william kasian nchimbi others vs registrar of title others 2014 tzhc 2279 27 march 2014

IN THE HIGH COURT OF TANZANIA AT DAR BS SALAAM MISC. LAND APPLICATION NO. 12 OF 2013 WILLIAM KASIAN NCHIMBI & OTHERS................. APPLICANTS V 1. REGISTRAR OF TITLE 2. ABAS MFAUME SEKAPALA 3. ABUBAKAR SEKAPALA L ................... RESPONDENTS 4. KESSY SEKAPALA i i Date of last Order 17/2/2014 Date of Ruling 27/3/2014 RULING A.Shangwa, J. On 5th April, 2013. Mr. Sylivester Shayo, Advocate filed an application on behalf of the Applicants seeking for two orders. First, an order for extension of time within which to file a Notice of Appeal to enable the Applicants to appeal against the decision of the Registrar of Titles made on 3rd August, 2003. Second, to admit the appeal against the decision of the Registrar of Titles removing the Applicants’ names from Title NO. 33005 and creating a new Title NO. 55472 in its stead notwithstanding the fact that the periods prescribed for filing a Notice of Appeal and a petition of appeal have elapsed. On 23rd September, 2013, the State Attorney from the office of the Attorney General’s Chambers filed a Notice of Preliminaiy Objection stating that the application is bad in law for not including the Attorney General as a Respondent. On 26th September, 2013, Counsel for the 2nd and 4th Respondents filed a Notice of Preliminary Objection based on one ground that the application is incompetent and 4 i and as his office is a Government office, the Attorney general ought to have been included in the suit. He contended that as the Attorney General has not been made a party to this application, the Court should dismiss it with Costs. Counsel for the Applicants Mr. Sylvester Shayo submitted that this is an appeal and not a suit. That the Appellants have not instituted any suit or application but that they have simply followed the remedy of appeal availed to them under S. 101 of the Land Registration Act Cap 334 R.E. 2002. That it is a well-established practice that in appeals against the decisions of the Registrar of Titles, the Attorney General is never joined as a party. He has cited five cases and said that they were decided without joining the Attorney General. I will mention only two of them. That is Land Appeal NO. 61 of 2009 Aloyce M. Mguma V. Registrar of Titles (Dar Es Salaam Registry) (unreported) 3 improperly before the Court because it intends to resurrect a matter which is res- judicata. On 23nd September, 2013, I ordered that the Preliminary Objection which was filed by the State Attorney earlier before the Preliminary Objection which was filed by the 2nd and 4th Respondents should be dealt with first by filing written submissions. It was so dealt with. The learned State Attorney Mr. Mwintasi submitted in respect of his Preliminary Objection that the Applicants were wrong in filing this application without joining the Attorney General. He said that under the Government proceedings Act Cap 5 R.E.2002, all suits against the Government must be instituted against the Attorney General and that the word suit is interchangeable to applications and appeals. He further said that the Registrar of Titles is the public officer and the case of Steven Kiame Sefu V. Registrar of Titles 1988 TLR 127 HC. With great respect to Mr. Silyvester Shayo, I do not agree with him that this is an appeal and not an application. It is an application. As already mentioned, this is an application for extension of time within which to file a Notice of Appeal against the decision of the Registrar of Titles and to admit the appeal against his decision of removing the Applicants’ names from Title NO. 33005 and creating a new Title NO. 55472 in its place. In presenting this application, counsel for the Applicants Mr. Silyvester Shayo did not join the Attorney General. I agree with the learned State Attorney that it was against the provisions of the Government Proceedings Act not to join the Attorney General in presenting it. The decision which is intended to be appealed from by the Applicants was made by the Registrar of Tides 6 i who is the Government Officer. An omission to join the Attorney General in this application is indeed contrary to the mandatory Provisions of S. 10 of the Government Proceedings Act which provides as follows and I quote: “S. 10 subject to the provisions o f any, other written law, civil proceedings by or against the Government shall be instituted by or against the Attorney General The above quoted provision of law requires all civil proceedings against the Government to be instituted by or against the Attorney General. The term ‘civil proceedings’ under the above quoted section is wide. It includes suit, applications, appeals, revisions etc. At any rate, Mr. Silyvester Shayo’s submission and the cases he cited in support of his submission that it is a well established practice that in appeals against the decision of the Registrar of Titles, the Attorney General is never joined as a party, the said practice cannot override the clear provisions of S. 10 of the Government Proceedings Act which inter- alia requires that all civil Proceedings against the Government shall be instituted against the Attorney General. I hold therefore that as the Attorney General was not joined in this application for extension of time within which to file a Notice of Appeal and to admit the appeal against the decision of the Registrar of Titles, I hereby strike it out. Each party to b e a r ^ g jp g j^ s t s . 27/3/2014 Delivered in open Court this 27th day of March, 2014 in the presence of Mr. Mayenga for Mr. Shayo for Applicants and Mr. Mwakahesya for 1st Respondent and Miss Bayona for Mr. Lusiu for 2nd - to 4th Respondents. A.Shangwa. JUDGE 27/3/2014