vicent daniel msamba vs the registrar if titles the honourable attorney general 2023 tzhclandd 16782 23 august 2023

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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 252 OF 2023 (Originating from the Decision of Registrar of Titles, 23/10/2014)

VICENT DANIEL MSAMBA APPELLANT

VERSUS THE REGISTRAR OF TITLES 1®^ RESPONDENT THE HONORABLE ATTORNEY GENERAL 2^^ RESPONDENT

JUDGMENT 18-23 August, 2023 E.B. LUVANDA,J The Appellant above named is challenging the decision of the First Respondent in the Land Register by way of rectifying by deleting the name of the Appellant and replacing the name of His Excellency the President of the United Republic of Tanzania. The reason for rectification was premised on the facts that the certificate of title issued to the Appellant was fraudulently granted on account that Plot No. 724 Block "B" Msasani Village bearing registered survey Plan No. 69452 was forged and was not approved by the Director of Survey and Mapping. In the petition of appeal, the Appellant raised two grounds of appeal: One, the Appellant being the iawful owner of all land described as Plot No. 724, Block "B", Msasani Village, KinondonI Municipality, Dar es Salaam comprised under Certificate of Title No. 97864, the First Respondent erred both in fact and law in considering the application for rectification of error in the register lodged by the Commissioner for Lands without particulars of the Survey Plan which was alleged to have been forged and not approved by the Director of Survey and Mapping; Two, the First Respondent erred both in law and fact by the rectifying the register and deregister the Appellant without affording the Appellant the right to be heard. Mr. Samwel Shadrack Ntabaliba learned Counsel for Appellant submitted that the

Appellant is the lawful owner of the suit land Plot No. 724 Block "B" Msasani Village, registered under Certificate of Title No. 97864, LO. No. 411218, but his title was cancelled and replaced thereto the name of His Excellency The President of the United Republic of Tanzania without any proof of the purported forgery and that the Registered Survey Plan No. 69452 was not approved by the Director of Survey and Mapping. He submitted that at paragraph five of the Declaration in support of an application for rectification of an error in the Land Register, indicates that the Acting Assistant Commissioner Nathaniei Nhonge Mathew appiied that the Land Register be rectified by deleting the name of the Appellant, but the Registrar of Titles proceeded to delete the name of the Appellant who was legally owning the suit land and he was legally registered by the same Registrar of Titles as owner. He submitted that the power of rectification by the Registrar of Titles under section 91(1) of the Land Registration Act, Cap 334, has some conditions to be met. He submitted that the reasons adduced by the Registrar of Titles prompted the rectification of the Land Register In Survey Plan No. 69452 Is forgery also that It was not approved by the Director of Survey and Mapping. He submitted that there Is no any forgery proceedings established and produced which proves that there was forgery or fraud

to the Survey Plan which Is the same Survey Plan used by the same Registrar of Titles to register the Appellant as owner of the suit land and the Appellant Is In occupation of the suit premises. He submitted that the Registrar of Titles In exercise of his powers under section 91, was duty bound to give thirty days notice to the parties, but the Appellant has never been served with the thirty days notice. He submitted that as per clause two of a declaration In support of rectification. It can be noted that one Seleman Shaban MvungI was allocated the same land as Plot No. 305/1 Block "B" Msasani Village but It was before survey, the learned Counsel queried as to how comes the unsurveyed land becomes Plot No. 305/1, Block ''B". He submitted that plot numbers can only be obtained after survey being conducted, argued this casts doubts to the letter of offer bearing Ref. No. D/KN/A/22452/DDM purportedly issued to Seleman Shaban Mvungi before survey was conducted. The learned Counsel queried as to how can a letter of offer be granted to the unsurveyed land. For ground number two, the learned Counsel submitted that the act of the Registrar of Titles of deleting the Appellant's name in the Register without affording the right to be heard to the parties amounts to the breach of the Constitutions of the United Republic of Tanzania. He submitted that the Registrar of Titles has stated in

