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IN THE COURT OF APPEAL OF TANZANIA k . AT DAR ES SALAAM \\ CIVIL REVISION NO. 1 OF 2015 (CORAM: RUTAKANGWA, J.A., MBAROUK. J.A., And MUGASHA, l.A.) 1. HON. ATTORNEY GENERAL } . i REGISTRAR OF TITLES .................................. APPLICANTS 3. COMMISSIONER FOR LANDS

VERSUS OPULENT LTD ........................... -. ..................................... RESPONDENT (Revision from the Judgment and Decree of the High Court of Tanzania · (Land Division) at Dar es Salaam) (Kalombola, J.) dated 13th day of August, 2014 in Misc. Land Case No. 46 of 2013

RULING OF THE COURT 29 th day of September, &... 2015 RUTAKANGWA, J.A.: At the centre of these suo motu revision proceedings is the ---,-.--i □terpretation of sectio_o_99(1LQf the Land R~gistration Act, Cap. 334 ["the ----- Act'l This provision reads as follows:- "99(1) Subject to any express provisions of this Act;. the land register may be rectified pursuant to an 1 order of the High Court or by the Registrar, subject to an appeal to the High Court, in any of the following cases. (a) where the High Court has decided that any person is entitled to any estate or interest in any registered land and as a consequence of such decision the High Court is of opinion that a rectification of the land register is requirecl and makes an order to that effect: I (b) where the High Court, on the application of any person who is aggrieved by any memorial made in, or by the omission of any memorial from, the land register, or by any default being made, or unnecessary delay taking place, the inscription of any memorial in. the land register, makes an order for the rectification of the land register.· (c) in any case and at any time with the consent of all persons interested.· ( d) where the High Court or the Registrar is satisfied .tt,_at__ar,Y. memoricJJ_jfJ_ .t_he land reg_~t~r;_ has been ~~ obtained by fraud.· (e) where any memorial has became wholly obsolete; and 2 (f) in any case, where by

reason of any error or omission in the land register, or by reason of any memorial made under a mistake, or for other sufficient cause, it may be deemed Just to rectify the land register. " [Emphasis is ours.] We have found it imperative to underscore the word "ol' as it is critical in resolving the issue at hand. For this reason we have found I . ourselves constrained to state at the outset that in ordinary parlance, "or" which in English grammar is a disjunctive, is a word used to "link alternatives" ;see, The Chambers Dictionary, 1994 edition at page 1187, Concise Oxford English Dictionary, 11th edition at page 1005, etc. In law, also, "or" is always disjunctive and rarely i~clusive. See, PRINCIPLES OF STATUTORY INTERPRETATION, by Justice Cr. P. Singh, ,8th ed. at page ✓\~_e__ a-l✓ 0 ~ 370. It is equally apt to point out at this stage, that the word "Registral' in the above quoted provision refers to the Registrar of Titles. Acting under 5.99(1) of the Act, the Registrar, vide letter Re . No. LR/T/ 50765/43 dated 1th March, 2013, informed M/5 Opulent Limited, the registered owner of landed property on Plot No. 233/1 and 233/5 along Pugu Road, Kipawa~ Dar es Salaam, held under CT NO. 50765, of his intention to rectify the Land Register following an application from the Assistant Commissioner for Lands. The rectification would have extinguished the title of Opulent Ltd. over

the said landed property in favour of "HIS EXCELLENCY THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA." On being served with the letter of intention to rectify the register, M/S Opulent Ltd. through M/s Msemwa and Co. Advocates, lodged under I s. 102 (1) (a) of the Act, a Notice of intention to Appeal, to the High Court, Land Division at Dar es Salaam, on 26th March 2012. At the same time vide a letter dated 25th March,2013, they requested the Registrar to be supplied with: "the decision and reasons therefor for your order to rectify the register to enable the registered proprietor to file an appeal. " The Registrar responded in writing, vide letter Ref. No.LR/T/59441/47 of 10th April, 2013. M/5 Msemwa, Advocates were informed that the: 4 "intention of rectifying the land register is initiated by the office of the commissioner for land(sic) by presenting a deed of rectification. Apart from the deed of rectification presented by the Asst. Commissioner for Lands there is no any decision so far which has been made by the Registrar of Titles." Immediately thereafter, pending the lodging of the intended appeal M/5 Opulent Ltd. sought and obtained, vide Misc. Land Application No. 17 I of 2013, from the High Court, Land Division an order staying the execution of the Registrar's decision "made on lih March, 2013 pending the filing of an appeal to the High Court". The appeal, by way of

