IBRAHIM TWAHILI HUKUMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CIVIL APPEAL NO. 3 OF 2023 (Originating from the decision Registrar of Titles in Rectification of the Land Register Plot No.15 Block “B” Nyasubi C.T. No. 16277 Kahama) IBRAHIM TWAHILI…..............................................APPLICANT VERSUS 1. THE REGISTRAR OF TITLES 2. THE COMMISSIONER FOR LANDS 3. THE DIRECTOR OF KAHAMA MUNICIPALITY 4. MASALU LUBIGISA BUDABYA RESPONDENTS 5. MPWANI FUNDIKIRA 6. ADIJA BINTI NKWABI 7. IBRAHIM KUSUNDWA 8. KANANA OR ALIMA BINTI KUSUNDWA 9. MILEMBE BINTI KUSUNDWA JUDGMENT 29th April & 14th June 2024 F.H. MAHIMBALI, J The nutshell of this matter arises from the suit land originally owned by the late Seleman Kusundwa, whom after his demise his 1 ownership was transferred to the Administrator General as administrator who later released the right of occupancy to all beneficiaries of the late Selemani Kusundwa. For unknown circumstances, one beneficiary Twahili Selemani Kusundwa applied to Kahama Municipal Council to change ownership from the registered names of all beneficiaries to his name, for a reasons of having been in possession for such long time, the application of which was granted. Unfortunately, Twahili Selemani Kusundwa passed away and led for the appointment of Ibrahim Twahil Kusundwa the appellant as the administrator of the estates of the late Twahili Seleman Kusundwa. In due course, the said Ibrahim Twahil Kusundwa disposed the suit land to the fourth respondent. The act of change of ownership from Ibrahim Twahil Kusundwa to the fourth respondent was not successful as it faced with obstacles. Being the case, the second respondent initiated a move by filing an application for rectification of an error in the land register to the first respondent requiring him to rectify the land register in respect of right of Occupancy registered under C.T. No.16277LR Mwanza. After had received the said application for rectification, the first respondent took further steps of satisfying herself on the said wrong memorial date. He found the wrong memorial existed and arranged for 2 issuing a notice to the appellant and the fourth respondent before registering rectification. On 6/5/2022 the first respondent issued a notice of intention to rectify land register by deleting the name of Twahili Selemani Kusundwa and replace thereof with the name of Administrator General to the appellant via post address; 16259 Kahama. Similarly, the notice was served to Muhoja Nkwabi, Director of Municipal Council and Masalu Lubigisa Budabya. After the period of the notice had expired without any objection from any interested party or owner, the 1st respondent acted upon by rectifying the land register to read the name of all beneficiaries with their respective shares. The appellant was unhappy with such decision of the Registrar of Titles, he has now approached this Court marshalled with six grounds of appeal to wit; 1. That, the Assistant Registrar of Titles erred in law and in facts in arriving at his decision by rectifying the land register without according the appellant whose title over the land was in his name the right to be heard resulting to miscarriage of justice. 2. That, the Assistant Registrar of Titles erred in law and facts by failure to properly exercise his powers and consequently abdicating 3 his powers to the Commissioner for Lands whose influence and biasness resulted to injustice decision. 3. That, the Assistant Registrar of Titles erred in law and in facts by rectifying the land register and affecting the 4th respondent’s title over the suit property – plot No.15, Block B Nyasabi – Kahama, CT No.16277 in the name of Twahili Selemani Kusundwa despite having knowledge that the plot in question was in possession of the fourth respondent who is the bonafide purchaser having bought the same from the appellant. 4. That, the Assistant Registrar of Titles erred in law and in facts by rectifying the land register and affecting the appellant’s title and interest over the land on allegation of fraud without any evidence on record, that the appellant or his father whose title was granted at the participation of the 1st, 2nd and 3rd respondents who were privy or parties or contributed to the alleged fraud, if any, in consequence of which such rectification was effected. 5. That, the Assistant Registrar of Titles erred in law and facts in arriving at the decision as he did without calling, evaluating and analysing material evidence to support his decision and merely relying and acting on suspicion, hearsay and imaginary facts. 4 6. That, having realized that the title by the appellant owes from the administration of the estate of the late Twahil Kusundwa, the Assistant Registrar of Titles erred in law and in facts in entertaining claims outside the scope of proceedings in respect of administration of the estates of the late Twahil Kusundwa to which he had no jurisdiction. 7. That, the Assistant Registrar of Titles erred in law and in facts by rectifying the land register and thereby affecting the title or interests of the appellant over the suit property, on allegation of non -existing family dispute, purportedly involving the appellant and the 5th ,6th ,7th ,8th and 9th respondents. During the hearing of this appeal, the appellant had legal representation of Mr. Derick Kahigi learned advocate, while Mr. Musa Mpogole learned State Attorney appeared for the 1st, 2nd and 3rd Respondents, and Mr. Robert Rutaihwa learned advocate appeared for the 4th respondent and for the 5th to 9th respondents the matter proceeded exparte against them. Arguing for appeal Mr. Kahigi submitted that, this appeal is against the registration act of rectification of title in respect of plot no. 15 Block B – Nyasubi Kahama CT 1627. The said act was known to the appellant 5 on 14th Dec. 2022 vide letter with Ref. No. LR/T/16277/58. On the first ground of appeal, the grievance is that the Registrar of Titles erred in rectifying the Land Register, as the appellant was denied with the right to be heard which led to the miscarriage of justice. It is indisputable that the property in dispute at the time of the impugned rectification of the Land Register, it was in the name of the appellant. This fact is fortified by annexure RT – 2 which forms part of the proceedings of 1st Respondent. In essence it was in the name of the late Twahili Selemani Kusundwa whose estate is administered by Ibrahim Twahili Kusundwa. Thus, the appellant was in possession of the said title at the time of the impugned rectification. Despite being in possession of the alleged property he was denied the right to be heard before the