GRACE F

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA MISC. LAND APPLICATION NO. 9832/2024 (Arising from Land case No. 36 o f2022 in the High Court o f Tanzania at Dodoma) GRACE F. M ROSSO (Administratix o f the Estate o f the late Felix Tesha/Fidelis Mrosso)............. ................. APPLICANT VERSUS GRACE FELIX TEMU (Administratix o f the Estate o f the Late Felix Jonathan Temu)..................................................... RESPONDENT RULING 12th July, 2024 HASSAN, 3 . The applicant in this application has moved the court under Order XXXVII, Rule 8(1) (a), Section 68(e) and Section 95 of the Civil Procedure Code, Cap 33 R. E 2019 praying for orders, thus; 1. That, this honourable court be pleased to issue a preservation order and maintenance o f status quo to prevent any disposition and renewal before the Registrar o f Titles in relation to property l with certificate o f Title No. 383 DLR, Plot No. 54, Block 25 located at Majengo, Dodoma Municipality pending the determination of Land Case No. 36 o f20222. 2. Any other relief(s) this Honourable court may deem fit andjust to grant. This application is supported by an affidavit sworn by Grace F. Mrosso, the applicant. The respondent contests the application. She filed a counter affidavit sworn by her to that effect. The matter was ordered to be proceeded by way of written submissions. The applicant complied to the order of preference in filing his written submission. The applicant submitted that she is seeking for an order for preservation and maintenance of status quo of the property located at Majengo within Dodoma Municipality with description Plot No.54, Block 25 with Certificate of Title No 383 DLR from any disposition and renewal of title before the Registrar of Titles. That she is seeking this as interlocutory orders which fall under the ambit of Order XXXVII, Rule 8(l)(a) and Section 68(e) and 95 of The Civil Procedure Code, Cap 33, R.E 2019. The applicant further submitted that she is seeking for the above orders since the respondent stated in her affidavit in Miscellaneous 2 Land Application No 84 of 2023 in which the respondent was the Applicant that she intends to renew Certificate of Title No. 383 DLR, which is the property in dispute and the subject matter of Land Case No. 36 of 2022 of which is still pending before this court. The applicant added that she has already lodged a caveat before the Registrar of Titles and it is registered already. The respondent finalized her submission by arguing that since the respondent shows an intention to renew the certificate of title thus it shall affect the applicant's right. She prayed the court to grant this application. In reply, the respondent submitted that, Order XXXVII Rule 8(1) cited by the applicant does not serve for the issue of maintenance of status quo and that the same is availed under only Order XXVII Rule 1 (a) of the Civil Porcedure Code, Cap 33 RE 2019. The respondent further submitted that, the Registrar of Titles was also not joined while he is a necessary part in this suit as it was held in Christina Jalison Mwamlima and Another vs Henry Jalison Mwamlima and 6 Others, Land Case No. 29 of 2017 which set out two tests to justify who is a necessary party. The respondent added that, the order against the Registrar of Titles can not be issued since she is not a party to this suit. And that if 3 the applicant filed a caveat then there is no need of entertaining this application. The respondent prayed the court to dismiss the application with costs for being misconceived. In Rejoinder, the applicant argued that, Order XXVII of the Civil Procedure Code Cap 33, R.E 2019 cited by the respondent provides for suits by or against military personnel and not issues of maintenance o f status quo as stated by the respondent. In tackling the respondent's submission that the registrar of titles should be joined as a necessary party to this application, the applicant contested by submitting that the registrar of titles is not a party to the case. For the dispute in the main case is between the applicant and respondent and not Registrar of Titles. That, the respondent's intention to renew the certificate of title brought attention to the Applicant thus she sought for the above orders of preservation of the title deed as it is while the main case is being determined by this court. The applicant added that, the case Christian Jalison Mwamlima and Another vs Henry Jalison Mwamlima (supra) is distinguishable from the case at hand. The applicant prayed the Court to grant the orders sought in the application. 