a petition, was subsequently lodged on 10th June, 2013. In the appeal, M/5 Opulent Ltd. sought the following reliefs: "(a) A permanent injunction restraining r the Registrar of Titles from rectifying the Register of Titles. (b) A declaration that the petitioner is the rightful owner of the property known as Plot No. 233/1 and 233/5, Pugu Road, Kipawa Dar es Salaam registered under Title 5 No. 50765. {c) Such other reliefs as the Hon. Court deems fit in the Circumstances." The appeal was against the Registrar of Titles, the Commissioner for Lands and the Attorney General, who strongly resisted the appeal. The learned Judge of the High Court who handled the matter had no difficulty in disposing of it. In determining the appeal, she reasoned thus:- "It is not disputed that the Assistant Commissioner have made that application and the Registrar is ' going to act by rectifying the Register. Reasons have been advanced that the petitioner/ appellant is utilizing the plot contrary to the master plan as now ·the plots are intended to be used for construction of r hotels/ and also that Banco was not compensated. On the part of the petitioner/appellant challenged because this was not indicated in the Title Deed, and that they were not accorded oppoffunityto b e : z r - - - - - - - - heard. On the opportunity to be heard, the respondents did not wish to comment on it having been given the

opportunity by this Court to comment. Moreover, the petitioner/appellant raised 6 that the Registrar has no powers to make the rectification to such extent, because those powers are vested to the High Court. What then is answer to the first ground of appeal? [read para] Going by the same/ the Registrar of Titles acted under Section 99 (1) of the Land Registration Act Cap. 334 to notify the petitioner that the Assistant Commissioner for Land has presented an application for Rectification of the Land Register in respect of the plots in dispute which shall have the effect of deleting its ownership. What is the duty of the Registrar in this respect?" She then reproduced S. 99 (1) (f) of the Act and thereafter thus continued:- •~ question to be answered is whether the rectification intended falls under the above mentioned provision of law. Going by the reasons given by the respondent in its submission is that there was re-plan which was effected since 1987 that the plots were to oe usea-fvr-constraction-of-------- hotels whereby the petitioner was not using the plots in the manner i.e according to the master plan and for the second reason that the former owner was never compensated. It is the view of this court 7 that this could be a sufficient reasons (sic) for the Registrar to take action but that ought to have been done in compliance with section .99 (1 J to wit rectification

pursuant to an order of the High Court. There is no order of the High Court, obviously the Registrar lacks power to issue the present notice to the petitioner/appellant. Besides, as correctly submitted by the petitioner, there is no proof that there was a re-plan, it is so because even the Title Deed in paragraph 6 reads:- "USER: the land and buildings to be erected thereon shall be used for Commercial purpose only. The above paragraph does not indicate construction of hotels. Since that the Registrar failed to comply with the requirement under section 99 (1 J of the Land Registration Act its act to give such notice is illegal such that it cannot be acted upon to have effect of deleting from the Register of Titles the petitioner/appellant who has good title over the dsputed i.e having the Commissioner's consent. With view of the explained reasons this court finds the petition/appeal meritorious consequently, the notice issued by the Registrar is hereby ordered expunged, and the Registrar is restrained from 8 rectifying the register that would have the effectof depriving Opulent/Kamaka of its ownership of the plots No. 233/1 and 233/5 Pugu road Kipawa Dar es Salaam registered under title No. 50765 it being rightful owner of the same. The petition/Appeal is allowed, each party to bear own costs. It is so ordered'~ It is this order dated 13th August, 2013, which aggrieved the

