PARIN A.A. JAFFER AND ANOTHER v ABDULRASUL AHMED JAFFER AND TWO OTHERS 1996 TLR 110 (HC)

 PARIN A.A. JAFFER AND ANOTHER v ABDULRASUL AHMED JAFFER AND TWO OTHERS 1996 TLR 110 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano, J

F

MISC. CIVIL CAUSE NO 48 OF 1992

18 February, 1993 F

Flynote

Land Law -- Land Register -- Rectification of -- Whether competent -- Whether final

order can be G granted -- Sections 99 (1) (b), (d) and (f) of the Land Registration

Ordinance, Cap.334, and Section 95 and Order 43 Rule 2 of the Civil Procedure Code,

1966.

Civil Practice and Procedure -- Locus standi of holder of power of attorney --

Whether a misjoinder H -- Order 3, Rule 2 (a) of the Civil Procedure Code, 1966.

Law of Limitation -- Time-barring --Legal proceedings to be instituted within six

months -- Item 21 Part III of the First Schedule to the Law of Limitation Act, 1971 --

Whether the period may be I extended on reasonable or sufficient cause -- Whether

a court can do so suo motu -- Section 14 (1) of the Law of Limitation Act.

1996 TLR p111

MAPIGANO J

-Headnote

The Second Applicant was once the owner of a house which he built on Plot 2254

Block A 83, Dar es Salaam, and held the property since 1955 on a 99-year term.

Pursuant to the Acquisition of Buildings Act, 1971, the building was acquired by the

government in 1971. The Second Applicant then left Tanzania to live in the United

Kingdom for several years. The First Applicant is the daughter of the Second

Applicant and the holder of a B power of attorney given by him.

On 7 April 1978, the Second Applicant executed a power of attorney in favour of his

younger brother, the First Respondent, to acquire leasehold estates. In 1984, and by

virtue of this power, the First Respondent applied to the Registrar of Buildings for the

C grant of a long-term lease in the building in question. At the instance of the

Registrar of Buildings, a deed was drawn in the name of the First Respondent, thus

effectively making him the grantee of the lease in respect of two apartments. The

First Respondent has since held himself out as the lawful owner of the estate and kept

the Applicants out of the premises.

The Applicants contended that the present situation was the result of an incidence of

D trust violated and that the entry in the land register was obtained by fraud or made

under a mistake.

The Applicants accordingly sought to have the memorial in the land register

corrected by substituting as grantee of the lease the name of the Second Applicant for

that of the First Respondent. E

The Respondents took various points that, inter alia, the First Applicant had no right

to be before the Court, notwithstanding her power of attorney, further that Order 43

rule 2 of the Civil Procedure Code is confined to interlocutory proceedings and

cannot ground a final order, and finally that an application for rectification in terms

of Section 99(1) of the F Land Registration Ordinance should first be made to the

Registrar of Titles and that the matter only properly comes to the High Court by way

of an appeal.

The Court was called upon to rule on these various points taken by the Respondents.

Held: G

(i) Order 3 rule 2(a) of the Civil Procedure Code allows the grantee of a

power of attorney to launch an application on behalf of the grantor, and the language

of the power in question expressly appoints the First Applicant `to commence

prosecute legal proceedings of all laids (sic)'. H

(ii) Where, however, the principal under a power of attorney applies to or

appears before a court, his attorney has no locus standi.

(iii) The First Applicant is accordingly improperly joined as a claimant for

rectification, but her affidavits should not therefore be inadmissible and valueless, and

she should thus in justice be deemed to be a witness. I

(iv) Cap. 334 does not prescribe the procedure for making an application

1996 TLR p112

MAPIGANO J

A for rectification, and it is a `wrong idea' that Order 43 rule 2 does not

embrace applications for final orders.

(v) Section 99(1) of Cap. 334 offers a choice of forum for rectification

between the High Court and the Registrar of Titles: one can either make a requisition

to the Registrar, or institute a legal action in the High Court. B

(vi) Section 14(1) of the Law of Limitation Act permits the Court the

power, suo motu and for any reasonable or sufficient cause, to extend the six-month

period allowed by law to institute an appeal or application.

