THE High Court has rescinded a default judgement passed against Assemblies of God — Spiritual Movement (AoG-SM) leaders who were set to be evicted from the church premises in Marondera by a rival grouping.
AoG-SM was dragged to court by a grouping identified as Assemblies of God — Back To God (AoG-BTG) led by Nathan Sethlako with the former being accused of refusing to vacate the state-of-the-art church building located in Marondera’s high-density suburb of Cherima.
AoG-SM led by its leader Phillip Zinyama approached the High Court after a default judgment was granted to AoG-BTG citing that the ruling was done despite their efforts to defend themselves.
According to a judgment dated September 23, High Court judge Justice Priscilla Munangati-Manongwa said the applicants, AoG-SM, could not be punished by an error made by their legal practitioners, adding that the denomination 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,” the judgment read.
“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 wilful on the part of the applicants.
“On their part, the third and fourth 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.
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“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. 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 second respondent and witnessed by third and fourth 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,” the judgment further read in part.
“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 second applicant upon purchase of the property with the Municipality is the same as the respondent.
“Such clarity is relevant as eviction being sought ought to be done by someone who holds rights to the property in question. 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 first applicant in HC5359/23 as a separate entity, and even conceded that the first 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. Apparently, the third and fourth 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 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.
The late Nyika was mentored by Nicholas Bhengu, a South African national, between 1978 and 1985.
Nyika then built a state-of-the-art 500-seater church in Marondera and also set up 14 assemblies mainly in rural and less attractive areas.
In 2015, while celebrating 37 years in the ministry, Nyika reportedly added “Spiritual Movement” to the name of the church, giving birth to the AOG-Spiritual Movement.
On July 16, 2020, weeks before his death, Nyika reportedly instructed secretary-general Zinyama on how church business would be conducted after his death.
Zinyama, then 28, was inaugurated on August 30, 2020, sparking a wrangle with the old guard.
