msafiri jumanne mashaka vs bulugu jumanne yamliga and another 2023 tzhc 21537 31 august 2023

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPLICATION NO. 62 OF 2023 MSAFIRI JUMANNE MASHAKA--------------------------------------------- APPLICANT VERSUS BULUGU JUMANNE YAMLINGA--------------------------------------1ST RESPONDENT ALFRED JUMANNE YAMLINGA--------------------------------------2ND RESPONDENT RULING August 31st, 2023 Morris, J On 5/7/2023, the Applicant above filed this matter. Its main objective is to seek rectification of the Land Register by removing the names of the Respondents therein and substituting them with the names of the Applicant. Rectification is sought in respect of Certificate of Title No. 033033/12 LR Mwanza (herein, ‘the property’). It is supported by the affidavit on Msafiri Jumanne Mashaka. The Respondents were served by publication in Mwananchi Newspapers of 7th August 2023 following failure of the orthodox methods of service of summons. The Respondents still defaulted appearance. Consequently, on 22nd August 2023, the Court ordered the matter to proceed in their absence. 2 On August 31st, 2023 the matter was scheduled for hearing. Advocate Stephen Makwega represented the applicant. He commenced by praying to adopt the Applicant’s affidavit as part of his submissions. Thereafter, he submitted that the Applicant seeks to have the subject certificate bear his names following purchase of the said property through public auction. Finally, he prayed for the application to be granted with costs. I have examined the affidavit of Msafiri Jumanne Mashaka. Amongst other depositions, it establishes that the Applicant herein purchased the property (registered in the stated certificate) on 12th May 2018. The disposition cropped from execution proceedings of Probate Cause No. 20/2009 of Ilemela Primary Court. The property herein is also described as Plot No. 162 Block “U” Miti Mirefu, Mwanza. However, his efforts of having his names entered into the register have not been successful. This failure is, partly, because the Respondents herein have not been compliant with both court Orders and Notices of the Registrar of Titles. Consequently, through the present application, this Court is moved to consider and determine if the Applicant deserves to have his rightful interest accordingly registered in the official register of landed property by way of rectification. For this objective to be achieved, the Court should 3 satisfy itself that current registered Respondents do not qualify to resist such move. As stated above, they were supposed to appear and resist, where necessary, but opted not to heed to the court summons. The foregoing nonappearance, to me, is a clean indication that they did not intend to resist the application howsoever. That is, they have failed to show cause why the certificate of title herein should not be produced before the Registrar of Titles for cancellation of their names as pursued in these proceedings. Consequently, under section 99(1)a of the Land Registration Act; Cap 334 R.E 2019, I hereby find and proceed to hold that the applicant is entitled to have his interest in Plot No. 162 Block “U” Miti Mirefu, Mwanza under certificate No. 033033/12 LR Mwanza registered through rectification in the Land Register. For avoidance of any doubt, I hereby grant leave to the Applicant to process rectification of the records of the property herein whereby the names Bulugu Jumanne Yamlinga and Alfred Jumanne Yamlinga appearing in Certificate of Title No. 033033/12 LR Mwanza are to be cancelled and replaced with the name of Msafiri Jumanne Mashaka as the owner of Plot No. 162 Block “U” Miti Mirefu, Mwanza. 4 In view of what is discussed above, the application is granted. No costs allowed. Right of appeal fully explained. C.K.K. Morris Judge August 31st, 2023 Ruling delivered this 31st day of August 2023 in the presence of Msafiri Jumanne Mashaka, the applicant and his advocates Mr. Stephen Makwega. C.K.K. Morris Judge August 31st, 2022