Attorney General, apparently over eighteen months later. We are using the word "apparently" deliberately. This is because he never immediately exercised his right of appeal or revision but waited until 2nd March, 2015 to realize that the High Court decision and order were totally erroneous in law and accordingly pleaded by letter (Ref. No. AGC/LAND/1/42/18) for the indulgence of the Court to act suo motu to call for and revise the said · I decision, which has, allegedly, virtually hamstrung the Registrar in the exercise of his functions under s. 99(1) of the Act. On the information ~ . ~--· ~- av?tiled ~n .!~at__ letter, the Chief Justice found it apposite, for the Court to intervene by way of these revision proceedings. Counsel for M/5 Opulent are implacably opposed to these proceedings. They are convinced that the Court lacks jurisdiction to 9 entertain them even if they were initiated at its own motion, hence a notice of preliminary objection thrown at our door steps by them a few hours before the Court convened to hear the matter. We have found the notice of preliminary objection, though drawn by a learned hand, far from being a model of perfection. Nevertheless, this was no hindrance to us to entertain the objection which reads:- "(a) Whether this court of appeal {sic) is empowered in law to entertain the applicant's complaint under the circumstance of matter {sic)." That

was the sole point of objection to the competence of these proceedings. In elaboration of this unarguably vague point of objection, Mr.Majura Magafu, learned advocate, who teamed up with Mr. Jerome Msemwa, I learned advocate, asserted that the gist of their objection was that "this Court, in the ci rcu msta nee of-this-case,has-r10-jHFisdiGtiGA-to-eaterta in_tb,=isc.__ __ matter." Inasmuch as the impugned decision was delivered on 13th August, 2013, he said and the complainants took no visible steps to challenge it on 10 appeal or by way of revision, the matter was closed and could not be resurrected by this Court suo motu by way of revision. It was Mr. Magafu's strong contention before us, that the Court's power of revision is derived from section 4 (3) of the Appellate Jurisdiction Act, Cap 141 ("the A.J.A."). This provision, he pressed, empowers the Court to call for and examine the record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings the High Court. On this premise and laying much emphasis on the word ''before",he strongly contended that as there were no pending proceedings in the High Court relating to the appeal lodged by M/S Opulent Ltd, the Court had no jurisdiction to entertain these

proceedings. The record-of the High Court having been closed two years ago, as I such there is nothing to be called for and examined by this Court, he · confidently concl uaea-nis bneflocusea-s-ab~mtssion-.r1e-accordingly-t1rgeEl---- us to strike out the proceedings. For this stance, he relied on the decision of this Court in KOMBO MKABARA V. MARIA LOUISE FRISTCH, Civil Application No.3 of 2000 (unreported). 11 Indeed in KOMBO MKABARA's case (supra), the Court after reproducing s.4 (3) of the A.J.A; unequivocally held thus:- "In a nutshell, the provision applies to revision of proceedings before the High Court. The expressions "before the High Court" which we have duly emphasized can only have reference to proceedings still in the High Court. Chambers Twentieth Century Dictionary defines the word ''before" to mean, inter alia, ''in the presence or sight of: under consideration or cognizance of'~ We are thus of the settled view that subsection (3) applies to proceedings under consideration or cognizance of the High Court, in other words, proceedings in which the High Court is still seized of Jurisdiction. This construction is underscored by the words "to call for'~ similarly emphasized, which can only mean calling for a record still before the High Court. It is , known, of course, that calling for the record may sometimes assume a fictional nature where the record is for some

