Rajabu Athumani v. Issa Mdohi (PC) Civ. App. 190-D-69; 13/4/70; Mustafa J.

Rajabu Athumani v. Issa Mdohi (PC) Civ. App. 190-D-69; 13/4/70; Mustafa J.

This is a dispute between the parties about ownership of a piece of land. Issa Mdohi claimed the shamba in question belonged to him, but the primary court found for Rajabu Athumani. Issa then appealed to the district court, which allowed his appeal, and now Rajabu appeals to this Court. It appears that the shamba in question was a part of land used from time immemorial by Africans in the area, and adjoined forest land. In or about 1951 the land was declared to be public land, and all the parties who were cultivating there were asked to move out. Among the parties were the forbears of both the respondent and the appellant.

            In 1961 the Government re-opened the land for use, and the executive officer and the district forest officer at that time demarcated the boundary between the forest reserve and land to be used by the Africans, and then the land was opened again for cultivation by the villagers. Issa claims that he was given the subject piece of land, whereas Rajabu claims that the subject piece of land was part and parcel of the land he was granted. Issa called seven witnesses in the primary court, and Rajabu called three. It does not appear that the witnesses in the trial court knew the boundaries between the parties as demarcated by the district forest officer and the executive officer, but Issa’s witnesses have said that the land belonged to Issa, whereas Rajabu’s witnesses said that it belonged to Rajabu. Rajabu produced a document signed by the district forest officer. Morogoro, one N. Grevatt, dated 22/8/61, which would indicate that his land was bordered on one side by Boya 237, a ‘boya’ being a marking stone. The primary court magistrate and his assessors visited the site. Both the assessors in the primary court gave as their opinion that he land in question belonged to Issa, but the primary court magistrate held otherwise. He accepted Boya No. 237, as the boundary mark for Rajabu’s land. The district magistrate on first appeal at first sat without assessors and visited the site before the assessors were appointed. He found that Issa had at no stage cultivated the land, but that Rajabu had since 1961. After he had visited the land and the assessors said the River Mahangwe was the boundary which divided the land of the parties. He accepted this opinion and decided in favour of the plaintiff Issa.

            Held: (1) “In my view the primary court magistrate was right to hold as he did on the evidence and on the basis of the document which was submitted by Rajabu and which on appeal he again submitted before me. In that it is stated that this mark 237 was a demarcation mark of Rajabu’s boundary. It is true that the district forest officer and the executive officer were more concerned with separating the forest reserve from land reserved for the villagers. However, I take note of the fact that since 1961 when the severance was made the appellant Rajabu began cultivating the land in question until he was prevented from doing so by Issa when he began litigation. Rajabu has said that there are 6,000 coffee trees, 1,500 banana plants, and yams, now growing on the land, which he had planted, and there is evidence that Issa had at no stage cultivated this piece of land. In these circumstances I am of the view that since Rajabu immediately the land was opened took possession of it an cultivated it he has a greater right to possession than has Issa.” (2) “Rajabu has rightly complained that in the district court on first appeal the assessors had never visited the site but nevertheless gave it as their opinion that the Mahangwe River was the boundary between the shambas of the litigants. Such an opinion, not being based on what they had seen, is not of much worth. I therefore allow the appeal of Rajabu, set aside the judgment of the district court, and restore that of the primary court, and declare that the land in question belonged to Rajabu.” (3) Appeal allowed.