WAKURU DAVID MASUGURI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 87 OF 2023 (Originating from the decision of the Registrar of Titles dated 19th June 2023) WAKURU DAVID MASUGURI (As Attorney of GENERAL WARIOBA BUGOZI MUSUGURI)...................................... APPELLANT VERSUS REGISTRAR OF TITLES................................................................ 1st RESPONDENT ATTORNEY GENERAL............................................................. 2nd RESPONDENT JUDGMENT Date of Last Order: 17/9/2024 Date of Judgment: 11/10/2024 MASABO, J.: This appeal emanates from a decision of the Registrar of Titles made on 19th June 2023 refusing to register a caveat filed by the appellant in respect of Plot No. 348 Title No. 16278-DLR Mlimani within Dodoma City. The appeal has been brought under section 102 of the Land Registration Act [Cap.334 R.E 2019] which permits a person aggrieved by a decision, order or act of the Registrar of Titles, to appeal to this court. The background of the appeal is not hard to establish. Wakuru David Masuguri, the appellant is the attorney of one General David Warioba Bugozi Masuguri who was the registered owner of the suit land. It is alleged that the appellant discovered that the suit land was illegally disposed of to one Yassin Ally Athuman and later on it was transferred to one Baraka Said Omary. To prevent further disposition while going on with legal remedies, Page 1 of 10 on 5th April 2023, the appellant lodged a caveat to the first respondent against the said Baraka Said Omary. His efforts ended barren as on 19th June 2023 the first respondent refused to register the caveat. Aggrieved by the decision of the first respondent, the appellant has knocked on the door of this court with an appeal based on the following three grounds: One; the Registrar of Titles erred in law and in fact in refusing to register the caveat lodged by the appellant. Two, the Registrar of Titles erred in law and fact in assuming that the registration of the caveat lodged by the appellant over the disputed property is discretion whereas it is mandatory. Three, the Registrar of Titles erred in law and in fact in not giving reason for not registering the caveat lodged by the appellant. The appeal was disposed of by way of written submissions. The respondents were represented by Mr. Nicodemus Agweyo, learned State Attorney and the appellant was represented by Ms. Catherine Aniceth Wambura, learned Advocate. Both parties complied with the scheduling order on filling the submissions issued by the court on 13th August 2024. Submitting in support of the appeal, Ms. Wambura consolidated the first and second grounds of appeal and argued that, in refusing to register the caveat, the first respondent contravened section 78(3) of the Land Registration Act, Cap. 334 R.E. 2019 which provides that, once an interested party lodges a caveat with the Registrar, the Registrar must register it. He has no discretion to refuse the registration as the law is couched in mandatory terms. The use of the term "shall", in the provision implies, as per section 53 (2) of the Interpretation of Laws Act, Cap.l R.E 2019, a Page 2 of 10 mandatory obligation for registration. The refusal to register the caveat was, therefore, in contravention of the law. On the third ground of appeal, it was submitted that the decision of the Registrar was not braced by reasons. The omission to state the reasons, it was argued, constituted a violation of the principles of natural justice as stated in the case of Tanzania Air Services Ltd vs Minister for Labour and 2 Others [1996] TLR 217. In this case, the court underlined the duty of the public authorities to give reasons for the decisions and held that, that the omission to give reasons constituted a fatal error. In the foregoing, it was submitted and prayed that the appeal be allowed and the Registrar be ordered to register the caveat. In reply, the respondents submitted that, indeed the first respondent herein refused to register the caveat lodged by the appellant as the said caveat did not meet the statutory requirements for registration of caveats and the reason for refusal was communicated to the appellant. It was argued further that section 78(2) of the Land Registration Act [CAP 334, R.E 2019] stipulates the conditions for registration of a caveat and requires that the caveat be supported with the declaration stating the facts, claims and/or interests of the applicant in the land in which the caveat is to be entered. Contrary to this requirement, the appellant's caveat was not supported by the statutory declaration. In fortification, the cases of Emilian Rugaimukamu vs Registrar of Titles & Another [1997] TLR 223, Rukia Shekha Haji vs Rashid AH Rashid [2001] TLR 295 and Sebastian Ndegwe vs Anisa Ibrahim Hussein [2000] TLR 333 were cited and it was argued that the Page 3 of 10 rule discernible from these cases is that, a caveator (s) must establish a prima facie case demonstrating that they have an interest in the land worthy of protection. It was argued further, in line with the authorities above, that, the Registrar of Titles was right in refusing to register the