GRACE MARTIN MOSHI VS ASSISTANT REGISTRAR OF TITLE AND OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. CIVIL APPLICATION NO. 4265 OF 2024 GRACE MARTIN MOSHI (Administratrix of the estate of the late Martin Anael Moshi) …………………………………. APPLICANT VERSUS ASSISTANT REGISTRAR OF TITLES ………….… 1ST RESPONDENT THE ATTORNEY GENERAL ………………………… 2ND RESPONDENT PRICILLA MAKAME ………………………………… 3RD RESPONDENT RULING 26/08/2024 & 04/09/2024 SIMFUKWE, J. This is an application for extension of time to file notice of appeal against the rectification order of the Assistant Registrar of Titles of Moshi, Kilimanjaro, dated 27th January 2023. The application was filed pursuant to section 14(1) of the Law of Limitation Act, Cap 89 R.E 2022, 1 section 95 of the Civil Procedure Code, Cap 33 R.E 2022 and any other enabling law. It is supported by an affidavit sworn by the applicant. Challenging the application, the 1st and 2nd respondents, filed their joint counter-affidavit deponed by Ms Esther Karibueli Shao the Assistant Registrar of Titles of the 1st respondent, while the 3rd respondent deposed her counter-affidavit. Ms. Mariam Mtalitinya, learned counsel, represented the applicant, while Ms. Khadija Matewele, learned State Attorney, represented the 1st and 2nd respondents. The 3rd respondent was unrepresented. The application was ordered to be disposed of by way of written submissions. I am grateful to the parties as they filed their respective submissions timely. In her submission in chief, the learned counsel for the applicant adopted the affidavit of the applicant to form part of her submission. Ms. Mariam narrated the background of the application to the effect that the late Martin Anael Moshi was the owner of the parcel of land constituting Plot Nos. 148, 149, 150, and 151, Farm No. 127/A, located at Msaranga within Moshi Municipality, in Kilimanjaro Region, held under Title Nos. 29909, 30010, 30011, and 30012 respectively (the properties). Martin Anael Moshi died on 7th January 2015. Upon his death, the applicant was 2 appointed as administratrix of his estate. After being appointed as the administratrix of the estate of the late Martin Anael Moshi in 2020, the applicant applied to bequeath his estate to the beneficiaries. Ms. Mariam submitted that during the entire process of bequeathing the property, there was good relationship and communication between the applicant, beneficiaries, and the Registrar of Titles (1st Respondent). Most of their communications were conducted through phone calls. From 2020 until August 2023, the applicant and the 1st respondent had been communicating about the bequeathing of the parcels of land. The 1st respondent never informed the applicant of any rectification application made against them. It was submitted further that, according to paragraph six (6) of the counter affidavit and paragraph six (6) of the affidavit, it is evident that the rectification notice issued on 7th February 2023 was not given to the applicant. The learned counsel explained that the records show that in May 2024, the beneficiary, one Lucy Yona, went to the 1st Respondent’s office for a final signature as she was ordered. She signed but was neither given nor informed about the said rectification notice. 3 Ms Mariam was not certain if the said notice was issued on 7th February 2023 as claimed. She was of the view that if the 1st Respondent had good intention, why did he allow Lucy Yona to proceed with the signature process while knowing that the process could not proceed due to the rectification notice issued; or even inquire about the receipt of the said notice. Ms. Mariam continued to explain that on 25th August 2023, Juliana Josephat Mero, one of the beneficiaries, went to the Registrar's office for the final signature. She was informed by the new Registrar that she would not be able to sign again as there was an application made by the 1st Respondent for rectification of the said plots and that the notice of the same had been sent to the applicant via postal address. The notice was given to her so that she could deliver it to the applicant. Upon receiving the notice, immediately the applicant made follow up on the issue unsuccessfully. The learned counsel referred to paragraph six (6) of the applicant’s Affidavit to cement that the applicant made follow-up after being informed by the Registrar, in vain, until the last follow-up which was made on 24th February 2024, when the applicant was given a rectification order. 4 In support of the application, the learned counsel cited the case of Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), in which the Court of Appeal of Tanzania at page 6 held that: "As a matter of general principle, it is in the discretion of the court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: 1. The applicant must account for all the period for delay, 2. The delay should not be inordinate 3. The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. 