the declaration that the deleting of the Appellant's name in the Register is caused by facts that the Survey Plan No. 69452 is forged and was not approved by the Director of Survey and Mapping, but the Appellant has never been summoned to defend on the alleged forgery. He submitted that the interval between 21/10/2014 up to 23/10/2014 is two days, meaning that there was no any room was granted by the Registrar of Titles to the Appellant. He submitted that failure of the Registrar of Titles to call upon the parties breached section 99(l)(c) Cap 334, which Is all about Involvement of parties and consent. In reply, Ms. Lilian Machagge learned State Attorney, submitted that the Issue of ownership of Plot No. 724, Block"B" MsasanI Village, cannot be dealt with at this stage and on this petition because the Issue of land ownership Is guided by the Land Act and the Land Registration Act. She cited the case of Fred Habibu Katawa and Another vs the Registrar of Titles and Three Others, Land Appeal No. 03/2021. She submitted that Plot No. 724, Block "B" MsasanI comprised under Certificate of Title No. 97864 registered In the name of the Appellant was fraudulently granted because the registered Survey Plan No. 69452 was not approved by the Director of Survey and Mapping In accordance with the law. On ground number two, the learned State Attorney submitted that the Appellant was afforded

with the right to be heard because on 30/10/2014, the Appellant was Issued with thirty days notice from the First Respondent T that the register was to be rectified with regard to the titie of the suit property. She submitted that the notice was posted on 11/11/2014 with serial No. 1056255 to the Appellant's post address known to the First Respondent. She submitted that the notice lapsed after thirty days with no response from the Appellant. She submitted that In July 2015 that Is when the rectification of an error in the land registry was done by the First Respondent. She submitted that the Appellant at his own will failed to file their concerns in the High Court for an order to restrain the First Respondent to rectify the same, argued being the only remedy available to the Appellant at that time. She cited the case of Fred Katawa (supra). She submitted that all the requirement for the rectification were adhere to the standards required by the law. Regarding ground number one, the Appellant complained that there is no proceedings established to prove forgery and fraud to the Survey Plan. It is true that particulars of forgery were not specifically pleaded. However, In the declaration in support of an application for rectification of an error in the land register, subject of this appeal, the Acting Commissioner for Lands, pleaded that the Certificate of title No. 97864 was

fraudulently granted to the Appellant on account that Survey Plan No. 69452 was not approved by the Director of Survey and Mapping. It is to be noted that throughout the submission of the Appellant nowhere dispelled this fact. Section 99(l)(d) of Cap 334, with marginal note rectification of land register, provide, I quote. (l)Subject to any express provisions ofthis Act, the land register maybe rectifiedpursuantto an orderofthe High Courtor bythe Registrar,subjectto an appeaito the High Court, in any ofthe foiiowing cases- (a)...N.A.... (b)...N.A.... (c)...N.A.... (d)where the High Court or the Registrar is satisfied that anymemorialin the iandregister,hasbeen obtained byfraud; bold added Herein, allegations of fraud including a fact that there was no approval by the Director of Survey and Mapping were not refuted by the Appellant, which by necessary implication connote concession. Section 4(l)(a) and (b), of the Land Survey Act, Cap 324, provide, '(l)No person other than a iand surveyor shaii- (a)Survey any iand for the purpose of preparing an approved pian within the meaning of the Land Registration Act, Cap 334 or any Act amending or repiacing the same; (b)Surveyanyiand within an area to which thisparagraph appiies, for the purpose ofpreparing a pian to identify the iand referred to or to be referred to in any document compuisoriiy registrabie under the provisions of

the Registration of Documents Act Cap. 117 or any Act amending or repiacing the same' Also section 17 of Cap 324, with marginal notes approval of plans, provide, Yl)No pian made as the resuit of survey to which paragraphs(a)and(b)ofsubsection(1)ofsection 4appiies shaii be admissibie in evidence uniess such plan has been approved by the ChiefSurveyor (2)Where in this or anyActitisprovided thatany pian shaii be approvedby the ChiefSurveyor, the approvalofthe Chief Surveyor shaii be in writing duiy signed by the Chief Surveyor and such signature shaii be evidence of such approval' To my view, admissible in evidence for purpose of this appeal connote that pian shall not be acted upon for purpose of issuance of granted right of occupancy. For avoidance of doubt, the provision of section 3 of Cap 324 (supra), allow the Director to subdelegate his power, the said provision with marginal notes Director may delegate powers, provide. Any power conferred or duty imposed upon the Director by this Act or any regulation made under this Act may, notwithstanding anything containedin anyAct, be exercised orperformed by any officer ofthe DepartmentofLands and Surveys authorised in that behaifby the Director in writing under his hand' And section 2 Cap 324, define the Chief Surveyor to mean, "Chief Surveyor means the Chief Surveyor of the DepartmentofLands and Surveys'" Therefore, the

