Court name
Court of Appeal of Tanzania
Case number
Civil Application 17 of 2006

Pandya vs Jani (Civil Application 17 of 2006) [2006] TZCA 56 (03 May 2006);

Media neutral citation
[2006] TZCA 56

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

CIVIL APPLICATION NO. 17 OF 2006

MRS. VIOLET DEELIP PANDYA …………………………… APPLICANT

VERSUS

JAYPRAKASH INDRARAI JANI ………………………… RESPONDENT

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

(Oriyo, J.)

dated the 31st day of January, 2006
in
Misc. Civil Cause No. 124 of 2004

28 February & 5 May 2006

---------
R U L I N G

NSEKELA, J.A.:

         The applicant, Mrs. Violet Deelip Pandya has instituted this application for stay of execution pending the hearing and determination of an application for revision apparently now pending in this Court. The application has been brought under Rule 3 (2) (a) of the Court of Appeal Rules. The subject matter of the application is an infant, Ibhishek Jayprakash Jani, who was born on the 20.4.2004. The mother of the infant, died soon the birth of the infant.
         Consequent upon the motherfs death, one Mrs. Violet Deelip Pandya, the applicant who is an elder sister of the deceased mothe,r took the infant into her custody apparently pending further family arrangements. However in Misc. Civil Cause No. 124 of 2004, the High Court (Oriyo, J.) ordered that ?
gThat the infant custody be restored to his father, Mr. Jayprakash Jani who shall have the final decision on the future of his infant son.h
         In Misc. Civil Cause No. 124 of 2004, the father of the infant was not a party, but the applicant herein was the objector in those proceedings. The applicant, having lost in the High Court, has now come before this Court by way of revision resisting the order of the High Court giving custody of the infant to the biological father. Pending hearing of the application for revision, the applicant filed this application for a stay order. It is supported by an affidavit affirmed by the applicant which reads in part as under ?
g1. That I was the objector in Adoption Proceedings filed in the High Court of Tanzania as Misc. Civil Cause No. 124 of 2004.
4.      

That although the petition was dismissed as per my objection, the court went further and ordered me to give the infant to Jayprakash Indirarai Jani.

5.      

That I have stayed with the infant since his birth when his mother passed away.

6.      

That there has never been application by Jayprakash Indirarai Jani to have the custody of the infant.

7.      

That I have never been called upon to say why I should continue caring for the infant.

9.      

That pending the determination of the application, it is convenient to the infant that he stays where he is to avoid frequent change of custody in the event the application succeeds.h

The main complaint by Mr. Mkoba, learned advocate for the applicant, is to the effect that the respondent in this application was not a party in the proceedings before the High Court, and therefore the status quo should be maintained pending the final determination of the revision proceedings. The learned advocate added that the infant is hardly two years old and has been in the custody of the applicant up to now.
         The respondent, Jayprakash Indrarai Jani, in his affidavit in reply, stated, inter alia ?
g1. That I am the respondent and biological father of an infant, one Abhishek Jayprakash who is the subject of this application and therefore c0nversant with the facts I am about to depose.
4. That I take note of the contents of paragraph 4 of the applicantfs affidavit and further state that the court by its inherent powers rightly placed the infant son to my custody.
5. That I admit the contents of paragraph 5 of the applicantfs affidavit, though I do not admit that I consented to that kind of affair as the applicant disposed me my infant son at the time of bereavement.
6. That I further state that the infant was retained by the applicant forcefully to the extent that I and the applicant became foes.h
         In his submissions, Mr. Lloyd, learned advocate for the respondent, submitted that the applicant had not established any compelling reasons to warrant the Court to grant a stay order as prayed. He added that the respondent was not a party to the adoption proceedings in the High Court and therefore the proper parties in this application should have been those who appeared before the High Court.
         At the centre of the dispute in this application is what I may call the interim custody of an infant, reportedly two years old. The respondent herein was not a party in the adoption proceedings in the High Court. This has not been controverted by the applicant. In fact she has raised it as an issue. With respect, I decline to resolve it in this application. It should be argued in the substantive application for revision. My immediate concern now is who should have the custody of the infant pending the hearing and determination of the application for revision. I am aware that an applicant for stay should demonstrate exceptional reasons to warrant the Court to exercise its judicial discretion. There are myriad circumstances that could constitute grounds for stay, each case depending on its own facts. In the instant application common sense dictates that the applicant for the time being, should continue to have the custody of the infant. It is not in the interest of the infant to be moving around. I therefore grant the application. Costs to be in the cause.
DATED at DAR ES SALAAM this 3rd day of May, 2006.

H.R. NSEKELA
JUSTICE OF APPEAL

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

( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR