Magunda v. Komea (PC) Civ. App. 14-Dodoma-71; 21/2/72; Kwikima Ag. J.

Magunda v. Komea (PC) Civ. App. 14-Dodoma-71; 21/2/72; Kwikima Ag. J.

The respondent successfully sued the appellant for the custody of a child born about five months after their marriage had broken up. The appeal to the District Court was dismissed. It was established that the appellant left the respondent’s home when she was four months pregnant. Not wishing to lose his expected child the respondent paid to the appellant’s father one cow as is customary among the Wagogo. This payment was made in order that the respondent should obtain custody of his child after it was born and weaned. Upon the latter eventuality the respondent claimed custody only to be told that he was not the natural father because during his marriage with the appellant she had been adulterously – sleeping with one Mkavi whom the appellant and her brother recognized as the father of the child. The appeal was brought out of time.

            Held: (1) “In her affidavit, the appellant alleges that she was late to indicate her intention to appeal because her counsel – the only advocate in Dodoma – was away attending High Court Sessions at Singida. I will concede the applicant that this country has a crying need for advocates after a mass exodus by former non-indigenous lawyers. At the rate of our progress, it may take 20 years before even the status quo ante 1971 is restored. In saying this, I should not be taken to accept the applicant’s excuse however. On the contrary I am not in the least persuaded that it was necessary for he applicant to see an advocate in order to appeal ….. She could still have signified her intention before consulting an advocate …” (2) “The applicant’s persistence in this cause is tainted with vengeance and bad faith. That is why she even dares to plead her own immorality in order to deny her former husband of his lawful (if not natural) child. The applicant cannot be said to be acting in good faith when she asks this court to exercise its discretion in her favour so as to afford her opportunity to retain a child she adulterously and immorally conceived during her marriage to the respondent. She cannot expect equity must have clean hands … I would reject the application because the applicant’s persistence contra bono mores.” (3) Appeal dismissed.