after 3 years or more or never. A copy of an email invite to the deponent is attached as MJ5 and the injunction he got is shown as MJJ.

e. As for paragraph 6, the Church herein is registered locally and it has the power to determine its own conduct and positions. One such position is that of the Bishop and the Conference secretary used stationary from the said office to make the communication.

f As for paragraphs 6 to 9 I wish to say that the Applicants are misguided by the effect' of the so-called Book of Discipline which is not a regulation made under the Constitution. Under the Constitution, by laws have been

made which direct how the church should be run and operated, making provisions for matters such as uniforms of members and other such matters. If ever the Book of Discipline was ever used then that was/or a time that the Church did not have its own by - laws. No Position is given for anybody outside the country to lord over the church in Malawi. We can only partner with other like minded churches but they are not to lord over the Church in Malawi. No such position is ever made in the Constitution.

g. As for paragraph 10, I repeat clauses "b" and "d" above.

h. As for paragraph 12, the governance body is one that the Chairperson and founder of the Church in Malawi as its Bishop. One wonders where such other governance body that the deponent refers to is to be found. He and his brother and wife do not constitute a governance body and their absence cannot vitiate actions of hundreds of people lawfully occupying their positions.

i. As for paragraphs 13 to 28 suffice to say I repeat paragraph ''f' above and add that the Church relates with other churches world over whose teachings are in agreement with the local church. The local church is however an independent church and its leaders are in Malawi and not in some foreign country. If the applicants belong to some other foreign entity they are free to proceed with such an entity.

j. Specifically on paragraph 26, the General Conference being the supreme authority delegates its powers and these powers are delegated to the annual Conference.

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k. To the best of my knowledge information and belief no procedure was flouted in the events that took place at the Easter Conference and the Applicants were properly excommunicated.

4. THAT the Applicants having been excommunicated must handover all the property which vests in the trusts for the benefit of the members.

5. THAT they are not being evicted as they claim, they were merely agents working on behalf of the trustees to further the work of the Trust/Church and having been found incapable of so working, they ought to handover so that the objectives of the Trust can be met.

6. THAT there are no facts herein that would warrant the granting of the injunction herein. It is clear from the application that the Applicants have their own followers who basically are not members of the church but specific followers of the Applicants. The Applicants are therefore clearly starting their own church within the Church and letting them stay over any longer may irreparably damage the standing of the Church and its membership. The applicants and their followers can challenge their excommunication without an injunction and there is no harm that has been shown that could be done.

My Lord, your Humble Trustees and indeed the entire church membership apart from the Applicants and their specific followers, pray vehemently but humbly that the application herein be dismissed, let the work of the Church continue which it cannot with the applicants continue as members and the dismissal be with costs. "

Analysis

The main issue for determination is whether this Court should grant an order of interlocutory injunction or dismiss the application.

An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined: see 0. 29, r. 1(2) of the RSC, American Cyanamid Co. v. Ethicon Limited (1975) A.C. 396 [Hereinafter referred to as "American Cyanamid Case"], Mangulama and Four Others v. Dematt Civil Cause No. 893 of 1999 (unreported), Ian Kanyuka v. Thom Chumia & Others, PR Civil Cause No. 58 of 2003 (unreported) and Tropical Garments Manufacturing Limited and Lilongwe Textile Limited v. Eco bank Limited, Civil Cause No. 2952 of 2008, (unreported). In Ian Kanyuka v. Thom Chumia & Others, supra, Tembo J, as he then was, observed as follows:

"The usual purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action. The injunction will almost always be negative in form, thus to restrain the defendant from doing some act. The

pr.,inciples to be applied in applications for injunction have been authoritatively explained by Lord Diplock in American Cyanamid Co. v. Ethicon Limited [1975/A.C. 396 ".

Is there a serious question to be tried?

In any application for an interlocutory injunction, the first issue before the court has to be "Is there a serious issue to be tried?". Indeed this must be so because it would be quite wrong that an applicant should obtain relief on the basis of a claim which was groundless. It is, therefore, important that the applicant should establish that there is a serious case to be tried.

The court must be satisfied that the applicant's case is not frivolous and vexations or that the matter has a real prospect of success: see paragraph 29/L/14 of RSC. The court must not attempt to decide this claim on the affidavits: it is enough if the applicant shows that there is a serious question to be tried. If he or she can establish that, then he or she has, so to speak, crossed the threshold; and the court can then address itself to the question whether it is just or convenient to grant an injunction: R v. Secretary of State for Transport, Ex-parte Factortame Ltd & Others (No.2), supra. If the answer to the question whether there is a serious issue to be tried is "no", the application fails in limine (see C.B.S. Songs v. Amstrad

[1988] AC 1013.