act of rectification by the 1st respondent. There was no notice of rectification issued to the appellant through his registered address as it appeared on the certificate of title which is in dispute. Going through the certificate of Title (annexure RT2), shows that the address of Twahili Sulemani Kusudwa is P.O BOX 698 Kahama. The record shows further that the appellant was neither notified of the said 6 rectification if at all were there nor served to him. He was neither notified of the existence of the decision vide the letter dated 5th Aug. 2022 (annexure RT.8). Instead the said letter is addressed to one Masalu Lubigisa Budabya (4th Respondent), the same was copied to Commissioner for Lands, Assistant Registrar of Titles and Kahama Municipal Executive Director. Thus, the appellant who had a vested right was denied with the right to be heard which is contrary to the requirements of the law as stipulated in the case of Mbeya Rukwa – Auto part Ltd vs. Justina Mwakyoma (2003) TLR 25, at page 265, where the court stressed that the right to be heard is the paramount right which should not be abrogated before reaching any decision against any party. Mr. Kahigi further argued that since the appellant was not heard, thus the proceedings and decision so reached need to be nullified. He banked his argument by refereeing this court to the case of Shabani Absis Sherally and Another vs. Abdul sultan Haji Mohamed, Civil Application No. 33/2002 cited with approval at page 5 and 6 of the CAT’s decision in the case of Pilly Ernest vs. Moshi Musani, Civil Appeal No. 39/2019 unreported. 7 With the second ground of appeal, Mr. Kahigi stated that Assistant Registrar of Titles erred in law and fact by failure to properly exercise his powers and consequently abdicating his powers to the Commissioner for Lands whose influence and biasness resulted to injustice decision. He added that according to s. 99(1) of the Land Registration Act, Cap 334, it is the Registrar of Titles apart from High Court who has powers to rectify the particulars of the Land Register. Who is Registrar of Titles, section 2 of the Land Registration Act, defines that office as including the Registrar of Titles, Deputy Registrar and Assistant Registrar. In other words, these are the only people as per s. 99 (1) having powers to rectify the Land Register. Now as per the proceedings filed in court, the one who effected the said rectification as per suit property rectifying land register was the Assistant Commissioner by name of H.U. Kitilya (see annexure RT8). That means the Registrar of Titles had surrendered his powers conferred as per law to the Commissioner for Lands. Thus, it is the Commissioner for Lands who rectified the said Land Register. Mr. Kahigi was of the view that as per s. 99(1) of the Land Registration Act, read together with s. 2 the Commissioner for Lands has no such powers of rectifying the Land Register. So, the Commissioner for Lands had acted without jurisdiction when he rectified or influenced so. He referred this Court to the case of 8 Commissioner General of TRA vs JSC Atomredmetzoloto (ARMZ) Consolidated Civil Appeal No. 78 and 79/2019 cited with approval in the case of Michael Joachm Ngalo vs. Jitesh Jayantilal Ladwa, Civil case No. 18 of 2021 at page 1. He also added that, since the Commissioner for Lands had rectified the Land Register without jurisdiction and since the Registrar of Titles failed to exercise his powers reasonably, then the resulting decision was null and void. With the third ground of appeal, Mr. Kahigi submitted that the Assistant Registrar of Titles erred in law and fact in rectifying the suit plot No. 15 Block B Nyasubi Kahama CT 16277 in the name of Twahili Suleman Kusubwa despite having knowledge that the plot in question was in possession of the 4th respondent who is the bonafide purchaser having bought the same from the appellant, thus affecting his rights. He submitted that, reading paragraphs 7-8 of the 1st respondent’s proceedings, it is clearly admitted by the first respondent that the suit property was bought by the 4th respondent. In other words, at the time of rectifying the Land Register, the 4th respondent was about to be registered as new owner. He added that, according to s. 99(2) of the Land Registration Act, the law is very clear that Land Register is not 9 rectified so that it does affect those with titles unless it is sought so. The same is provided s. 99(2) (b) (c). In the proceedings of this matter nowhere the appellant is alleged to have committed fraud or unjust acts warranting his property be rectified. The failure of the Registrar of Titles to establish that there was such fraud or unjust acts that he was prejudiced, he had no such justification doing what he did. As he was barred by the law, he ought not to have rectified so. Even the search established so, that there was no such justification. Arguing the 4th ground of appeal, Mr. Kahigi averred that the ART erred in law and fact by rectifying the land regiser and affecting the appellant’s title and interest over the land on an allegation of fraud without any evidence in record. Since the appellant or his father whose title was granted at the participation of the 1st, 2nd and 3rd respondents. Who then, were the master minds of the alleged fraud (if any) and what was it, queried Mr. Kahigi. Going through annexure - RT 8 (decision by the Registrar of Titles) dated 5th August 2022, there seem to be allegations of fraud channelled to the appellant on account that they had obtained the said suit fraudulently (see para 4 (iv). The allegation is that; the property was originally in the name of Administrator General 10 who had transferred that property to the 5th -9th respondents but it is unknown how the Registrar of Titles got that letter. Pursuant to the proceedings filed (RT-1) the transfer of Right of Occupancy to 5th -9th respondents are not disclosed. That transfer has in fact no any relationship with the Title Deed in question submitting that whereas the title deed in question its certificate reads 16277, the title deed the Administrator General had transferred to the 5th -9th respondents reads 16404 (RT2). He stated that these are two different titles. While certificate of title in question is in respect of plot No. 15 Block B Nyasubi Kahama area as per annexture RT – 1, the property transferred is not disclosed. He therefore argued that the linkage between these two documents and plot materially are different. Thus, even the particulars the said fraud as per proceedings have not been stated. With the fifth ground of appeal Mr. Kahigi submitted that the decision by the Assistant Registrar of Titles was arrived without calling, evaluating and analysing material evidence to support his decision, instead, greatly acting on suspicion hearsay and analysing material evidence to support his decision and merely relying and acting on suspicion, hearsay and imaginary facts. 