misc

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPEAL NO. 26181 OF 2023 FARID AHMED MBARAK BAZAR................................. APPELLANT VERSUS THE ASSISTANT REGISTRAR OF TITLE............. 1st RESPONDENT THE ATTORNEY GENERAL.................................. 2nd RESPONDENT RULING &h March & 3Vh April, 2024 L.HEMED J. In November 2023, the Appellant herein, Farid Ahmed Mbarak Razar filed in this Court a Petition of Appeal to challenge the decision of the Registrar of Titles rectifying and deleting his name in the-tand Register and change of ownership of Plot No. 105, with Certificate of Title No. 186030/6, Kingsway Area, Dar es Salaam. The Appellant attached to the Petition, the Official Search Report dated 12th October, 2023. When the matter was called for necessary orders on 8th March 2024, the learned counsel who represented the respondents, the Assistant Registrar of Titles and the Attorney General, raised orally a preliminary objection in limine //frsthat:- "The appeal is untenable and bad in law because no decision of the Registrar has been attached to the Petition ofAppeal." The objection was argued by way of written submissions. Mr. Nehemiah Geogrey Nkoko, learned counsel acted for the Appellant while the respondents enjoyed the service of Mr Stephen Nice Kimaro learned State Attorney. Both learned counsel complied with the filing scheduling order. In his submission to support the preliminary objection, Mr. Kimaro argued that, the Appellant failed to comply with section 102 (1) (3) of the Land Registration Act [Cap 334 R:E 2019 ] for non-attaching the decision, order or act of the Registrar to the Petition of Appeal. He was of the view that the official search report is not the decision of the Registrar. He lastly prayed for the petition of appeal to be struck out for contravening Section 102 of the Land Registration Act (supra). In reply thereto, Mr Nkoko was of the view that the appellant complied with the requirement of section 102 (3) of the Land Registration Act by attaching a copy of the search of the land registry, where in that report it is evidenced that the 1st respondent had already determined the matter by cancelling the Certificate of Title which was in 2 the name of the Appellant. He prayed the preliminary objection be overruled and the appeal be heard on merit. Having considered the submissions made by the parties, the question for determination is whether the preliminary objection raised has merit? In order to properly ascertain the validity of the point, it is important to revisit the provision of section 102(1) & (3) of the Land Registration Act (supra). It provides thus: - "...1O2.-(1) 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-... (3) 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.Emphasis is added] The above provisions envisage that the person who is aggrieved by decision, order or act of the Registrar of Titles may appeal to the High Court within three (3) months. The mode of presenting the appeal is by way of Petition of Appeal. According to section 102(3) of the Land Registration Act, (supra), the Petition of Appeal must be accompanied by a copy of the decision, order or act of the Registrar appealed against. In the present appeal, the document accompanied the Petition of Appeal is a copy of an official Search Report which, according to Mr. Nkoko, is a proof of the decision made by the Registrar of Titles against the Appellant. The question that arises is " what constitutes a decision of the Registrar of Titled' that need to accompany the Petition of Appeal in view of section 102(3) of the Act? The answer to this question will also resolve the issues as to whether official search report is a decision of the Registrar. The answer is found under section 101 of the Land Registration Act (supra) which provides thus:- "...101. Where under this Act the Registrar makes any decision or order or does any act he shall, on the application of any person affected thereby, give 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.."[Emphasis added] From the provision above, the decision, order, or act of the Registrar must, (i) be in writing; and (ii) state the reasons thereof. It is my firm view that the Official Search Report cannot be a decision, order 4 or act of the Registrar as it can be applied by any person for purposes of only knowing the status of the particular registered piece of land. I have noted from the Petition of Appeal filed by the Appellant- that he challenges the decision of the Registrar to rectify and delete his name from the Land Register without strictly complying with the mandatory procedures. By looking at the annexed official search report of the disputed land, one cannot find vividly if there was any rectification, as the report only shows the status of the registered land at the time of effecting the official search. In other words, the report does not state the reasons for the rectification or deletion (if any) and thus it cannot be a decision in terms of section 101 of the Land Registration Act, (supra). In the final analysis, having accompanied with no decision of the Registrar of Titles, the appeal is incompetent for contravening section 102(3) of the Land Registration Act, [Cap.334 R.E 2019]. I hereby proceed to strike out the entire appeal with no orders as to costs. Order 5