CIVIL APPLICATION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE MISC. CIVIL APPLICATION NO. 19276 OF 2024 BENADETHA ELIA CHOGA.............................................................. APPLICANT VERSUS JUVENALIS M.C. MAGORI @ MAGORI COSMAS MAGORI....... RESPONDENT RULING 23rd September & 17th October, 2024 BARTHY, J.: The applicant, through a chamber summons supported by an affidavit, prayed to this court to transfer the proceedings of Matrimonial Cause No. 72 of 2024 from the primary court of Nyamagana, Mwanza Region, to this court or another magistrates' court located in Dar es Salaam. The applicant further requested that the costs of this application be borne by the respondent, and any other reliefs deemed fit and just by this court. The application was made under section 78 of the Law of Marriage Act, Cap 29, R.E 2019 (to be referred to as the LMA). Both parties, represented by the learned counsel, agreed to dispose of this application i by way of written submissions, which were filed on time. I commend both parties for their diligence. In support of the application, learned counsel for the applicant, Mr. Nehemia Gabo, adopted the content of the affidavit as part of his submissions. He submitted that the application for transfer is based on the fact that both the applicant and respondent reside in Dar es Salaam. He stated the applicant resides in Mbezi Luis, Ubungo District, while the respondent works at the TRA headquarters in Dar es Salaam and resides in Makongo, Kinondoni District. These facts were evidenced by annexures BC2, BC3, and BC4 of the applicant's affidavit. Further, Mr. Gabo contended that the applicant's poor health and economic hardship hinder her from traveling long distances to Mwanza for the court proceedings. He argued that, in accordance with section 18 of the Civil Procedure Code, Cap 33, R.E 2019, suits should be instituted where the defendant resides or where the cause of action arose. Thus, it was improper for the respondent to file Matrimonial Cause No. 72 of 2024 in the Nyamagana primary court while both parties reside in Dar es Salaam. The applicant relied on section 78 of the LMA, stating it vests this court with the jurisdiction to transfer proceedings. He cited the case of 2 Salim Kashoga vs. Sawira Bashiri, Matrimonial Application No. 02 of 2018, High Court at Bukoba, to support his argument. In response, the respondent's counsel, Mr. Sekundi B. Sekundi, opposed the application. He argued that no sufficient reasons had been provided to justify the transfer. He claimed that the parties were permanent residents of Mwanza, and that the marriage had been contracted in Mwanza, giving the Nyamagana primary court the appropriate jurisdiction. Mr. Sekundi also submitted that section 47 of the Magistrates' Courts Act, Cap 11, R.E 2019 (MCA) governs the transfer of cases from primary courts, and not section 78 of the LMA. Therefore, this application, in his view, was improperly before this court. He further argued that the applicant's claims of poor health were unsupported by medical evidence and that economic hardship alone is not a sufficient ground for the transfer of proceedings. In his rejoinder, Mr. Gabo reiterated his earlier submissions, arguing that section 78 of the LMA should be applied to allow the transfer and that the applicant's health status was sworn to under oath. Having carefully considered the submissions of both parties, the main issue for determination is whether this court should grant the applicant's prayer to transfer the proceedings of Matrimonial Cause No. 3 72 of 2024 from the primary court of Nyamagana, Mwanza Region, to this court or another court located in Dar es Salaam. The applicant invoked section 78 of the LMA as the legal basis for the application. This section states: "Where a matrimonial proceeding has been instituted in a magistrate's court, it shall be lawful, at any time before judgment, for the High Court, on the application of either of the parties or of the magistrate or on its own motion, to transfer the proceeding to itself or to some other magistrate's court. "[Emphasis is supplied]. Upon a careful reading of this provision, it is clear that section 78 of the LMA pertains to matrimonial proceedings that have been instituted in a magistrate's court. The law allows the high court to transfer such proceedings to itself or another magistrate's court. However, in the present case, the proceedings in question were instituted in a primary court, not a magistrate's court. The case of Salim Kashoga vs. Sawira Bashiri, cited by the applicant, is distinguishable from the present matter, as it involved the transfer of matrimonial proceedings from a magistrate's court, not a primary court. ” <7 4 The proper procedure for transferring proceedings from a primary court is provided under section 47(l)(a) of the MCA, which states: "Where any proceeding has been instituted in a primary court, it shall be lawful, at any time before judgment, for the primary court, with the consent of the district court or a court of a resident magistrate having jurisdiction, to transfer the proceeding to such district court or court of a resident magistrate or to some other primary court." [Emphasis is supplied]. This provision mandates that any transfer of proceedings from a primary court requires the consent of the district court or a court of a resident magistrate with the jurisdiction. As properly argued by the respondent's counsel. The conduct of matrimonial proceedings in primary courts is clearly outlined under Section 93 of the Law of Marriage Act (LMA), which requires compliance with the provisions of the MCA and relevant rules. Therefore, the application before this court, brought under section 78 of the LMA, is procedurally flawed as the proper legal framework for the transfer of proceedings from a primary court was not invoked. In view of the above, I find that the application suffers from procedural irregularity and is incompetent before this court. 5 Consequently, the application is hereby dismissed. Given the nature of the parties involved, I make no order as to costs. It is so ordered.