JOHANSEN Maghimbi New

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM-SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 3922 OF 2024 In The Matter ofthe Application for Leave to file an Application for Judicial Review AND In the Matter of an Application for Leave to file an Application for Certiorari and Mandamus against the Decision made by the Commissioner for Lands and Registrar of Titles against the application for transfer ofownership in respect ofPlot No.2242Block "L" under certificate of title No. 123369, KUongawima Mbezi Beach Dar es Salaam, Plot No. 2107 and 2120 Block "Z." located at Mbezi Beach - Kiiingawima Kunduchi Ward within Kinondoni District in the City of Dar es Salaam, Plot No. 545 Block "f" located at Salasala Kunduchi Ward within Kinondoni District in the City ofDar es Saiaam and Plot No.(484)2196 Block H Medium Density within Kinondoni District in the City of Dar es Saiaam made by Johnsen Leonard Mahururu BETWEEN JOHNSEN LEONARD MAHURURU APPLICANT VERSUS THE ATTORNEY GENERAL RESPONDENT COMMISSIONER FOR LANDS 2"^ RESPONDENT THE REGISTRAR OF TITLES 3'^'' RESPONDENT RULING S.M. MAGHIMBI, J: The application before me is for leave to file an Application for Orders of Certiorari and Mandamus against the Decision made by the Commissioner for Lands and Registrar of Titles (the 2"^ and 3^ respondents respectively). The impugned decision was in response to an application made by the applicant Johnsen Leonard Mahururu for transfer of ownership in respect of Plot No. 2242 Block "L" under certificate of title no. 123369, Kilongawima Mbezi Beach Dar es Salaam, Plot No. 2107 and 2120 Block "L" located at Mbezi Beach - Kilongawima Kunduchi Ward within Kinondoni District in the City of Dar es Salaam, Plot No. 545 Block "E" located at Salasala Kunduchi Ward within Kinondoni District in the City of Dar es Salaam and Plot No.(484) 2196 Block H Medium Density within Kinondoni District in the City of Dar es Salaam (together referred to as the disputed properties). The applicant alleges that the 2"^ and 3'^ defendants have refused to heed to his application for transfer of ownership of the aforementioned properties. The application was brought under the provisions of (Made under section 17(2) and 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 R.E. 2019W ; Section 2 (1)(3) of the Judicature and Application Laws Act, Cap. 358 R.E. 2019; Rules 5(1)(2)and (3), 7(1)and (5)of the Law Reform (Fatal Accidents and Miscellaneous Provisions)(Judicial Review Procedure and Fees) Rules, G.N. 324 of 2014. In his Chamber Summons, the applicant is moving the court for the following orders: (a) The Honourable Court be pleased to make a finding that there are sufficient grounds availed by the Applicant that the decision made by the Respondents need to be reviewed under the judicial process. (b) That the Honourable Court be pleased to grant leave to the Applicants to lodge in this Court an application for the orders of certiorari and mandamus. (c) Any other order(s)the court may deem fit and just to grant. The Chamber Summons was supported by an affidavit of the applicant sworn on the 19^^ February, 2024. On their part, the respondents opposed the application by filing a counter affidavit. Along with their counter affidavit, the respondents raised a preliminary objection on a Point of Law that: 1. The Application is untenable and incompetent in law for contravening Rule 4 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N No. 324 of 2014 as there is no decision(s) capable of being reviewed by writs of Certiorari and t. liiliipjiVli Mandamus, 2. The Application is incompetent for lumping different causes of action against the Respondents which are preferred under different laws, that is, by virtue of Section 102 of the Land Registration Act [CAP 334 R.E 2019] the Applicant has an alternative remedy of appealing to the Court against the decision of the 3rd Respondent and by virtue of Section 40 of the Land Act [CAP 113 R.E 2019] the Applicant has an alternative remedy of applying for reconsideration against the decision of the 2nd Respondent. On those grounds, it was the respondents' prayer that the application be struck out with costs. Hearing of the preliminary objections was by way of written submissions. The Respondents' submissions were drawn and filed by Mr. Boaz Msoffe, learned State Attorney. On the other hand, the applicant's submissions were drawn and filed by Mr. Adinan Chitale, learned Advocate. With regards to the first limb of preliminary objection; Mr. Msoffe submitted that going through the chamber summons, supporting affidavit and the applicant's statement, there is no single paragraph which categorically elaborates which decision(s) the Applicant is intending to challenge vide judicial review. He then argued that as per the records, the Applicant is applying for leave to file judicial review against the decision of the 2""^ and 3'^ Respondents