20020613 TZHC Mbeya1

Iedd et 30 txotutuixeq.ep ui; eq uipuct not eqq u -t trriux o; s' icd oq t4 paxepxo q.t uaqiA pe.xe q.moz r' u-riIiuoo cq.txee aq ut -reedclie 9sojo gouatl ooqn tox ou pip e tq-4 pA3çq ptreqnq xeuuo paMo M Uot otic11 "9 H •UTpeeOOJcI U0UrLIW Ut So hot tXtuLx3p ut;et uipud eaxop 30 uot ox ;o xo; ptid 449 9ii -plo-eq -iy - aAq oq. .iepxo u 'enot 8 UT OUTATT uq uoi ut eexoap éq. 30 94Tds 'xi. 00000'000vGt qXIcI s' .h1EqM fl0t 9t JO OnTA t;d oo'000'oovq .xet pat o pGpeaoo.xd pu %ot ftuo SUM 99zloq @Lp ouotrtqt.xuoh S upuodse.x aqq 1e UflOJ 4anoo 0T 9 Ta S11 3 dPxe 28 J STq4 ui •esnot 1 GS€T 1TU0WtJt1I JO UOtStKt 0 I4T aOXOAtp JO O.xp at JO uOtq.noxe eqq hO 2aj4uao 94Tide -Ep etfl. 9M0IS ecIdS J0 uot.td oedc1y ITATD -39-EW 9v PaJa4sTBad sMm q0TWA 1J3W A,09 IT 'isecld? 550.10 t i:-reo 3 iadd ppu uoxm-I ITT i' O UMO .T°W 3° &Ie tie jq2noaq 5Bt qoe P' 9TTA0 TTTUV sre q9nC 'pe.9tJ s 0ptIe1 UOX2 !9cInoo . I icr. osstp s uowTJw alaqj 114Ufl 6 alam 9qu-eBTqT-[, alu DVW alquodc,g rara •a • • • S S45 G •Se 'ISO S S•S• f1E1A ',''' ' ° ' °' S S 0040 LMVT1ddV 0aMV7l)1 NOXvI (JUO /IUtId nJk3tn .t .o 966L JO .2 . 011 Ogleo ITATC) Tt1TT40 —rto0 eurs et JO 66l. 3 0 91I tsev ITATD 'p66 i, ;o '°N U0t1OtTd ITATO °TW UT nnrj amsuna 30 4,MOD q.OJ9( oqq. 30.UOT5TOp elqz w0.x) WL do -'on .wddv IA 'D4.. VM LV I -2- Mr. Mbise, learned counsel for the cross-appellant, submits that the appellate District Court erred iii•granting stay of execution because in doing so the appellant was denie.d the, rights he had been granted by the two courts below, In any case s he argues that an appeal cannot operate as a ground for stay of execution except in very rare occasions. That according to case law, including the (CA) Civil Application No.52 of 1996, it is now trite in this country that a stay brder is not normally granted unless the court is sat.is- fled that the applicant has §ufferred irrepearable loss. On his part Mr. Mushokorwa, 1erned counsel for the respondent, submitted that the principle developed in case la w favours the respondent because she is a woman who has the custody of the children; that she has lived.in , the house all along uninterrupted and which the appeUant aandDIied for a long time. It is Mr. Mushokorwa's argument that the balance of convenieoe t4.1ts in favour of the respondent and that she stands a great. chance DI success in her pending 4pealA Whether ornt an appeal such as thisione .can succeed will depend on whether the principles which were lai.d 4ownd, th - Tanzania --- Cotton Marketin Boaxd case (wireported) are met, It was stated at five of the typed copy of the judgment of the Court of Appeal in that case that - ".., In this case, the decision turn al'ôund the issue whether the applicant would suffer not only substantial but irreparable loss which cannot be attoned by damages ...". There is no doubt in my mind that an eviction order will definately throw the respondent onto the street with the children of the marriage even before the appeal is finally determined, irrespective of whoever shall succeed. Life on the street with chjldrn. is a. factor which cannot be redressed by an award of damages. I however am of the settled view that Mr. Mushokorwa's argument.that the respondent stands a good chance of''succeeding is rather too presumptuous -3- it to found a decision in favour of the respondent because the Court has yet to hear learned counsel argue the appeal. In this connection I would only say that at present time it will suffice to say only that I will decide the appeal In favour of the respondent on the balance of convenience. The appeal succeeds and it is accordingly allowed, Accordingly the District Cots order to stay execution of the trial court's decree is set aside. There will be no order as to coets, considering that the litigants are former spouses0 Sgd. J. M. ?IACKI3NJA JTJ1GE 13.6.2002 Date: 13.6.2002 Corain: S.A. Lilla, D.R. For Appellant: Ya. Mbise, Advocate, For Respondent: In Person C/C, Kossaxn Ordei: Judgment delivered in the presence of learned ?lbise, advocate for the Appellant and in the presence of the Respondent who appeared in person. Sgd S. A. Lilla, D.R. 13.6.2002 Certified true copy of the original judgment. DI STI CT HEXI STRAR NBEYA