11 Going through the proceedings by the 1st respondent especially annexure - RT 6, there are documents named as minute sheet with respect to plot No. 15 Block B Nyasubi Kahama, the author is not known, but disclosed which words prompted the Assistant Registrar to rectify the Land Register in respect of the suit property. The proceedings filed are silent and that the author is undisclosed. Mr. Kahigi is therefore of the view that the 1st respondent had not well gathered the facts of the case thus reached to an erroneous decision. In respect to the 6th ground of appeal Mr. Kahigi alluded that Assistant Registrar of Titles had entertained claims outside the scope of proceedings in respect of administration of the estate of the late Twahil Kusundwa to which he had no jurisdiction as the appellant’s title is owed from administration of the estate of the late Twahili Kusundwa to which he had no Jurisdiction. He added that under para 6 of the proceedings, this fact is loudly clear. For anyone with legal claim in respect of that property ought to have channelled vide the scope of probate proceedings. As that was not done, there was no such room by the 1st respondent to have entertained the proceedings in respect of the suit claim outside his scope. In the absence of legal challenge to probate court, the Assistant Registrar of Titles, had no such legal mandate to order that rectification as done. Had such claims existed, the same 12 ought to have been channelled on probate scope proceedings, insisted Mr. Kahigi. With the 7th ground of appeal, Mr. Kahigi submitted that the rectification by the Assistant Registrar of Titles affected the title or interests of the appellant over the suit property on allegations of existing family dispute purportedly involving the Appellant, and the 5th -9th respondents. As per annexture 8 i.e letter dated 5th Aug. 2022 para 3(ii), it is written in Swahili version “Miamala yote imezuliwa kwa sababu za kifamilia”. Mr. Kahigi’s opinion was that since the Registrar of Tittles (RT) had not received any formal complaint amongst the 5-9th respondents nor has there been any complaint from the Administrator General on ownership of the suit property nor has there has been any claim from the late Kusundwa on ownership of the suit property, who then validly challenged ownership of the said property as alleged. Further there has been no any caveat registered purporting to register the suit property. Therefore, the Registrar of Title having not received any genuine complaint from anyone, it was not proper and just for him to effect the said rectification as meted. 13 He finally pressed for the appeal be allowed as well the orders sought be granted. On reply to the submission to the grounds of appeal for the 1st,2nd ,3rd respondents, Mr. Mpogole first prayed that the proceedings filed by the Assistant Registrar of Titles - Mr. Emmanuel Stephen Gwaltu dated 29th April 2024 pursuant to s. 102(4) of the LRA Cap. 334 be adopted to form part of his submission. With the first ground of appeal, Mr. Mpogole submitted that though there is a constitutional guarantee of the right to be heard it being a fundamental right that one must be fully heard, however, there are legal procedures provided under Article 13(6), of the Constitution together with the right to be heard, one has also a duty to abide. In the cases of Wambula Mtumwa Shahame vs. Mchama Hamis, Civil Reference No. 8 of 2016 CAT at DSM, at page 12 (para 2), MT. 59 505 Sgt. Aziz Athuma Yusufu vs. The Republic, Criminal Appeal No. 324 of 2019 at page 12 (para 2), the Court of Appeal observed that the right to be heard is not absolute. It has to be enjoyed within certain limits prescribed by the law. Mr. Mpogole further argued that in the current case, the appellant and the 4th respondent were accorded with the right to be heard as per 14 notice of intention to rectify dully served to them dated 6/5/202 registered by post on 16/5/2022. From that service, they had remained mute within a provided time – 30 days. Since by 16/6/2022, they ought to have made their reply, failure of it, suggests abdication of their right. The reason for rectification was wrong memorial of the plot no. 15 Block B- Nyasubi. It was supposed to be replied timely. By being mute, mandated the 1st respondent to proceed with his intention. The said notice was served pursuant to s. 110(1)(c) of the Land Registration Act as to their last known address. Annexure – RT 5 (page 4), postal parcel postage page 4 – RT5. By remaining mute after being served, it mandated the 1st Respondent’s intention of rightly proceeding with the rectification as per law. Mr. Mpogole banked his argument with reference to the case of Mr. Muhsin Gulamhussein Sonji vs. AG & ART, Land Appeal No. 30 of 2017, at page 11 (para 2). With the second ground of appeal Mr. Mpogole fortified that it is not true that Assistant Registrar of Titles had refused to act and thus there is no any error committed. He added that pursuant to s. 99(1) of the LRA empowers the Registrar of Titles to rectify the title. As per RT- 7 the reason to rectify is provided. At page 2 (last paragraph) provides the 15 reason. Also, the letter RT – 8 dated 6/5/2022, the addresses is Ibrahim Kusundwa states the reason as to why the rectification was done thus there is nothing unjust. Another thing that moved the ART is the application for rectification of an error in land register dated 8/12/2021(RT - 4). Also, a letter dated 4/11/2021 – RT – 2 para 4. That the said rectification was done by Commissioner for Lands - RT 8& 102. As the decision was drawn from the letter dated 5th August 2023, the decision was given by Registrar of Titles pursuant to the letter RT – 7. With the issue of caveat, there is one registered by Mgeni Twahili Kusundwa dated 7/6/2016 and that of Mhoja Nkwabi registered on 3/11/2020 and injunction by Registrar dated 7/8/2022. All these were revealed by official search done by 4th Respondent by name of Masalu Rubigisa. As if this is not enough there was a letter from the Minister of Land dated 29/7/2022 which was to be complied by the Registrar of Titles – RT 6. Thus, there was no power abrogation by the Commissioner for Lands as alleged. With the 3rd ground of appeal, Mr. Mpogole stated that the Registrar of Titles did rectification as per law and that none was 16 prejudiced. Thus the 4th Respondent was in