Salehe Mahamburi v. Noseni Mrinda, (PC) Civ. App. 62-D-67, 22/9/69 Georges C. J.

Salehe Mahamburi v. Noseni Mrinda, (PC) Civ. App. 62-D-67, 22/9/69 Georges C. J.

This is a dispute over a piece of land in Pare, which the defendant had taken and sub-divided among tenants, but which the plaintiff claimed to have inherited from his grandfather. The Primary Court found for plaintiff, but the District Court reversed on the grounds that the defendant, as the person in possession, did not have to prove anything. It was for the plaintiff to prove his title, which he had failed to do.

Held: “Looking at the matter from the point of view of English land law, I would agree with the view expressed by the District Magistrate. Proof of title here is, however, quite a difficult thing where there are no deeds showing ownership of customary land and seldom any documents evidencing a transfer. To decide cases on the basis of onus of proof, as in England, is not desirable and would certainly no to be understood. I would, therefore, reverse the decision of the district Magistrate and order a new trial before the Primary Court. If the parties do not call the Mlao who originally is supposed to have authorized the defendant to distribute the land, then the court should call him. The petition of appeal states that he is still alive. The persons actually in occupation of the land should also be summonced by the court I the parties do not call them. There will then be available enough material on which justly to arrive at decision of this case. It must be understood that parties are note legally advised in litigation in the Primary Courts. All efforts should be made, therefore, to have all the facts brought out, rather than to depend on rules as to burden of proof – which operates fairly when legal advice is available to both sides, but not other-wise.”