AMSON SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM Land Appeal Case No. 7732 of 2024 AMSONS INDUSTRIES (T) LTD.... .................................. APPELLANT

VERSUS THE REGISTRAR OF TITLES.................................. 1STRESONDENT THE SOLICITOR GENERAL ................................. 2nd RESPONDENT

RULING Date of last order: 7th June 2024 Date of Ruling: 11th June 2024 S.D. MWAIPOPO J This Ruling stems from two preliminary objections raised by the Respondents to challenge the competence of the Appeal filed by the Appellant, namely: 1. That the Appeal is incompetent for not being filed within the prescribed time 2. The Appeal is incompetent for having violated the mandatory provisions of Section 6 of the Government Proceedings Act Cap 5 RE 2019 as amended by Section 25 of the Written Laws (Miscellaneous Amendments) Act No.l of 2020, which requires the Attorney General to be joined as a necessary party in all suits against the Government. At the hearing of the grounds of preliminary objections aforementioned, the Appellant enlisted the services of learned Advocates Semi Malimi & Alex Mgongolwa respectively while the 1st and 2nd Respondents were represented by Ms. Luciana Kikala, learned State Attorney. However, before the commencement of the hearing of the preliminary objections, Ms. Kikala, learned State Attorney, informed the court that they had decided to abandon the first preliminary objection thereof. Thereafter, as per the Court's directives, the said hearing was conducted by way of oral submissions. Ms. Kikala set the ball rolling. Submitting in support of the preliminary objection, she premised her arguments on the contention that the Appeal is incompetent for

having violated the mandatory provisions of Section 6 of the Government Proceedings Act Cap 5 RE 2019 as amended by Section 25 of the Written Laws (Miscellaneous Amendments) Act No.l of 2020 which 2 requires the Attorney General to be joined as a necessary party in all suits against the Government. Ms. Kikala submitted that the Appellant herein filed the Appeal challenging the decision of the Registrar of Titles and that this being a government office, the nature of the suit is a civil suit against the Government and consequently joining the Attorney General is a mandatory requirement as per the said law, which provides as follows: AH suits against the government shall, upon the expiry of the notice period, be brought against the Government...............and the Attorney General shall be joined as a necessary party". She thus stated that it was wrong to file this Appeal without joining the Attorney General. To buttress her argument, she referred the court to the case of MSK Refinery Ltd vs TIB Development Ltd and another, Misc. Civil Application No. 80 of 2020 HCT, where the court held that; failure to join the Attorney General rendered the application in question incompetent. Ms Kikala went on to elaborate that the word "Shall" used in that provision means it is mandatory as per Section 53(2) of the Interpretation of Laws Act Cap 1 RE 2019 which states that; 3 "When the word

shall is used in conferring the functions, such word shall be interpreted to mean that function must be performed". She also cited the case of Oldean Coffee Ltd vs Registrar of Titles, Land Application No. 56 of 2022 in which the court stated that the term "suit" includes appeals. Moreover, the learned State Attorney submitted that the Appellant also violated the provisions of the cited law by joining the Solicitor General instead of the Attorney General. She further submitted that Section 102 of the Land Registration Act Cap RE 334 of 2019 does not restrict the application of the Government Proceedings Act which is the main Law regarding matters against the Government. Lastly, she prayed that the Appeal be struck out for being incompetent. Challenging the tenability of the preliminary objection, Mr Seni Malimi, learned advocate, contended that the preliminary objection is misconceived and, consequently, be overruled. Mr. Malimi stated that this Appeal is made under Section 102 of the Land Registration Act Cap 334 RE 2019 and that under Section 101 (1), the 4 decision against the Registrar lies to the High Court and that an aggrieved party files an appeal and not a suit or action. He stated that nowhere in the Land Registration Act, the Government Proceedings Act is put into play. He submitted that the learned State Attorney has misdirected herself by merely stating that the