but has not attached any decision (s) to warrant this Court to exercise Its powers under Rules 4, 5, 6 and 7 of the Rules. Additionally, absence of the decision (s) makes it impossible for the Court to examine and screen whether the application has met the requirements set for the grant of leave. Mr. Msoffe went on submitting that in as far as there is/are no decision (s) attached, the Court will be sailing in a ship without a Captain. He pointed out that at this stage, the Court has to see whether there is a fit case for judicial review and that the Court can only achieve that if there is a/are decision(s) attached. His argument was that is the decision is attached, this Court cannot articulate the principles set in the case of Emma Bayo vs the Minister for Labour and Youths Development and 2 Others, Civil Appeal No. 79 of 2012, CAT at Arusha (Unreported). That in the cited decision, the Court of Appeal held at page 8: "Itis at this stage ofleave where the High Courtsatisfies itself that the Applicant for leave has made out any arguable case justify the filing of the main application. At the stage ofthe leave the High Court is aiso required to consider whether the applicant is within the six months limitation period within which to seek a judicial review of the decision of a tribunai subordinate to the High Court. At the leave stage is where the Applicant shows that he or she hassufficientinterest to be allowed to bring the main application. He then submitted that from the above holding of the CAT, three main questions may be formulated to wit; one, does the Applicant have an arguable case? two, is the application filed within six months? And, three, did the applicant show sufficient interest? He then argued that the Court can only answer the above questions if it is availed with the decision (s) subject of the application. That in the absence of such decision, the Applicant is then tasking this Court to build a mountain out of molehill and that the court should not condone such sloppiness from the Applicant. That in an application of this nature, the High Court must satisfy itself on the presence of a decision for it to examine whether the Applicant has met the threshold. He further cited the case of F.3329 CPL Buberwa Leonard Magayane and another vs Minister of Homer Affairs and Others, Civil Appeal No. 119 of 2020, CAT at Mwanza (Unreported), where the Court held at pages 8 and 9: 'In the absence of the decision of the RFC from which stemmed an appeal before the 2nd Respondent, before the High Court, Siyani,1,although the Attorney Genera! had no objection to the grant of the application, there was no sufficient material upon which it couid be ascertained if the appellants had established a prima facie case to warrant the grant of leave to apply for prerogative orders'' Further the Court went on at page 11 to state: "In the light of the boided expressions, having noted that the RPC's decision was missing; the learned Judge ought to have ended there and strike out the application for being incompetent However, with respect, he wrongly determined the merits of the incompetent application and proceeded dismissed it This was irregular and uncalled for because with the incompetent application there was nothing before the learned High Court Judge warranting the dismissal" On that citation, he urged the court to make a finding that the application is untenable and incompetent and consequently struck it out with costs. On the second point of objection, Mr. Boaz submitted that the ground is an alternative to the first point of objection and will only have legs to stand if the Court is of the holding that, there is a/are decision (s) to warrant the Court to ascertain whether the Applicant has met the principles enshrined in the case of Emma Bayo (Supra). He went on submitting that it goes without saying that, as per the provision of Section 102 of the Land Registration Act [CAP 334 R.E 2019] the Applicant has an alternative remedy of appealing to the Court against the decision of the 3'^^ Respondent. That by virtue of Section 40 of the Land Act [CAP 113 R.E 2019], the Applicant has an alternative remedy of applying for reconsideration against the decision of the 2"^ Respondent. He therefore prayed that the application be struck out with costs. In reply to the first point of objection, Mr. Chitale submitted that the decision which is subject for judicial Review includes an omission and an act of the public officer against any person whose interest have been or believes will be affected by any act or omission that public officers like the 2^"^ and 3''^ Respondents respectively. He hence argued that it is not necessary sometimes to have decision in legal writing to be attached in an application as a dictum which ought to be a subject for one to file an application for judicial Review. As for the cited cases of Emma Bayo Vs. The Minister For Labour And Youths' Development