EDWIN SAGALA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 81 OF 2023 (Originating from the decision by the Registrar of titles to rectify the Land Registry in respect of Plot No. 433, 435,449 and 450 Block "BE"Miyuji within Dodoma City) EDWIN FRANCIS SAGALA ....................................................APPELLANT VERSUS THE REGISTRAR OF TITLES............................................... RESPONDENT RULING 2ffhSeptember, 2024. HASSAN, In terms of section 102 (1) (3) (9) of the Land Registration Act, Cap. 334 R.E. 2019, the appellant lodged an appeal protesting against the decision of the Registrar of Titles to rectify the land register in respect of Plot No. 433, 435, 449 and 450 Block "BE" Miyuji within Dodoma City, by removing the name of the appellant and inserted the name of her excellence president of the united republic of Tanzania. The sole ground of appeal is as such: l 1. That, the respondent seriously erred in law and facts for intending to rectify the Land registry as against the appellant's interest without affording /according him right to be heard. During hearing, the appellant was represented by Mr. Fredy Kalonga, learned counsel. Whereas, on the other side, the respondent Registrar of Titles appeared under legal representation of Ms. Agness Makuba, learned State Attorney. Before parties convass to their submissions, the court Suo motto invited the parties to address it on the legal irregularity noted thus, whether or not the appeal was prematurely filed. On her part, learned State Attorney, Ms. Makuba submitted that this appeal was filed prematurelly since the appellant is appealing against the intention of the respondent to rectify the land register with respect to Plots number 433, 435, 449 and 450 Block BE" Miyuji within Dodoma City. She further submitted that, since the appellant claim raise from the notice of ratification of land register issued on 14/06/2023 signed by the assistant Registrar of titles, thus, this notice does not rise any right of appeal. 2 To give reason for her contetion, she averred that by drawing reference to the decision in the case of Mema Richard Sendwa (Administratrix of Estate of the Late Richard Magawa Sendwa) v. The Registrar Of Title & Another, Land Appeal no. 4225 of 2024 HC (unreported) , where the court had raised the same issue Suo motto and after hearing, the court struck out the appeal for being incompetent as at page 5 of the ruling the court states: 7 fmd the appeal to have been filed prematua/y before this court and the same is accordingly struck out." Therefore, she contended, in the circumstance of this case in hand, it is her firm view that the appeal has been filed prematurelly, hence the same should be struck out without costs. On the other hand, learned counsel Kalonga submitted that, this appeal has been properly filed before this court. He contended that on 14/06/2023, the respondent, after receiving an application from the Assistant Commisioner for Land with request to rectify four (4) Plots of the appellant herein. He further identified the said plots thus; Plots No. 433, 435, 449 and 450 Block "BE" Miyuji which is within Dodoma City, asking him to 3 remove the name of Edwin Francis Sagala in substitution with the name of Her Exellence the President of United Republic of Tanzania. Mr. Kalonga submitted further that, going through the notice, it shows that the Assistant Registrar of Titles had agreed the application of the Assistant Commissioner for Land, and thereafter, the Assistant Registrar of Title took measures to write to the appellant herein that, if he did not submit the order of the High Court directing otherwise, he will rectify the said plots. Furthermore, he submitted that, in his view, the only remedy available in such situation is to come to High Court for appeal against his decision which he has already moulded and, he is about to implement if there will be no order from the High Court. For that note, he cemented that, the authority cited by the respondent's Attorney is only persuacive, hence, the same should not be followed by this court. Moreover, Mr. Kalonga submitted that in the cited precedent, the Commisioner for Land was a party to the suit, while in this case he is not. Additionally, he submitted the fact that the Assistant Regstrar of Titles received the request and forcewith, he issued a notice thus, his action entails that he had his informed decision. 4 Faulting the respondent's decision, Mr. Kalonga submitted further that he was supposed to inform and hear another side of the appellant. Therefore, since the appellant has not been availed with his fundamental right of being heard thus, the appellant decided to file this appeal to contest against his decision. In the end, he contended that appeal was filed legally in terms of section 102 (1) (a) of the Land Registaration Act, Cap. 334 R.E. 2019. And therefore, the same is competent and the appellant has right to be entertained by this court. I have given due consideration to the submissions precisely made by the parties on whether or not the appeal at hand was properly filed. In dealing with this issue, I wish to preface it with section 102 of the Land Registration Act, Cap. 334 R.E. 2019 of which mandate of appealing to the High Court is invented. The section provides: "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— 5 (a) no such appeal shall lie unless the appellant or his advocate shall, within one month from the date o f such decision, order or act, have given to the Registrar and to the High Court notice o f intention o f appeals; and (b) in the case o f a decision allowing or dismissing an application for first registration— (i) no such appeal shall lie except on a matter o f law or on a matter o f mixed law and fact; and (ii) no such appeal shall lie except at the instance o f the applicant or a person who has given notice o f objection to such application under the