(vii) For the purposes of an extension of time in terms of Section 14(1), the

C Applicants' ignorance or bona fide mistake of law may be taken into consideration

in determining whether the discretion ought to be exercised.

(viii) The period of limitation is extended to the day upon which the

application was instituted in this Court.

Ordered accordingly. D

Case Information

Mapunda, for the applicant.

Maira, for the first respondent.

Ismail, for the second respondent.

Shungu, for the third respondent.

[zJDz]Judgment

Mapigano J: E

Parin A A Jaffer along with her father Amirali A Jaffer have jointly applied for

rectification of the land register. They are advocated for by Dr Mapunda. Their

application is made under s 99(1)(b), (d) and (f) of the Land Registration Ordinance,

cap 334, as well as s F 95 and Order 43 rule 2 of the Civil Procedure Code, 1966. The

respondents are Abdulrasul A Jaffer, the National Housing Corporation and the

Registrar of Titles who are represented by Mr Ismail, Mr and Mr Shungu,

respectively.

Objection has been taken as to the form in which the application is presented, the G

joinder of Parin and the whole competency of the application. This is what I am now

called upon to rule on.

The second applicant Amirali was once the owner of Plot 2254 Block 83

Mwisho/Zaramo Streets, Dar es Salaam, and held the property since 1955 on a 99 year

term and H happened to build a house thereon. In 1971 the building was acquired

by the Government and vested in the Registrar of Buildings. This was in the wake of

the enactment of the Acquisition of Buildings Act, 1971. Amirali had then left

Tanzania and gone to the United Kingdom where he stayed for several years. I

On 7 April 1978 Amirali executed a power of attorney, annexure

1996 TLR p113

MAPIGANO J

PAJ2, which, inter alia, conferred authority on his young brother, ie the first

respondent, A to acquire leasehold estates. In 1984 the first respondent made an

application to the Registrar of Buildings by virtue of the power of attorney for grant

of a long term lease in the acquired building. He was probably stimulated and

authentically afforded a sense of B hope by a scheme established by the Government

under which an ex-owner of an acquired building could be granted such lease in

respect of the portion he occupied at the time of the acquisition.

His exertion met with success, though the power had by then yet to be filed at the

Land Registry as required under s 96(1) of cap 334. (It has since been revoked by

Amirali.) C Prima facie, it cannot be said that the first respondent's application, ie

annexure PAJ3, travelled outside the authority given to him vide annexure PAJ2.

There was however some questionable development. At the instance of the Registrar

of Buildings, as D evidenced by annexure PAJ4, the lawyers drew a deed in the name

of the first respondent and this effectively made the first respondent the grantee of

the lease in respect of two apartments. The lease was registered under Filed

Document No 75149 and the first respondent has thenceforth held himself out as the

lawful owner of the E estate and kept the applicants out of the premises, which has

gone hard with them.

In short, the applicants are aggrieved by the grant of the lease to the first respondent.

They claim that the disposition was an incidence of a trust violated, that annexure

PAJ2 F did not authorize the first respondent to acquire title to the lease in his own

name, and that the entry in the land register was obtained by fraud or made under a

mistake. All this is denied by the respondents and, accordingly, one of the major

issues in this long drawn out dispute is whether or not the lease in question is

defeasible by reason of fraud and/or mistake. G

As indicated at the outset, the applicants seek to have the memorial in the land

register corrected by substituting as grantee of the lease the name of the second

applicant for that of the first respondent.

The first material ground of the preliminary objection is that the first applicant has no

H right to be heard in this application, notwithstanding that she has been give a

power of attorney, annexure PAJ10, by the second applicant. Mr Ismail has actually

gone a step further and taken objection to the validity of that power, arguing that the

bringing of this I application is outside the terms of that power, and drawing my

attention to the provision of Order 3 Rule

1996 TLR p114

MAPIGANO J

2(a) of the CPC. Accordingly, it has been submitted, first, that her name should be A

struck out from the record; and, secondly, that her affidavits should be excluded.