And Two Others (Supra) and F,3329 Leoard Magayane And Another Versus Minister For Home Affairs And Two Others cited by the Respondent, his argument was that the two cases are distinguishable to an application at hand. He hence prayed that the first point of objection be overruled. On the second point of objection, Mr. Chitale submitted that the same goes out the parameter of the provision of section 102 of the Land Registration Act Cap 334 and the provision of Section 40 of the Land Act Cap 113. That since there was no application in dispute between the Applicant herein and others which was filed before the Registrar of Title and the Commissioner for lands by the applicant and the same dismissed which result's only remedy for the applicant was to file an appeal to the High Court of the United Republic of Tanzania. He supported his submission by the principle stated by the Court in a Case of Frank Kulwa Kanizio Versus Sophia Musa Selemani T/A Gaso Grocery and 7 Others, Misc Land Application No.302 of 2023 (Unreported). His conclusion was that the Second point of Preliminary Objection has no legs to stand and that both points of preliminary objection was raised prematurely since the application for Leave to file an Application for prerogative orders of Certiorari and Mandamus shall be made and heard in ex parte as it is provided for by the provision of Rule 5(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules,2014. He prayed for the Court to dismiss both point of preliminary objection raised by the Respondents with cost. In rejoinder, Mr. Boaz started by reiterating to his submission in chief. He then expressed dismay to the fact that the Applicant is blowing hot and cold at the same time. That the Applicant's pleadings reveal that, he is challenging the decisions made by the 2"^ and 3^^ Respondents while in his reply submission he shifted the goal post to omission and act of the 2"^ and 3^^ Respondents. He emphasized that the Applicant is bound by his pleadings and urged this Court not to allow such departure. Mr. Msoffe alternatively argued that even if, for sake of argument we assume that, the Applicant is challenging an omission or act of the 2"^ and 3*^^ Respondent, still, the pertinent question here would be which omission or act he is challenging? That going through his pleadings and the reply submission at large, it Is Impossible to answer this question as the Applicant has not demonstrated which omission or act, he is Intending to challenge vides Judicial Review. Mr. Msoffe went on submitting that the Applicant merely distinguished the case of Emma Bayo and F.3329 CPL Buberwa Leonard Magayane without stating categorically as to what extent the said decisions are distinguishable with this application. He 10 reiterated that, the stated decisions are relevant and applicable to this application and that reading the Applicant's reply submission between the lines, he does not dispute that he did not categorically elaborate which decision(s) the Applicant is intending to challenge vide judicial review in his pleadings. That the Applicant is dillydallying that, it is not necessary sometimes to have the decision in legal writing as can be quoted from his reply submission second page, paragraph 3, 4th line. That, the 2"*^ and 3^^ Respondents as Government Offices derive their functions and duties from statutes for instance. Section 101 of the Land Registration Act[CAP. 344 R.E 2019] state that, "Where under this Act the Registrar makes any decision or order or does any act he shaii, on the appiication of any person affected thereby, give that decision or order in writing and state his reasons therefor or, as the case may be, give his reasons in writing for that act'' He then submitted that, whether it is an act or omission by the 3rd Respondent the same has to be writing as per the law. Further that if the Applicant believes that, there is an omission or act which is likely to affect his interest, he should apply to the 3rd Respondent to be given that decision and not to approach this Court directly without having a decision in writing. He then argued that 11 the applicant's submission that, it is not necessary to have a decision in writing is a misconception of the law quoted above. On the second objection, his rejoinder reiterated his submission in chief on this point and added that, there is neither procedure of filing disputes to either the 2"^ or 3^^ Respondent nor dispute determination as the Applicant tried to submit. As for the cited case of Frank Kulwa Kanizio, he argued it supports the respondent's point that, decision or act of the 3^^ Respondent is appealable to this Court and not otherwise. On the applicant's submission that both sets of preliminary objections were raised prematurely since the application for leave shall be made and heard ex-parte, his rejoinder was the Applicant's submission is in toto disregard of Section 18 