a case note on mtoro bin mwamba v
TRANSCRIPT
A CASE NOTE ON MTORO BIN MWAMBA V. THE ATTORNEY GENERAL
EACA XIX [ 1954]108
Prepared by PrayGod Manase.
Tumaini University Makumira.
BACKGROUND
This was an appeal from the High court of Tanganyika sitting in appellate jurisdiction which allowed an appeal by the attorney general of the territory from the decision of the register of titles who on 9th April 1949, acting under the provision of the land registry ordinance allowed the application of the appellant for first registration of a parcel of land situated in Upanga area of Dar es salaam.
FACTS.
Mtoro bin Mwamba lived in upanga area of Dar es salaam. He was a mshomvi by tribe and a Muslim. He owned a piece of land in that area (upanga) but he had no documents of title to that piece of land. He applied for first registration for that land basing on grounds that he had acquired in equity a title thereto equivalent to an estate in fee simple according to the laws and customs of the washomvi tribe of which he was a member which tribe recognized individual ownership of land equivalent to free hold and by the law of Islam which had been applied by the sultanate of Zanzibar during its suzeirity thereof by clearing vacant land and planting coconut palms. On the 9th of April 1949 the registrar of titles acting under section 10 of the land registry ordinance then in force, allowed that application. The attorney general appealed against the decision of the registrar of titles.
DECISIONS OF THE HIGH COURT.
On the first appeal the learned judge of the High Court dismissed all claims on the grounds that there could not be any distinction between the washomvi and any other comparable coastal tribes whose members might be Mohammedans and that Mtoro was not entitled to registration either under mshomvi laws and customs or Mohamedan law and that evidence showed that the only interest of Africans was in the crops
Cont….
Further it was held that; Where a particular tribe has a different law and custom from
the permissive occupational right generally recognized by native tribes in east Africa, recognizing an individual’s right of ownership equivalent of free hold tenure as known to English law the onus of proof is upon the person who so alleges.
that a tribe ids converted into Islam does not mean that its customs particularly relating to land tenure are thereby changed.
Where the first Muslim Arab settlement is by peaceful means there is no presumption that the settlers imposed their laws on the indigenous inhabitants of interfered with the law and customs already in force.
Cont….
The rule of English law is that in ceded countries which at the time of their acquisition by the crown already has laws of their own, the crown has power to alter and change those laws but until this is done the ancient law of the country remain in power.
Imperial German decree 1895 paragraph 3 promulgated that claims to ownership of land by individuals were not to be admitted unless proved by documentary evidence.
The original applicant/ (now appellant) appealed to the East African Court of Appeal.
Issues on appeal; The major issue in this appeal was whether or not the
Washomvi tribe recognized the right of an individual to own land. The decision of the high court of Tanganyika was consolidated
HOLDING;
-Since the appellant has no document of title at all, he did not have provable title to ownership which would have been accepted by the German administration. The most that he would have proved under German law is the right of usufruct in respect of the land which he or his predecessor had occupied for at least two years.
- His possession under adverse possession could not stand because it is clear that such possession has been twice interrupted during the 1914-18 war and the 1939-45 war.
-The court held that, inter alia the Washomvi law or custom law did not know individual ownership to land except individual’s usufructuary rights and that where land was held by a native the inference was that the possession was permissive and not adverse.
Conclusion.
The appeal was dismissed and therefore Mtoro Bin Mwamba could not be registered as the first owner of that parcel of land.
