Meena v. Makundi Misc. Civ. Case 24-D-70; 27/11/70; Onyinke J.

 Meena  v. Makundi   Misc. Civ. Case 24-D-70; 27/11/70; Onyinke J.

         This was an application under section 21(1)(b) of the Civil Procedure Code to withdraw affiliation proceedings pending in the district court of Dar es Salaam and to transfer them to the Resident Magistrate’s Court of Moshi. The affidavit of the applicant showed that she and her witnesses resided permanently at Moshi and that since she had practically no private means, it would be impossible for her to pay the expenses of bringing her witnesses to Dar es Salaam. According to the Affiliation Ordinance (Cap.279) S.3, an application for the maintenance of a child must be made to a magistrate with jurisdiction in the place in which the applicant resides. The respondent opposed the application on the ground that section 21(1)(b) contemplated a transfer of proceedings from one competent Court to another.  Here, because the applicant made the complaint to district magistrate of the Dar es Salaam district where she did not reside, the Dar es Salaam district court had no jurisdiction to deal with the matter and there was, therefore, nothing to transfer.

            Held:  (1) “I am of the view that it is possible in law for a person to have a permanent residence at one place and a temporary residence at another. Such a situation is contemplated in section 18 of the civil Procedure Code. Explanation (1) in section 18 of the Civil Procedure Code states, “Where a person has a permanent dwelling at one place and also a temporary residence at another place he shall be deemed to reside at both places in respect of any cause of action arising at any place where he has such temporary residence.”  (2) “The respondent has not raised any issue of hardship in the event of the transfer of the matter. He merely contended that the proceedings should not be transferred because they should have been instituted in the district court of Moshi in the first instance. The question of law apart, the ends of justice would be better served if the matter were transferred to Moshi.  (3) “Order that the case be transferred to the district court of Moshi instead of the resident magistrate’s court Moshi.