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [CAP. 310 R.E 2019] which requires that, where an application for leave is made against the Government, the Court shall summons the Attorney General to appear and if the Attorney General does not appear then the Court may direct the application to be heard ex-parte. He argued that the respondents entered appearance in this application and so ex-parte hearing does apply. He reiterated his prayer that this Court struck out this application with costs. Having heard the parties submissions, I should not be 12 detained much by the first point of objection as indeed there is a decision made by the 2"^ and 3'^ respondents changing the title deeds to the disputed land which were in the applicant's name. Even in his submissions, Mr. Msoffe's submissions are self-defeating. While on the one hand he submitted that there is no decision, on the other hand in the second objection he argued that the decision to be challenged should be done in another forum. There we go, two arguments self-defeating one another. Therefore, so far as the records are, there is a decision of the Registrar of Titles which changed the names in the impugned Title Deeds. The first objection is therefore without merits and it is hereby overruled. As for the second point of objection, that the decision to be challenged was made under Section 99 of the Land Registration Act, Cap. 334 R.E 2019. I will start with the requirements of a matter for a case to justify for judicial review. It is well established law that Judicial review is not an alternative remedy where there exists a forum to resolve the dispute. Judicial Review it is rather a remedy available in our jurisdiction where the law has not provided for any forum to create an appellate mechanism to ensure checks and balances of the decision of administrative, executive or other quasi- judicial bodies not curtailed in the ordinary court systems. Judicial Review cannot be resorted to where there is alternative remedy or 13 another forum to deal with the matter. In the application at hand, the applicant seeks to review the decision of the Registrar which changed the names of the Title Deeds which allegedly belong to the applicant. The applicant's complaint is that he was no afforded a right to be heard before the decision was made and that the registrar has refused to rectify back the register. Mr. Msoffe's argument is that there is a proper forum prescribed by the law to deal with a grievance of such nature. Indeed, the law is there and it is undisputed that the decision of the 3'^ respondent was made pursuant to Section 99(1) of the Land Registration Act which provides: 99.-(1)Subject to any express provisions ofthis Act, the iand register may be rectified pursuant to an 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 ofsuch decision the High Court is of opinion that a rectification of the land register is required, and makes an order to that effect; (b)where the High Court, on the application of any 14 person who is aggrieved by any memoriai made in, or by the omission ofany memoriaifrom the land register, or by any default being made, or unnecessary delay taking place in the inscription of any memorial in the land register, makes an order for the rectification ofthe land register; (c)in any case and at any time with the consent of ail persons interested; (d)where the High Courtor the Registrar is satisfied that any memorialin the land register, has been obtained by fraud; (e)where any memorial has become wholly obsolete; and (f)in any other case, where by reason of any error or omission in the land register or by reason of The law is clear under the bolded provision that the Registrar of Titles (3'"^ respondent) may rectify the Land Register subject to an appeal to the High Court. Hence the decision of the 3'^ respondent is well subjected to an appeal to the High Court-Land Division. Furthermore, there indeed is a remedy under Section 102 of the same Act which provides; "102. '(1)Any person aggrieved by a decision, order or 15 act ofthe Registrar may appeal to the High Court within three months from the date of such decision, order or act:'' Section 102(1) cited above is clear that a person aggrieved by the decision of the 2"*^ respondent may lodge an appeal to the High Court against the decision of the 3^*^ respondent. That being the case, there is an alternative remedy, a proper forum that is curtailed by the law to deal with grievance such as the one the applicant is attempting to move the court to determine. Judicial Review is therefore not the proper remedy under the circumstances. Having made the above findings, I find the application before me to be misconceived as there are alternative remedy available to the applicant. Consequently, this application is hereby struck out. Given the nature of the application, I make no order as to costs. Dated this 08^ day of November, 2024. o O 2^ CD X AGHIMBI ★ JUDGE 16