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
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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) ....
(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.  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  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.
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