20130228 TZCA Arusha

~1, ~ It Q IN THE COURTA~A~:;~~ OF TANZANIA I f! Jj {CORAM: MSOFFE, l.A, MJASIRI, iA and JUMA, l.A) J ~ CIVIL APPEAL NO. 12 OF 2007 J . 2; l<IGILA~~·UD i •••••••••••• APELLANTS VERSUS THE REGISTERED TRUSTEES 1 DIOCESE OF MBULU ............... :........................ RESPONDENT (Appeal from-the Decision of the High Court of Tanzania at Arusha) {Mushi, J.) dated the 24th day of May, 2001 in Civil Case No. 11 of 1998 --------------·- JUDGMENT OF THE COURT 25th February, & 1st March, 2013 JUMA, J.A.: . This appeal arises from a suit which the two appellants, the Rift Valley Cooperative Union-RIVACU (1 st appellant), and Ngila Estate · Limited (2 nd appellant), filed in the High Court of Tanzania at Arusha. Among several claims which the 1st appellant sought in that suit, was a declaratory order from 19th September 1997, following a successful 2 transmission of that parcel of land by operation of law and its subsequent transfer; the Rift Valley Co-operative Union (RIVACU) had become a lawful registered land owner of the disputed IRGOBAWE FARM. 1st appellant further alleged that following the legal transfer of the IRGOBAWE .FARM to itself; under a Deed of Partnership it exercised its rights and freedoms as the owner by handing over, the · entire management and development of that farm to the Ngila Estate Limited (2 nd appellant). In so far as the evidence of ownership of the disputed farm is concerned, Mr. Patrick Dahaye (PW1) then the General Manager of the 1st appellant, informed the trial court that RIVACU, Le. the 1st appellant had since 19/9/1997 become a legal holder of a Certificate of Title over IRGOBAWE FARM No. NP 43 and L.O. No. 5218 ( exhibit Pl). PWl further testified that this legal ownership followed the successful transfer of that land. Tabu Jose Nkya was an Assistant Registrar of Titles when he testified as PWS to recognize the 1st appellant as. a holder of a Certificate of Occupancy over the IRGOBAWE FARM. According to PWS, 1st appellant acquired the farm from IRGOBAWE CO-OPERATIVE UNION which was by 1997 already. 3 defunct. PWS also testified that the transfer of that farmland to RIVACU was initiated by the General Manager of RIVACU through an application (Exhibit PS). Upon cross examination by Mr. Akonaay Sang'ka PWS conceded that the letter from the office of the Commissioner for Lands (Exhibit P6), which gave out the procedure to follow when carrying out transfer of registered IRGOBAWE FARM, does not state that it is the property of IRGOBAWE COOPERATIVE UNION which is subject of the transfer and this exhibit 6 does not by itself authorize the transfer of land from IRGOBAWE COOPERATIVE UNION to RIVACU. The re?pondent, the REGISTERED TRUSTEES OF THE DIOCESE OF MBULU gave the High Court a very different account of legal ownership of the land subject of this appeal. The respondent does not agree with the claim that the RIFT VALLEY COOPERATIVE UNION st (1 appellant) had obtained by operation of the law, legal ownership of the farm from IRGOBAWE COOPERATIVE UNION. Instead, the respondent contended that the 1st appellant obtained a transfer of title to itself by misrepresenting facts to the Assistant Registrar. of Titles. Apart from its written statement of defence, the respondent 4 had also included a Counter Claim contending that the diocese had been in peaceful occupation of the suit land for many years before the appellants trespassed into the land in November 1997 to plough and plant crops. For that trespass, the respondent asked the High Court to find not only that the respondent herein had acquired title over IRGOBAWE farm by prescription, but the appellants should also be made ·to pay special and general damages for forcefully entering the disputed farm. In his judgment, the trial Judge dismissed the suit in its entirety after rejecting the document ( exhibited as PS) which the 1st appellant had used as a basis for the transfer of the registered land from the IRGOBAWE COOPERATIVE UNION LIMITED, to the 1st appellant. The trial judge held that this document mislead the Assistant Registrar of Titles into entering the name of the 1st appellant as the rightful · holder of a right of occupancy of the disputed farm. Being dissatisfied with the outcome of their suit, the appellants . . . have brought this appeal. The 13 grounds of appeal may in essence be summarized into two main areas of grievance. The appellants in 5 the first place contend that the trial court erred by concluding that the 1st appellant (RIVACU) had not become a registered and rightful owner of the disputed lands, and the trial court should not have ordered the deletion of the name of the 1st Appellant from the Land Register. Secondly, the appellants contend that .the trial court erred by failing to consider how caretakers of the disputed land like the respondent are, could be in lawful occupation-of the disputed land. Parties to this appeal were granted leave to file their respective written submissions to expound their positions on the grounds of appeal. The appellants' submissions were filed on their behalf by two firms of learned Advocates: M/S Makange & Company Advocates and D'Souza & Co. Advocates. Respondent's reply submissions were filed by Messrs Imboru Chambers Advocates. After many twists and turns this appeal finally came up for hearing on 25th February 2013 when we heard Mr. De Souza, learned counsel for the appellants. The learned counsel first sought the indulgence of the Court to bear with the absence of Mr. Makange his learned colleague who is still recuperating from ~ecent brain s0rgery .. 6 Mr. De Souza basically adopted the appellants' written submissions. In addition, the learned counsel submitted that the two questions are central in the determination of this appeal. First, is about the identity of the registered owner of the disputed land. The second central question according to the learned counsel is, whether the name of the 1st appellant was validly registered by the Assistant Registrar of Titles (Moshi Land Register) to replace IRGOBAWE COOPERATIVE UNION LIMITED. In so far as to the rightful owner of disputed farm is concerned, Mr.- De Souza invited us to re-evaluate the crucial pieces of evidence on ownership available on record of the trial court. Mr. De Souza drew our attention to a Certificate of Title Deed Number NP 43 which the learned counsel contends bears the name of the 1st appellant as the legal owner within the meaning ascribed in section 2 of the LAND REGISTRATION ACT, Cap. 334 R.E. 2002. This section defines "owner" to mean, in relation to any estate or interest, the person for the time being_ in whose name that estate or interest i_s registered. The learned counsel urged us to take judicial notice of the certificate 7 ,I I',, of title and to find that the 1st appellant ias the registered ·owner of the land .. Mr. De Souza also referred us to a"second document which he ,, also urged us to re-evaluate and find the 1st appellant to be t~~ ,lggal owner of the disputed farm. This docqment, an "Applicc.1ti<>n~f~ Registration of a. Transmission by Operation of Law" was admitted as exhibit PS. The learned !counsel submitted that this document was an outcome of scrutiny of application documents . :, which satisfied the · Assistant Registr9r of Titles resulting in the change of the entries in the land register with regard to Title Number i :, NP 43 (EXHIBIT Pl) from the· name pf IRGOBAWE CO-OPERATIVE UNION. LIMITED; to the name· of .RIFT VALLEY CO-OPERATIVE. ·• I, I I UNION LIMITED. In our re-evaluatioq of documentary evidence,· the I, learned counsel urged us to find that exhibit PS also complied with " procedural requirements for transfer of land ownership which had i ,, been highlighted in a letter (exhibi~ P6) from the COMMISSIONER FOR LANDS advising the 1st appeilant on how to carry out a transfer ·of title to land by operation ofthe law. 8 Apart from the perusing the written submissions which the respondent had earlier filed, we also heard Mr. Sang'ka and Mr. Umbulla advocating for the respondent. One central theme which cut through Mr. Sang'ka's submission before us was that the trial Judge was correct to conclude that the Certificate of Title over IRGOBAWE FARM registered under Title NP 43 on 4/5/1968 in the name of IRGOBAWE COOPERATIVE UNION LIMITED did not· by operation of law transfer on to the 1st appellant. Mr. Sang'ka asked us to dismiss this appeal in its entirety. From totality of evidence, there is no doubt in our minds that legal ownership of farm with title NP 43 LO. 5218 as reflected in the register kept by Registrar of Land Titles was different from the reality on the ground with regards to possession,. occupation and use of that farm. The convoluted history of the disputed farm was appreciated very well by the trial judge when he observed in his decision that: "... After the abolition of cooperative unions in 1976, the suit farm while registered as the property of Irgobawe Cooperative Union Ltd was handed to Mbulu District Council which in turn handed it to its commercial wing by the name of Mbulu District Development Cooperation. In 9 1978, Mbulu District Development Corporation (DECOM) voluntarily handed over the farm to the DIOCESE of Mbulu to manage the same on agreed terms, and the arrangement lasted till 1983. The evidence states further that in 1983, Mbulu District Council requested the Bishop of DIOCESE of Mb1.1lu,. to open a secondary school at Kara tu.· At the same the District Council decided that the farm which was hitherto being managed on agreed terms should be handed over to the Bishop for the same to be used by the new secondary school. This is how Endorofta Secondary School has come to be in possession of the farm. The defendant is therefore a lawful possessor of the suit farm.'~ PAGE 101 LINES 8-22. But for the purpose of determination of this appeal, we shall • not delve back into history to find out the turns and twists through · which cooperative societies and unions in Tanzania have endured and how co-operative societies and unions have over the years formed, merged, dissolved and how properties belonging to the dissolved or merged co-operative societies were divided out. We shall restrict our re-evaluation of evidence to the question whether the legal. ownership over IRGOBAWE FARM (Title No. NP 43) was in fact and in law, transferred on 19th September 1997 from ownership by the IRGOBAWE COOPERATIVE UNION LIMITED, to the 1st appellant under the terms of section 71 of the LAND REGISTRATION ACT. Our starting point is obviously section 71 which the 1st appellant regards as a turning point in so far as transfer of registered land is concerned. This provision which specifically governs changes of names of registered owners of land by operation of law states: 71.