caveat lodged by the appellant as it had no statutory declaration stating the facts and interest of the appellant on the suit land. Summing up, Mr. Agweyo submitted that the appeal has no merit and should be dismissed with costs. In rejoinder Ms. Wambura submitted that the appeal be allowed as the respondent has, in her submission, admitted that no reason was assigned for the refusal to register the caveat. She then reiterated that the reasons for refusal was not communicated to the appellant. Had they been demonstrated, the learned State Attorney would have demonstrated how they were communicated, but he did not. This shows that the reasons were not communicated. It was rejoined further that the appellant contravened the provisions of section 78(2) of the Land Registration Act. Distinguishing the cited authorities, the learned counsel submitted that they are irrelevant and should not attract any weight as they concerned section 78(6) and (7) which is not at issue. Further, the case of Sebastian Ndegwe (supra) is distinguishable because in that case the Registrar disclosed the reasons for his refusal to register the caveat. I have considered the rivalry submissions by the learned counsels from both parties alongside the decision of the Assistant Registrar of Title. The issue for determination is whether, in refusing to register the caveat the first respondent offended the law. The term caveat is defined under section 2 of Page 4 of 10 the Land Act, Cap 113 R.E 2019 to mean: "a notice in the form of an entry on a register that no action of a specified nature in relation to the right of occupancy in respect of which the notice has been entered may be taken without first informing the person who gave the notice" As per section 78(1) of the Land Registration Act Cap 334 R.E 2019 a caveat may be presented by any of the following persons: one, a person who claims interest in the registered land; and two, a person who has presented a bankruptcy petition against the owner of the estate or interest. Once the caveat has been duly entered into the register, it becomes an encumbrance as per section 78(3) of the same Act. For easy of reference, section 78(1) to (3) are reproduced below. They provide as follows:- "78.-(1) Any person who claims an interest in any registered land, or any person who has presented a bankruptcy petition against the owner of any estate or interest, may present a caveat in the prescribed form. (2) Every such caveat shall be supported by statutory declaration stating the facts upon which the claim is based. (3) Upon receipt of any such caveat the Registrar shall enter the same in the land register as an encumbrance and shall notify the same to the owner of the estate or interest thereby affected, [the emphasis is mine]. In my considered view, sections 78(1) and (2) support the State Attorney's submission that registration of the caveat is subject to fulfilment of the following requirements stated under these two subsections. Firstly, the Page 5 of 10 person presenting the caveat must be claiming an interest in the registered land or a person who has presented a bankruptcy petition against the owner of the estate or interest. And, secondly, the caveat should, mandatorily, be supported by a statutory declaration stating the facts upon which the claim is based. Ms. Wambura's argument that a caveat presented should mandatorily be registered is misconceived and inconsistent with the law because, as per the above provisions, the registration cannot be done unless the two prerequisites above have been fulfilled. Therefore, unless they have been fulfilled, the Registrar has no obligation to register it and cannot, therefore, be faulted for his refusal to register. The learned state Attorney has passionately argued that registration was refused because the above prerequisites were not fulfilled and the reasons thereto were communicated to the appellant hence his appeal has no merit. Before I delve into the record to ascertain whether the prerequisites above were fulfilled and whether the reasons for refusal of registration were stated, it is apposite at this outset, to comment albeit briefly on the need for a reasoned decision. A reasoned decision, whether administrative or judicial, cannot be over­ emphasized. In many jurisdiction, it is a cardinal principle that a decision that directly impacts a person's rights, privileges or interests must be accompanied by a reason(s). The rationale behind this requirement is not hard to locate. Among other things, a reasoned decision underscores the transparency and fairness of the decision-making body. In a reasoned decision, the decision maker articulates the thought behind the decision and Page 6 of 10 justifies the choice between alternative outcomes. By providing the reason(s), the decision maker enables the parties and the public to see whether the decision is based on findings of material facts and not arbitrary. The aggrieved party, can also easily challenge it in high administrative bodies, by way of judicial review, revision or appeal. In the foregoing, a reasoned decision is seen as a third creed of the principles of natural justice and a