reason already with the Court of ·~· .. Appeal, but legal fictions are-not unknown:···~rt· is~· common ground that in this case a notice of appeal is already filed. As correctly observed by Mr. Semgalawe the effect of that notice is to remove the proceedings from the High Court 12 into this Court. An intended appeal has come into existence. The proceeding is therefore no longer before the High Court and is beyond the ambit· of subsection (3)." [Emphasis is ours.] In response to Mr. Magafu's submission, Mr. Gabriel Malata, who was assisted by Ms. Angela Lushagara, both learned Principal State Attorneys, appearing for the applicants, strongly resisted the preliminary objection. His smoking gun was the undisputed fact that the A.J.A vests this Court- .I with supervisory powers over the High Court. To him, this Court can invoke its revisional jurisdiction over proceedings in the High Court at any time whether ''the proceedings are still pending in. the High· Court", or "the matter has been conclusively determined" therein. He sought authority for this proposition from this Court's decision HALAIS PRO-CHEMIE INDUSTRIES LTD. v WELLA A.G. [1996] T.L.R.

269. He accordingly pressed us to dismiss the preliminary objection. I ·~---~~---~-- After hearing counsel for both sides, we found it prudent in the circumstances~-to resetve our ruling- on-the poiAt of~preUmioary~objection_ __ ~---~ promising to incorporate it in our ruling on the merits or otherwise of the revision matter. We then proceeded to hear the application on merit. In 13 this ruling, we shall first give our opinion on the raised point of preliminary objection. In disposing of the point of preliminary objection, we shall begin by stating what should be the obvious to all. This is that when this Court was created in 1979 it was vested with only appellate jurisdiction. It had neither inherent nor statutory powers of revision, as it had no statutory powers of review of its own decisions. As time progressed, it was ~- discovered that in the course of discharging its judicial functions, the High Court, like niany other judicial bodies world-wide, was committing material errors which led to miscarriages of justice, either in the conduct of proceedings before it or in its final decisions, which went unremedied when no appeal, for any reason, was preferred to this Court. The Court, though the highest custodian of the Constitution and all laws made thereunder, could not intervene in the absence of an appeal before it. At the appropriate moment, that is in 1993, it was found

proper to look for a cure -~ --~-----for-. tbis miscblef. __ It was decided to clothe this Court with revisional jurisdiction. This was achieved through the Appellate Jurisdiction (Amendment) Act, 1993 (No. 17) ("the Amendment Act''). We have asked 14 ourselves this question: Can this background be safely ignored? Our considered answer is in the negative. We have provided a negative answer because: ''Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacY, to effect a change of policY, to formulate a plan of government. That aim, that policY, is not drawn like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the Judge must seek and effectuate, and he ought not to be led off the trail by tests that have overtones of subjective design. We are not concerned with anything subjective... "per Justice Frankfurter. of the U.S Supreme Court in "Some Reflections on Reading of Statutes" (1947) 47 Co/um. L. Review 527 at pp. 538-9." Similar sentiments were echoed thus, by Lord Wilberforce in ROYAL COLLEGl:~OF-NU"RSIN"G-o-F~THE-uNrrED-KlNG·DeM-v;-BEPAR~M-E-Nl'.--~ OF HEALTH & SOCIAL WELFARE [1981] A.C. 800: ''In interpreting an Act of Parliament it is proper, and indeed necessary, to have -regard to the state 15 of affairs existing and known by Parliament to

be existing at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs" (page 822). We subscribe wholly to this holding which was approved subsequently in R (QUINTAVILLE) v. SECRETARY OF STATE FOR HEALTH [2003] UKHL 13, [2003] 2 W.C.R 692. In relation to the Amending Act, the intention of our Parliament was clearly manifested in the Objects and Reasons for the Bill. when presented to it. The English Version reads as follows: "The Bill is designed to amend the Appellate Jurisdiction Act in order to give the Court of Appeal supervisory and revisionary powers over the High Court. At the moment the Court of Appeal exercises revisionary powers over the High Court only when an appeal lies over the matter on which the High Court had exercised revisionary powers. 16 Otherwise, the Court has only appellate powers and it cannot inspect or correct errors on the decisions of the High Court which are notsubjectofappeal 0 [Emphasis is ours.] In our considered opinion, an objective reading of the Objects and Reasons for giving this Court both supervisory and revisionary powers leads to only one irresistible conclusion. This is that the driving force behind the move was the desire to render justice to all by giving this Court of last resort in the land, unfettered judicial powers to inspect and/or correct errors, be they procedural or

