JOHN AGRICOLA v RASHIDI JUMA 1990 TLR 1 (HC)

 

JOHN AGRICOLA v RASHIDI JUMA 1990 TLR 1 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

10 April, 1990

Flynote

Civil Practice and Procedure - Jurisdiction - District magistrate trying in case triable

by a resident magistrate in a B Resident Magistrate's Court - District magistrate lacks

jurisdiction - Fundamental defect - Incurable.

-Headnote

A case was filed in the Resident Magistrate's court because the District Court had no

jurisdiction to hear such C cases. However the case in the Resident Magistrate's

Court was heard and tried by a senior District Magistrate. The applicant was

successful and respondent appealed to the High Court. In the High Court, Justice

Munyera held that there was fatal irregularity apparent on the face of the record of a

resident Magistrate as it was tried by a D District Magistrate. Upon an application for

leave to appeal to the Court of Appeal on a point of law.

Held: (i) Lack of jurisdiction in the presiding magistrate is a fundamental defect that is

not curable at all. A trial by a District Magistrate who lacked jurisdiction in a court he

was presiding was a complete nullity; E

(ii) as a result there is no point of law raised by the applicant which is fit for

consideration by the Court of Appeal of Tanzania.

Case Information

Application dismissed. F

[zJDz]Judgment

Mwalusanya, J.: This is an application filed by one Mr. Rashidi s/o Juma for leave to

appeal to the Tanzania Court of Appeal on a point of law. The applicant was

represented by Counsel Mr. Rweyemamu, while the respondent Mr. Agricola s/o John

resisted the application in person. G

This matter concerns a case in which the applicant filed an application for vacant

possession of premises at the Bukoba Resident Magistrate's Court against the

respondent. The case was filed in the R.M.'s Court because the H District Court has

no jurisdiction to hear such cases. However the case in the RM's Court was heard and

tried by a Senior District Magistrate one Mr. Kajuna. The applicant was successful and

respondent appealed to the High Court.

In the High Court Munyera J. was very brief and he held: I

I have no intention of going into the merits of the case as there is

1990 TLR 2

A fatal irregularity apparent on the face of the record of a Resident Magistrate but it

was tried by a District Magistrate Mr. Kajuna. Section 6 ( 1 ) of the Magistrates' Court

Act No. 2/1984 reads Subject to the provisions of s.7, a magistrate's Court shall be duly

constituted when held by a single Magistrate being:

B (a) ....

(b) ....

(c) in case of a court of resident magistrate, a resident magistrate.

C While a District Court can be presided over by a resident magistrate, a resident

magistrate's court, cannot be presided over by a district magistrate.

I am in complete agreement with the observations of Mr. Justice Munyera. Despite

the gallant efforts made by Mr. D Rweyemamu that this was a curable error,

however I am of a different view. As clearly pointed out by this court in the case of

Giryago s/o Mwita v R. [1978] TLR. n. 89. (Mfalila J.), lack of jurisdiction in the

presiding magistrate is a fundamental defect that is not curable at all. The same view

was held by the late Mr. Justice Biron in E the case of R v. Pangaras s/o Liprima

[1968] H.C.D. n. 178 who held that a trial by a District Magistrate who lacked

jurisdiction in a Court he was presiding was a complete nullity. Therefore the

argument by Mr. Rweyemamu that the irregularity is curable is untenable.

F That leads me to the conclusion that there is no point of law raised by the

applicant which is fit for consideration by the Tanzania Court of Appeal. Therefore

this application is dismissed with costs.

Order accordingly.

1990 TLR 2

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