no way affected. Had all this be done, none was affected therefore, the fourth respondent cannot claim being bonafide purchaser of the plot as alleged. With the fourth ground of appeal, Mr. Mpogole disputed it and contended that as the Registrar of Titles rightly applied the law and reached a proper finding as per fraud alert in respect of the said title. In essence the fraud is, there is no proof of transfer from six beneficiaries to Twahil Seleman Kusundwa. This is in compliance to s. 99(2) a of the Land Registration Act. The rectification by the Registrar of Titles traced its etymology/gensis from the letter of the Commissioner for Lands and other letters dated 25/11/2021, 4/11/2021 (RT2). He fortified that, the connectivity between RT1 & RT2 is this the beneficiaries in CT 16404 were Appellant, 5th to 9th respondents. But upon its expiry it was re- issued to be CT 16277, the beneficiaries remained the same. Thus, there is a nexus between these two documents. RT1 & RT2 as both talk of the same plot No. 15, Block B Nyasubi. Arguing 5th ground of appeal, Mr. Mpogole stated that the same is denied as the Registrar of Titles arrived at a just decision basing on the evidence in record. There was no any suspicion or imaginary facts in 17 acting so. This is vividly basing on RT-6 minutes to the letter of the minister dated 29/7/2022. As per this letter, the addressees are the respondents (5th – 9th) and the appellant inclusive. From this basis though that letter came from the Minister but the executor of it was the Registrar of Titles. On the sixth ground of appeal, Mr. Mpogole submitted that as per S. 99 of the Act, empowers the Registrar of Title to do rectification. Amongst the reasons provided are fraud, caveat. Thus, the Registrar exercised his powers rightly as per law. With the 7th ground of appeal, Mr. Mpogole maintained that as per available dispute (family dispute), the Registrar of Title had all powers to do rectification as done. Referring to the caveats registered by Mgeni Kusundwa is relevant to the said matter as it referred to the siblings /relatives. Thus, the Registrar of Title had all those legal powers to do rectification as done upon the registration of the said caveats. As the Appellant was dully notified but slept over his right meant he squandered it. Mr. Mpogole finally pressed that the decision by the Registrar of Titles was justified and thus this appeal is devoid of any merit, it should be dismissed with costs. 18 Mr. Robert for the 4th respondent, supported the appeal. With the first ground of appeal, he averred that it is trite law that a decision reached in contravention of the law is a nullity. In respect of the current appeal, digesting the postal address particulars of the appellant as per annexure RT -8 against RT-2, it is clear that there is that confusion of which address was used to dispatch the said notice. The right to be heard as per our constitution does not merely mean hearing a party but it must be a fully accorded hearing. If there is no proof of a fully accorded right of occupancy, the resulting decision affecting the rights of others is a nullity. Thus, the consequence of a nullity is nullification of the whole proceedings. On the second ground of appeal, Mr. Robert alluded that it is clear that as per annexure RT -7 in particular page 2 (para 3), the decision of the Assistant Registrar of Titles was influenced by the Assistant Commissioner for Lands -thus not his own informed decision but that of the Assistant Commissioner for Lands which is contrary to section S. 99 (1) of the Land Registration Act which provides for only two authorised institutions with legal mandate to do rectification on the Land Register: the Registrar of Titles and the High Court of the United Republic of Tanzania. On annexture RT 8 (para 3 i-ii) assuming that direction was proper then the above is clear on the extent of directions issued if had 19 not influenced the Registrar of Teitles. He emphasised that since jurisdiction is a question of law, it cannot be assumed by parties – citing the case of Commissioner General of TRA vs JSC Atomredmetzoloto (ARMZ) Consolidated Civil Appeal No. 78 and 79/2019 cited with approval in the case of Michael Joachm Ngalo vs. Jitesh Jayantilal Ladwa, Civil case No. 18 of 2021 at page 1 when arguing the second ground of appeal is distinguishable with the jurisdiction cherished under section 99 of the Land Registration Act. With the 3rd ground of appeal, Mr. Robert submitted that the rectification done affected the right and interests of the 4th respondent as well. As per par 7 & 8 of the proceedings the 1st respondent was aware that the suit in question being purchased by the 4th respondent. The purchase was done 2/11/2020. With RT -8, it cites s. 99(2) of LRA. This section makes restriction that any rectification should not affect the rights of the lawful purchaser. The 1st respondent being aware of the whole transaction, proceeded to effect rectification without affording the 4th respondent with the right to be heard. This is fortified under paragraph of the proceedings by citing land case no. 4 of 2020 which was between Muhoja Nkwabi Kabalo vs Ibrahim Twahili Kusundwa as administrator of the estate of the late 20 Twahili Seleman Kusundwa (appellant). He craved this Court to refer sections 58 & 59 of the TEA as his client has declared the rightful owner of the suit land and also on the fate of the caveat lodged by Muhoja Nkwabi Kabalo which he was ordered to withdraw the said caveat. That there was fraud, it ought to be established beyond reasonable doubt as it is higher and above a mere preponderance of probability. He referred this court to the cases of Omary Yusuph vs. Rahman Ahmed Abdulkadir (1987) TLR 160, City coffee Ltd vs. the Registered Trustee of Ilolo coffee Group, Civil Appeal No. 94 of 2018 – page 11-12 to the effects. Mr. Robert further added that so long as fraud was inferred it ought to have seen reflected even in the decision. The cited enabling provision making decision (s. 99(1) is thus inapplicable in relation to rectification done. Mr. Robert was of the further view that the proceedings are self-defeating. Thus s. 110 of TEA has to be invoked. On the 5th ground of appeal, the rights were to be protected. But reading to the proceedings, they are seen to be more imaginary persons. Throughout his client has never come across these 5th – 9th respondents. 