-Subject to the provisions of the Law of Limitation Act where the Registrar is satisfied that any person has become entitled to any estate or interest in any registered land by the express provision of any written law or by any order, declaration or certificate made:, granted or issued under the provisions of any written law or by operation of law not herein otherwise provided for, he may, on the appllcatlon of any Interested person, supported by such evidence as he may require, record the same by registration or entry. [EMPHASIS PROVIDED] We were obviously anxious to re-evaluate the oral and documentary evidence which the Assistant Registrar of Titles used as a basis for registration of the 1st Appellant as a new owner of 11 IRGOBAWE FARM. It became clear from our reading of section 71 that only those documents, which shows that an applicant has become entitled to any estate or interest in any registered land by the express provision of any written law or by any order, declaration or certificate made, granted or issued under the provisions of any written law or by operation of law not herein otherwise provided for, are capable of moving the Registrar of Titles to resort to section 71 of the LAND REGISTRATION ACT to transfer a registered land by operation of the law. In other words, the 1st appellant went to the High Court with oral and. documentary evidence to show that it had satisfied the Assistant Registrar of Titles that it has become entitled to any estate or interest in any registered land by an express provision of a written law. -We propose first to expound on applicable principles of law before re-evaluating the .relevant documentary and oral evidence regarding transfer of registered land by operation of law. We think that, the phrase "express provision. of any written law or by any order, declaration or certificate made, 12 granted or issued under the provisions of any written law or by operation of law express provision of any written law or by any order, declaration or certificate made, granted or issued under the provisions of any written law or by operation of law' appearing in section 71 carries special significance in so far as applications for changes of names of registered owners of land by operation of law are concerned. Changing of entries in register of lands is not a small matter that can be done casually or perfunctorily. It is a serious matter requiring strict compliance with the provisions of section 71. In our opinion, before an application for transfer of registered titles to lands can be made under section 71, there must be evidence showing an applicant seeking such a transfer has by operation of any written law or by a Judgment and Decree or Ruling and Drawn Order, become entitled to a registered land in question. Mere declaration or statements howsoever made that one has become entitled to a registered land shall not suffice to move the Registrar of Titles. For example, any court order authorising transfer of registered land under section 71 must be accompanied with a I . I 13 certified copy of a Judgment together wrh a certified Decree; or where applicable, a copy of a certified Ruling accompanied with a Drawn Order. Mere statements to the effeb that a court has ordered . . . I any change in the land register ·-shall hot be sufficient to effect changes in the register under section 71. This appeal revolves around an alleged transfer of a registered . I . land occasioned, by operation of a written law. For such a transfer . I pegged · on a written .law, first there 7ust be authorization of that transfer flowing directly ;rom exercise/ of power under a specified written law concerned. Invariably, suet transfers are notified to the Registrar of Titles through appropria/e Government Gazette or an official letter from an officer of gcbvernment exercising specific .I . statutory powers.• ·'r. .. ' I {.· ·: .. Therefore, an "Application! for Registration of a . .. I Transmission _by Operation of Lf w" (exhibit PS) alone Wi~h~ut any other . · officially . . communicat~d I . order made ·under the - . ·1 . COOPERATIVE SOCIETIES ACT, 199i1 .which was applicable in 1997, ;I . .. . . was- in our view not s~ffitie~t to sus~ain a transfer ofa r_egistered title . .· ·· .. I .. !;' 14 over land under the above cited section 71. Although when Tabu Jose Nkya (PWS) was being cross examined by Mr. Sang'ka, he suggested that it is the REGISTRAR OF COOPERATIVE SOCIETIES who had the authority to transfer the property of one cooperative society to another but that authority of the Registrar of Cooperatives was not presented before the Assistant Registrar of Titles together with exhibit PS. We cannot but express our doubts whether the 1st appellant heeded the clear advice of the Office of the Commissioner for Lands· offered through. Exhibit P6 wherein a solicited legal advice is extended to the 1st appellant on how to effect a requested transfer of a registered land by operation of law. We are reproducing portions of the contents of exhibit P6 to underscore