20081104 tzhc mwanza2 1

•. ·" IN THE DISTRICT REGISTRY . · ATMWANZA MISC. CIVIL APPEAL NO.03 OF 2004 BUSIGASOLWE HOTEL AND GUEST} ... · , . HOUSE LTD .... ... APPELLANT Versus 1. RICHARD MGANGA NDASSA } . 2. THE ASSISTANT REGISTRAR ...... RESPONDENTS OF TITLES JUDGMENT MACKANJA, J: This appeal was brought to challenge the decision of the Registrar of Titles to issue to the appellant a notice of his intention to transfer- a Right of .. Occupancy from the appellant to·. one . Richard Maganga Ndasa · which was presented for .registration by one Henry Matata. The .. Registrar's intention to effect the transfeF _aggrieved . the appellant qecause it is alleged the decision to transfer th~.:. :· · Right of Occupancy was.- taken without first- hearing the . nature of the objection s_et ,. out in a caveat which. was lodged against any such transf~r. The appellant halraised the three ground? in her petition, that is to say:- 1. that the second respondent .did not give notice to thEr "· ! caveator as required by law but instead gave it to the appellant. . ~ 2. _that the deed the subject of the· dispos1tion did not satisfy the manda_tory requirements of Cap.· 334; and 3. that the deed was not properly executed. In these proceeqings Mr. Magongo, learned counsel, acts for the appellant while Mr. Kiria, learned State Attorney, argued the appeal on behalf of the Registrar of Titles .. It. has crossed my mind that I should address the unusual way in whJch Mr. Kiria, learned State Attorney, addressed the Court. At first I thought, and I ·still: have a nagging feeling to that effect, that Mr. Kiri a· improperly . addressed the Court out of lapsus linguae. Whatever happened, it is the duty of the Court to ensure· that members of the Bar address the- Court w·ith decorum . . Contrary to the usual_ practice Mr. Kira addressed the Court at the opening of his submissions thus:- ''May it please you Honour" j · Below those words come the words "Your Lordship'~ He repeated the words "Your Honour"twice at page one; four times at page two; and three times at · 2 page three. The address "Your Lordship" appears once at page one below _the w·ords ''May it please you Honour': The words ''My Lord" appear only once at page three of the submissions. Let me say only, that, learned counsel is required to address the Court properly, even though omission to do so attracts no sanctions. Coming back to the appeal, the right of appeal against the decision or order of the Registrar of Titles was created by section 102 of the Land Registration Act. That right may be exercised only where the aggrieved party has complied with the statutory procedure which ahs been laid down under section 02 (1) of the said Act, which provides thus:- "102. - {l} Any person aggrieved by a decision, order or act of the Registrar may appeal to the. High Court within three months from the date of such decision, order or act: Provided that - (a) no such appeal shall lie· unless the appellant or his advocate shall, within one month from the date of such . decision~ .·order or act, have glven :· ta.~ the -- . :: .,.·J. :.:·: ~;_Reglst1:ac;'ao(/;!.q)f.~eifligl7: Court notice Jr intention . :· .. ( ::;· ·-·- .--,-._,:···~:··~-/~:~·-::~-;- . . ,--.-~--.:=& - .. ',,. :c · , - ~ - of appeals... '~- - ·>- ·... First of all, in order to tJe- sustainable the appeal must · be instituted in time .. --An-- appeal is instituted by presenting 3 . ' the petition of appeal for filing and paying the court fees.,.'- .~ . . . 'f '•'- . Filing a petition yvithout paying the fees does not institute an appeal,· as payrrient of court fees is a condition precedent, unless the fees are waived such as would be the case for an indingent litigant. In the instant case the p·etition was presented for filing on 20th January, 2004; th=at was also the day on which the· court fees were paid vide Exchequer Receipt No. 18144561.· Now, . according to section 102 (1) of· the Land Registration Act, an appeal may be lodged within three months from the date of the decision, or9er or act which is the subject of the appeal, namely, , within ninety days. . . Computing the time from the date of the notrce, namely, 8th October, 2003, to the date the appeal was lodged, that is . th 20 January, 2004, we get 102 days. There is a coincidence between the enabling provisions, that is section 102 and the 102 days it ~ook the appellant to appeal. Well, the trut_h of the matter is that the• appeal was institlJted twelve days out- of time. . The second condition~~which must be compl.ied ·with in lodging an appeal -may be found: in paragraph (a) of the proviso to section 102 of the Land- Registration Act, which provides that no such appeal shall lie unless the appellant or 4 . .... .. . ·- ·•. his advocate shall, w\thin one month from the date of such . . decision, order or act, have given to the Registrar and to the High Court notice· of intention of appeal. This - statutory ~ . . . notice is mandatory. I have scurried·. through the record of I / I appeal but I can see none. Such an important notice, -and / the compliance therewith, should have been reflected in the petition of appeal but it has not been mentioned therein. From the above considerations the appeal fails on two grounds, namely, for being time barred and for the appellant's omission to give notice of intention . of appeal. Now these matters were not addressed by Mr. Ma_gongo and ,.' Mr. Kiria, learneo counsel. That notwithstanding mandatory - statutory requirements have legal force whether or -not any -. of the parties raise them. .. The appeal is dismissed with costs. Sgd: Josephat M. Mackanja JUDGE AtMwanza 29/10/2008 ... ,. ~ .. · . -- -. ··~,_,._...;:_....;,;~-.,,,.., ... . < .. - - - "._ .. --. 5 -~ ... ... ................ -,_ , ·oate: 4/11/2008. Corani: F. W. Mgaya - DR ·_ Appellant: Present Respondent Absent Bf Clerk: Makble Court: Mr. Laurian Advocate for the appellant present. Judgment of the. Court is delivered before me in chambers this 4th day of November, 2008 in the presence of Mr. Laurian for Appellant and in the absence of the Respondent who duly notified. F. w. Mgaya DISTRICT REGISTRAR 4/11/2008 I certify that, this is a true copy of the original. ~ -•-... . . .. •' . . . . · ·.. .. .·•"·. . ,:· .. ,. . .,,, . • ·'t I• • .. - '. 6 . . . !