Salaudin Judgement

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB- REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 30 OF 2023 (Arising from the decision of the Registrar of Titles, Mwanza) SALAUDIN MOHAMED MUSA……………………………………..……… APPELLANT VERSUS REGISTRAR OF TITLES………………………………..……..…………. RESPONDENT JUDGMENT 20th & 27th August, 2024 ITEMBA, J. This appeal is prompted by the notice issued by the Registrar of Tittles (herein the registrar), dated 31/1/2023 intending to rectify the land register by deleting the appellant’s name from the certificate of tittle no. 28280 in respect of Plot No. 154, Block “D” Nyegezi, Mwanza and replace it with the name of Her Excellency, the President of the United Republic of Tanzania. The appellant is aggrieved by the said notice of rectification and he filed the present appeal armed with two (2) grounds as follows: 1. That, the Registrar of Titles has erred in law by unjustifiably intending to rectify the Land Register by deleting the Appellant’s name from the Certificate of Title with number 28280 LR Mwanza in respect of Plot No. 154, Block “D” Nyegezi, Mwanza registered in the names of SALAUDIN MOHAMED MUSA. 2. That the Registrar of Title has erred in law by not giving reasons as to why the Registrar intends to proceed with the rectification of the Land Register by deleting the Appellant’s name from the Certificate of Title with number, 28280 LR Mwanza in respect of Plot No. 154, Block “D” Nyegezi, Mwanza registered in the names of SALAUDIN MOHAMED MUSA. The appellant also prays that a permanent order be issued restraining the respondent from rectifying the Land Register by deleting the appellant’s name from the said certificate of Tittle. The respondent filed a reply to petition of appeal stating that the Registrar was justified because the said title was issued based on fraud. He also attached a High Court decision in Land Case no. 15 of 2018 in respect of the suit plot between Rose Frank Marealle and Mwanza City Council and a letter from Land Commissioner explaining the said fraud. The appeal was argued viva voce, Mr. Vedastus Laurian learned advocate represented the appellant succeeding Mr. Anton Nasimire while the respondent had the services of Mr. Alen Mbuya, learned state attorney. The appellant’s 2 grounds of appeal were argued jointly. Submitting in support of the appeal, Mr. Laurian stated that the respondent issued the appellant a notice with the aim to rectify the registration of the suit property in terms of section 91(1) of the Land Registration Act Cap. 334 (herein the Act), by removing the name of the appellant and replace it with the name of the President of United Republic of Tanzania. That, the registrar was acting under section 99 of the Act but he did not give any reasons for his actions. That, under, section 99 (1)(d) the registrar must be satisfied that there is fraud in the registration in question. That, if the registrar had valid reasons, then the appellant would first be given his rights to be heard otherwise, the act by the registrar is a breach of natural justice. He cited the case of Rajabu Mikidadi Mwilima v Registrar of Tittles Misc. Appeal no 67 of 2018 Land division HC DSM which stated that the right to be heard is fundamental. He added that, under paragraph one of the respondent’s counter affidavit, there are reasons given to validate the registrar’ acts. However, to him, those reasons are not justifiable because they were given by the learned state attorney and that all the information provided by the state attorney should have been given by the Registrar. That, there is another person mentioned by the respondent named Justice Lumima Katiti who is currently in prison and he is allegedly as the owner of the suit plot. That, there is information that the land in dispute was surveyed by the said Justice Lumima Katiti and several plots were issued thereof. He went on that, there is nowhere the said Justice Lumima Katiti has raised complaints against the appellant or anyone else regarding ownership of this suit property. Therefore, because the government authorities have been misled, the court need to intervene. That, in the High Court case referred by the respondents in the reply to the amended petition, the appellant had already sold the suit plot to one Rose Mareale. Therefore, the Registrar should have taken note that there are interest of other people on the suit plot. That, if given a chance to be heard, the appellant would have said that he bought the land from Deusdedit Balyagati who also bought the same from Peter Bitenga according to the attached sales agreements herein and that, without involving Justice Lumima Katiti and Deusdeti Byarugaba the decision by respondent was unjustified. He finally moved the court to allow the appeal and that if there is an interested party, a case should be filed and parties be heard. In reply, Mr. Mbuya submitted that the acts by the registrar was justified. He referred the attached letter from Mwanza City council in which there are ground for revoking the appellant’s tittle. That, the commissioner for land informed the respondent that the appellant purported to be the original owner and he was issued a tittle while, the original owner was present. That, there is a case in court where the appellant tried to sell the suit plot without success. However, all this time, the land was already bought by Justice Lumima Katiti who was in prison. He submitted further that, there is also a contract between Peter Masele and Justice Lumima Katiti of 2008 where Peter was selling as the original owner who owned the suit plot since 2005. In respect of the 2nd ground, he argued that the notice of rectification is lawfully made under section 91(1) d (2) of the Act and parties were served including Justice Lumima Katiti. That, the ground under section 99(1)(d) empowered the registrar to issue notice of rectification. That, under section 99(2) of the Act, there must be criteria for rectification and fraud is one of them and it is pleaded in the notice. He insisted that, that is why under section 102 of the land registration act the law gives the remedy for appeal. That, under section 