21 On the sixth ground of appeal, entertaining the matter outside the scope of probate law, Mr. Robert stated that it was not proper so long as this matter involved probate cause no. 9 of 2019, any person with interest had to register his concern in land case no 4 of 2020. With the seventh ground of appeal, Mr. Robert submitted that there is no any proof of a family dispute as alleged. The said Mgeni was also a beneficiary of the said disposition and he assented to it. He thus prayed for the appeal be allowed and the orders sought be granted. Mr. Kahigi resting his submission reiterated his submission in chief that on the first ground of appeal that the appellant was not accorded with that right as was not dully served. The address alleged to communicate the said notice appears to be different from the last known address. As per annexture RT-2 the last known address of the appellant is P.O Box 698 – Kahama. The RT5 & RT8 the encrypted address is not known by the appellant and it is wondered where he got it. Thus, the said notice was not received by the appellant. With the cited authorities, Mr. Kahigi argued that despite with the principles proclaimed therein but they are not applicable in the current case as the appellant was not dully served thus, he never squandered his right as alleged. 22 With the second ground of appeal Mr. Kahigi reiterated the submission in chief. That the orders by the RT were influenced by the orders of Assistant Commissioner for Lands see RT 6, RT7 & RT -8. Thus, the Registrar of Titles acted not as per his own powers but those of the Commissioner for Lands. On ground No.4, on allegations of fraud Mr. Kahigi stated that there is nothing on record that moved the Registrar of Titles on the particulars of fraud as alleged. Thus, there is no such justification as by the way, there is no that connectivity between annexure RT 1 and RT 2. With ground no. 5 the rejoinder submission is reiteration to the submission in chief. The rejoinder is RT 6 speaks for itself. As there was no hearing of those alleged complaints, the RT 6 was in essence a directive and not his own informed decision. As it is that letter is a directive and not otherwise. Ground no. 6 is reiterated as per submission on chief. Similarly, the reiteration is made to the 7th ground. Mr. Kahigi further added that as per RT 8, the alleged dispute purportedly involved between the appellant and 5th - 9th respondents. The submission by Mr. Mpogole is misplaced on this fact. He then prayed for the appeal be allowed with costs. 23 Having heard the rival submission of the parties, I have now to determine this appeal and the issue for consideration is whether this appeal is merited. I have gone through the proceedings before the Assistant Registrar of Titles as to what transpired before it and upon close digest of the submission of both parties, here under are my deliberation to the effect. In disposing the first ground of appeal, I would like to state that rectification of land register is a critical aspect in land law. The importance of rectification of land register was once underscored in Brickdale, CF and Stewart- Wallace, JS., Land Registration Act 1925, 4th edn, London: Steven and Sons Ltd, 1939 at page 637 in relation to British legislation on land registration; “ ...no provisions in the Land Registration Act are more vital than those relating to rectification of the register and the provision of indemnity for error. The working practicability of the system depends largely upon them” This means that the rectification provisions are to be interpreted with particular care. The reasons for rectification of land register are spelt out under section 99 (1) of the Land Registration Act [Cap 334 RE 2019] as follows: (a) (b) (c) (d) (e) giving effect to a High Court order 24 [section 99 (1) (a) and (b]; there is consent of interested persons; [section 99(1) (c)] ; the memorial was obtained by fraud; [section 99 (1) (d)]; updating the register because the memorial has become obsolete; [section 99 (1) (e)] or; correcting an error, omission, a mistake in the land register, or for any other sufficient cause it is deemed just to do so; [section 99 (1) (f)]. The third and fifth reasons are subject to restrictions set forth under subsection (2) of section 99. The rectification of the land register that is a subject of complaint in this case was made by the 1st respondent under Section 99(l)(f) (1) & (2) (a) of the Act. It is not disputed that the Section allows the Registrar of Titles to rectify the Land Register. According to Section 99(l)(c) of the Act, this rectification can be at any time, only that it has to be done with the consent of all persons interested. To be more precise, in order for the rectification to be effective, all parties with interest to the property must be notified of the intended rectification. In Misc. Land Case Appeal No. 58/2018 African Terminal Limited Vs. The Registrar of Titles & Others, when faced with the same situation, Hon Makani, Judge held: "Indeed, the Assistant Registrar of Titles has the power and mandate to rectify the Land Register under section 99(1) of 25 the Land Registration Act. However, according to section 99(l)(c) rectification of the register can be at any time with the consent of all persons interested. In other words, there has to be a notification to the party who is going to be affected with the rectification for purposes of awareness and consent." It is trite law and I may not need to site any authority, that the right to be heard is a fundamental one. This right to be heard has been so emphasized by the courts of law to the extent that even if the same decision would have been reached had the parties been accorded an opportunity to be heard, the fact that a person was condemned unheard nullifies that whole decision. As correctly argued by Mr. Kahigi and Robert when referred to the case of Mbeya Rukwa – Auto part Ltd vs. Justina Mwakyoma (2003) TLR 25, at page 265, Shabani Absis Sherally and Another vs. Abdul sultan Haji Mohamed, civil Application No. 33/2002 cited with approval at page 5 and 6 of the CAT’s decision in the case of Pilly Ernest vs. Moshi Musani, civil Appeal No. 39/2019 unreported. Now, in the instant matter it is complained that the rectification by the 1st respondent affected the rights and interest of the appellant and 26 fourth respondent - a bonafide purchaser. Worse enough the decision reached without according with the right to be heard on the matter affecting them. Further, the alleged notice was forwarded to the wrong address which is not known to the appellant. The proper address was that in land register of the late Twahil Seleman Kusundwa which is Po. Box 698 Kahama but the notice was addressed to P.o. Box 16259 Kahama being wrong address to him. Therefore, the service of notice was ineffective. The version which is totally opposed by Mr. Mpogole. I