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 home-town. 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.
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
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 'sub-community', 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.
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