provisions o f section 13: And provided further that, the High Court may, for good cause, admit an appeal notwithstanding that the periods o f limitation prescribed in this subsection have elapsed. (2) For the purposes o fsubparagraph (ii) o fparagraph (b) o f subsection (1), the Government shall be deemed to have given notice o f objection under the provisions o f 6 section 13, whether or not any such objection was given by or on behalf o f the Government. (3) Every appeal shall be made in the form o f a petition in writing presented to the High Court by the appellant or his advocate and every such petition shall be accompanied by a copy o f the decision, order or act appealed against (4) A copy o f every such petition shall be delivered to the Registrar o f the proceedings before him, if any, and the names o f any persons who ought, in his opinion, to be given an opportunity o f being heard on the appeal. (5) The High Courtshall cause notice o f the time andplace at which such appeal will be heard to be given to the appellant or his advocate and to any other person who, in the opinion o f the High Court, should be given an opportunity o f being heard on the appeal. (6) Any person who has been given notice in accordance with subsection (5) shall, on application to the High Court, be entitled to a copy o f the decision, order or act appealed against, a copy of the record o f proceedings, if any, and a copy o f the petition. (7) On the hearing o f the appeal, the appellant and any person who has been given notice in accordance with subsection (5) may appear and be heard in person on by advocate. (8) The provisions o f the Civil Procedure Code relating to the production o f additional evidence on an appeal shall apply, mutatis mutandis, to an appeal from the Registrar to the High Court. (9) The High Court may make such order on the appeal as the circumstances may require, including an order as to costs: Provided that, the Registrar shall not be ordered to pay any costs unless, in the opinion o f the High Court, the appeal was occasioned by his willful misconduct." Primarily, as it is rightly cited by the appellant, section 102 (1) provides for the avenue of which any person who has been aggrieved by a decision. order or act of the Registrar may appeal to the High Court within three 8 months from the date of such decision, order or act. Likewise, under subsection (3), the direction given to the appellant thereof is that, every appeal shall be made in the form of a petition in writing presented to the High Court by the appellant or his advocate and every such petition shall be accompanied by a copy of the decision, order or act appealed against. Together with this section, I will also wish to reproduce the prescript of section 101 of the Act which provides for the form of decision appealable under section 102 of the Act. It states: "Where under this Act, the Registrar makes any decision or order or does anv act he shall, on the application o f any person affected therebygive that decision or order in writing and state his reasons therefore or, as the case may be, give his reasons in writing for that act." Now, having critically gone through the sections above, in my view, this section provides for three appealable aspects of the registrar's action which are (1) decision (2) order (3) act. Plainly, as per Oxford Advanced Learner's Dictionary, these terms have their complete meaning. For instance, 9 the term "Decision" means a judgment reached after consideration. "Order" means a legal binding command or decision given by a law enforcement officer that must be obeyed. Whereas, "Act" means perform an action. In my firm view, all three terms have depicted execution of an action performed by the doer, and not a mere intention to do or perform certain action. That mean, to be eligible for action the act, order or decision has to be complete and not an intention to act. For clarity the term "Intention" has been defined in the Offline Advanced English Dictionary to mean an (1) anticipated outcome that is intended or that guides your planned actions; or (2) an act of intending or a volition that you intend to carry out. These meaning illustrates that the term "intention" is a noun and not a verb which can represent an action. Coming to the instant appeal, the appellant is contesting for an intention of the Respondent to rectify the register with respect of Plot No. 433, 435, 449 and 450 Block "BE" Miyuji within Dodoma City. For clarity the disputed ground of appeal reads: 10 "That, the respondent seriously erred in law and in facts for intending to rectify the land registry as against the appellant's interest without affording/ according him right to be heard." That said, to the extent of my analysis, I am of the same view with what was decided in the case of Mema Richard Sendwa (Administratrix of Estate of the Late Richard Magawa Sendwa) v. The Registrar Of Title & Another (supra) that, by lodging the appeal against an intention of the Registrar of Title who intended to rectify the land register in respect of Plot No. 433, 435, 449 and 450 Block "BE" Miyuji within Dodoma City, was against the law in terms of section 102 (1) (3) (9) of the Land Registration Act, [Cap. 334 R.E. 2019]. Notably, in such circumstance, the appellant might have had other avenue to pursue his grievances by stopping the Registrar's intention, but that should have been through different route. As exhaustively provided hereabove, section 102 (1) (3) (9) of the Land Registration Act, [Cap. 334 R.E. 2019] does not offer such window. 11 In the end, all said and done, in my judgment I find this appeal has been filed prematurely. Ultimately, I proceed to strike it out. No order as to costs. Ordered accordingly. DATED at DODOMA this 26th day of September, 2024. 26/ 09/2024 Court: Ruling read over in the presence of the parties. The appeal has been struck out for being filed prematual. 12