have dispassionately looked to the address which is contemplated into the notice of rectification of Land register to have been addressed. Mindful the service of the notice to the parties with interest over the matter was through postal address. Since the appellant was and administrator of the estates of the late Twahili Seleman Kusundwa, and taking into account that the address was not changed so in the land register, then the proper address was 698 Kahama and not 16259 Kahama. In upshot, since the address purported to be of the appellant was not correct, it is easier to conclude that the appellant and fourth respondent were denied with the right to be heard on the matter which affect their right and interest on the suit land. 27 However, in my close digest, I have found that the suit land was allegedly to have been disposed by way of sale by the appellant to the fourth respondent, thus in the course of changing ownership from the appellant to the bonafide purchaser, things went contrary. The critics in my mind is that, if that is so, what is the proper address inserted by the appellant when changed ownership of the suit land from the late Twahili Suleman Kusundwa to himself. Sorry to say neither of the parties have addressed this, perhaps it is the address which the appellant was served with the notice. Since it has not substantiated with evidence, let’s leave it as it is. In respect to complaint of abrogation of power by the Registrar of Titles to the Commissioner for Lands. The complaint by the appellant is that the rectification of the land register was influenced by the Commissioner for Lands and not the Registrar of titles as the Law requires. It is however argued that the letter dated 05.8.2022, (RT- 8) by the Assistant Commissioner for Lands was more directive and thus influenced the decision of the Registrar of Titles. Mr. Mpogole is against this preposition on the instance that the desire for rectification was caused by many factors including fraud on obtaining Right of Occupancy by the late Twahili Ibarahim Kusundwa and the letter from the Minister of Land after has received complaint over the suit land. 28 The direct rectification powers of the Assistant Registrar of Titles are under section 99 (1) (c), (e), and (f) of the Land Registration Act. The direct rectification powers are confined to cases of parties' consent; updating; errors, omissions, mistakes, or any other sufficient cause deemed to be just. The rectification powers under section 99 (1) (a) and (b) are conferred to the High Court although under subsection (d), the High Court has concurrent rectification powers with the Assistant Registrar of Titles. In as much as the rectification powers under section 99 (1) (a) and (b) are directed to the High Court, both subsections envisage rectification pursuant to an order of the High Court. Subsection (a) states in part that: "where the High Court has decided that any person... and makes an order to that effect” A similar wording is evident in subsection (b) which provides in part that: "where the High Court, on the application ... makes an order for the rectification of the land register,". Consequently, the rectification notice must contain an order of the High Court directing rectification of the land register in question. Neither was there any order of the High Court referred to in the rectification notice nor was there any order of the High Court tendered or referred to in the present appeal. 29 Glaring the above principle, plainly, it is clear as correctly argued by Mr. Kahigi that only two offices are vested with the powers of rectification of the Land Register to wit The High Court and the Registrar of Titles. In the instant matter looking for rectification of the Land Register effected by the Registrar were due to the reasons stated for rectification in the later received from the Assistant Commissioner for Land Shinyanga region directing rectification on ground of fraud. See RT 7, similarly the notice for rectification transpired the same see RT 8. In the circumstances and looking from the grounds for rectification of land register cherished under section 99 of the Act which the same are to be proved by hearing the affected parties. I sincerely agree with Mr. Kahigi and Robert that the rectification of Land Register affecting the suit land in question was much influenced by the Assistant Commissioner of Lands and not on established facts. However, it is my considered view that the general administration of land in Tanzania is vested to two main officials – Minister for Lands and the Commissioner for Lands (See section 8 and 10 of the Land Act). In consideration of that fact, the Land Registration Act, should not be read in isolation of the Land Act. That means, where there are genuine issues from the office of the Commissioner for Lands or Minister responsible for Lands, the Registrar of Titles is bound to make a diligent investigation so as to arrive at the 30 proper finding. To my understanding, the three offices are almost tripartite. There is no way the Registrar of Titles can function his duties well under the Land Registration Act in the isolation of the Commissioner for Lands and/ or Minister for Lands. There is a nexus of the trio offices as far as the smooth management and administration of land is concerned. What land is registered in the Land Register is what has been sanctioned by the Commissioner for Lands. So, whenever there is a smell of errors, omissions, mistakes, or any other sufficient cause deemed to be just such as fraud, affecting the title holders of right of occupancy, the Registrar of Titles has good reasons to do rectification as per law. These errors, omissions, mistakes, fraud etc must be ones that should satisfy the Registrar of Titles. My take to this, such an information may originate from interested parties or any authority on the management of land. Since the Commissioner for Lands is the principal administrative and professional officer of, and adviser to, the Government on all matters connected with the administration of land shall be responsible to the administration of the Land Act and the matters contained in it. Therefore, reading annexure RT 7, it is true that the said rectification in the land register was influenced by the office of the Assistant Commissioner for Lands after having obtained the directives 31 from the office of the Minister for Lands (RT-6) dated 29th July 2022. In my considered view, since the Registrar of Titles is not an independent office but under the control of the Minister for Lands (section 4 of the Land Registration Act), I wonder how the said influence would have