Government Proceedings Act is applicable without mentioning any law to that effect. He further stated that the authorities cited by the learned State Attorney are distinguishable as in the Oldean case, it was based on the Mtikila and Burafex cases. The Mtikila case was quoted out of context since on page 7 of the Ruling, Mulyambina J, was referring to the definition of the suit in the context of the Civil Procedure Code which does not cover appeals from the Registrar of Titles. He further submitted that the Burafex case was decided per incuriam as this court had an opportunity to revisit the Burafex case in Registered Trustees of Masjid Al Alazhal vs Assistant Registrar and AG Misc. Application No. 4278/2024, HC where Mirindo, J stated clearly that he does not agree with the conclusion arrived at Burafex. In view thereof, Mr. Malimi was of the view that as stated by Mirindo J, an appeal arising from the Registrar of Titles is an appeal and not a suit. In his view, the regimes in the Land Registration Act and the Government Proceedings Act 5 are different and incompatible. He contended that the notice under the Land Registration Act must be given within 30 days while under the Government Proceedings Act it must be given within 90 days thus a person aggrieved by the decision of the Registrar may find himself time barred and his right of appeal may expire if he where to file his

appeal pursuant to the Government Proceedings Act. He stated further that Section 6 of the Government Proceedings Act as amended has nothing to do with the Land Registration Act and that under the latter, there is no requirement of joining the Attorney General. He also submitted that the case of MSK Refinery Ltd (supra) is distinguishable as it dealt with an application of injunction under Order 37 of the CPC, it was not dealing with an appeal against a decision of the Registrar. Likewise, he stated that the Oldean case was not under the Land Registration Act but under the Chattel Transfer Act Cap 210 RE 2019 i.e. it was a case emanating from a different statute. With regard to the joining of the Solicitor General, the learned counsel submitted that; the joining of the Solicitor General was out of convenience, being that he is an Advocate of the Attorney General. He ended his submissions by stating that if submissions by the Learned State Attorney 6 are taken on board, the appellate mechanism under Section 102 of the Land Registration Act will be dismantled. Submitting in support of the Appeal, Mr Alex Mgongolwa, learned advocate, also took the floor and, basically, emphasized what his colleague, Mr. Malimi, had informed the Court. He further addressed on the value of the precedents cited stating that the value of the precedents in the decisions is found in the ratio decidendi

and that there is a difference between a ratio decidendi and an obiter dicta. He asked the court to disregard the authorities cited by Ms Kikala as they were totally irrelevant while those cited by the Appellant's advocates were very relevant hence the court be pleased to only positively consider them. He finally impressed upon the court to overrule the preliminary objection. In a short rejoinder, Ms Kikala vehemently opposed the arguments made by the Learned advocates for the Appellant. Apart from reiterating what she had stated earlier on, she further submitted that the Government Proceedings Act covers all suits against the Government generally and insisted that the Oldean case and Mtikila case have properly defined the term suit to include appeals. She further submitted that the contention that a suit is applicable only when the Civil Procedure Code is put into play is 7 misconceived as per the cited cases and the definition of a suit also includes appeals. Regarding the specialty of the Land Registration Act, she contended that the said Act can not be used in isolation and maintained that the Government Proceedings Act is applicable also even in appeals emanating from the Land Registration Act. She was insistent that the Government Proceedings Act is the relevant Act which regulates all suits against the Government. With regard to the issue that the Mtikila and Oldean

cases are irrelevant, she stated that; that view is misconceived as both are relevant and have been cited to define the word "suit". In the premises, she prayed that the preliminary objection be sustained and prayed that the Appeal be struck out with costs. Before I proceed to delve into the issue for determination which is whether or not the preliminary objection is meritorious, I wish to state, at the outset, that I have heard with admiration the contending submissions presented by the legal minds on both sides which I have cautiously 8 considered and I hasten to state that I highly commend them for the effort. Coming back to the contentious issue, Ms. Kikala contended that this Appeal is incompetent for non- joinder of the Attorney General as per the requirements of Section 6 of the Government Proceedings Act Cap 5 RE 2019 as amended by the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020, bearing in mind that the word "Shall" has been used in the said provision. It is her contention that failure to join the Attorney General infracted the provisions of Section 6 of the Government Proceedings Act as amended by Section of 25 of the Written Laws (Miscellaneous Amendments) Act No.l of 2020. She argued that as the Registrar of Titles is a government office, the appellant ought to have joined the Attorney General failure of which renders this appeal incompetent. Mr Malimi

