kay mlinga vs registrar of titles 2019 tzhclandd 173 30 september 2019

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 91 OF 2016 KAY MLINGA................................................... APPELLANT

VERSUS THE REGISTRAR OF TITLES....... ................ RESPONDENT MAIGE. J.

JUDGEMENT This is an appeal against the decision of the Registrar of Titles dated 6th May 2014 expunging, by way of rectification of errors in the register, the name of the Appellant as the registered owner of a landed property at plot No. 186 Block "D" Tegeta, Dar Es Salaam with Certificate of Title No. 3999 O'the suit property") and replacing in lieu thereof the name of His Excellency, the President of the United Republic of Tanzania. The appellant was granted Page 2 o f 5 extention of time to lodge this appeal by my Lord Judge Ndika (as he then was) vide Miscellaneous Land Application No. 573 of 2015. In her Petition of Appeal, the appellant has enumerated the following grounds:- 1. That the Registrar of Titles erred in law and fact by making a decision to delete the name of the appellant from the Land Register without strictly complying with the mandatory procedures.

2. That the Registrar of Titles erred in law and fact by making a decision to delete the name of the appellant from the Land Register without giving the Appellant the right to be heard.

3. That the Registrar of Titles erred in law and fact by making a decision that contravenes the right of the Appellant to own property. Without prejudice to the first part of this ground and in the alternative, the Registrar of Titles erred in fact and law by making a decision to delete the name of the Appellant from the Land Register thus depriving her the right to own the piot of land in question without considering the right of the Appellant to be compensated and indemnified.

4. That the Registrar of Titles erred in law and fact by finding that there was an error in the Land Register while there was no any error capable of justifying the deletion of the name of the Appellant from the Land Register.

5. That the Registrar of Titles erred in law and fact by improperly exercising the powers given by law in making a decision contrary to the requirements of both substantive and procedural requirements. Page 3 o f 5 In the conduct of this matter, the appellant was represented by advocate Makarious Tairo while Miss Lilian Machenge, learned state attorney represented the respondent. My learned sister Judge De-Melo who but for transfer would have finalized this proceeding, ordered, on 12th March 2019 that, this appeal be disposed of by way of written submissions. While the appellant through his counsel filed her submissions in due compliance with the order, the respondent did not. I take it that he has weaved his right to be heard on this appeal. I will therefore determine the same basing on the submissions by the counsel for the appellant. In his submissions in support of the fifth ground of appeal, Mr. Makarious submits among others that, since the registration of the name of the appellant in the Land Register in question was in execution of the decree of the Court of Appeal, the Registrar of Title was incompetent to make any correction affecting the said decree. For the reason of declaring the registration of the name of the Appellant in the Land Register erroneous, the counsel vehemently submits, the Registrar of Titles implicitly overruled the highly biding decision of the

highest court of the Land. Page 4 o f 5 With respect, Mr. Tairo is quite right on this observation. As I said above, the Declaration culminating to the erasing of the name of the appellant from the Land Register clearly indicated that the name of the Appellant in the Register was entered in pursuit of the decree of the Court of Appeal. The decree of the Court of Appeal was issued subsequent to the alleged allocation of the suit property in favour of Loyce Nyalali. Therefore, if there be any ownership interests or error in the Register affecting the claim by the appellant, it would have been raised to the Court of Appeal before the issuance of the decree. The deregistration of the appellant in the Land Register tacitly overrule the binding decision of the Court of Appeal. It was not expected for the Registrar of Titles to issue such an order. To put it lightly, the Registrar of Titles enjoys no jurisdiction to make any order affecting a Court decision leave alone a decision of the highest court of the Land. In my opinion therefore, the decision under scrutiny was made without jurisdiction. It is void from its root and cannot be left to stand. The appeal is therefore allowed on the fifth ground of appeal. The decision of the Registrar of Titles expunging the name of the appellant from the Land Register is hereby set aside with costs. Since I have held that the respondent did not have jurisdiction to entertain the matter, I find it useless to determine the other grounds. It is so ordered.

JUDGE <r ' Date: 30/09/2019 Coram: Hon. S. R. Ding'ohi, DR For Appellant: Absent For Respondent: Mr. Charles Mtae, S/A RMA: Bukuku COURT: Judgment delivered this 30th day of September, 2019. S. R. Ding'ohi

DEPUTY REGISTRAR 30/09/2019