rajabu mkidadi mwilima vs registrar of titles 2020 tzhclandd 2336 7 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPEAL NO. 67 OF 2018 (An Appeal originating from the decision of the Registrar of Titles made on 22/08/2016 in respect of Plot No. 421 and Plot No. 107 Block "J"Mbezi Beach composed on CT No. 89733) RAJABU MKIDADI MWILIMA.......................................... APPELLANT VERSUS REGISTRAR OF TITLES................................................ RESPONDENT JUDGMENT ON APPEAL. S.M. MAGHIMBI, J: This appeal emanates from the decision of the Registrar of Titles ("The Registrar") made under Section 99(l)(f) of the Land Registration Act, Cap. 334 R.E 2002 ("The Act") rectifying the Land Register in respect of landed property on Plot No.421, Block "J" Mbezi beach, with Certificate of Title No. 36658. The decision was made on the 22nd day of August, 2016 with an effect of rectifying the alleged error by deleting the name of the Appellant in the register and restoring the name of one Sahera Abdallah who was previously the registered owner. Aggrieved by the decision of the Registrar, the appellant has preferred this appeal raising four grounds of appeal that: 1. That the registrar of title erred in law and in fact for failure to observe the principle of natural justice by denying the appellant his right to be heard before making the decision to rectify the land register hence condemned the appellant unheard. i 2. That the registrar of titles erred in law and in fact by rectifying the land register without justification hence accessioned miscarriage of justice. 3. That the registrar of titles erred in law and in fact by suo moto revising the Magomeni primary court decision without jurisdiction. 4. That the registrar of titles erred in law and in fact by rectifying the land register without following the laid down procedure hence accessioned miscarriage of justice. Wherefore the appellant prays that the appeal be upheld and the decision of the registrar of titles be nullified and or set aside with costs and the name of the appellant be restored. In this court, the appellant was represented by Mrindoko, Advocate and the respondent, the Registrar was represented by Mr. Hangi Chana, learned State Attorney. By an order of the court dated 13/12/2018, the appeal was disposed by way of written submission. According to the background of this appeal, there existed a Civil Case No. 31/2010 between the appellant and one Sahera Abdallah who is not a party to this appeal. Following the decision in the Civil Suit, the Land Register was rectified by omitting the name of Sahera Abdallah in the registry and replacing it with the name of the appellant herein, Rajabu Mikidadi Mwilima. In due course, it came to the knowledge of the registrar that the said transmission by operation of law was mistakenly effected by what he claimed to be lack of jurisdiction of the Primary Court in making a decision on a Landed property. Aggrieved the appellant has preferred this appeal on ground that he was denied the right to be heard. 2 On the 24th April, 2020, I hesitated to deliver the judgment to this appeal having noted that the person to whom the title has been re-transferred to one Sahera Abdallah, who will directly be affected by the outcome of this appeal should the decision be in the appellants favor, was not joined as the respondent. Owing to that, I ordered that the appellant to amend the appeal by adding the said Sahera as the second respondent. However, efforts to serve her with the summons proved futile, this judgment is therefore ex-parte of her. When the appeal came for hearing on the 14/09/2020, Mr Mrindoko prayed that his previous submissions prior to the order of amendment be adopted. Having considered the submissions of both the appellant and the first respondent my findings are elaborated. I have noted that in their reply submissions, the 1st respondent reiterated the same reason that she had when she registered the disputed land to the first appellant, that the Primary Court did not have jurisdiction on matters related to the registered land. I have however noted that, in the said Primary Court Judgment, the issue which led to the transfer of title to the name of the appellant was execution of a monetary decision reached by the said court upon breach of contract between the appellant and the 2nd respondent. However, I will not go into the details of such a decision as this issue is not for determination by this court in this appeal. Going to the merits of this appeal, it appears that the appellant's main complaint is that he was denied his right to be heard by the failure of registrar of titles to accord him the right to be heard before making the decision to rectify the land register and re-register the title back to the 3 name of the 2nd respondent. I find the ground to valid because the act of the Registrar of Titles had the effect of permanently depriving the appellant right to land. Therefore whether or not the order that the first rectification was made on was lawful or not, or whether the primary court had jurisdiction or not, does not in any way justify the omission of the registrar of titles to accord the appellant his fundamental right to be heard before his right was interfered with. The rectification of the land register that is a subject of complaint in this case was made by the 1st respondent under Section 99(l)(f) of the Act. It is not disputed that the Section allows the Registrar of Titles to rectify the Land Register. According to Section 99(l)(c) of the Act, this rectification can be at any time, only that it has to be done with the consent of all persons interested. To be more precise, in order for the rectification to be effective, all parties with interest to the property must be notified of the intended rectification. In Misc. Land Case Appeal No. 58/2018 African Terminal Limited Vs. The Registrar of Titles & Others, when faced with the same situation, Hon Makani, Judge held: "Indeed, the Assistant Registrar of Titles has the power and mandate to rectify the Land Register under section 99(1) of the Land Registration Act. However, according to section 99(l)(c) rectification of the register can be at any time with the consent of al! persons interested. In other words, there has to be a notification to the party who is going to be affected with the rectification for purposes of awareness and consent." 4 As for the appeal at hand, the 1st respondent did not deny the fact that the appellant was not notified of the intended rectification. The only argument she advanced is on the jurisdiction of the Primary Court in land matters which, as stated above, did not justify the omission to notify the appellant herein so as to accord him his fundamental right to be heard. It is trite law and I may not need to site any authority, that the right to be heard is fundamental. This right to be heard has been so emphasized by the courts of law to the extent that even if the same decision would have been reached had the parties been accorded an opportunity to be heard, the fact that a person was condemned unheard nullifies that whole decision. The case at hand is of no exception, the appellant was condemned unheard, the issue is on the remedy to the mischief. Since it was undisputed in this appeal that the appellant was not notified of the rectification, such rectification was in contravention of Section 99(l)(c) of the Act which condemned the appellant unheard. Consequently, the said rectification is hereby nullified. It is important that I make it clear at this point that the nullification of the registrar for reason that the appellant was not afforded a right to be heard does not in way act as a bar for the Registrar to rectify the register in future. The important thing is that he abides by the law and the principles of natural justice by affording the parties their respective rights to be heard. At this juncture, this appeal is allowed. The rectification of the register by the 1st respondent, the Registrar of Titles, changing the title for Plot No. 421 Block J, Mbezi Beach with Certificate of Title No. 36658 to the name of the 2nd respondent, Sahera Abdallah Kaloo, is hereby nullified and 5 the name of the appellant, Rajabu Mwikidadi Mwilima shall be restored back to the land register. Given the nature of the rectification and background of this matter, I make no order as to costs. Appeal A Ho wed Dated Dar es Salaam this 07th day of October, 2020 S.M MAGHIMBI JUDGE 6