omari mohamed wage administrator of the estate of the late mnayenu kidato vs registrar of title another 2021 tzhclandd 64 19 february 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO. 70 OF 2020 OMARI MOHAMED WAGE (the administrator Of the estate of the late Mnayenu Kidato) .............................. PLAINTIFF VERSUS THE REGISTRAR OF TITLES.......................... 1st DEFENDANT THE HON. ATTORNEY GENERAL........................................... 2nd DEFENDANT RULING I. MAI GE, J 1. This is an appeal against the decision of the first respondent refusing to register the applicant herein as the owner of a landed property at plot 7 Block 6, Aggrey Street with CT No. 85177 ("the suit property") by operation of the law. In his petition of appeal, the appellant has raised two grounds of appeal which in essence fault both the refusal of the first respondent to register the changes and reasons thereof. 2. The application was based on an order of the primary court of Kinondoni in mirathi no. 181 of 2016. The first respondent assigned two reasons i why he refused the application. First, there was a caveat entered under FD 197029. Two, the registered owner was not part of the cause, as there was no registered transfer. The appellant was advised to contact the commissioner for land. 3. The appellant is not pleased with the decision. He has thus lodged the instant appeal faulting the decision of the first respondent on the following grounds:- i. The Hon. Registrar of Titles erred in law in refusing to register the changes by operation of law following the order of the court. ii. The Hon. Registrar of Titles erred in law and fact by holding that "the registered owner was not part of cause" yet holding that there was no registered transfer while the original owner, now deceased, was granted an offer of a right of occupancy whose Title was registered as Certificate of Titles No. 85177, Plot No. 7 Block 6 Kariakoo following a transfer of a right of occupancy. 4. In his submissions, Mr. Edward Chuwa, learned advocate for the appellant has first started by drawing the attention of the Court on the fact that, until his death in 1991, the late Mnayenu Kidato was the registered owner of the suit property. He submits further that, subsequent to the appointment of the applicant as the administrator of the estate, a person called Kidato Mwichande forged a document of 2 transfer of the right of occupancy of the suit property and the Commissioner for Land consented thereto and issued a certificate of title, presumably in the name of the said third party. Upon reporting the matter to police and forensic investigation being conducted, it was established that, the transfer in question was procured fraudulently. Acting on the forensic investigation report, the primary court made a ruling on the basis of which his application to the first respondent was premised. In his view therefore, the first respondent was expected to respect the decision of the primary court and register the applicant as the lawful owner of the suit property by way of transmission. 5. In his submissions in rebuttal, Mr. Ayoub, learned state attorney was of the view that; because until the date of the application it was Kidato Mwichande Kidato and not the late Mnayenu Kidato who was the registered owner of the suit property, the second respondent could not in law register such a transmission in a situation when the registered owner was not a part of the cause. 6. With respect, Mr. Ayoub is quite correct. As the facts of the case show, the application by the appellant before the first respondent was based 3 on the ruling of the primary court in probate and administration proceeding in respect of the estate of the late Mnayenu Kidato. In the decision of the first respondent declining to exercise her jurisdiction it is express that, the suit property was until on the date of the application in the name of Kidato Mwinchande Kidato and not the deceased. It is not suggestive in the ruling that the said Kidato Mwinchade was privy to the decision or afforded an opportunity to be heard. He was also not included in the application before the first respondent as well. 7. In my view, in the nature of the allegations raised, I do not think that this Court can determine the issue without a trial being conducted. I do not think as well that the matter would have been dealt with by the first respondent by way of transmission. It is on that account that, I will agree with Mr. Ayoub learned state attorney that, the first respondent was quite right in declining to exercise the jurisdiction as the registered owner of the property was not part to the application. On that account therefore, this appeal much as it was the application before the second respondent is incompetent. It is accordingly struck out with costs. The 4 applicant is at liberty, subject to the law of limitation, to initiate a suit wherein the said third party should be impleaded. It is so ordered. Right to appeal is duly JUDGE 19/02/20121 Ruling is delivered this 19th day of February 2021 in the presence of Happy Daniel, learned advocate for the appellant and in the absence of the respondents. 19/02/20121 5