mariam ally mchumo as administratrix of the estate of the late mwanahawa msham ngomari vs azania bank limited 6 others 2023 tzhclandd 17244 19 december 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 285 OF 2023 MARIAM ALLY MCHUMO (As Administratrix of the Estate of the Late MWANAHAWA MSHAM NGOMARI)....................................PLAINTIFF VERSUS AZANIA BANK LIMITED................................................................ 1st DEFENDANT THE COMMISSIONER FOR LANDS............................................. 2nd RESPONDENT THE ATTORNEY GENERAL................................................................................... 3rdDEFENDANT CATHERINE GREGORY TEMBA...................................................... 4th DEFENDANT GODFREY ELISANTE LEMA.................................................................................. 5thDEFENDANT SAFARI MOSHI URIO........................................................................................... 6thDEFENDANT MARK AUCTIONEERS AND COURT BROKERS LIMITED................................................................................. 7thDEFENDANT RULING 27/11/2023 to 19/12/2023 E.B. LU VAN DA, J N 6/11/2023 Ms Lightness Msuya learned State Attorney for the First, Second and Third Defendants above named, raised a concern that the Plaintiff's claims in her suit is based on attachment, sale and transfer of ownership of a suit property which was a collateral, as per paragraphs eleven and twelve of the plaint. She submitted that the person responsible for transfer of ownership is the Registrar of Titles, under section 51(1) of the Land i Cap 334 R.E. 2019. She submitted that so far the claim is hinged on the Registrar of Titles who is not pleaded, she argued there is mis joinder, in terms of Order I rule 9 of the Civil Procedure Code, Cap 33 R.E. 2019. She submitted that the Plaintiff ought to join the Registrar of Titles, but also if the Registrar of Titles is supposed to be sued, she is supposed to give ninety days notice for her to be joined, in terms of section 6 of the Government Proceedings Act, Cap 5 R.E. 2019. She prayed for the matter to be struck out for the Plaintiff to sue the proper party after ninety days. Ms. Glory Venance learned Counsel for Sixth Defendant seconded the argument that the Registrar of Titles ought to be joined for the matter to be determined conclusively, arguing the Registrar of Titles is a necessary party. The Fifth Defendant also shared the same view. In response, Mr. Amin Mshana learned Counsel for Plaintiff submitted that the objection is misconceived for reasons that the objection ought to be filed under Order VIII rule 2 Cap 33 (supra), where it ought to be filed along the written statement of defence. He submitted that the learned State Attorney did not file amended written statement of defence, arguing she is precluded to bring an objection which does not pertain to jurisdiction. He submitted that so far the objection dosenot pertain to jurisdiction rather non joinder of 2 the Registrar of Titles, it has been raised improperly, argued for it to be struck out with costs. On rejoinder, the learned State Attorney for First, Second and Third Defendants, submitted that the objection is legally tenable before the court, arguing was not raised by surprise in terms of Order VIII rule 2 Cap 33 (supra), for reasons that in their written statement of defence they stated that the Registrar of Titles is the one who is responsible with transfer of registered land. She submitted that if the matter proceeds without joining the Registrar of Titles, the suit will be unmaintainable, arguing the Registrar of Titles is the one who effected the transfer of mortgage. She submitted that the Plaintiff did not incur any costs because the matter was at the stage of first pre trial conference. According to the provision of Order VIII rule 2 Cap 33 (supra) with marginal note, new facts and preliminary objections must be specifically pleaded, provide, 'The defendant must raise by his pleading all matters which show the suit not maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, ifnot raised, would likely to take the opposite party by surprise, or would raise issues of fact not arising 3 out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality' Herein, the learned State Attorney initially raised a question of non joinder of the Registrar of Titles as a matter of concern, by the way, but over sudden in between changed mind and proceeded to argue it as formal preliminary objection and invited the court to struck out the suit. To my view that was improper, because had the effect of taking the opposite party by surprise which course the law above abhor or detest. It is true that in paragraph six of the joint written statement of the First, Second and Third Defendant, pleaded facts showing that it is the Registrar of Titles who deals with transfer under power of sale. However, that fact alone cannot be taken as a formal notice of intention to argue it as a point of law. The way it was pleaded therein it was stated on factual basis. Therefore, the concern/objection is struck out for being misconceived. The matter to proceed with first pre trial conference on 29/01/202^