and Mr Mgongolwa, on their side, contended that when one wants to appeal against a decision of the Registrar of Titles, the law applicable is the Land Registration Act Cap 334 RE 2019 and not the Government Proceedings Act as amended, in that, the two are different and incompatible. They further contended that the Land Registration Act 9 doesn't impose a mandatory requirement to join the Attorney General as a necessary party. I entirely concur with Ms Kikala that the Law under Section 6 of the Government Proceedings Act as amended puts it in mandatory terms that in suing the Government, the Attorney General must be joined as a necessary party. This is due to the use of the word "Shall" which under Section 53 (2) of the Interpretation of Laws Act Cap 1 RE 2019 means it is mandatory. The Court of Appeal stated in the case of Godfrey Kimne vs Peter Ngonyani Civil Appeal No.41 of 2014 that: "Whenever the word "Shall" is used in a provision, it means that the provision is imperative ". The importance of joining the AG in all proceedings involving the Goverment was also expressed in the case of Burafex Ltd (supra) and the case Good Hope Hance Mkaro Vs Assistant Registrar of Titles, AG and Kampuni ya Biashara Umati Land Appeal no. 37/2021 However, in my considered view and settled position, the Government Proceedings Act is a general law and does not necessarily apply in

every situation where the Government is sued while the Land Registration Act is io a specific law with its own regime governing among other things administrative appeals arising from the actions and omissions of the Registrar of Title. It is therefore an exception to section 6 of the Government Proceedings Act. Although Ms Kikala contended that the provisions contained in the Land Registration Act do not restrict the application of the Government Proceedings Act but the principle of statutory interpretation is to the effect that where the general law and the specific law apply on the same matter, the general law must give way to the specific law. There is a plethora of authorities to that effect such as Nelson Mandela African Institute & Technlogy vs Honorina Mashingia & another Rev. 76 of 2018, HC at Arusha, Quality Inspection Services Inc. Japan vs PPRA & 3 others, Miscl. Cause No. 45 of 2022, HC (Dsm) and Michael Mahanga & Others Vs Tabora Municipal Council, DC Civil Appeal No. 14 of 2020 HC where the court (Bahati, J) rightly stated: "It is a well known procedure in our jurisdiction that a litigant cannot resort to procedures set by the Civil Procedure Code Cap 33 when the procedures on the same issue are expressly provided in a specific law". ii Consequently, the Appellant was right not to resort to the Government Proceedings Act as the procedures on how to appeal against

the Registrar's decision are expressly provided for under Section 102 of the Land Registration Act. Furthermore, the Land Registration Act does not impose a mandatory requirement to join the Attorney General as a necessary party. The said provisions read; Any person aggrieved by a decision, order or act of the Registrar may appeal to the High Court withip1 three months from the date of such decision, order or act; provided that; (a) no such appeal shall He unless the Appellant or his advocate shall within one month from the date of such decision, order or act, have given to the Registrar and to the High Court notice of intention to appeal;. Further more in the course of appealing against such decision, order or act of the Registrar, the Procedure is such that/ 1. The Appellant has to give notice of intention to appeal within 30 days to the Registrar of Titles and the High court 12 2. The Appeal has to be presented in the form of a petition accompanied by a copy of the decision, order, act appealed against 3. The Petition of appeal has to be served to the Registrar and the names of any persons who ought to be given an opportunity of being heard on the appeal 4. The High Court shall also cause the Notice to the appellant or his Advocate and any to other person, who in the opinion of the Court should be given an opportunity of being heard on the appeal; 5. Persons given the Notice