4. If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient 5 importance; such as the illegality of the decision sought to be challenged." Based on the quoted decision and submission herein above, Ms. Miriam averred that it is clear that from the date when the applicant received information on the existence of notice for rectification until she received the rectification order, there made continuous, consistent, tireless, and diligent follow-up. Immediately after receiving the order, they instituted the present matter. Further, it was averred that after receiving the rectification order, the following was discovered: First, according to section 8 of the Notaries Public and Commissioners for Oath Act R.E 2019, the jurat needs to be dated, stamped and indicate the name of the commissioner for oath who attested the document. It was argued that this requirement was not met, as the issued rectification order was not stamped by the commissioner for oaths as required by law. Second, the rectification order was signed on 22nd November 2022, while the payment for the application and rectification order was made on 17th September 2022. It was claimed that this shows that the rectification order was paid for before it was issued. Also, the notice for rectification 6 was issued on 17th February 2023, which was four months after the rectification order was issued to the applicant. According to Ms. Mariam, this implies that the notice for rectification was issued while the order for rectification had already been issued. That, notice for rectification was given as a formality, but in reality, the order for rectification had already been issued four months prior to the notice, which is contrary to the law. The learned counsel cited Article 13(6)(a) of the Constitution of the United republic of Tanzania which reads: "When the right and duty of any person are being determined by the Court or any other Agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the Court or of the other agency concerned." In the instant case, Ms. Miriam submitted that the procedure was not complied with before issuing the rectification order, rendering it illegal according to the law. She cited the case of Lyamuya Construction Company Ltd (supra), which at page 6 of the typed ruling, paragraph (d) held that: 7 “...(d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged." From the cited authority, Ms Mariam submitted that the issue of illegality of the decision of the 1st respondent cannot be overlooked, and such illegality is a vital reason why the case should succeed on appeal. On the strength of the above submission and the applicant's affidavit, the learned counsel prayed for extension of time to file notice of appeal against the rectification order of the Assistant Registrar of Titles so that the matter can be determined on merit. Ms Khadija learned State Attorney adopted the counter affidavit and argued that the application has no merit and should be dismissed with costs. Ms. Khadija contended that, time limitation under the law and practice is a crucial component in the legal field that must be observed. Once one fails to account for the days of delay, he should not be given extension of time. She supported her argument with the case of Sarbjit Singh 8 Bharya & Another v. NIC Bank Ltd & Another, Civil Appeal No. 94 of 2017, TZCA, at page 22, where the Court held that: "In this regard we wish to emphasize that the issue of time limitation is not a technicality which can be glossed over as it involves the jurisdiction of the court to entertain the matter. Besides that, the law of limitation is a creature of statute which is geared towards regulating litigants to abide to the time limits set by the law in bringing up their cases. Otherwise, leaving the litigants free to bring their cases when they want it may amount to chaos and this will defeat the public policy to avoid multiplicity of suits.” To narrow down her submission, Ms. Khadija argued that the application is based on whether the applicant should be granted extension of time to file appeal against the decision of the Registrar of Titles. She stated that section 99 (1)(e) and (f) of the Land Registration Act requires the Registrar of Titles to issue a 30-days’ notice before rectification is done. Ms. Khadija, explained that the facts of the case, as displayed in the Declaration in support of the rectification order "Annexure A4," annexed by the applicant to her Affidavit, are as follows: Martin Anael (now 9 deceased), being the administrator of the estate of the late Salome Nakara, hired a licensed surveyor to survey four plots (148, 149, 150, and 151) belonging to Salome Nakara. After surveying, he unlawfully proceeded to apply for title deeds before finalizing probate proceedings and then requested Moshi Municipal Council to prepare a title deed for plot No. 148A. That, during the initial stages of preparing title deeds, the applicant was required to provide consent from the Ward Development Committee for Msaranga Ward to prove ownership but failed to do so. The registration of the title deed was found with encumbrances and findings from the Prevention and Combating of Corruption Bureau for Kilimanjaro Region. Ms. Khadija submitted further that the late Martin Anael Moshi was never the owner of the said plots; rather, he was the administrator of the late Salome Nakara, who was the original owner of the plots in question. He was responsible for administering the estates and properties of the deceased. To the contrary, he misappropriated the assets, leading to the rectification of the plots by the Registrar of Titles. Informing the court on the legal procedures of rectifications while replying