102(a) the notice was issued to the appellant and procedure were followed. As regard the cited case of Rajabu Mikidadi Mwilima v Regisrtar of Tittles (supra) he termed it misconceived and distinguishable because the procedures were not followed, that in the said case, the appellant was not issued with a notice at all. The learned counsel stressed that, on the issue of protecting the interest of Justice Lumima Katiti, the government is not protecting anyone’s interest but intends to do justice, and that is why ownership is not vested to Justice Lumima Katiti but to Hon. President of Tanzania, based on the deception made in issuing the tittle. That, if there is fraud, the law empowers the registrar to rectify the tittle and issue it to the Hon. President. The learned state attorney also challenged the validity of the annexed sales agreement as doubtful due to the dates of purchase and one of the parties appearing as a Company. He finalised by stating that, it is not true that there is no single complaint by Justice Katiti because while in prison, after noting that the appellant is intending to sale the suit property to Rose F. Mareale, he complained to the Prevention and Combating of Corruption Bureau (PCCB). He also referred to the prohibitory notice which 18/2/2010 which was aiming at restraining any transfer of the suit land which by then belonged to Justice Katiti. He prayed for the appeal to be dismissed with costs and order that rectification be done and the suit property be returned to the President. In his brief rejoinder, Mr. Laurian stated that although the source of intention for revocation it the letter from Mwanza City, the content of the said letter are serious allegations and does not reflect the High Court’s decision and that is why these reasons were supposed to be given to the appellant early. As to the validity of the sale contracts, he stated that, all contradiction in the contracts of 2008 and 2010 as explained by the State Attorney were a fit case to be heard in court. That, at this stage parties cannot go into those details because in this appeal, the appellant is questioning the procedures. In consideration of the records herein and submissions from the parties, the issue is whether the registrar of tittles’ intention to rectify the land register is justified. In accordance with of the notice of appeal herein, this appeal is lodged in terms of section 102 (1)(a) of the Act. The said section states that: 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: Provided that- (a) no such appeal shall lie unless the appellant or his advocate shall, within one month from the date of such decision, order or act, have given to the Registrar and to the High Court notice of intention of appeals;’ The appellant has attached the notice of rectification dated 31/3/2023 which they were served by the registrar. It is made under section 99(1)(d) and 2 of the Land Registration Act, Cap 334. The said provisions states that: ‘99(1) Subject to any express provisions of this Act, the land register may be rectified pursuant to an order of the High Court or by the Registrar subject to an appeal to the High Court, in any of the following cases- (d) where the High Court or the Registrar is satisfied that any memorial in the land register, has been obtained by fraud;’. This court finds that; there is no dispute that the suit property is in the name of the appellant Salaudin Mohamed. There is also no dispute that the Registrar of Titles is vested with the statutory power to rectify the Land Register under Section 99 of the Land Registration Act. Thus, by the notice issued to the appellant, the registrar is intending to rectify the registration in question. It is noted that, the said notice is made under section 99(1) sub section (d) which implies that the registrar has noted fraudulent transaction in issuance of the Tittle to the appellant. However, the registrar did not assign any reasons in support of the alleged fraud so that the appellant could understand and be in a position to respond or defend. As rightly submitted by the appellant’s counsel, the reasons were explained later by the learned state attorney when replying to this appeal. The act of rectification if it proceeds, has the effect of depriving the appellant ownership of the suit plot without him being heard. It will also be violation of the appellant’s constitutional rights and it can not be entertained by this court. The learned state attorney is distinguishing the case of Rajabu Mikidadi Mwilima v Regisrtar of Tittles (supra) stating that in the said case, the notice was not given at all. That might be the case but in the present appeal although the notice was issued it was not clear enough to the appellant because as mentioned above, the notice should have indicated the reasons for rectification. I am satisfied that the appellant was declined a right to be heard on crucial question which also touches his right to own property and I am further satisfied that the appellant was prejudiced. See G.9963 Raphael Paul @ Makongojo v R Criminal Appeal No. 250 of 2017 on the significance of the right to be heard. According to the reply by the respondent, it appears that there are issues of ownership and the registrar was satisfied that the suit plot does not belong to the appellant based on the evidence brought before him. Those details provided by the respondent’s counsel implies that there might be key issues fit for litigation between the appellant and other interested parties. That said, I agree with the appellant’s Counsel that the registrar erred by intending to rectify the registration of the suit plot without assigning any reasons thereof. Under the circumstances, I find the appeal to have merit and I allow it. The Registrar of Tittles is restrained from rectifying the Land Register by deleting the appellant’s name from the certificate of Tittle of Plot No. 154, Block “D” Nyegezi, Mwanza. If either the appellant, respondent or any other party feels that the other is threatening their interests in the suit plot, they can file an appropriate claim in court. It is so ordered. No orders to costs. L.K.J. ITEMBA JUDGE 27.08.2024