Lucas Elias Bukombe v. Aurea Edward, Civ no 178 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 178 OF 2007

LUCAS ELIAS BUKOMBE………………………………..APPLICANT

VERSUS

AUREA EDWARD……………………………….………RESPONDENT

(Application for Stay of Execution from the decision of the High Court of Tanzania at Dar es Salaam)

(Mandia, J.)

dated the 31^st day of October, 2007

in

Civil Appeal No. 63 of 2002

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RULING

13 & 17, March, 2008

MUNUO, J.A.:

        The applicant, Lucas Elias Bukombe brought a notice of motion under the provisions of Rule 9(2) (b) of the Tanzania Court of Appeal Rules, 1979, seeking stay of execution in Civil Appeal No. 63 of 2002 in the High Court of Tanzania at Dar es Salaam in which Mandia, J., on the 31^st October, 2007, ordered the applicant to pay to the respondent, 1/3 of the matrimonial house at Yombo in which they lived before their marital union collapsed.  The application is supported by an affidavit of the applicant urging the Court to stay execution pending the determination of his appeal to the Court of Appeal of Tanzania.  At the hearing the applicant contended that he will suffer irreparable loss if the house in dispute is auctioned for he resides in the material house and would be rendered homeless.  He conceded that he rents part of the house for income generation.  He, however, urged that the respondent also resides in her 4 bedroom house at Kiwalani, part of which she rents out to generate income so she would suffer no hardship if stay of execution is granted.

        The respondent, Aurea Edward, was represented by Mrs. Shiyo, learned advocate.  She deponed to a counter affidavit contending that the respondent has been delaying the case since 1999.  She stated at paragraph 4 of the counter-affidavit that she is only entitled to a third of the matrimonial house in which the applicant resides so the application for stay should not be allowed.  Instead, the Court should allow execution to proceed so that she can enjoy the fruits of the decree.

        Mrs. Shiyo, learned counsel for the respondent contended that the application lacks merit so it should be dismissed with costs.  She found no justification in delaying the 1/3 share of the respondent in the Yombo house considering that the respondent has to provide for the only issue of the parties.  Their child was born in 1999 and is in the custody of the respondent mother.

        The issue is whether there is ground for staying execution pending the determination of the intended appeal.

        Rule 9(2) (b) of the Tanzania Court of Appeal Rules, 1979 Cap 141 (Sub.) R.E. 2002 provides for stay of execution by stating, inter-alia:

(9) (2) Subject to the provisions of sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may –

      (a)   in any criminal proceedings …………………..

      (b)   in any Civil proceedings, where a notice of appeal has been lodged in accordance with Rule 76, order a stay of execution, on such terms as the Court may think just.

        In this case, the intended appeal is pending.  Either spouse is staying in his or her residence.  As the applicant has a right of appeal against the decision of the High Court, on the balance of convenience, there is cause to stay execution pending the determination of the intended appeal.