to the argument that the rectification notice was not issued; Ms. Khadija 10 submitted that it was not true as there is no evidence shown. She said that as per paragraph 6 of their counter affidavit, the 30 days’ notice was issued via Martin Anael Moshi to his last known address, P.O. Box 5833, Dar es Salaam. She submitted that under section 110(b) of the Land Registration Act, the service of notice is deemed to be served when it is posted at his last known address. She added that the Applicant was aware of the notice, as admitted in her Affidavit at paragraph 5.3, where her defence was that it came to her knowledge late. It was insisted that the obligation of the Registrar of Titles is to issue such notice through postal address to the interested party, which he did. Ms. Khadija emphasized that the applicant failed to account for the days of her delay since the notice was issued, claiming that follow-ups were done, while she did not make any effort to file an objection before the High Court against the rectification. Responding to the defect in the declaration clause, Ms. Khadija submitted that the declaration made by the Assistant Commissioner for Lands is according to statutory rules and that the section referred to by Ms. Mariam, the Notaries Public and Commissioner for Oaths Act (supra) does not apply to the document in question. Rather, under the 11 Land Registration Act (supra), the rectification order is done in a special prescribed form, which does not fall under the rules of affidavits. It is a declaration in which the Commissioner for Lands or an authorized person is required to make a declaration according to the Oaths (Judicial Proceedings and Statutory Declarations) Act, 1966. She insisted that the jurat of attestation complied with section 93(1)(a) of the Land Registration Act, Cap 334. The section provides that when a deed is signed by a natural person, it shall be attested by an authorized person. The document in question, was attested by the authorized principal land officer. Responding to the issue of date differences; Ms. Khadija submitted that the rectification order was signed on 4th November 2022, as seen in the declaration form. The learned State Attorney admitted that the registration order was issued and registered on 27th January 2023, while the notice of the rectification order was issued on 7th February 2023. Whereas, the practice and law in registration is provided under section 32(1) of the Land Registration Act (supra). She explained that this provision states that when an application for rectification is made by the Commissioner for Lands, the date of receiving the application is entered as the registration date. This is regardless of other procedures, such as 12 issuing a 30-days’ notice, where the registrar will wait until its expiration. If no objection is brought before him, he will register the document according to the date it was presented. She buttressed her argument with the case of Mohsin Gulam Hussein Somji vs. Attorney General and Others, Land Appeal No. 30 of 2017, and the case of CNBMI Tanzania Ltd vs Kamaljit Singh Hanspaul and Another, Commercial Case No. 12 of 2020, at page 14 and 15 the Court had this to say: “From the wording of the above two provisions in particular section 99 (1) of the Act to be read together with the express provision of section 32 that the date of registration or entering the record in the memorial or rectification is the date of application and deemed to be the date for registration.” The learned State Attorney prayed for dismissal of this application with costs as it lacks merit. The 3rd respondent also filed her submission in opposition to the applicant’s application. Like her colleagues, the 3rd respondent adopted her counter-affidavit to form part of her submission. 13 Regarding the contention that the applicant was never informed about the rectification application and that the said rectification was given to her through Juliana Joseph Mero; the 3rd respondent was of the view that the two stories contradict each other on whether the applicant was served with notice of rectification or not. She insisted that the applicant was issued with the notice of ensuring her right to be heard. The 3rd respondent averred that the applicant was given notice within time and she was summoned. However, for reasons best known to her, the applicant failed to appear before the Assistant Registrar's office to exercise her right to be heard. She was of the opinion that the audi alteram partem rule was not violated. The 3rd respondent submitted further that the case of Lyamuya Construction Ltd (supra), cited by the applicant’s counsel, is distinguishable to the case at hand because the applicant failed to establish sufficient reasons for her delay. That, the applicant failed to show how she was diligent and not apathetic, negligent, or sloppy in the prosecution of the action that she intended to take. In her final remarks, the 3rd respondent implored the court to dismiss this application with costs. 