substantive, committed by the High · Court which were apparent but could not be remedied in the absence of an appeal. This power to inspect and correct can be exercised by the Court, on its own motion and at any time, even after the proceedings in the High Court have been finalized, because it has not always been easy or ----practicable-for-the-Eourt~t0-learn-of-these-ille§alities,irr-egular-ities,er-r0r-s,_,- - - - improprieties, etc. before proceedings in the High Court are concluded. To hold otherwise, in our view, would, firstly, be to rob the words "of any finding, order or any other decision made thereon and as to the regularity 17 of any proceedings" of their effect. This is simply because a finding, order or decision of the High -Court, as is mostly the case, may be the final judicial act of the High Court in the concerned proceeding. If we were to uphold Mr. Magafu, if such finding, order, decision or proceeding contains an incurable error, this Court would remain powerless. Secondly, this would be an abdication of our constitutional mandate and a manifest defeat of the clear intention of Parliament and/or the objective of the Amending Act. One simple example will help to validate our position. Under section ·- 265(2) of the Criminal Procedure Act, Cap. 20, for instance, all trials before the High Court shall be with "the aid of assessors the number of whom shall be

two or more". If, for instance, such a trial is conducted with one or no assessors and no appeal is preferred by any party to challenge the final verdict or sentence, or if it entertains and determines a proceeding before it to finality without or in excess of its jurisdiction, should this Court _ _ Q9~. i_~tervene under s. 4(3) of the A.J.A. on the basis of the ground fronted · by Mr. Magafu? The only logical answer should be in the negative. It will intervene and proceed to revise and quash the proceedings, although the matter would no longer be "under consideration" by the High Court. 18 Another reason which has convinced us to find Mr. Magafu's argument wanting in merit is the existence of Act No. 25 of 2002. This Act amended the A.J.A. by introducing a news. 5 (2) (d).This provision bars appeals or applications for revision to this Court against interlocutory ·- decisions and o"rders'-of by the High Court unless they have the effect of finally disposing of the sujt, This provision of the law was brought to the attention of Mr. Magafu at the hearing of this matter. When asked for his opinion on this prohibition, he, respectfully, failed to tell us whether it also bars applications for revision after the proceedings have been concluded in the High Court. In our view, a purposive interpretation of it, impels one to conclude that this provision definitely safeguards an

aggrieved party's right not only of appeal but also of applying for revision, after the conclusion of proceedings in the High Court. Otherwise the words "applications for revision" would not have been included if such a right did not exist thereafter. If we are pressed for authority to bolster our position, we shall quickly refer to the decision of this Court in the case of HALAIS PRO- CHEMIE INDUSTRIES LTD. v. WELLA (supra) which, incidentally, 19 appears as authority no. 9 in Mr. Magafu's list of authorities. The Court held therein, inter alia, that: - "We think that MWAKIBETE's case read together with the case of TRANSPORT EQUIPMENT LTD. are authority for the following legal propositions concerning the revisional jurisdiction of the Coult under sub-section (3) of section 4 of the Appellate Jurisdiction Act 1979: - (i) . The Coult may on its own motion and at any time/ invoke its own re-vislonal jurisdiction in respect of proceedings in the High Coult. " [Emphasis is ours.] It is worth emphasizing here that the words "and at any time" were not circumscribed in this judgment. The above proposition was adopted and followed by this Court without any limitations, in its judgment authored by the same learned Justice of the Court who authored the KOMBO judgment in AUGUSTINO LYATONGA MREMA v. R [2003] T.L.R.