In the present case, the Applicants are questioning, among other matters, whether the Respondent or its proxies had authority to organize and convene the annual conference at which a decision was made to expel the Applicants. A related question is whether the annual conference is vested with power to expel Reverends and /or Pastors. It is necessary to quote in full Counsel Gondwe's submissions on these matters:

"4.3 The power to organize and convene an annual conference in the Methodist Church resides in the Bishop who appoints the times for holding the annual conference in accordance with the Book of the Discipline of the United Methodist Church, 20I2. The said Annual Conference which was held from 14^th-16^th April was not called upon by the legitimate and only Bishop Eben Nhiwatiwa. The said conference was called upon by a self-acclaimed Bishop Jawati who has never been elected nor consecrated as a Bishop through the process as laid down in the Book of Discipline. As such the said Annual conference was not legal in accordance with the Book of Discipline hence its decisions are null and void.

trustees excommunicated the Plaintiffs. Going by exhibit DM 2 that the Plaintiffs have tendered in court, the people that excommunicated them certainly are not trustees of the Church. The Communication states that the Easter Annual Conference of the Church resolved such matters. It is therefore clear that the Plaintiffs have brought about the wrong person and have proceeded to sue a party that never decided on their excommunication. There is therefore no triable issue herein as between the parties to the present case.

2. The Plaintiffs also attacked the body that made the decision as being the wrong one and raised in paragraph 8 of their affidavit that one Bishop Nhiwatiwa is the one to call for such a meeting. This assertion was not substantiated. It was even pledged that at hearing a copy of the said Book of Discipline which has such instructions would be tendered, it never was. If one is to establish that they have a triable issue, they must prove it as stated above. The burden of proving the fact which they raise is on them and the Plaintiffs miserably failed in proving the same. In the case of Silence Chadewa vs. Democratic Progressive Party Civil Cause Number 25· of 2014 (mzuzu District Registry unreported), Justice Dr. Kapindu in deciding whether to grant an injunction under paragraph 5.2 found that the Plaintiff in that case had failed to substantiate the claims they had asserted and the injunction was not granted. "

As regards the second ground, the submissions by Counsel Kaonga were as follows:

"3. The excommunication herein is of the Plaintiffs as members of the Church. We should pause and think, what right has the Plaintiffs said they seek to protect? The right to be members of a church? The right to be a pastor and minister to "his followers"? borrowing from Politics My Lord I quote with approval the statements by Chikopa J (as he then was) in Ajinga vs. United Democratic Front Civil Cause Number 2466 of 2008 (Principal Registry) unreported where the learned judge said:

"About the allegation that the plaintiff's political rights and those of his supporters will be infringed if a rerun was allowed to go ahead. What rights are these it might be asked? Is it the right to vote? Or the right to vote for a particular candidate? Or the right to be voted into office?.. [T]he plaintiff contends that he is safeguarding his rights to participate in peaceful political activity and to freely make political choices. On any of the above points we think the plaintiff has no leg to stand on. The holding of a rerun cannot in our view affect the plaintiff's or his supporters' right to vote. Or the plaintiff's right to vie for or be voted for a seat in the National Assembly. Whether or not the rerun is held the plaintiff and his supporters can and will vote for a legislator of their choice if they so wish. They [the said supporters} can still vote for the plaintiff whether or not he stands as a UDF candidate. If the plaintiff loses the rerun all he has to do is to stand as an independent candidate. His supporters can then happily vote for him".

4. No right has been put forward that needs protection of this honourable court by the Plaintiffs. If they want to be ministers, they are free to be ministers, they are

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not being stopped from forming a church, as is clear they are applying for this injunction on their behalf and on behalf of their followers. They can proceed to minister and do all they want but not within the Church herein. There is no such right to be a member of the church herein. As shown in the affidavit of the respondent, there are other churches sharing the beliefs of the within church and the Plaintiffs are at liberty to join them or indeed start theirs with the same beliefs."