prejudiced the appellant had the due process of rectification complied with the law (see RT- 8 – notice of rectification). The fault with me is on the legal procedure preceding the said rectification and not the influence as anyone with interest can influence any decision to be taken. What is important is who rectified the said land register as per law; did he follow the requisite legal process? Since his decision is not final, there is nothing to worry so long as the law dictates the procedure. After all, it is not prohibited as per that law, that the Commissioner for Lands should not influence the Registrar of Titles where there is discovery of any errors, omissions, mistakes, fraud. However, the jurisdiction issue portrayed by Mr. Kahigi when cited the case of Commissioner General of TRA vs JSC Atomredmetzoloto (ARMZ) Consolidated Civil Appeal No. 78 and 79/2019 cited with approval in the case of Michael Joachim Ngalo vs. Jitesh Jayantilal Ladwa, Civil case No. 18 of 2021 at page 1 when arguing the second ground of appeal is of great importance that it being a statutory creature, cannot be granted by parties though in the 32 current matter. However, the jurisdiction in this matter is cherished under section 99 of LRA. Nevertheless, the principle remains the same. Mr. Kahigi also had complained that, it was error for the Registrar of Titles to rectify the Land Register over the suit land on account that the suit land was already disposed by the fourth respondent and it was in final stages in changing ownership. Therefore, basing to the law under section 99(2) of the Land Registration Act, restrict rectification of land register to a bonafide purchaser who was not a party of disputes. I have a looked at section 99 (2) of the Land Registration Act and to be precise the section reads as follows; “The land register shall not be rectified so as to affect the title of an owner of an estate who is in possession– (a) unless such owner is a party or privy or has caused or substantially contributed to the fraud, mistake or omission in consequence of which such rectification is sought; or (b) unless the immediate disposition to him was void, or the disposition to any person through whom he claims otherwise than for value was void; or 33 (c) unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him”’ From the above provision, I am declined to agree with the argument by Mr. Kahigi on the fate that the provisions empower the Registrar of Titles to rectify the Land Register in any circumstances fall under paragraphs (a-c) of subsection 2 under section 99 of the Act. As correctly provided among of the reasons for rectification in the instant matter included fraud, void disposition of the Right of Occupancy from all heirs to the late Twahili Suleman Kusundwa whom his estate is administered by the appellant and therefore is a party, thus the disposition made by the appellant to fourth respondent also which is purportedly void, with these reasons then the Registrar of Titles may rectify the Land Register. In respect to fourth ground of appeal, Mr. Kahigi and Mr. Robert averred that the Assistant Registrar of Titles erred in law and fact by rectifying the land register and affecting the appellant’s titles and interest over the land on an allegation of fraud without any evidence in record, that the appellant or his father whose title was granted at the 34 participation of the 1st, 2nd and 3rd Respondents, the preposition which was opposed by Mr. Mpogole. Notably, from the records pertaining the suit land, it is of no doubts that the disposition/transfer of a suit land is full of doubts. The argument by Mr. Kahigi would be wealth if only the matter would have been heard on merit since it falls on the question of evidence. It cannot easily be rebutted by way of appeal. Any sound person would ask himself/herself how the title deed shifted from the names of all beneficiaries, to the late Twahili Suleman Kusundwa. Despite the fact that even if the tenure of possession of the suit land by all beneficiaries had expired, yet the law allows for application of enlargement/ renewal of the period. See section 3 of Government Leaseholds (Conversion to Right of Occupancy) Act No. 44 of 1969, which states as hereunder; 3. (1) Every Government lease shall, with effect from the appointed day, be extinguished. (2) On or after the appointed day the leaseholder shall hold the land which, immediately prior to the appointed day, was held for a Government lease under a right of occupancy which shall be deemed to have been duly granted to such leaseholder under section - of the Land Ordinance for a term equal to the unexpired term of the Government lease for which the land was held immediately before the 35 appointed day, and, except as varied by this Act, all the provisions of the Land Ordinance and of regulations made thereunder shall apply and extend to such right of occupancy. Mindful, section 4(1)(2) of the Land Act [Cap.113 R.E 2019], defines land in Tanzania as public land vested in the President of the United Republic of Tanzania and any person so delegated by the president. Therefore, as it is alleged the tenure of Right of occupancy over the suit land expired in 1990. Therefore, if that is the case, I am of the view that the suit land after its tenure had expired was vested in the president because the tittle to all beneficiaries was not renewed. But what is cricking my mind is that, one Twahili Suleman Kusunda applied to Kahama Municipal Council for change of ownership over the suit land in 30th July 1971, and the process of changing ownership went up in July 2005 where he was allocated with letters of offer and in 2006 he was granted with the right of occupancy. In my close digest it is clear that one Twahili Suleman Kusundwa changed ownership over the suit land from the all beneficiaries of the late Selaman Kusundwa before the expiry of 33 years tenure of the Right of Occupancy. It is in my opinion that, not only in equity but also in law would the land owner for 33 years simply pass title to someone else without any due legal process. The commissioner in his powers as per section 36 32(4) of the land Act cannot have absolute discretion to allocate it to someone else without notice to the previous owner. If he does, it goes without saying that such person must be entitled to fair compensation done in 33 years of his ownership to that land which was not done in this case. Now, why the all beneficiaries did not apply for extension/renewal of time if they were aware with expiry of their right of occupancy and what factors caused the late Twahili to apply for ownership of the suit land and leave apart the other beneficiaries. All these questions would lead to unknown conclusion when attempt to answer it. Therefore, the doubts transpired over the suit land were subject for proof if only the parties would have been adequately heard. As correctly argued by Mr. Robert when cited the case of: Omary Yusuph vs. Rahman Ahmed Abdulkadir (1987) TLR 160, City coffee Ltd vs. the Registered Trustee of Ilolo coffee Group, Civil Appeal No. 94 of 2018 – page 11-12 when insisted the need of proof. The similar position is also drawn in grounds no five and seven. From the above transactions, one finds difficult to understand whether everything was done under normal course of doing things. 