plotea august tarimo vs assistsnt registrar of titles moshi 2020 tzhc 2248 31 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI LAND APPEAL NO. 10 OF 2019 (Appeal from the decision of The Assistant Registrar of Tittles Moshi, dated 8th May, 2019) FLOTEA AUGUST TARIMO..................................... APPELLANT Versus ASSISTANT REGISTRAR OF TITLES MOSHI.......... RESPONDENT

JUDGMENT MUTUNGI .J. This appeal emanates from the decision of the Assistant Registrar of Tittles at Moshi Mr. N.S. Mbwambo dated 8th May, 2019. In that decision, the respondent made an order restraining the appellant from registering a transfer under the power of sale of the land situated in Plot No. 192, Block "A” Burka, Arusha with CT 3399 (the suit land). A brief history leading to this appeal is to the effect that, the appellant is a bona fide purchaser of the suit land. She acquired the said estate from CRDB Bank PLC who sold it when exercising its power of sale under the mortgage Page 1 of 12 deed. After purchasing the same, the appellant submitted an application for registration of the transfer from the previous owner one Zacharia Francis Mbata. However, the latter registered a caveat against the appellant’s transfer. In view thereto the respondent issued a notice to Mr. Zacharia Francis Mbata notifying him to procure a High Court Order suspending registration of the transfer within thirty days or else the transfer shall be registered free from any encumbrances. To date Mr. Zacharia Francis Mbata has never procured any High Court order and the respondent has remained adarmant in finalising the registration process of the said transfer. The respondent had in due course notified the appellant that, such registration is suspended until final determination of a withdrawn

Land Application No. 156 of 2018 which was pending in the District Land and Housing Tribunal of Arusha between Mr. Mbata (previous owner) and CRDB Bank PLC. Arbitrarily, the tribunal itself had not issued any order restraining the appellant or the respondent from dealing with the transfer. Aggrieved with the respondent's decision, the appellant has hence preferred this appeal on the following grounds: - Page 2 of 12 1. That the Hon. Assistant Registrar of tittles Moshi erred in law and fact in disregarding his own notice dated 26th March, 2019 issued to Mr. Zacharia Francis Mbata contrary to sections 51 and 78 (6) of the Land Registration Act, Cap 334 R.E. 2018.

2. That the Hon. Assistant Registrar of tittles Moshi erred in law and fact in suspending registration of the transfer under the power of sale in favour of the appellant on a mere allegations of a pending Land Application No. 156 of 2018 in the District Land and Housing Tribunal of Arusha between Zacharia Mbata V CRDB Bank PLC. Initially the matter was ordered to proceed by way of written submissions which were timely filed. However, before determination, Hon. Twaib .J. deemed it fit to have Mr. Zacharia Francis Mbata summoned before delivering the judgment since it appeared that, he was an interested party to the suit. Surprisingly, he showed no interest in this appeal dispute being summoned, appearing and promising to respond thereto, in view therefore the court has proceeded writing this judgment. The appellant was represented by Mr. Salimu Juma Mushi learned advocate whereas the respondent was represented by Ms. Alice Mtulo, learned state attorney. Page 3 of 12 Submitting in support of both grounds of appeal Mr. Mushi argued that, the respondent is a public authority established under section 4 of the Land Registration Act, Cap 334, R.E. 2018 (Land Registration Act). Under section 51 (1) and 78 (6) the same Act the respondent is conferred with powers to suspend for one month a registration of transfer under the power of sale to which a caveat has been registered. In doing

so the respondent is supposed to notify the owner of the estate and/or the caveator of the intended transfer. Mr. Mushi went on contending that, after Mr. Mbata registered his caveat against the appellant's transfer of his estate, the respondent exercised his powers by notifying him to procure a High Court order within thirty days directing otherwise or else the transfer will proceed. After expiry of such period the respondent was obliged to transfer the suit land to the registered owner as it was observed in the case of Nqerenqere Estate Company Limited V Edna William Sitta, Civil Appel No. 2109 of 2016, CAT (unreported). It was Mr. Mushi's further contention that, the respondent's power under section 79 of the Land Registration Act is to prevent fraud or improper dealings in relation to transfer Page 4 of 12 and registration of estates. However, the respondent’s decision to suspend appellant’s registration does not fit the provisions of section 79 of the Act. He finally submitted that, the one month notice lapsed on 27th April, 2019, but to- date the respondent has failed to execute his statutory duty to transfer the suit land in favour of the appellant. He prayed that, since the alleged land case at Arusha was withdrawn, this court should compel the respondent to discharge his duty and register the suit land. Opposing the application, Ms. Mtula started off by narrating the

history of the dispute in the like manner as already briefly stated earlier in the judgment. Submitting on the appeal at hand, she argued that after Land Application No. 156/2018 in the District Land and Housing Tribunal was withdrawn, the appellant received a letter from Mr. Mbata’s advocates that, the matter was wrongly withdrawn by the previous advocate and they are making efforts to restore the same. Further that, they have already obtained an order from the High Court at Arusha which had directed the tribunal to admit Misc. Application No. 320 of 2009 which originates from the withdrawn Land Application No. 156 of 2018. The learned State Attorney attached copies of the said orders marked collectively as Annexture OSG to support her words. Page 5 of 12 Ms. Mtula also contended that, the respondent has discretion from time to time to extend the period mentioned in his earlier notice either before or after expiration of such period for the sake of justice as per section 14 (3) of the Land Registration Act. Thus, the respondent was only exercising his discretionary powers in order to avoid creating chaos in respect of the suit land. Further that the cited case of Ngerengere Estate (supra) is distinguishable to the current appeal. She prayed this appeal be dismissed for lack of merit. In his brief rejoinder, the appellant’s counsel argued that, written submissions are summary

