Athumani Ibuba v. Salim s/o Jeu, (PC) Civ. App. 5-D-69, 17/8/69, Biron J.

Athumani Ibuba v. Salim s/o Jeu, (PC) Civ. App. 5-D-69, 17/8/69, Biron J.

Respondent sued the appellant in the primary court, claiming a parcel of land which he asserted he had granted the appellant on loan for three years, which period had now expired. The respondent resisted the claim, and asserted that the land had been granted to him by a third person when it was bush and he had cleared it, cultivated it, and even built a house thereon. The evidence was predominantly in favour of the respondent, ad the assessors had in his favour as well. The primary court magistrate, however, ruled in the appellant’s favour on grounds of public policy, holding that although the land had originally belonged to the respondent and had been granted by him to the appellant, the latter was entitled to it because he had developed it, whereas the respondent had done nothing. The District Court varied this order upon appeal. It held that he trial magistrate was wrong to disagree with the assessors and that as the respondent had established a clear and unequivocal claim to the land he was entitled to receive it. On appeal to the High Court.

Held: “Apart from the fact that it is by no means certain that the respondent would not cultivate the land in dispute on it being returned to him, even if it were in the public interest to deprive him of it the court has no right to arrogate to itself such powers. As found and held by the district court magistrate the respondent had fully established his claim to the land, and it was in accordance with customary law that it should be the primary court magistrate. Incidentally, had this case been dealt with by the primary court after the coming into force of the Magistrates’ Courts (Amendment) Act, 1969, on the 1^st July, the respondent would have won his case in the primary court on a majority verdict.” Appeal dismissed.