are entitled to a copy of the petition, decision, order or act appealed against. In the case of Valence Matunda Vs. Assistant Registrar of Titles Misc. Land Appeal No. 43/2023 HCT DSM, Hemed J stated that: The above provisions do not require a party to serve the Government with 90 days statutory Notice prior to the institution of the appeal against the Registrar of Titles nor does it require the Appellant to join the Attorney General. The Land registration Act 13 only requires a person aggrieved by the decision, order, or act of the Registrar of Titles to issue notice of intention to appeal to the Registrar of Titles and the Court within a period of 30 days and thereafter lodge the Appeal within 90 days. Similarly, the High Court has the mandate to cause the Notice to the Appellant or his Advocate and any other person who in the opinion of the court should be given the opportunity to be heard on the Appeal. I agree with the above stated position that the Attorney General has not been stated to be the necessary party under section 102 of the Land Registration Act. However, the Attorney General may be joined if the circumstances of the case so require that he should be given the opportunity to be heard. Similarly, under Section 17 (2) of the Office of the Attorney General's (Discharge of Duties) Act, the Attorney General can intervene whenever there is public interest to be

protected. Therefore, this provision would still act as a safety valve. Further, I subscribe to the view expressed by Mr. Malimi that requiring a party aggrieved by a decision of the Registrar of Titles to join the Attorney General pursuant to the Government Proceedings Act is likely to collapse the appellate mechanism under the Land Registration Act and would 14 amount to inventing an amendment that was not desired in the first place. Since under the Government Proceedings Act, a 90 days notice is required to be given while under the Land Registration Act, a one-month notice is sufficient, this has the effect of rendering the appellate mechanism under the Land Registration Act superfluous. If a party aggrieved by a decision by the Registrar of Titles were to resort to the Government Proceedings Act, he would be required to join the Attorney General and issue a 90 days notice. After the expiry of that period, he wouldn't be able to strictly comply with the mandatory provisions of Section 102 of the Land Registration Act Cap 334 RE 2019, which requires one to issue a one- month notice. In other words, if he were to resort to the Government Proceedings Act, a preliminary objection by the other party would be easily upheld for violating the mandatory provisions of Section 102. These two regimes are different and as stated by my brother Hemed J, the legislature intended to exclude

the applicability of the Government Proceedings Act to the provisions of section 102 of the Land Registration Act. Otherwise such provisions could have been cross-referenced to each other. However, that is not case, even for the Miscellaneous Amendments Act No. 1/2020, which contains most recent amendments of the Government Proceedings Act. In 15 this regard I distinguish all the cases cited by the learned State Attorney in this regard i.e. MSK Refinery (supra) Burafex (supra), Oldean (supra) and Mtikila(supra) My brother Masaju J, elaborated very well the proper position of the law in the case of Registered Trustees of Tanzania Agricultural Society (Taso) vs Registrar of Titles, Commissioner of Lands, Attorney General, Land Appeal No.4 of 2020. In this case, Mr. Camilius Ruhinda, Learned Senior State Attorney who appeared for the Respondents, rightly stated that the Commissioner for Lands and the Attorney General were wrongly joined, the appeal should have been only against the Registrar of Titles. Mr Paul Mwashitete, who represented the Appellant, readily conceded that according to Section 102(1) of the Land Registration Act, the Appeal should have been against the Registrar of Titles only. Masaju J, held: "It was wrong, as rightly advised by the parties, the appellant to include the 2^ and 3fd Respondents in this appeal.... This was an appeal in court pursuant to Section 102

of the Land Registration Act Cap 334 RE 2019, and not a suit or trial...." 16 In the same vein, my sister Lilian Itemba J, stated in the case of Salaudin Mohammed Mussa vs Registrar of Titles & Attorney General, Misc. Land Application No 81 of 2022: "This is the type of appeal which does not require service of 90 days notice to the Respondent because section 102 (1) (a) of the Land Registration Act which is the enabling Act, does not make it a mandatory requirement.... Section 102 (1) (a) clearly does not require the Attorney Genera! to be a party as well. So, it was wrong for the Appellant to include the Attorney General as a party in this appeal". In this regard I distinguish all the cases cited by the learned State Attorney in this regard. (MSK Refinery, Burafex, Oldean and Mtikila) I am of the considered view that apart from the Land Registration Act, there are other pieces of legislation with different regimes which are not subjected to the purview of the Government Proceedings Act just because they are applicable in suits or cases against the Government or its officers, such as the Basic Rights and Duties Enforcement Act Cap RE 2019. As far as this Act is concerned, institution of constitutional petitions does not 17 require giving notice of intention to sue the Government. When redress is sought against the Government, Minister, Principal Secretary or any other servant

