Lands & Deeds Amendment Bill

GUEST ARTICLE: Lands & Deeds Amendment Bill

By Dickson Jere

Here is the thing – the current law does allow the Chief Registrar to correct errors, omissions and mistakes on the Certificate of Title. So, when title has been issued with errors and all, the Registrar of Lands currently has power to make those adjustments. No issues really here.

However, what is not allowed by law is for the Registrar to sit and determine the dispute involving two or more people over the land. That is a preserve of the Court. The Registrar cannot determine such matters which are very contested.

This position was ably explained by a penal of three Supreme Court Judges who included the current Chief Justice Dr Mumba Malila, SC, when they stated thus;

“In our view, Section 11 of the Lands and Deeds Registry Act is concerned with the process of correcting errors and omissions to entries made in the lands register by the Registrar of Lands and Deeds,” the Judges said.

“It does not empower him to determine disputes which have the effect of determining the rights of the parties to any land or cancel a certificate of title issued to the registered proprietor of the land to which it relates,” the Judges said.

The Judges added another safeguard to title holders;

“We further take the view that a person alleging fraud or any other impropriety with regards to the issuance of a certificate of title, must challenge the same through a Court action and prove the allegations of fraud or other impropriety as the case maybe, to obtain a Court order for the cancellation of the affected certificate of title by the Registrar of Lands and Deeds” the Judges said.

Case citation – Corpus Legal Practitioners v Mwanandani Holdings Limited – SCZ Judgment No. 50 of 2014.

So the Amendment Bill that was presented in Parliament last week is trying to reverse this sound legal position as decided by our Supreme Court.

I hope the MPs can read this Judgement is full as it is good law that protects property rights.

In short, the arguments are follows;

1. The Ministry of Lands must do the due diligence before they issue title so that all mistakes are corrected. But once they have issued that title, no single person should ever take it away unless through the Court process. But the new Amendment gives powers to the Registrar to take away (cancel) the title. It is bad law!

2. The amendment has also proposed that those not happy with the decision of the Registrar should appeal to the Minister of Lands. This is a problem. We are politicizing the land process. Ministers are politicians and will always favour those in their political parties. We need to leave this aspect to the Courts.

3. I repeat, Chief Registrar is just an individual civil servant without any security of tenure. He is appointed by politicians and can be influenced as we have seen in the past. When there is change of government, another Registrar will be appointed who can also reverse his predecessor’s decision. We should never ever politicize land ownership.

4. Poor people will never even have access to the Registrar while the rich and powerful are phone calls away. Who will benefit from the Registrar cancelling titles alone? The politically connected and the rich…so the Court process has been the safeguard for all!