nalha rashid hemed administratrix of the estate of the late rashid hemed khalfan another vs salum khamis 2 others 2023 tzhclandd 15758 30 march 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 254 OF 2022 NALHA RASHID HEMED Administratix of the estate of the late Rashid Hemed Khalfan........................................................ 1st PLAINTIFF NAJLA RASHID HEMED Co-Administratix of the estate of the late Rashid Hemed Khalfan....................................................... 2nd PLAINTIFF VERSUS SALUM KHAMIS............................................................................... 1stDEFENDANT REGISTRAR OF TITLES............................................. 2nd DEFENDANT ATTORNEY GENERAL.............................................. 3rd DEFENDANT RULING Date oflast Order: 13/3/2023 Date of Ruting: 30/3/2023 k, MSAFIRI, J. The plaintiffs one Nalha Rashid Hemed and Najla Rashid Hemed have filed this suit against the three defendants namely Salum Khamis (1st defendant), the Registrar of Titles (2nd defendant) and the Attorney General (3rd defendant). i The defendants have filed their written statements of defence and with it the 2nd & 3rd defendants have raised a preliminary objection to the effect that, 1. The suit is incompetent for contravening provision of Section 102 (1) of the Land Registration Acf Cap. 334 R.E 2019. They prayed for the dismissal of the suit in its entirety with costs. On 13/3/2023 the matter was set for hearing of a preliminary objection. The 2nd & 3rd respondents were represented by Ms. Narindwa Sekimanga, learned State Attorney and Ms. Mary Lamwai and Ms. Magreth Magebo, learned advocates represented the plaintiff and the 1st defendant was represented by Mr. Bakari Juma, learned advocate. Before the take off of the hearing, Ms. Lamwai submitted to the Court that the plaintiff concedes to the preliminary objection, and prayed that the matter be struck out only for the 2nd and 3rd defendants with no order for the costs as they do not contest the objection. Ms. Sekimanga, replied that the position of the law is as per Section 102 (1) of the Land Registration Act. She added that since the plaintiff does not contest the preliminary objection, then the case can be struck out against ? 2 the 2nd and 3rd defendants and proceed with the plaintiff and 1st defendants only. There was no rejoinder. Having heard the submissions from the rival parties, I also read the provisions of section 102 (1) of the Land Registration as it was referred to the Court in the raised point of objection by the 2nd and 3rd respondents. It provides as follows; 102 (1): Any person aggrieved by a decision, order or act of the Registrar may appeal to the High Court within three months from the date of such decision, order or act;..... Basing on the herein provisions, it is my view that this matter is premature before this Court. This is because the plaintiffs were supposed to exhaust the authority of the Registrar of Titles before coming to this Court. Even if the plaintiffs have exhausted the said authorities of the Registrar, the matter at hand is improper before this Court as it is brought as fresh suit instead of an appeal as it is provided under Section 102 (1) of the said Act. Since the plaintiff has conceded to the fact that this suit is incompetent before this Court, then the only remedy is for this Court to strike out the case in its entirety and not for the 2nd and 3rd defendants only as the 3 plaintiffs' counsel have suggested and supported by the counsel for the defendants. On the issue of costs, the 2nd, 3rd defendants have prayed for the case to be dismissed with costs. Consequently, I struck out this case with costs. A. MSAFI JUDGE 1 30/3/2023 4