of arguments thus cannot be used to introduce evidence as it was held in the case of Tanzania Union of Industrial and Commercial Workers (TUICO) at Mbeva Cement Company Ltd and National Insurance Corporation (T) Ltd, 2005 TLR 42 that: - "It is now settled that a submission is a summary of arguments. It is not evidence and cannot be used to introduce evidence. In principle all annexures, except extracts of judicial decision or textbooks, have been regarded as evidence of facts and where there are such annexures to Page 6 of 12 written submissions, they should be expunged from the submission and totally disregarded;” She argued that the annexed documents are neither extracts of judicial decision or text books the same should be expunged. The appellants reiterated her submission in chief and insisted that the respondent should be compelled to register her transfer. Having traversed though the history of this appeal as well as parties' submissions for or against the appeal, I find the following to be the pertinent issue for determination; "Whether the appeal before me is meritorious” Section 78 (6) of Land registration Act, R.E. 2019 provides that: - "(6) Where a deed is presented for registration which purports or appears to affect any registered estate or interest in respect of which a caveat is entered, the Registrar shall give notice thereof to the caveator and shall

suspend registration of such deed for one month from the date of such notice, and at the expiration of such period the caveat shall lapse and the deed shall be registered as at the date of presentation Page 7 of 12 unless in the meanwhile the application for registration has been withdrawn or the High Court otherwise directs." From the above provision, it is crystal clear that, after expiration of a one month notification by the respondent to the caveator, unless there is any proof of a High Court order or withdrawal of the application for registration, then the respondent is duty bound to proceed with the registration. In the appeal at hand the respondent claimed that, the main reason for his suspension to register the transfer was due to the pending Land Case No. 156 of 2018 in the District Land and Housing Tribunal of Arusha. Further that, after withdrawal of the said application Mr. Mbata the registered owner, managed to file for restoration vide Misc. Land Application No. 320 of 2009. The respondent through the written submission claimed, a copy is attached to the submission to prove that there is still a pending matter at the tribunal. However, perusing through the submission, no proof of the said Misc. Application was attached. Assuming that whatever is submitted is true I still doubt its authenticity since logically speaking I do not think it is possible for a withdrawn

Land Application No. 158 of 2018 Page 8 of 12 be restored by Misc. Land Application No. 320 of 2009. The years difference is too immense. Apart from that, the appellant cannot wait indefinitely for the said Mr. Mbata to proceed with his unknown caveat challenging the transfer. The Court record is in black and white that, Mr. Mbata was summoned by this court and he appeared on 16th July, 2020. He was given an opportunity and a right to be heard. Upon his own prayer, the Court gave him room to submit on his interest if he so wished but he never did. He neither indicated that there was any pending case nor seem to care much on the appeal at hand. In other words it would seem he was not interested as to whether the suit land is transferred or not. In light of the foregoing therefore, I am of the profound view that there is no vivid proof that hinders the registration of the transfer to be effected. Allegation that there is a pending application which intends to restore the withdrawn application is unfounded since the respondent failed to substantiate the same. To that end I am moved by section 110 (1) of the Evidence Act, Cap 11 R.E 2019 which provides: - Whoever desires any court to give judgment as to any legal right or liability Page 9 of 12 dependent on the existence of facts which he asserts must prove that those facts exist." The respondent’s Attorney had introduced the

powers of the respondent as found in Section 14 (3) of the Land Registration Act (Supra) which for the sake of reference states: - “The Registrar may at any time by notice in writing require an application for first registration to comply with any requisition be may have made, within such period as may be specified in the notice, not being less than one month and in default of complains with such notice within that period the Registrar may discuss the application. Provided that the Registrar may in his absolute discretion from time to time extend the period mentioned in such notice either before or after the expiration of such period." She was in view of the above provision advocating that, the respondent had exercised its discretionary powers to avoid creating more problems in the title in dispute. My interpretation of this section is such that it relates to “first registration", meaning the first time the land is registered. The record is clear that the land in dispute had already Page 10 of 12 been registered. The foregoing notwithstanding even though, the respondent did not and has not proved how he was exercising the discretionary powers. There is no proof that the respondent had ever issued the appellant with any notice making reference to or purported to be made under the said Section 14 (3). The court is of the settled view that the said assertion is untenable. Given

the reasons advanced above, I find the appeal meritorious and the appellant has succeeded to show that her claims deserve this court's intervention. In the event, I allow the appeal and set aside the decision of the respondent suspension order dated 8th May, 2018.1 hereby direct the respondent to register the transfer under the power of sale to the appellant of the land situated in Plot No. 192, Block "A" Burka Arusha District with G.T No. 33998 in the manner provided for by the relevant provisions of the Land Registration Act. I make no order as to costs. X \ It is so ordered. h- t-/ /-> B. R. MUTUNGI

JUDGE 31/08/2020 Page 11 of 12 Read this day of 31/8/2020 in presence of Mr. Rogers Mlacha for the Appellant and Mr. Mkama Msalama (S.A) for the respondent. V----------------- □ • B. R. MUTUNGI

JUDGE 31 /8/2020 RIGHT OF APPEAL EXPLAINED. Page 12 of 12