As every lawyer perfectly understands, a power of attorney is a formal instrument by

which one person empowers another to represent him or act in his stead for certain B

purposes. Under Order 3 Rule 2(a) CPC a grantee of such power is competent to go to

law and make application on behalf of the grantor, providing that the instrument

gives him such authority, and I am acutely aware that the terms of such instrument

should receive a strict construction as giving only such authority as it confers

expressly or by C necessary implication. Having examined annexure PAJ10, I am

clearly of the opinion that its language brings it squarely within the operation of

Order 3 Rule 2(a). For it expressly appoints the first applicant `to commence

prosecute legal proceedings of all laids'.

On the other hand it is imperative under Order 3 Rule 2(a) that all applications, acts

and D appearances be made or done by the attorney on behalf of and in the name of

the principal. By the same token where the principal himself makes or does an

application, appearance or act, his attorney has no locus standi. In the premises I have

to sustain E the submission that Parin is improperly joined as a claimant for

rectification. At the same time I am unable to endorse the view that their bona fide

misjoinder should render Parin's affidavits inadmissible or valueless. I accept the

suggestion that Parin should in justice be deemed to be a witness.

It will be recalled that one of the enabling provisions cited on the chamber summons

is F Order 43 Rule 2 CPC. The second ground concerns the applicability of that

provision. Mr Ismail has pressed upon me the argument that this provision is confined

to interlocutory proceedings and that no final orders can be made thereunder. The

complementary G argument of Mr Maira is that rectification should have been

pursued by way of a suit, in view of the strong and serious resistance thereto. Dr

Mapunda has disagreed with all this, point out that Cap 334 does not prescribe the

procedure of making an application for rectification and the shape the application

should assume and I go with him. H

I think there can be no doubt that a person who wants the register rectified can apply

to the High Court in terms of s 99 and that the Court can entertain the proceeding

irrespective of whether it is contentious. Dr Mapunda is right that there is no

provisions in Cap 334 as to the procedure of making such application. In the

circumstances the I same rules of procedure and practice have to be

1996 TLR p115

MAPIGANO J

resorted to, so far as they can be made applicable, as are currently in force in respect

of A ordinary applications before the High Court.

It may be observed by the way that strictly Cap 334 does not limit the mode of the

proceedings in which rectification may be sought. So it is perfectly arguable that one

of the methods of compelling a rectification of the register is through a decree

pronounced B on a suit, or a mandamus, particularly when the fault is alleged to lie

with the Registrar.

It is a wrong idea that Order 43 Rule 2 does not embrace applications for final orders.

Take, for instance, the order that can be delivered under s 9 CPC that a suit is barred

by C res judicate, which finally disposes of the rights of the parties in the suit. Surely

such order is obtainable upon an application brought in the form prescribed by Order

43 Rule 2?

According to Mr Ismail, and this is the third ground, an application for rectification

under D s 99(1) must be made to the Registrar of Titles first and that the matter

properly comes to the High Court on appeal only.

Mr Maira has grappled with the `if' aspect of the matter. Even if the High Court has

original jurisdiction, he says, the matter should, as a mater of procedure and practice,

be E submitted to the Registrar for him to inquire into and decide, before recourse is

had to litigation. Mr Maira takes some satisfaction from the provision of s 13 of the

CPC his implied assumptions being, therefore, that this is a suit and that the CPC is

applicable.

Dr Mapunda has a different view. His submission is that s 99(1) of Cap 334 gives F

concurrent power to the High Court and the Registrar to entertain applications for

rectification. He has also charged the Registrar with some blame for the distress the

applicants have undergone and alleged that he, the Registrar, has advised the G

applicants to go to court, clearly implying that it would have been a futile exercise to

make an application to him.

It is manifestly clear upon the applications, affidavits and the appendant papers that

no distinct request or demand has been made to the Registrar in respect of the relief

sought. And looking critically at those documents I can hardly see any demonstrable

H complaint levelled against the Registrar. There is also nothing material to support

the allegation that the Registrar has advised the applicants to sue for rectification by

court process. In actual fact the attitude of certain higher quarters, as disclosed by

correspondence, was that Amirali should address his complaint to the Registrar. I

In view of the clear language of s 99(1) of Cap 334, it seems to me

1996 TLR p116

MAPIGANO J

rather absurd for counsel to argue that an application for rectification is not

cognizable A by the High Court in the first instance. Quite clearly that section offers

a choice of forum between the High Court and the Registrar: one can either make a

requisition to the Registrar for rectification, or institute a legal action in the High

