ALBERT BRAGANZA AND ANOTHER v MRS FLORA LOURDIN BRAGANZA 1992 TLR 307 (CA)

 

ALBERT BRAGANZA AND ANOTHER v MRS FLORA LOURDIN BRAGANZA 1992 TLR 307 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JA

14 October, 1992 E

Flynote

Civil Practice and Procedure - Stay of execution - Necessity of reasonable grounds for

its grant.

-Headnote

The respondent filed an application in the Resident Magistrate's Court for an interim

F grant of letters of administration in respect of the estate of her deceased husband

which was, at the time, in the mortuary. She granted her husband to be interred in

Dar es Salaam but the two appellants, relatives of the deceased, granted interment to

be done in Tanga, the deceased's hometown. The Resident Magistrate's Court

declined to G entertain the matter for want of jurisdiction. The application was filed

again in the High Court and it was granted by Mkude, J. There was also evidence that

the respondent, on the basis of the High Court Order, had arranged to have the body

buried in Dar es Salaam at 4 o'clock on the same afternoon. The appellants filed a

notice of appeal H and an application showing they fully requested, inter alia, for

stay of execution of the orders of Mkude, J.

Held: (i) There was no compelling reason for ordering a stay of execution in the I

circumstances of this case;

1992 TLR p308

MAKAME JA

A (ii) it is not in public interest for a dead body to remain unburied for so long.

Case Information

Application refused.

Mbuya, for appellant. B

Lyimo, for the respondent.

[zJDz]Judgment

Makame, J.A.: This application arises from a sorry situation which is not so much

bizarre, but rather eerie: The deceased, a person called Joseph Philip Braganza set in

C motion rival efforts in court to have his dead body buried in Tanga or in Dar es

Salaam. His widow, the respondent, wanted the burial to be here in Dar es Salaam,

which she says is her intended new home with her four children, while his siblings,

represented by the two applicants, wanted the interment to be in Tanga, his hometown.

Mrs. Flora D Braganza applied to the Resident Magistrate's Court at Kisutu for

an interim limited grant of Letters of Administration in respect of the estate of her

deceased husband and one of the purposes of such a move was said to be to enable her

"to make decisions in respect of the disposal of the body of the deceased". The

application was brought E under a Certificate of Urgency and the present respondent

was represented by Mr. Mbuya, learned counsel, whereas Mr. Lyimo learned

advocate, represented the deceased's siblings and their mother. Rugazia, learned

Senior Resident Magistrate, declined to entertain the application for want of

jurisdiction. Thereafter the present F respondent made a similar application before

Mkude, J. of the High Court, who on 30th September, 1992, that is some nineteen

days after the death of the deceased, granted her prayer. The learned judge appointed

her administratrix pendente lite, and authorized her "to arrange for and determine

the place of burial of her deceased G husband."

On 1st October, 1992 a Notice of Motion and a Notice of Appeal were filed on behalf

of the present applicants who asked for a Stay of Execution of the Orders of Mkude, J.

pending the hearing. The matter was brought under a Certificate of Urgency and on

H the following day, in the afternoon the matter was placed before me and I was

asked to hear the application, which was ex parte, at extremely short notice. Mr.

Lyimo, learned Counsel represented the applicants. At the hearing I was informed

that the deceased's widow had arranged to have the body buried in Dar es Salaam at 4

o'clock the same I afternoon, and that put me in an awkward position.

1992 TLR p309

MAKAME JA

I was clear that I was not going to grant the prayer, rolled out of the blanket Prayer A

No. 3, that I should order that the burial should be in Tanga. As I said in my brief

Ruling the same day, such an order would have gone well beyond the province of a

Stay of Execution and would have been outside the jurisdiction of a single judge of

the Court of Appeal, because it would have amounted to upsetting Mkude J.'s

decision, which B only the Court of Appeal can do. What I found difficult was to

consider a Stay of Execution, properly called, without having the advantage of

hearing the other side and taking a closer look at the documents filed, because of the

very peculiar nature of the situation. I chose what I felt was the least evil, to order

only temporary Stay until I C could get a response from the other party. I

accordingly ordered a temporary stay and asked that the widow should be served for

the following Wednesday, 7th October, 1992. She showed up and was represented by

the same advocate who had assisted her in the courts below. The applicants continued

with the service of their same lawyer, D Mr. Lyimo.

At the full hearing of the appeal Mr. Mbuya first raised a preliminary objection that

there was no proper Notice of Motion filed and that the court was not properly seized

of the matter, among other objections. Mr. Lyimo accordingly responded. We agreed,

and E proceeded by consent, to hear the substantive application for stay, because of

the peculiar urgency of the matter, so as to save time. I indicated then that if at the

end of the day I agreed with Mr. Mbuya, that would be the end of the matter. If on

the other hand, I did not, I would then already have material on record on which to

dispose of F the substantive matter.

It is indeed the law that this Court would not grant a Stay of Execution not applied

for in the High Court in the first place unless there is already a valid Notice of Appeal

filed. We have said so many times before. The question now is whether Mr. Mbuya

has G succeeded in establishing his contentions. In my view, Mr. Lyimo's documents

might have been signed by him and it would appear to be true that "Maxie Chambers"

are in fact his outfit. But I am satisfied that the Rules have not been complied with.

Section 44 of the Advocates Ordinance requires strict compliance and this is lacking

in the H present instance. So the application is in effect irregular.

If I were wrong in this, and it was open for me to consider the substantive matter, this

is what I would say: From the submissions by Counsel there is no claim that there is a

commonly accepted usage among the Goan sub-community in Tanzania as to who I

should

1992 TLR p310

decide where someone should be buried. In the present matter no party can therefore

A be said to have a better claim. It seems to me that the centre which holds the Goan

sub-community in Tanzania is the Roman Catholic Church, which does not appeal to

ordain in such a matter. I would therefore find no compelling reason for ordering a

Stay B of Execution till the intended appeal, the more so as the applicants have

indicated that they would not contest the grant for the administration of the deceased

estate by Mrs. Braganza, per se. Then there is the other consideration that it is

revolting that a dead body should remain unburied for so long, in Dar es Salaam or

elsewhere in Tanzania, where dead bodies tend to spoil fast, even in mortuary

facilities when electric power C is so erratic and unreliable. Public policy would

require decently timely interment. I would therefore refuse to order a Stay, in the

circumstances.

I hasten to add, for the avoidance of doubt, that I do not use the term D 'subcommunity',

with reference to Goans, in any derisive sense. I employ it only in the

context of 'Community' meaning the wider Tanzanian Community, so smaller groups

being lesser than the 'community'.

Because of the foregoing reasons I refuse to grant any further Stay of Execution. Mrs.

E Flora Braganza may therefore proceed as allowed by Judge Mkude of the High

Court.

Application refused.

1992 TLR p310

F