NIZAR SHELL L'ADAWY MUHANNA v REGISTRAR OF TITLES AND ANOTHER 1995 TLR 217 (CA)

NIZAR SHELL L'ADAWY MUHANNA v REGISTRAR OF TITLES AND ANOTHER 1995 TLR 217 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Omar JJA, Mnzavas JJA and Lubuva JJA

Civil Appeal No 33 of 1994 B

August 22, 1995

(From the judgment and decree of the High Court of Tanzania at Dar es Salaam,

Kyando, J) C

Flynote

Land Law - Land Registration - Powers of Registrar of Titles - Whether the Registrar

has power to determine issues as to land ownership - Section 105 of the Land

Registration Ordinance. D

-Headnote

The Registrar of Titles mounted an investigation to establish the ownership of

property as between the appellant and his late father. The Registrar purported to

invoke powers under s 105 of the Land Registration Ordinance, Cap 334. After

investigations the Registrar decided that the property belonged to the appellant's late

father. The appellant's appeal to the High Court challenging the decision of the E

Registrar was unsuccessful. On further appeal the Court of Appeal of Tanzania

considered the powers of the Registrar under s 105 Land Registration Ordinance. F

Held:

(i) Section 105 of the Land Registration Ordinance only empowers the

Registrar of Titles to determine questions regarding whether his register should be

corrected or an entry therein cancelled; any other inquiry or investigation to be

undertaken by him must be either expressly or impliedly authorized as required by

the Ordinance or any rule made thereunder; G

(ii) The issue in this case involved the ownership of registered land and

there is no provision both in the Ordinance and in the Rules which authorize or

require the Registrar of Titles to make investigations and determine such substantial

issues as land ownership; H

(iv) The investigation and proceedings by the Registrar were undertaken

without jurisdiction, and were null and void; so too was the appeal to the High Court

being grounded on incompetent proceedings.

Case Infomation

Appeal allowed.

No case referred to. I

1995 TLR p218

MFALILA JA

[zJDz]Judgment

A Mfalila, JA delivered the following considered judgment of the Court:

In this appeal the dispute is over a house built on plot No 766 United Nations Road,

Upanga in Dar-es-Salaam. The Certificate of Title issued in respect of this plot is No

186174/85 in the name of one Nizar Shell L'adawy Muhanna. This is the B present

appellant. The appellant is the son of the late Shell Muhanna who died at Muhimbili

hospital Dar-es-Salaam on 9 April 1990 leaving a widow Jamilla Mohamed, the

second respondent, but she is not the appellant's mother. The late Shell Muhanna had

several wives, one of whom was the appellant's mother, although it appears that at

the time of Shell's death she was no longer his wife. C

Sometime in 1991 the appellant saw a general notice in the Government Gazette of 29

March 1991 advertising the loss of a Certificate of Title in respect of plot No 766 in

the name of Nizar Shell L'adawy Muhanna (deceased) and that the D applicant was

one Jamila Mohamed. The general notice went on to inform the public that

Certificate of Title No 186174/85 in respect of the above plot was lost and that unless

cause was shown to the contrary within two months, a new Certificate of Title would

be issued in its place. According to the appellant, when he E saw this notice, he was

greatly distressed because firstly he was still alive, secondly the certificate alleged to

be lost was in his possession as registered owner and thirdly the property was his. He

therefore hurried to the offices of the Registrar of Titles to record his objections

against the terms of the notice. The F second respondent, however, maintained that

the property was part of her late husband's properties and that it was bequeathed to

her in his will. The Registrar of Titles who is the first respondent was therefore faced

with a dispute between the appellant and his stepmother, the second respondent on

whether plot No 766 G United Nations Road, Upanga belonged to the appellant or

his deceased father as to form part of his estate. Faced with this dispute, the Registrar

of Titles mounted an investigation to establish the ownership of this property as

between the appellant and his late father. He launched this investigation under what

he called powers vested in him by s 105 of the Land Registration Ordinance. This

section provides as follows: H

'105. Where any question arises as to whether any registration or entry should

or should not be made, or whether any memorial inscribed in the land register should

or should not be corrected or cancelled or where by this Ordinance or any rule made

thereunder I

1995 TLR p219

MFALILA JA

the Registrar is expressly or impliedly authorised or required to inquire into,

investigate, give A any decision on or exercise any discretion as to any matter, he

may order any person -

(a) to attend before him at such time and place as he may appoint and be

examined on oath which he is hereby authorised to administer; and

(b) to produce to and allow him to inspect of all material documents in the

possession, B power or control of such person.'

Following this investigation, the registrar held that the properly belonged to the

appellant's late father and that therefore he had rightly disposed it in his will in

favour of the second respondent. In his appeal to the High Court from this decision C

of the Registrar of Titles, the appellant challenged the right and power of the registrar

to make such an investigation purportedly under s 105 of the Land Registration

Ordinance. The High Court appears to have agreed with the D Registrar's exercise of

such powers and dismissed the appeal on the basis that the Registrar's decision that

the property belonged to the appellant's father was fully supported by the evidence

before him.

However, we are satisfied that if the High Court judge on first appeal had not E

assumed that the Registrar had such powers of investigation and had specifically

addressed his mind to the above provisions of s 105, he would most certainly have

found that that section gives no such powers to the Registrar of Titles. That F section

as quoted above only empowers the Registrar of Titles to determine questions

regarding whether his register should be corrected or an entry therein cancelled. Any

other inquiry or investigation to be undertaken by him must be either expressly or

impliedly authorised or required by the Ordinance or any rule made thereunder. The

present proceedings did not involve a dispute over entries in the Land Register

requiring the Registrar of Titles to determine whether any G registration or entry

should or should not be made in the Land Register or that what is in the register

should be corrected or cancelled. It involved the question whether the land in dispute

registered in the appellant's name was the appellant's property or his late father's. The

dispute therefore involved the ownership of H registered land. There is no provision

both in the Land Registration Ordinance and in the rules which authorise or requires

the Registrar of Titles to make investigations and determine such substantial issues as

land ownership. The investigation and proceedings by the Registrar were therefore

undertaken without jurisdiction, they were thus null and void. The purported appeal

to the High I

1995 TLR p220

MFALILA JA

A Court was equally null and void because the appeal was grounded on incompetent

proceedings.

Accordingly, we allow the appeal, quash the proceedings both before the Registrar

and those in the High Court. An order for costs in favour of the appellant against the

second respondent is made both in this court and in the High Court. B

If either the appellant or the second respondent feels the other is threatening their

interests in plot No 766 United Nations Road, Upanga area in Dar-es-Salaam, they can

file an appropriate claim in court. C

1995 TLR p220

D