Upon reading the affidavit evidence in support of and in opposition to the application and considering the skeleton arguments and oral submissions by both counsel, it is clear to me that there are several matters in this case which are genuinely and legitimately in dispute on which fact alone there is a serious matter to be tried. Firstly, there is the question whether there was a properly convened and valid conference from 14th to 16th April, 2017. Secondly, there is the question whether or not there is a validly elected and consecrated Bishop in the Malawi Provisional Annual Conference other than Bishop Eben Nhiwatiwa. Thirdly, did the Annual Conference have powers to dismiss a Bishop or a Pastor? Fourthly, there is the question whether or not the dismissed/excommunicated Reverends and Pastors were given an opportunity to be heard in accordance with the rules of natural justice.

In light of the contestation on both factual matters and the legal questions arising therefrom, I really doubt, and I do not think that Counsel expects, that this case can be resolved at an interlocutory stage before the factual landscape of the case unfolds during the hearing of the substantive case: see John Albert v. Sona Thomas (Nee Singh), Sukhdev Singh, Samsher Singh and Hellen Singh, MSCA Civil Appeal No. 46 of 2006 (unreported). As was aptly put in Mwapasa and Another v. Stanbic Bank Limited and Another, HC/PR Misc. Civ. Cause No. 110 of 2003 (unreported), "a court must at this stage avoid resolving complex legal questions appreciated through factual and legal issues only trial can avoid and unravel".

In the result, there can be no question of the present application being decided at the first stage of Lord Diplock's approach in American Cyanamid Case and it is necessary to proceed at once to the second stage.

Are damages an adequate remedy?

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Having dealt with the first hurdle regarding the question whether the Applicants have an arguable case, it is time to tum to compensability, that is, the extent to which damages are likely to be adequate remedy for each party and the ability of the other party to pay: American Cynamid Case, Evans Marshall & Co. Ltd. V. ffBertola S.A. [1973] 1 W.L.R. 349 at 379D, Polaroid Corporation v. Eastman Kodak Co. [1977] R.P.C. 379.

Further, Order 29/1/3 of RSC is to the effect that damages will seldom be a sufficient remedy if (a) the wrongdoer is unlikely to pay them, (b) the wrong is irreparable or outside the scope of pecuniary compensation, or (c) damages would be difficult to assess. This Order was applied with approval in the case of Cane Products Limited v S. E. Kaonga t/a E and E Engineering & Attorney General, HC/PR Civil Cause 609 of 2005 (Unreported).

The office of reverend or pastor carries with it reverence that money cannot buy or compensate. It also seems to me that church membership cannot be compensated in monetary terms. It is, therefore my finding, and I so hold, that the application before me lies outside the scope of pecuniary compensation and, in any case damages would be difficult to assess. In the premises, it is unnecessary to consider whether or not the parties will be able to pay damages.

Balance of Convenience,

In terms of the guidelines in American Cyanamid Case, it is where there is doubt as to the adequacy of the respective remedies in damages that the question of balance of convenience arises. In the words of Lord Diplock at 408F and G:

"It would be unwise to attempt to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached them. These will vary from case to case. "

When considering whether or not to grant an interlocutory injunction, justice requires retaining status quo unless if doing so would result in injustice, unfairness or inconvenience: see Sondhi v. Zamberi and Another, HC/PR Civil Cause No. 632 of 2010 (unreported). The rationale is that if the defendant is enjoined temporarily from doing something that he or she has not done before, the only effect of the interlocutory injunction in the event of his or her succeeding at the trial is to postpone the date at which he or she is able to embark upon a course of action which he or she has not previously found it necessary to undertake. On the other hand to interrupt him or her in the conduct of an established enterprise would

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cause much greater inconvenience to him or her since he or she would have to start again to establish it in the event of his or her succeeding at the trial.

Having regard to all circumstances of this case, it is important that the status quo be preserved.

Conclusion

To sum up, the contestation by the parties on both factual matters and the legal questions arising therefrom serve to confirm, in my view, that there are present in this case serious issues for trial. Further, damages would not be an adequate remedy. Furthermore, as other factors appear to be evenly balanced, it is counsel of prudence to take such measures as are calculated to preserve the status quo.

In the premises, justice demands that the Applicants be granted the interlocutory injunction being sought and the same shall be valid until the main action is determined one way or the other. It is so ordered.

Turning to the main case, I note that the Respondent has stated its intention to contest the proceedings. In this regard, I direct the Respondent to file its affidavit in opposition within 7 days hereof. I further direct that the hearing of the main case shall take place on the 4^th day of July 2017 at 11 o'clock in the forenoon.

Pronounced in Chambers this 12^th day of June 2017 at Blantyre in the Republic of Malawi.

Kenyatta Nyirenda

JUDGE

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