Ngoni Manyika and Others v Fungai Fredy and Others

The respondents were members of the AFM church (The Lord's Sanctuary, 14989 Sinini Road Old Tafara, Harare) who had been attending services at the parish since its inception. In November 2021, the appellants locked the access gates to the church premises, preventing the respondents from attending church services. The respondents applied for a spoliation order on 7 December 2021, alleging that their attendance of church services, which had been peaceful and undisturbed, had been interfered with. The dispute arose in the context of factional leadership wrangles within the church, which had previously been resolved by the Supreme Court in Cossam Chiangwa & Ors v Apostolic Faith Mission & Ors SC 67/21. The Magistrate granted the spoliation order, ordering the appellants not to unlawfully deny the respondents access to the church premises and to allow them to worship with other congregants. The appellants appealed against this order.

• Whether the respondents pleaded and met the requirements for the granting of a spoliation order
• Whether the respondents were in possession of the church property as required for a spoliation order
• Whether access to church premises constitutes possession for purposes of spoliation
• Whether the court can grant access to church premises through a spoliation order when possession is vested in the church through its leadership
• Whether the granting of uninterrupted use and access to church premises to individual members breaches the independence of the institution

1. The appeal is upheld with costs. 2. The order of the court below is substituted to read as follows: a. The application is dismissed with costs.

The binding legal principle established is that spoliation protects possession, not access. For a spoliation order to be granted, an applicant must demonstrate: (1) that they were in peaceful and undisturbed possession of the property; and (2) that they were forcibly or wrongfully deprived of such possession without consent or a lawful order. Possession requires both corpus (physical control) and animus (intention to exercise control for one's own purpose). In the context of church property, possession is held by the church institution through its appointed leadership, not by individual members who merely have access rights to attend services. Access to property cannot be obtained through a spoliation order, and mere access does not constitute possession sufficient to ground a spoliation claim. Individual church members cannot claim exclusive possession of church premises to the exclusion of the church's leadership or other organs of the church.

The court noted that the real purpose of the mandament van spolie was to prevent breaches of the peace and was intended to protect possession, not access. The court observed that it is inconceivable that church organs or individual members could competently claim the mandament over church premises as neither can possess a church building to the total exclusion of the other. The court also commented that the ongoing dispute between the parties stemmed from factional leadership wrangles that had already been resolved by the Supreme Court, suggesting that the spoliation application was an attempt to circumvent that determination. The court emphasized that granting uninterrupted use and access to individual church members would breach the independence of religious institutions.

This case is significant in Zimbabwean law as it clarifies the distinction between possession and access in the context of spoliation orders. It establishes that the mandament van spolie is designed to protect possession, not merely access to property. The case is particularly important in the context of religious institutions, where it confirms that possession of church property vests in the church through its leadership, not in individual members who merely have access rights. The judgment prevents the misuse of spoliation remedies to circumvent issues of access and control that should be determined through other legal channels. It reinforces the principle that church governance and property control cannot be usurped by individual members through spoliation applications, particularly where leadership disputes have already been judicially determined.