the import of its legal advice:- "... Ombi la RIVACU linaweza kutekelezwa kwa mujibu wa sheria ya ushirika ikitumika sambamba na Sheria ya Usajili wa Ardhi Sura ya 334 bi/a hata sababu ya kufuta miliki ya awali. Hil nl kwa sababu RIVACU wanapewa haki ya kumiliki ardhi hiyo kama Chama Cha Ushirika 15 kutoka ushirika mw1ng1ne kwa mujibu wa sheria inayosimamia vyama vya ushirika. [paragraph 2] Kwa hiyo iliionekane sheria na taratibu zinafuatwa katika kuhamisha mali za ushirika mmoja kwenda mwingine, kwa kuwasiliana na Mrajis wa Vyama vya Ushirika na wakili wao waandae maombi kwenda kwa msajili wa · Hati- Moshi wakiomba mabadiliko ya Jina la mmilikaji kufuatia mabadiliko ya umilikaji yaliyofanywa kwa mujibu wa Sheria ya Ushirika. Kiutaratibu Mheshimiwa Waziri wa Kilimo na Ushirika atakuwa alitangaza uhamisho wa mali kwa Gazetl la Serikali chini ya Sheria ya Ushirika inayompa mamlaka hayo. [paragraph 3] Kwa nia hiyo kiandaliwe. na kuwasilishwa kitu kiitwacho 'APPLICATION FOR REGISTRATION OF A TRANSMISSION BY OPERATION OF LAW (UNDER SECTION 71 OF THE LAND REGISTRATION ORDINANCE, CAP. 334). 'Maombi hayo yawasilishwe pamoja na hati ya · mmilikaJ7 awali aliyesajiliwa. "Paragraph 4 It is clear from this letter; it is authorities established under the COOPERATIVE SOCIETIES ACT, 1991 who were vested with the power.to initially identify any land owned by any cooperative society 16 which should be transferred. The letter clearly states that the Minister responsible· for cooperatives who would first Gazette landed properties subject of any such proposed transfer. It is the Minister who should have made the initial notifications documented in the official Gazette designating an estate or interest in any registered land, which should later be subjected to transmission under the above mentioned section 71. It is not disputed that the transfer of the IRGOBAWE farm to the 1st appellant was initiated by the General Manager of the 1st appellant in a letter dated 18/9/1997 (Exhibit PS). This letter alludes to other documents which though not exhibited in court but Mr. De Souza would like us to notice judicially that they were presented to' the Assistant Registrar of Titles. It is obvious to us that the 1st appellant did not comply with instructions which the Commissioner for Lands had issued through exhibit P6. No copy of official Gazette was tendered as evidence in court to manifest the exercise of the . power of the Minister responsible for cooperatives· or any .officer working under his direction, to initially gazette IRGOBAWE FARM as subject of any impending transfer to the 1st appellant. 17 We propose to explain further why we think it was important for the purpose of transfer of registered land by operation of law; for the 1st appellant to present all statutory documents before the · Assistant Registrar of Titles. In paragraph 12 (a) of the plaint, the 1st Appellant had asked the High Court for a declaratory order to the effect that the 1st appellant herein is the lawful owner of the disputed farm. It was incumbent upon the 1st appellant to include in its application to the Registrar of Titles (Exhibit PS), a statutory order in . terms of section 71 made either by the Registrar of Cooperative Societies or the Minister exercising their respective powers under the COOPERATIVE SOCIETIES ACT, 1991. The declaratory prayers expected the 1st appellant to present before the trial court all the statutory documents it had. In so far as Mr. De Souza is concerned, as long as the Assistant Registrar of Titles has accepted the transfer of registered land to the 1st appellant, courts should respect that decision by taking judicial notice of the transfer of ownership over registered land. The learned counsel would like us to find that the General Manager of the st 1 appellant must have surely tendered all the necessary statutory 18 documents envisaged under section 71 to move the Assistant Registrar of Titles. Mr. De Souza has asked us to take judicial notice under the terms of sections 58 and 59 (1) (b) of the EVIDENCE ACT, Cap 6 RE 2002 which dispenses with the need to prove existence and titles of societies or other bodies the registration of which has been notified in the Gazette. While we respectfully agree with the position of Mr. De Souza regarding t~_e taking of judicial notice as law prescribes, we shall hasten to point out that in the special circumstances of this matter where the Assistant Registrar of Titles was specifically required by section 71 of the LAND REGISTRATION ACT to satisfy himself that the 1st appellant had become entitled to a parcel of registered land and should become·a new registered owner of that land by operation ' , · .. of the law, it was important for the 1st appellant, to present before the Assistant Registrar of Titles the relevant official Gazette or official letter under the CO-OPERATIVE SOCIETIES ACT, 1991 approving the proposed transfer of registered land to the 1st appellant. 19 We as a result dismiss the aRpeal in its entirety. The respondent is awarded the costs. DATED at AR USHA th!S 28th day of February; 2013 .. ·J. H. MSOFFE: JUSTICE OF APPEAL S. MJASIRI. JUSTICE OF APPEAL . I.H. JUMA I . JUSTICE .rr. OF APPEAL . ' i I I certify that .this is• a true .copy of the original. . •, .. . ' .!