19970904 TZHC Dar es Salaam

• IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM ,/' ·•-•==?1111P•:ar ,_z• I CIVIL CASE NO. 23 OF 1995 MJEWA LEONA.RD HEtillY o •••••••••• o ••• o • • PLAINTIFF •• . VERSUS • j • . . REGISTRAR OF TITLES & 4 bTHERS o o • • • o • o Rli;S]?ONDENTS RULING ~.- KAJI, J. The applicant MJEWA LEONARD .,,., " • HENRY had instituted a &Q,;t iP- this <:ourt againa ..__,e::1"1:::e-rezm · o- • • ==-=a.'111 agaiStt- (1) THE REGISTR.~R OF 'ITTLES ( 2) (3) --~·, HALIMA HAMISI HAJI ABDI MOHAMED (4) YUSUF MOHAHED (5) AHAMED ABDUL for, inter alia_,_ a declaration that he is the lawful owner :md occupier of :Farm Ho. 334 Ngomeni, Muheza.. District Ta.nga Region by virtue of Certificate of Title No. 6912 which was revoked by the President. In their Written Statement of Defence all denied the c1.aim and the 1st and 2nd respondents raised a preliminary objection that the suit had been instituted at a ·wrong venue and that the .applitant has no · cause of a.ction against, them. This prompted the app).\cant . . to apply · for the following orders:.;. (1) That the Honourable Minister of Lands., Hou~ing and Urban Development be joined as the 1st defendant. (2) That the Registrar of Titles be struck out as a defendant (3) That the citation of the Registry should be ohanged from.D•Salaam District Registry to the High Court Main Ree;istry _( 4) That the Honourable Attori:1ey General be joined as the 2nd defendant and Halima Hamisi be the 3rd defendant thereat (5) That Haji Abdi Mohamed (3rd defendant he.rein) and .Ahmed Abdi (5th defendant herein) be made-the 4th, 5th ..md 6th defendants respectively (6) That the plaint be amended accordingly. The learned State Attorney who represented the 1st raapondent the Registrar of Titles ·and the 2nd respondent Halima HamW had no objection with t}1e 1st ·respondent being struck out. 2 - I However the learned State Attorney ooj~ted the Minister and the At rney General to be joined as Co-defcldants on the groun~ th.:l.t under s. 2) and (3) of the Government Proceedings Act 1967 as amended by Act No. .30 of 1994 those Officials cannot be s~ed without a prior 9 . notice which was lacking. All the respondents objected the change of ' citation and venue on the ground that since the land in dispute is in Tanga Region and the 2ppliccmt and most of tµe respondents reside at Tanga, the main suit should have been filed at the High Court Tanga Registry. They also found no good r.;e.ason VhY it should be instituted in th.e Main Registry of the High Court. l;:n reply the applicant through. his advocate Dr. Mvungi replied that he would issue the 90 days notice , I, after he has been allowed to join the Minist.er 2-nd the Attorney General as Co-defendants. On why the suit should ;be instituted at D 1 SaJ.aam Main :I.iegistry the applicant replied that the,2nd,3rd.4th and 5th respondent are very influencia:l at Tanga and tlnt if this case is to be hear4 at Tanga justice may not be seen to be done as they may interfer with the hearing process. He therefore insisted that his application should be granted as praye4. I have carefully considered the arguments by learl'19d counsel as .wel).. as the overall. circumstancEII;> sUITOunding this. case. There is no dispute thttt Order 1 Rule 3 of the ,Civil Procedure Code 1966 allows joinder of defondants. There is also no dispute that a suit against the Government or Government Official in that capacity cannot be instituated without a prior 90,days notice. Equally there is no dispute.that the npplicant who is intending to sue the Minister of L.?.11~, Housing and Urban Development and the • Attorney General has not yet so far issued the said 90 days notice. His defence is that he wants first to be allowed to join them a.s Co-defendants and threafter he will issue the Mandatory 90 d_ays notice •. With respect. I do not subscribe to this.· '.rhe 90 days notice must come first before those Officials a.re sued. Therefore by asking this court to allow him to join the Minister and the Attorney General, the applicant is trying to get a short cut for suing them without first issuing the mandatory 90 days notice. rrhis is not proper. It,isalmost like putting the cart before the hourse. I refused to do so. ,J ,. - 3 = "'rh...__ -...--. :;ilso no dispute th:-ct under S.14 of the Civil Procedure Code 1966 a suit can be ini;;:t.ib.1.ted where the property is situate or where the defendants resided~ There is no doubt that the land in dispute is in Tanga Region and therefore within the local jurisdiction of the High Court Tanga Registry. The applicant has failed to satisfy the court ns to why he opted to file his $uit in this Registryo The proper course should have bep to institute his suit at the High Court Tanga Registry. ·:. tu ::p:=lic::mt suit at the High Court Tanga Registry and apply therefrom for the trs1isfor o"f his case to the Main Registry at D1Salaa.m giving his reasons for so doing. I hesitate to comment on the reasons given because this might prejudice the trial in the event the applicant decides to file an application at Tanga for transfer of his case to D'Saluam on· similar groundso In conclusion I have the following to say:- . (1) The applica.~t•s application to join the Minister for Lands and Housing Development and the Attorney General is rejected on the g~ound that the applicant has not complied with the requirements of So6 (2) and (3) of the Government Proceedings Act 1967 as amended by Act No. 30 of 1994 in respect of a 90 days notice (2) The applicant's application for change of Citation of the Registry from D1Salaam District Registry to the High Court Main Registry is rejected on the ground that the proper course_ would have been to institute the suit at TG..J.~ga Rogistry where the subject matter is situate and present this application there. (3) This suit was instituted at a wrong Registry. , For that reason it is hereby struc¼: out with costs. S. N. KAJI - · JUDGE 1 8/8/1997 I CER'l'IFY TfLW TRUE CUPY OF '11HE ORIGINAL 0 /.,.-; // / ps.-Ms~}~ ~S'!'RICT REGIS 4/9/1997