rectification of the right of occupancy in the Register was well grounded. A fact that the plan survey over which the granted right of occupancy was based, was not approved, was not contested by the Appellant. Instead, the learned Counsel for Appellant himself was wondering as to how come unservyed land can procure Plot Number. For appreciation, I reproduce the gist of the Appellant's Counsel submission in chief, "Your Lordship, according to ciause 3 of the document attached to the instant petition of appeai it can be noted one SELEMANSHABAN MVUNGIwasaiiocated the same Piot No. 305/1 Biock "B" Msasani Viiiage but it was before survey. How comes the unsurveyed iand becomes Piot No. 305/1, Biock "B" The learned Counsel for Appellant went on to submit, I quote, Your Lordship, Piot numbers can oniy be obtained after survey being conducted, this cast doubt to the Letter of Offer bearing ref No. D/KN/A/22452/l/DDM purportedly issued to SELEMAN SHABAN MVUNGI before survey was conducted' Therefore, if the learned Counsel Is astonished on how unsurveyed land can produce or bear Plot Number, who else will trust those plan for a title deed subject for rectification. If the learned Counsel cast doubt on letters of offer, as to how could be Issued prior survey, who else would trust the process under which granted right of occupancy was made. All these support a fact that the rectification

was well grounded as aforesaid. On ground number two, the Appellant complained that during rectifying the register and dereglstering the Appellant, It was done without affording the Appellant right to be heard. The learned State Attorney, submitted that the Appellant was afforded the right to be heard because on 30//10/2014 a thirty days notice was Issued and posted to the Appellant's post address on 11/11/2014, and a notice lapsed with no response from the Appellant, hence rectification done In July, 2015. It Is true that the records of the Registrar of Titles availed to this Court Indicate that on 30/10/2014 the Registrar of Titles Issued a notice of rectification under section 99(l)(f) of Cap 334 which was posted on 10 11/11/2014 via registered mail serial No. 1056255. The records of the Registrar of Titles indicate that up to 22/07/2015, thirty days notice long expired from posting date, and there was no response or any objection from the Appellant, hence rectification was approved. According to section 110(l)(c) of Cap 334, service of notice under that Act is deemed to have been conclusively and effectively served to the person intended to be served, when is sent by registered post address. Indeed subsection (2) to section 110 require every person entitled to any notice to furnish the Registrar of Titles with the postal address for service in Tanzania. I quote the said

provision for appreciation. Section 110, with marginal notes service of notices, provide (1)A notice under this Actshall be deemed to have been served on orgiven to any person- (a)ifserved on him personally; or (b)ifleft for him at his last known address; or (c)ifsent by registered post addressed to Mm at Mslastknown address. (2)No person shaii be entitled as ofright to any notice which the Registrar is required to give under the provisions of this Act 11 unless he has furnished to the Registrar a postal address for service in Tanzania' Herein a notice of rectification reflect was send to the Appellant posted via P.O. Box 105497, Dar es Salaam. The Appellant did not dispel that address. It is therefore taken that a notice of rectification was posted to the address which the Appellant had furnished to the Registrar and the Appellant did not respond to a notice or object it. Therefore, his complaint that he was not accorded the right to be heard, cannot be entertained. The appeal is dismissed with costs. E.B.iUVAN GE ★ :i(SU miltm DlVV Judgment delivered In the pr^ence of Mr. Paulo Mtui learned Counsel for the Appellant and Ms. Lilian Machagge learned State Attorney for the Respondent. A\ ei -5: E. A

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JUDGE ★ 22mi2t)22 to DI 12