busigasolwe hotel guest house vs richard mganga ndassa another 2008 tzhc 201 29 october 2008

IN THE HIGH COURT OF THE UNITED kEP6dLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA MISC. CIVIL APPEAL N0.03 OF 2004 BUSIGASOLWE HOTEL AND GUEST HOUSE LTD C......APPELLANT Versus 1. RICHARD MGANGA NDASSA 2. THE ASSISTANT REGISTRAR C.... RESPONDENTS OF TITLES JUDGMENT MACKANJA. 3: 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 transfer aggrieved the appellant because it is alleged the decision to transfer the Right of Occupancy was taken without first hearing the nature of the objection set out in a caveat which was lodged against any such transfer. The appellant has raised the three grounds in her petition, that is to say:- 1. that the second respondent .did not give notice to the caveator as required by law but instead gave it to the appellant. 2. that the deed the subject of the disposition did not satisfy the mandatory requirements of Cap. 334; and 3. that the deed was not properly executed. In these proceedings 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 which Mr. Kiria, learned State Attorney, addressed the Court. At first I thought, and I still have a nagging feeling to that effect, that Mr. Kiria 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 with decorum. Contrary to the usual practice Mr. Kira addressed the Court at the opening of his submissions thus:- "May it please you Honour" Below those words come the words "Your Lordship". He repeated the words "Your Honour"W\ce at page one; four times at page two; and three times at page three. The address "Your Lordship" appears once at page one below the words "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. - (1) Any person aggrieved by a decision, order or act o f the Registrar may appeal to the- High Court within three months from the date o f 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 fthe*'High Court notice o f intention ' "^~ *’ *’ ' * ' o f appeals...". First of all, in order to be 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. Filing a petition without paying the fees does not institute an appeal, as payment 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 petition was presented for filing on 20th January, 2004; that 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, order or act which is the subject of the appeal, namely,.within ninety days. Computing the time from the date of the notice, namely, 8th October, 2003, to the date the appeal was lodged, that is 20th January, 2004, we get 102 days. There is a coincidence between the enabling provisions, that is section 102 and the 102 days it took the appellant to appeal. Well, the truth of the matter is that the appeal was instituted twelve days out of time. The second condition- which must be complied 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 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 of appeal. This statutory notice is mandatory. I have scurried through the record of 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. Magongo and Mr. Kiria, learned counsel. That notwithstanding mandatory statutory requirements have legal force whether or not any of the parties raise them. The appeal is dismissed with costs. Sad: Josephat M. Mackanja JUDGE At Mwanza 29/10/2008 Date: 4/11/2008 Coram: F. W. Mgaya - DR Appellant: Present Respondent: Absent B/Clerk: Makole 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.