37 Mr. Kahigi also has complained that Assistant Registrar of Titles had entertained claims outside the scope of proceedings in respect of administration of the estate of the late Twahil Kusundwa to which he had no jurisdiction as the appellant’s title is owed from administration of the estate of the late Twahili Kusundwa to which he had no Jurisdiction. It is of no doubts that any matter falling under the probate matters then the probate court has jurisdiction over the matter to determine the fate of the suit land being registered or not. See Ibarahim Kusaga vs Emmanuel Mweta (1984) TZHC 8 (6 April1984) Mgeni Seif vs Mohamed Yahya Khalfani, Civil Application No. 1 of 2009, Deogratius Mayuya vs Sumuni Mayuya and Another, Land Appeal No.24 of 2022 (unreported). Glaring from the facts and records pertaining to the suit land, that the suit land was first owned by Seleman Kusundwa, after his demise the ownership was transferred to ADMNISTRARTOR GENERAL as administrator, the same also transferred to all beneficiaries of the late Seleman Kusundwa in respect of their shares, then transferred to Twahili Seleman Kusundwa, and lastly to the appellant as administrator of the estates of the late Twahili, and the appellant was on the process also of transferring it. 38 All these dispositions involving the registered suit property in my considered view, could only be honoured by the office of Registrar of Titles if there was evidential proof from the probate court. Notably, if no proof from probate Court, then no disposition can be effected. See Jurisdiction of the probate Court in Monica Nyamahare Jigamba V. Mugeta Bwire Bakore, Civil Application No. 199/2019, where it was held: "of course, there could not be a hearing of the evidence because of the approach taken by the 2nd respondent. In our respective opinion, both common sense and logic dictate that, the 2nd respondent ought to have traced the title from the administrator for a gentleman's agreement with the administrator. In case, the administrator refused to recognize her then she ought to have filed a suit against him where the applicant could have had a chance to be impleaded as a party therein." See also the case of Salima Moshi Athuman v Asha Kimolo, [2010] TLR 367 (CAT) where it was held inter alia: 'We have had occasion to consider the case between Ibrahim Kusaga v. Emmanuel Mweta [1986] TLR 26 at p. 30 referred 39 to us by Mr. Mchome (with leave as it was not listed in the list of authorities submitted). Though this is a High Court decision by which we are not bound, we however find the principle laid there in to be sound. In that case the learned Judge observed and I appreciated that there may be cases where the property of a deceased person may be in dispute. In such cases all those interested in determination of the dispute or establishing ownership may institute proceedings against the Administrator or the Administrator may sue to establish claim of deceased's property. We are of the settled mind that the above is the approach that ought to have been taken in the circumstances of this particular case." In the case of Fatma Fatehali Nazarali Jinah v Mohamed Alibhaai Kassam, [2016] 1 T.L.R. 262 where it was held: "We are aware of the Appellant's strong point that she bought the house which forms part of the estate of the late Kulsum Velji or Kulsum Kachra from the previous administrator of that Estate, one Firozali Rawji Kachra, and that she has been in occupation of that house for not less than 22 years. In our view however, much as the point 40 appears attractive, the remedy to her claim may be realized in a separate suit, and not in an application for annulment of the grant. " Notably, section 99 of the Land Registration Act, in my formed view does not allow the Registrar of Titles to effect any changes over the title deed pertaining to probate issues unless there are directives/order from the court arisen from the contention of the parties in the suit land. In absence of these, no disposition/changes may be effected by Registrar of Titles. My take on point of education is that disposition or transfer of land title, should not be done as one does when purchasing chicken at the market, dully diligent and care must be exercised. As Nsekela J (as he then was) in the case of Mazaher Limited vs Murray K. Chume and Another, High Court (Commercial Division), Commercial case no. 89 of 2002 (unreported), said; “Land has intrinsic value which cannot be likened to a bag of beans or maize which can easily be purchased from the market” With all the said, this court is invited to answer the question as to whether the act by the Registrar of Titles was properly exercised. I 41 firmly hold that the acts by the Registrar of Titles was not properly exercised on account that the parties interested over the matter were not heard, the Registrar had no jurisdiction over the matter since the matter emanated from probate issues and lastly there was influence in the decision of the Registrar of Titles. Thus, appeal is allowed. The proceedings and the resulted rectification purportedly doe by the Registrar of Titles is hereby quashed and set aside for being nullity. As to the way forward, the process should start afresh, either through the office of the Registrar of Titles himself or by all or any of the interested parties, either administratively or by judicial process on the alleged symptoms of forgery. If need be, the probate court as well as criminal investigation machineries be taken into board for the proper findings of the matter. All this said, the land suit status be maintained to pave way of determination of the matter by the relevant authorities. I must therefore, conclude that this appeal is merited and consequently allowed to the extent explained herein. With the circumstances of the case, I make no orders as to costs. Right to further appeal is explained. It so ordered. DATED at SHINYANGA this 14th day of June, 2024. 42 F.H. Mahimbali Judge. 43