Court in that respect. B

There is, in my opinion, a good sense indeed and sound juridical reason for the

legislation of such option. Circumstances may be easily envisaged where the exclusion

of the High Court from the exercise of original jurisdiction in the matter would

palpably be injudicious and preposterous. I would point to one such circumstance in

particular. C Consider a situation where a person imputes deliberate fault to the

Registrar in relation to an entry in the register, it would undoubtedly be a serious

anomaly if the law were to lay down that he should still go to the Registrar for

remedy.

Section 13 of the CPC insofar as it is relevant enjoins that every suit shall be D

commenced in the court of the lowest grade competent to try it. The words of this

section do not appear to be sufficiently apt to cover the circumstances of this

application, because `court of the lowest grade' in the context of that section refers

only E to courts to which the CPC applies. Nevertheless I prefer the view that it is a

good policy which may be extended to analogous situations. This is out of the

recognition that the rule is meant to check the overcrowding of legal actions in the

courts of the higher grade. Thus where the Law provides extra-judicial machinery

alongside a judicial one for F resolving a certain cause, the extra-judicial machinery

should, in general, be exhausted before recourse is had to the judicial process.

Of course s 13 is only a rule of procedure and not of jurisdiction, and, therefore, the

court of the higher grade is not bound to take advantage of it and may, if it prefers,

retain the suit. In the light of what the Registrar has deposed in his affidavit, it is only

proper G that this application be adjudicated upon by this Court, unless it is barred

otherwise. That brings me to the last ground. It is said for the respondents that the

application is time-barred, even granting that the cause of action accrued in 1988 as

the second H applicant seems to contend. In the view of Mr Ismail the matter falls

under item 21 in Part III of the First Schedule to the Law of Limitation Act, 1971,

which prescribes that an applicant must take legal proceeding inside of six months.

Against that Dr Mapunda has argued that the proceedings should properly be deemed

to fall under item 22 in Part I of I the Schedule which prescribes a period of twelve

years, in as much as the subject-matter is essentially the recovery

1996 TLR p117

MAPIGANO J

of a lease. Mr Ismail is right. All applications under the CPC, the Magistrates Courts

Act A or other written law for which no period of Limitation is provided in the Law

of Limitation Act or any other written law, fall under item 21 in Part III of the

Schedule.

Pausing here and with that in mind, I do imagine that a more inured and shrewd

forensic B advice to the applicants would have been to bring the matter to this Court

in the form of a suit, or to make an application to the Registrar of Titles to which the

provisions of the Law Limitation Act are not applicable.

But as just indicated, that is not the end of the matter. Looking at the circumstances

C surrounding this case, I have come to take the view that it is one that admits of the

application of s 14(1) of the Law of Limitation Act, and it is also my considered

judicial view that this Court can proceed to do so suo motu. That section provides that

the court may, for any reasonable or sufficient cause, extend the period of limitation

for the D institution of an appeal or an application, other than an application for the

execution of a decree, notwithstanding the provisions of the Act.

I have been driven to that conclusion upon considering the sustained but vain extralegal

efforts that the applicants have made to bring their grievance and plight to the

attention of E the authorities, including the President. And there can hardly be any

doubt that they have done so in total ignorance of the law of limitation.

Provisions which give exceptions to the operation of the statute are, in principle, to

be interpreted literally. Accordingly, in the contemplation of s 14(1) of the statute the

term F `reasonable or sufficient cause' should be given such construction. Section 21

of that statute which relates to analogous fruitless proceedings, though not applicable

to this matter, indicates that the Legislature intended to show indulgence to a diligent

party who G has acted bona fide under a mistake, and the persuasive Indian

authorities hold that the equity of that section applies equally to cases arising under s

14. Indeed, all the High Courts in India are now in agreement that for the purpose of

s 14 ignorance or bona fide mistake of law may be taken into consideration in

determining whether the discretion ought to be exercised. H

I will, and do hereby, extend the period of limitation to the day the application was

instituted in this court, and with that I overrule the preliminary objection. I

1996 TLR p118

A