6. We have also came across in Mr. Magafu's list of authorities, the case of 20 SALUM ABUBAKAR & TWO OTHERS v R, (unreported) Criminal Revision No. 3 of 1997, which was entertained and allowed by the Court although the High Court had already become functus officio. Indeed, no single application for revision since KOMBO's case (supra) has ever been rejected on this ground, as the supervisory jurisdiction of any court is preliminary objection, which we hereby overrule and dismiss. Now coming to the substantive application for revision, it was Mr. Malata's submission that the learned High Court judge gave an erroneous interpretation of s.99 (1) of the Act. He stressed that the catch word in · this section, for the present purpose, is "OR". To him the powers of rectifying the land register may be exercised independently by either the Registrar but subject to a right of appeal to the High Court, or by the High Court after being moved either under s. 102 (1) (a) and s. 99 (1) (a) and . -~(b}.-~As the-impugned.t-iigh Court ruling has the effect ·Of -amenEling the law-• and taking away the powers of the Registrar, he pressed us to quash it and set it aside. 21 On his part, Mr. Magafu has pressed us to find the applicants' grievances totally wantlng in merit. Without any elaboration, he contended that s. 99( 1) of the Act ''gives powers of rectification to the High Court and the

Registrar of Titles subject to the conditions mentioned therein." He did not find it of any assistance to us to expound on those conditions. He also differed with Mr. Malata on the latter's assertion that the decision of the High Court infringed on the powers of the Registrar. To use his own words, he said: "The High Court decision did not take away the powers of the Registrar of rectification of the. register. But it considered the circumstances of this particular case. " He accordingly urged us to hold that the learned High Court judge committed no error worth correcting, and prayed for the dismissal of the application. We believe that the above reproduced assertion of Mr. Magafu . affords us-tl"le-necessary springboard for our disGussioA. The crucial issue-- here is whether the learned High Court judge was correct in holding that the Registrar could not have rectified the land register under s. 99 (1) of the Act without a High Court order to that effect. The determination of this 22 • 'i issue hinges on the interpretation of this provision of the Act, which we • have already reproduced in full earlier on in this ruling. - We have carefully reads. 99 (1) as a whole and we have found it to be plain needing no interpolations regarding the authorities vested with · powers to rectify the land register. The law provides in no uncertain terms that swch rectifications may be made

"pursuant at to an order of the High Court or by the Registrar'~ The law goes further to provide that a rectification by the Registrar shall be subject to an appeal to the High Court. We have found this to be the only condition tied to the exercise of the power of rectification by the Registrar. While a purposive reading of this provision leaves no doubt on the fact that such an appeal can only be made subsequent to the exercise of this power by the Registrar, an order of the High Court granting leave to the Registrar to rectify is not a condition precedent. In appropriate cases, save for those specifically mentioned in items (a) and (b), the Registrar has -unfettered power te~reetify the-lane-register inde!JeAElently-of the l··ligh- -- Court pure and simple. In view of the above short discussion, we are, respectfully, increasingly convinced that the learned High Court judge gravely erred in 23 holding that the Registrar could not take action to rectify the land register.· without a High Court order directing or authorizing to him/her do so. It is indeed correct, as protested by the applicants/complainants, that the natural consequences of this holding is to bar the Registrar from exercising his powers under s.99(1) of the Act. This erroneous interpretation, in the circumstances, cannot be allowed to stand. We are, therefore, justifiably constrained to invoke our revisional

powers under s. 4(3) of the Act to quash and set aside the impugned High Court ruling dated 13th August, 2013, which we hereby do. It has occurred to us that the learned High Court judge did not consider the merits or otherwise of the respondent's appeal, following the erroneous construction she gave to s.99(1) of the Act. Having quashed and set aside the ruling, the appeal, by and large, remains undetermined. As we cannot step into the shoes of the High Court in the circumstances of this case and do what it ought to have done but for the established error, ----w_e_r:emit~the record of appeal to it, for the matter to be heard afresh and determined according to law. For the avoidance of doubt, we order that the appeal be heard by another judge of competent jurisdiction. We so order. 24 ., I DATED at DAR ES SALAAM this ...... day of October, 2015. . JUSTICE OF APPEAL

JUSTICE OF APPEAL

JUSTICE OF APPEAL i 25