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
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 (It has since been revoked by Amirali.)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
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
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
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
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 extra-legal 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
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