fundamentally important public law principle. As stated by Lord Denning MR in Breen v. AEU [1971] 1 All E.R. 1148, 1154 it is "one of the fundamentals ofgood administration." In our jurisdiction, the importance of a reasoned judgment as a creed of the principles of natural justice was underscored by this court in Tanzania Air Services Limited (supra) which I extensively quote. In that case, Hon. Sammata JK (as he then was) while highlighting quoted with approval the following extract from Geoffery A Flick, Natural Justice, Principles and Practical Application, page 87-88: "...first, the requirement of a reasoned opinion provides considerable assurance that the decision will be better as a result of its being properly thought out. Second, reasons will enable a person who has a right of appeal to determine whether he has good grounds for an appeal and will inform him of the case he will have to meet if he does decide to appeal. In this regard, if an administrative determination is not the result of an unanimous votes of the decision makers, the minority opinion may be of considerable value to unsuccessful party.....Third, reasons will make a tribunal more amenable to the supervisory jurisdiction of the courts and will ensure that a tribunal is acting within its power. Page 7 of 10 That is to say, reasons will inform the person why a decision has been made and will manifest any errors of law. Fourth, reasoned opinion will encourage public confidence in the administrative process. As was noticed in a leading English case, even though a decision may be perfectly, correct, if a party was not given a reason, he was left with the real grievance that he was not told why the decision had been (In re Poyserand Mills'Arbitration [1964] 2QB The exposure to public scrutiny and criticism is healthy. Fifth, reasons act as a check on the exercise of discretion and expertise and will ensure that a tribunal performed its function of considering relevant factors (David vs Price (1958) 1WLR 434), and will prevent arbitrary action: Donoghue Son vs Board of Education of North Wildwood 320 A 2d 857 [1974]. Reasoned opinions also provide additional guidance to those who advise as their future conduct. (Emphasis supplied). Further to the above extracts, his Lordship quoted with approval what Professor H W R Wade stated in his book Administrative Law, 6th Edition at page 548 where he wrote: "Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reason is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice. It is also a healthy discipline for all who exercise power over others. No single factor has inhibited the development of English Administrative Law as seriously as the absence of any Page 8 of 10 general obligation upon public authorities to give reasons for their decisions. Therefore, the omission to state the reasons for an administrative decision constitutes a violation of the fundamentals of good administration and the principles of natural justice. Back to the instant case, Mr. Agweyo for the respondents has passionately argued that the reason(s) for not registering the caveat were given whereas Ms. Wambura for the appellant has argued that they were not. I will let the decision of the Assistant Registrar of Titles, whose relevant part is reproduced below, speak for itself: RE: THE LAND REGISTRATION ORDINANCE (CAP. 334) CAVEAT The Registrar of Titles has the honor to return the document on the application for CAVEAT on Plot No. 348 Mlimani in Dodoma Municipality with CT NO 16278-DLR enclosed with letter, which has not been registered for the following reasons: (1) The applicant, should seek any remedy if any at any court of competent jurisdiction. ENCLOSURES; i. Deed of Application of Caveat. The extract above is materially inconsistent with the submission by the learned counsel Mr. Agweyo, as it is crystal clear from it that, no reasons were assigned to the rejection. It would appear to me that, the Assistant Registrar was fully aware of the requirement to assign a reason for his refusal Page 9 of 10 of registration but for the reasons best known to him, he did not and left a blank cheque. The assertion by Mr. Agweyo that the registration was refused because the caveat did not meet the statutory requirements for registration are, therefore, self-imposed with no backing from the record. In the foregoing, I find the appeal to have merit. The decision of the Registrar of Titles is hereby quashed and set aside. The Registrar is to re consider the caveat. The appellant has prayed that upon the decision of the Assistant Registrar being quashed and set aside, this court be pleased to order him to register the caveat. I am, respectfully, not inclined to award this prayer considering as I have held that, the registration of the caveat is subject to two prerequisites. As this court was not presented with the caveat, it is opposite in my view, that the matter be remitted to the Assistant Registrar so that it can be reconsidered and determined whether the caveat satisfied the two prerequisites above hence, registerable. Costs shall be borne by the respondents. DATED at DODOMA this 11th day of October 2024. Page 10 of 10