20140327 TZHC Dar es Salaam

~ i T .. ~ 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. LAND APPLICATION NO. 12 OF 2013 WILLIAM KASIAN NCHIMBI & OTH'.ERS .................. APPLICANTS V 1. REGISTRAR OF TITLE - 2. ABAS MFAUME SEKAPALA --· - 3. ABUBAKAR SEKAPALA .................... RESPONDENTS 4. KESSY SEKAPALA Date of last Order 17/2/2014 Date of Ruling 27/3/2014 : I RULING A.Shangwa, J. On 5 th 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 vvithin ~which to file a Notice of Appeal to enable the Applicants to appeal 2 \ against the decision of the Registrar of Titles made on 3 rd · ) 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. 554 72 in its stead notwithstanding the fact that the periods prescribed for filing a Notice of Appeal and a petition of appeal have elapsed. On 23 rd September, 2013, the State Attorney from the office of the Attorney. General's Chambers filed a Notice of Preliminary . . . Objection stating that the application is bad in law for not including the Attorney General as a Respondent. On 26 th September, 2013, Counsel for the 2 nd and .4 th Respondents :filed a Notice of Preliminary Objection basec;i on one ground that the application is incompetent and . 3 improperly before the Court because it intends to resurrect (-\ 1 a matter which is res- judicata. On 23 nd 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 2 nd and 4 th 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 joinfng the Attorney ··.General. He said that under the Government proceedings .Act Cap 5 R.E".2002, all suits against the Government must be institt.ited against the Attorney General and that the word suit is in,terchangeable to applications and appeals. He further said that the Registrar of Titles is the public officer 4 and as his office is a Government office, the Attorney general t) 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 vvell-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 ~ • • 1 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) 5 and the case of Steven Kiame Sefu V. Registrar of Titles 1988 TLR 127 HC. With great respect to Mr. Silyvester S_hayo, 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 ~ithin which to file a Notice of Appeal against the decision of the Registrar of Titles and. I j to admit the appeal against his decision of removing the Applicants' names from Title NO. 33005 and creating a new , ·Title NO. 554 72 in its place.. In presenting this application, I counsel for the Applicants Mr; Silyvester Shayo did not join the Attorney General. I agree with the lear·ned State ·Attorney I that it was against .th_e . proyisions 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 mEtde by the Registrar of Titles 6 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 of any, other written law, civil proceedings by or . against_ the Government shall be institu-ted by or against the Attorney General)). The above auoted ... prov1s1on of law requires all civil proceedings against the Goverpmept to be instituted by or ... against the Attorney General. The term _'civil pr_oceedings' . under the above quoted. section is \Vid~. It includes suit, applications, appeals, revisions etc. At any rate, Mr·. Silyvester Shayo's su.bmission and the cases he cited in support of his submission that it is a wen·- 7 established practice that in appeals against the decision of ,·-·, 1 : 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 here by strike it out. Each , . , . I ! 8 Delivered in open Court this 27 th 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 4 th Respondents.