14 In rejoinder, the learned counsel for the applicant reiterated her submission in chief. She emphasized that the applicant accounted for each day of delay. Concerning the issue of encumbrance of the title owned by the late Martin Anael Moshi, Ms. Mariam replied that it is a matter of evidence which will be discussed if the applicant will be granted extension of time. The learned counsel stressed that there was a serious procedural illegality which requires to be addressed on appeal. He supported his point on illegality with the case of Lyamuya Construction Ltd (supra). Having heard both parties' submissions, the issue for determination is whether the applicant has advanced sufficient reasons for this court to extend the time sought. It is a long-established principle of law that it is within the discretion of the court to grant extension of time, a discretion which must be exercised judiciously. For the court to properly exercise its discretion, it will consider whether the applicant has advanced sufficient reasons for the delay. In a plethora of authorities, this court as well as the Court of Appeal, has elaborated on factors to be considered before granting extension of time. 15 The factors include accounting for the entire period of delay, ensuring the delay is not inordinate, whether the applicant has demonstrated diligence rather than apathy, negligence, or sloppiness in prosecuting the intended action. See the landmark case of Lyamuya Construction (supra) which was cited by the learned counsels. Also, in the case of Airtel Tanzania Limited vs Misterlight Electrical Installation Co. Limited & Another (Civil Application 37 of 2020) [2021] TZCA 517 (21 September 2021) (Tanzlii) at page 8 the Court of Appeal held that: “It may not be possible to lay down an invariable or constant definition of the phrase “good cause”, but the Court consistently considers such factors like, the length of delay involved, the reasons for the delay; the degree of prejudice, if any, that each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, and the need to balance the interests of a party who has a constitutionally underpinned right of appeal.” In addition, an illegality in the decision or order sought to be challenged is another factor that will prompt the court to extend time. However, for 16 this to be used as a reason for extending time, it must first be apparent on the face of the record, it must be a point of law, and the applicant must explain such illegality without having to prove it. In the case of Fatma Hussein Shariff vs Alikhan Abdallah & Others (Civil Appeal No. 536 of 2017) [2021] TZCA 47 (24 February 2021), (Tanzlii) at page 13 it was held that: “It should be noted that, for illegality to be considered as a good cause for extending time, it has to be on point of law of sufficient importance and it must be apparent on the face of record and not one that would be discovered by a long-drawn argument or process.” I have carefully considered the affidavit of the applicant as well as her submission and noted that the material on which the applicant relied upon for this court to extend time is illegality and late supply of the impugned rectification order. From paragraphs 3 to 9 of her affidavit, the applicant narrated what transpired after being appointed as administratrix of the estate of the late Martin Anael Moshi. Under paragraph 9, the applicant advanced two factors to be considered for extension of time. First, she said that she was supplied with the rectification order late, and that she 17 was not involved in the process of rectification until when she was issued with the rectification order. The above arguments were resisted by Ms. Khadija for the 1st and 2nd respondents as well as the 3rd respondent. It may be noted that in their submissions, the respondents were arguing the main application. It goes without saying that the submissions were misplaced as it is settled that, in any application for extension of time, parties are strictly prohibited from arguing the main case. Coming back to the pointed-out illegality, it is the strong observation of this court that the alleged illegality, namely that the rectification order was issued without the involvement of the applicant, is of sufficient importance and apparent on the face of the record to warrant extension of time to the applicant. With due respect to the respondents, the applicant was not required to prove such illegality as alluded earlier. The position was also discussed in the case of Mrs. Rafiki Hawa Mohamed Sadik vs. Ahmed Mabrouk and others, Civil Application 179/01 of 2018, CAT in which the Court of Appeal held that: “.........for determination then, is whether the alleged irregularity or misdirection on the point of law is of sufficient 18 importance and apparent on the face of the record to warrant an extension of time. I am aware that the applicant need not to prove the alleged illegality at this stage but there must be more than mere mention of illegality.” Emphasis added In the present matter, the applicant not only mentioned the illegality but also explained it in her affidavit and submission. In the foregoing, it is the final finding of this court that the applicant has presented sufficient materials for this court to exercise its discretion to grant the extension of time sought. In view of the aforesaid, I hereby grant 14 days to the applicant to file notice of appeal against the rectification order as sought. No order as to costs. It is so ordered. Dated and delivered at Moshi this 04th day of September 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 19 20