Mafuru Magwega v. Maregesi Munema, Civil case (application for stay of execution)

IN THE COURT OF APPEAL OF 

TANZANIA

AT MWANZA

 MZA CIVIL APPLICATION NO. 6 OF 2005

MAFURU MAGWEGA ……………..………….……….… APPLICANT

VERSUS

MEREGESI MUNEMA .……………………………….. RESPONDENT

(Application for Stay of Execution from the Judgment

 of the High Court of Tanzania at Mwanza)

(Masanche, J.)

dated the 19^th day of October, 2004

in

(PC) Civil Appeal No. 1 of 2004

-----------

R U L I N G

16 & 23 February 2007

LUBUVA, J.A.:

        Under the provisions of rule 9 (2) of the Court Rules, 1979, this application has been filed seeking stay of execution in Mwanza High Court (PC) Civil Appeal No. 1 of 2004 of 19^th October, 2004 (Masanche, J.) pending the determination of the intended appeal.  Notice of appeal was duly lodged on the same date the judgment of the High Court was delivered, namely 19^th October, 2004.

        The application is accompanied with an affidavit duly sworn by the applicant, Mafuru Magwega.  From the facts as revealed from the affidavit the applicant urges that “if execution is not stayed I shall suffer an irreparable loss and will render my intended appeal academic.”  It is further claimed by the applicant that unless the respondent is restrained he will proceed to execute the decree before the appeal is heard.

        Before me, both the applicant and the respondent appeared in person.  In addition to the grounds contained in the affidavit, the applicant handed in court a written memorandum titled “Hoja mbele ya Mahakama ya Rufaa.”  In this memorandum he has listed a number of points of dissatisfaction.  In essence however, two main issues emerge from the memorandum:  First, that the house, subject of the dispute and litigation, has been sold by the respondent.  Two, that in selling the house, the respondent has also sold other properties which, he claims belong to him, the applicant.  Such properties include other plots of land and trees.

        Briefly stated, the facts giving rise to the case are that sometime in 1974, the respondent who was residing in Musoma went to Sumbawanga.  He left his house under the care of the applicant.  This was done in the presence of witnesses.  Upon his return to Musoma in 2000, the applicant was surprised to find that the house had been sold by the applicant.  The matter was taken to court starting with the Primary Court, where the applicant lost.  Likewise on appeal to the District Court and the High Court, the applicant was again unsuccessful.  Still dissatisfied, the applicant has, as indicated earlier, lodged notice of appeal to this Court.  Pending the determination of the appeal, the applicant is seeking stay of execution.

        Addressing the Court, the respondent said that he left the matter for the Court to determine who is entitled to the disputed house.  However, he made it clear that since sometime in 2006, the house, subject of the proceedings, was handed over to him by the Primary Court Musoma following the dismissal of the appeal by the High Court Mwanza in (PC) Civil Appeal No. 1 of 2004.  He said before the house was handed over to him, he was asked by the Primary Court to sign a document.  The Court, he said, cautioned him that he was handed over the house while the applicant was proceeding with the appeal.  Thereafter, the respondent said he sold the house.

        On his part, the applicant also conceded that the house had been handed over to the respondent by the Primary Court.  He also said that he refused to sign the document for handing over of the house.  He said, in clear terms, the applicant agreed to hand back the house to him in the event the intended appeal succeeded.

        From these facts which are generally not disputed, it seems to me that execution has been effected.  As also agreed by the applicant, after the decision of the High Court in (PC) Civil Appeal No. 1 of 2004, (Masanche, J.) under the direction of the Primary Court Musoma, the house in question was handed over to the respondent who, in turn has since sold it.  On this, both the applicant and the respondent are at one with each other and have confirmed that that is the position on the ground during the hearing of the application.

        In such circumstances, I am settled in my mind that this application seeking stay of execution of the High Court (Masanche, J.) in (PC) Civil Appeal No. 1 of 2004 has been overtaken by the event.  To grant stay at this stage would not serve any useful purpose.  Meanwhile, it is open for the applicant to pursue the appeal which is still pending in the Court.  My disclination not to grant stay of execution would not in any way operate to the prejudice of the intended appeal.  In part, the provisions of rule 9 (2) provides to the effect that “the institution of an appeal shall not operate to suspend any sentence or stay of execution.  What has happened in this case, is, to my mind in the reverse.

        Accordingly, as the application has been overtaken by the event, it is dismissed.  Each party to bear its costs.  It is so ordered.

        DATED at MWANZA this 23^rd day of February, 2007.

D. Z. LUBUVA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

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