4 In this application, the applicant has averred in paragraph 4 of the affidavit that, she noticed under paragraph 8(e) of the affidavit in Miscellaneous Land Application No. 84 of 2023 which involved the parties, that the respondent was intending to renew Certificate of Title No. 383 DLR which is the disputed land in the main suit, that is Land Case No. 36 of 2022 pending before this court. Thus, she is praying this court to issue a preservation order and maintenance of status quo to prevent any disposition and renewal by the respondent before the Registrar of the of Titles. In Reply, the respondent challenged this application by firstly alleging that, the applicant has wrongly moved the court by citing Order XXXVII Rule 8(1) which does not serve for the issue of maintenance of status quo and thus suggesting that the right provision is Order XXVII Rule 1 (a) of the Civil Porcedure Code, Cap 33 RE 2019. And secondly that, the applicant ought to have joined the Registrar of Titles as a necessary party. Therefore, I will base my determination on the two stated arguments. Starting with the first ground, Order XXXVII Rule 8 (1) of the Civil Procedure Code, Cap 33 RE 2019 cited by the applicant provides thus, 5 "8.-(l) The court may, on the application o f any party to a suit, and on such terms as it thinks fit- (a) make an order for the detention, preservation or inspection o f any property which is the subject matter o f such suit, or as to which any question may arise therein On the other hand, Order XXVII Rule 1 (a) of the Civil Procedure Code, Cap 33 RE 2019 suggested by the respondent does not exist in the said law. Thus, it is my firm position that the applicant has rightly moved the court by citing relevant provisions of law. Coming to the issue of non joinder of the Registrar of Titles as a necessary party in this application. The applicant is seeking for an order for preservation and maintenance of the disputed land against the respondent who in paragraph 8 (e) of the affidavit in Miscellaneous Land Application No. 84 of 2023 which involved the parties, averred that she was intending to renew Certificate of Title No. 383 DLR which is the disputed land in the main suit, Land Case No. 36 of 2022. The applicant is therefore seeking for an order against the respondent's intended renewal of the disputed land's Certificate of title and maintenance of status quo of the same. Thus, I do not see any need of joining the Registrar of Titles in 6 the application at hand since the Registrar's office has not taken any action yet in respect of the disputed land, be it renewal process or any process nor does she have any interest as regards to the orders sought. In the Indian case of Benares Bank Ltd. v. Bhagwandas, A.I.R. (1947) All 18, the full bench of the High Court of Allahabad laid down two tests for determining the questions whether a particular party is necessary party to the proceedings: First, there has to be a right of relief against such a party in respect of the matters involved in the suit and; second, the court must not be in a position to pass an effective decree in the absence of such a party. The foregoing benchmarks were described as true tests by Supreme Court of India in the case of Deputy comr., Hardoi v. Rama Krishna, A.t.R. (1953) S.C. 521 thus can be adopted in our jurisdiction. In the instant application the Registrar of Titles does not fit within the criteria of the said guidance of law visa vis the prayers sought by the applicant. Thus, there is no non joinder of parties as alleged by the respondent since the orders sought are not against the Registrar but against the respondent, the Registrar will only comply to the order for maintenance and preservation of the status quo of the disputed property, 7 if granted. That is to say the nature of the order sought is preventive to the respondent not to take the action. Now coming to the prayers sought by the applicant. The applicant has alleged that the respondent is intending to renew the Certificate of Title of the disputed land as seen in paragraph 8 (e) of the affidavit in Miscellaneous Land Application No. 84 of 2023. Thus, she is seeking for an order for preservation and maintenance of status quo. The grounds for issuance of an order of maintenance of status were given in Quality Corporation Limited and 4 Others versus Forsters Auctioneers & General Traders and NBC Ltd, Miscellaneous Commercial Application No. 55 of 2019 (unreported) through Hon. Fikirini, J., (as she then was), who stated that inter alia that. "Coming to the application before this Court, the applicant is essentially seeking maintenance o f status quo or stay o f execution and restitution o f the property. Each o f the prayed relief has its requirements to fulfill before the said application is granted. With the stay o f the status quo the applicant has to show that there is imminent danger looming upon the applicant and if no such step is taken or order is given the consequences and hardships to be faced wiii be greater than if the order is given. Also, this order when given its intention is to see that the status remains as it is when the application was being made." Having gone though the grounds advanced by the applicant, I am of the position that, the grounds raised by the applicant fall within the ambit of the criterias stated in the above guidance hence the same suffice for the court to make an order for preservation and maintenance of status quo of the disputed property with Certificate of Title No. 383 DLR, Plot No. 54, Block 25 located at Majengo, Dodoma Municipality. That being said, the application is granted. No order as to costs. It is so ordered. DATED at DODOMA this 12th day of July, 2024.