of the Government, the petitioner only serves the Attorney General a copy of the petition. An aggrieved party must duly comply with the mandatory provisions of the Basic Rights and Duties Enforcement Act being the specific law and not the Government Proceedings Act, which is a general law. This is akin to what was stated in the case of James Lugmebe vs DIB & Another, Commercial case No. 145 of 2023, HC (Gonzi J). The import of this case is that when a matter is regulated by a specific law then the provisions of the Civil Procedure Code, which is a general law, to defeat an explicit requirement of the specific law would not be legally correct. Had the Legislature intended the Attorney General to be joined as a necessary party, it would have expressly stated so in the Land Registration Act. On the other hand, Ms Kikala submitted that the Appellant erred in law to join the Solicitor General as a party to this case. Mr. Malimi, on the other hand, argued that that was out of convenience. With respect, I do not find 18 merit in Mr. Malimi's point, in view of my analysis above and the fact that parties are not joined for the sake of convenience, parties are joined in accordance with the laws and procedures considering whether they are proper or necessary in a given case. The Solicitor General is an Advocate of the Attorney General and their relationship is Client-Advocate based.

See Section 10A the Legal Sector Miscellaneous Amendments Act 2023. As alluded to hereinabove, the Registrar of Titles was the only party required under the scheme or regime of the Land Registration Act and to the extent that I have analyzed above, hence I fully subscribe to the view expressed by Ms Kikala that the Solicitor General was wrongly joined, albeit for different reasons which I have advanced above. For that case, the Solicitor General ought to be excluded. This is in line with the approach taken by my brother Mirindo, J when the court was faced with a more or less similar situation early this year in the case of Registered Trustees of Masjid Al Alazhal vs Assistant Registrar of Titles and Attorney General, Misc. Appeal 4278/2024: The appellant is hereby directed to exclude the Attorney Genera! within seven days from the date of this ruling". 19 This, in my view, is the right approach as amendments can be done at any stage as per the Court of Appeal in the case of Tanga Gas Distributors Ltd vs Mohammed Salim & Others, Civil Application No 68 of 2011 "Amendments to proceedings can be made at any time Furthermore, in the case of Salaudin Mohamed Musa (supra) my sister Lilian Itemba J, was of the firm view that the Appellant's petition of appeal was bad in law as the Attorney General was not supposed to be one of the Respondents. She thus proceeded to apply the

provisions of Order 1 Rule 9 of the CPC which empowers the Court to deal with the issue of misjoinder of parties with regard to the rights and interests of the parties actually before it and that she was of the firm position that the case shall not be defeated by reason of misjoinder. Therefore, under Order I Rule 10(2) of the CPC, she ordered the name of the 2nd Respondent, the Attorney General, to be struck out from the petition of Appeal and the Petition to be amended accordingly within 14 days from the date of the Ruling. She eventually dismissed the preliminary objection with no order as to costs. 20 In the upshot, in view of the foregoing, and following the stance of my brothers Masaju J, Hemed J, Mirindo J and my sister Itemba J, I am satisfied that the preliminary objection raised is devoid of merit and I consequently proceed to overrule it. The Appellant is directed to amend the Petition of Appeal in order to exclude the name of the Solicitor General within three days from the date of this ruling. The matter is therefore to proceed on merit. Costs to follow the event. It is so ordered. tied at Dar es Salaam this 11th day of June 2024. S. D. MWAIPOPO

JUDGE 11th June 2024 21