20180821 TZHC Dar es Salaam

IN THE HIGH COUT OF TANZANIA AT DAR ES SALAAM. MISC. LAND APPEAL NO. 1 OF 2012 IN THE MATTER OF THE LAND REGISTRATION ACT CAP 334 SECTION 102(91) AND (3) AND IN THE MATTER OF CERTIFICATE OF TITLE NO. 186068/12 AND IN THE MATTER OF AN APPEAL AGAISNT THE DECISION OF THE REGISTRAR OF TITLES TO RECTIFY THE LAND ·REGISTER. ._ BETWEEN THE REGISTERED TRUSTEES OF FEDERATION OF KHOJA ITHNA ASHER! JUMAATS OF AFRICA .................................... APPELLANT AND THE REGISTRAR OF TITLES •......••........•.•.........• 1 5T RESPONDNET THE HON. ATTORNEY GENERAL \........... 2ND RESPONDENT THE NATIONAL HOUSING CORPORATION ......... 3RD RESPONDENT RULING E.B.LUVANDA,J. On 14/2/2018, when this appeal was called for hearing, Ms. Grace Lupondo learned State Attorney for the first and second respondent took audience and raised a concern that the appellant is appealing against the decision of the Registrar of Titles made on 11/11/2011 and as per 1 I I #.' ...;a ,ii,- ' •;1 '' the law the appellant was required to give notice to the Registrar of Titles and the Court within one month from the date of such decision as per i section 102(1) of the Land Registration Act, Cap 334 R.E 2002. She submitted that according to annexure Pll to the petition of appeal show that a notice was served to parties before .filing, as a notice was filed on 8/12/2011 but the Registrar of Title was served on 28/11/2011. Mr. Betwel learned Counsel for the third respondent shared the same view that a notice attached to a petition of appeal reveal it was filed on Court on 8/12/2011 and served to the Registrar of Titles on 28/11/2011, as such he was of the view that he leave for the Court to decided. In view of that, the court on it is own accord, asked Mr. Masumbuko Lamwai learned counsel for the appellant to respond to the concern raised by the learned State Attorney, but _also to address the Court on the competence of appeal in terms of section 102(1) Cap 334 (supra). In response, the learned Advocate for the appellant submitted that it is true that a notice ought to be given to the Registrar of Titles and the High Court within 30 days of the decision. That a decision of the Registrar of Titles was given on 10/11/2011 and therefore the filing of notice in Court was within time on 8/12/2011. That the date stamped by the Registrar of Titles on a notice of appeal was wrongly entered through clerical error and it was not a duty of the Advocate or process server to be meticulous to make sure that the date is correctly entered. That the appellant should not be punished for negligence of the first respondent in putting a wrong date on the stamp. That the Registrar of Titles had wrongly sent the documents to P.O .Box 6710 Morogoro, which reached 2 I _ II the appellant via email from one of the member of Jamats iri Morogoro, That although the decision was signed on 11/11/20 it cannot be a date it was posted and delivered. That time begin to run against the appellant from the date he get notice (decision), which was received via email on · 17/11/2011. and a notice of appeal was promptly prepared on 19/11/2011. That in this particular situation limitation is not a question of law but also a question of fact as to when the appellant got decision, which the first respondent has a burden to proof as to when a decision was send and delivered. That when there are matters of mixed facts and law those matters cannot be disposed as preliminary objection, as per Mukisa Biscuit's case. He therefore prayed for a decision on this issue to be deferred until when proof is given on how notice of a decision was served and reached the appellant. He also prayed for the court to direct that hearing of a petition of appeal proceed and either side lead evidence on that way. Regarding a question of limitation of time to file an appeal, the learned Counsel for appellant submitted that this is a question a of fact which need to be proved. That the petition appeal was filed on 13/2/2012 which is four days out of time if one will compute from a date of rectification (decision). But the decision was communicated to the appellant via email on 17/11/2011, and therefore the appeal is in time. He submitted that this is a matter of crucial important which has to be proved by evidence. In rejoinder, Ms. Grace Lupondo learned State Attorney submitted that, if the appellant allege that the Registrar of Titles wrongly entered a date, the Court should see the possibility of faulting the appellant for 3 'I ,, giving or serving the Registrar of Titles a defective notice of appeal which was yet to be ·filed · in Court. She submitted · that a case of Mukisa Biscuit is not applicable here, as there is a pure point of law. That section 102(1) and (a) of subsection (1), the provision state that from the date of a decision. That notice is one months from the date of the decision, to wit 11/11/2011. That the issue as to whether it was sent and when it was received is not an issue under the law. That the reasons of delay to obtain documents, were good ground for them to seek extension of time. That the learned Counsel for appellant conceded that if we count form 11/11/2011 the appeal is out of time. That if the appeal is out of time it bars the jurisdiction of this court to entertain the same. She draw the attention of the court to a case of Yusuph Vuai Zyuma Vs Mkuu wa Jeshi la Ulinzi TPDF & others, Civil Appeal No. 15/2009 CAT at Zanzibar, at page 4 & 6. She therefore prayed for the court to dismiss the appeal with costs. Mr. Betwel learned counsel for third respondent submitted that it is on record that the decision of the Registrar of Titles was given on 10/11/2011 which was communicated to the appellant and on 19/11/2011 the appellant prepared a notice of appeal, meaning that still had 15 days to lodge appeal, but the appellant did not appeal until 13/2/2012. That the law is very clear that whoever is dissatisfied by the decision of Registrar of Titles has to appeal to the High Court within three months. That counting form 11/11/2011 this appeal is out of time for 4 on 5 days and therefore it is time barred. 4 ' . . A decision of the Regisfrar of Titles subject of_ this appeal was issued on 11/11/2011. A petition of appeal was presented for filing on 13/2/2012 being after elapse of 94 days. Section 102(1) of Cap 334(supra), provide, I quote ·"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'~ Section 4 of the Interpretation of Laws Act, Cap 1 R.E. 2002 define month to mean, I quote. " a calendar . month unless words be added showing a lunar month is intende~ where month is expressed as beginning/ . or is required to be reckoned as beginning/ on a date other than the first day of any moth~ the month shall be deemed to expire immediately before the commencement of the corresponding date in the next following month whether the period so encompassed is of a longer or shorter period than thirty daysN By simple arithmetic, a period of three months is computed to be equivalent to ninety days. As I have said above that, the appellant had filed his appeal after expiry of ninety - four days, his appeal was therefore out of time for four days. So far even the learned Council for appellant had conceded that the petition was filed out of time for days from the 5 • , t date of rectification ( decision), his argument that this is ·a factual issue .. which has to be proved by evidence, is without substance. The provision of the law above quoted, is clear that three months is reckoned from a date of a decision and not from the date of service of a decision to an aggrieved party. Again as submitted by all three learned Counsel that the question of time limit is a matter of jurisdiction and therefore it cannot be taken lightly or ignored. As the court cannot proceed to entertain the matter without jurisdiction. That will be a peril worth taking, subjecting judicial proceedings to a nullity. To be more precisely, an argument by the learned counsel for appellant that the circumstance of his matter is worth for this issue of limitation to be of mixed facts and law, and hence require prove by evidence, has no room at all. As a question of limitation here is a statutory and does not require evidential proof, as pleadings to wit petition of appeal and it is annexure speak for itself. Regarding a question as _to how and why the appellant had served the Registrar of Titles on 28/11/2011 before filing in the High Court which was done on 8/12/2011. To me this is not an issue at all, as according to a letter and wording of a provision of paragraph(a) to subsection (1) of section 102 Cap 334 (supra) require an aggrieved party to give notice of intention to appeal to the Registrar of Titles and to the High Court within one month. Therefore, a question of filing here does not arise. Equally I find nothing strange to give notice to the Registrar of Titles first then to the High Court. As rightly submitted by counsel for appellant that this was not fatal, and therefore this objection is overruled. 6 ,., Having said, I find this appeal to be time barred and is therefore cannot be entertained. The appeal is struck out. I make no order for costs, as this ground was raised by the court suo motu. JUDGE 1/8/2018 7 ,,1 21 /8/2018 Coram: Hon Luvanda,J. For the Appellant - Ms Jackline Rogati Adovate st For the 1 Respondent - } 2nd Respondent Ms Lydia Thomas State Attorney 3rd Respondent - Mr. Betwel Advocate . Cc: Placidia Court : Ruling delivered at chamber . E. . LUVANDA JUDGE 1/8/2018 8