MWATEX V REGISTRAR

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. LAND APPEAL NO. 6600 OF 2024 MWATEX (2001) LTD.....................................................................APPELLANT

VERSUS REGISTRAR OF TITLES........................................................ 1st RESPONDENT ATTORNEY GENERAL............................................................ 2nd RESPONDENT

JUDGMENT 18/7/2024 & 19/8/2024 ROBERT, J:- This appeal arises from the decision of the Registrar of Titles (the first Respondent), who on 26 February 2024, issued a Notice under section 37 of the Land Registration Act, Cap. 334, requiring the Appellant, MWATEX (2001) LTD, to produce the Certificate of Title No. 18016 of the landed property known as Nyakato Industrial Area, containing 44.5 acres for rectification of the Land Register. The notice indicated that the Assistant Commissioner of Land had presented an application for rectification of the land register under section 99(l)(i) and (2)(a) and (c) of the Land Registration Act. The rectification was intended to transfer 10.82 acres of land from the Appellant to the Board of Trustees of K.K.K.T East of Lake Victoria, in compliance with Execution Order No. 321/2023 from the District i Land and Housing Tribunal (DLHT) for Mwanza arising from the Judgment of the High Court of Tanzania Mwanza sub-registry in the Land Appeal Case No. 30/2010. The notice further stated that failure to comply would result in the automatic cancellation of the Certificate of Title No. 18016. On 3rd April, 2024 the first Respondent informed the Appellant that the rectification of the land had been effected and what was pending was the registration of the demarcated plots to the allocated parties. Aggrieved by this decision, the Appellant filed this

appeal challenging the decision of the Registrar of Titles. During the hearing, counsel for the Appellant, Mr. Constantine Mutalemwa and Mr. Innocent Kisigiro, argued a single ground of appeal: that the Registrar of Titles erred in law by proceeding with the rectification of the land register while an intended appeal against the decision of the High Court in Land Appeal No. 30 of 2010 was pending before the Court of Appeal of Tanzania (CAT). Mr. Mutalemwa submitted that the DLHT, in its judgment, acknowledged the pending appeal in the CAT concerning the High Court's decision in Land Appeal No. 30 of 2010. Consequently, he contended that the Registrar of Titles had no legal authority under section 99 of the Land 2 Registration Act to rectify the land register while the appeal was pending. He cited the case of John Chimile Rubambe vs Registrar of Titles, Land Appeal No. 60 of 2023, where this Court held that the Registrar of Titles should not exercise rectification powers during the pendency of an appeal. He prayed for the rectification to be cancelled but did not seek costs. On her part, Counsel for the Respondents, Ms. Subira Mwandambo, Principal State Attorney, conceded to the ground of appeal raised by the Appellant. She argued that since the rectification by the Registrar was initiated by the office of the Commissioner of Land and not by the parties, and considering that the

DLHT had acknowledged the pending appeal in the CAT, it was indeed wrong for the Registrar to proceed with the rectification. She agreed that the rectification should be cancelled, and the parties should be allowed to resolve the matter through the appropriate court process. She also did not seek costs. The key issue in this appeal revolves around the applicability of section 99 of the Land Registration Act in the context of a pending appeal before the CAT. Section 99 grants the Registrar of Titles the power to rectify the land register in cases of fraud, mistake, or omission. However, this power is 3 not absolute and must be exercised in accordance with legal principles, particularly when there is ongoing litigation that could affect the property rights in question. In the present case, the DLHT, in its judgment, explicitly acknowledged that the Appellant had lodged a notice of appeal in the CAT challenging the High Court's decision in Land Appeal No. 30 of 2010. This acknowledgment should have served as a signal to the Registrar of Titles to stay any rectification process pending the outcome of the appeal. The principle of Us pendens, which provides that no party should alter the status of property while litigation is pending, is applicable here. Furthermore, the Respondents, through their counsel, conceded that the rectification was premature and inappropriate given the

pending appeal. This concession, combined with the Appellant's submissions, underscores the wrongful exercise of rectification powers by the Registrar of Titles. In light of the above analysis, this Court finds that the appeal has merit. As a consequence, the rectification of the land register in respect of Certificate of Title No. 18016, which transferred 10.82 acres of land from MWATEX (2001) LTD to the Board of Trustees of K.K.K.T East of Lake Victoria, is hereby canceled. The parties are to maintain the status quo 4 pending the outcome of the appeal before the Court of Appeal of Tanzania. No order as to costs. It is so ordered. 5