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THE COURT OF APPEAL dismissed as unfounded the complaints of the young citizen Abdullatif Hamis, accusing High Court Judge Frederica Mgaya of professional misconduct, extrinsic fraud and breach of the code of ethics and the ethics of judges.
Judges Kipenka Mussa, Richard Mziray and Gerald Ndika gave this position when he decided on a review procedure initiated by the President of the Supreme Court following a complaint filed by Mr. Hamis against the High Court judge. , while she was dealing with a land deal and a claim.
In this land case No. 329 of 2015 and the Application No. 620 of 2015 concerning a matrimonial property of Parcel No. 9 of Block A, Aggrey Street, Kariakoo, Ilala District, Dar es Salaam, Mr. Hamis was not party.
The parties in dispute were Mr. Mehbood Osman, as plaintiff, and Ms. Fatna Mohamed, as defendant. After Judge Mgaya had rendered his decision on the two issues relating to the admission of the parties, Mr. Hamis introduced himself and presented himself as the legitimate heir of the property in question.
He wrote to the Secretary of the Judicial Ethics Committee and presented a litany of well-phrased complaints about how Justice Mgaya handled both cases, stealing court records, reassigning himself to the proceedings and issuing orders. not requested by the parties. .
Mr. Hamis accused the trial judge of fraudulently declaring Osman the rightful owner of the disputed property and ordered the transfer of the conspiracy on his behalf, which led him to lose his estate rights under which his mother had been beaten for more than ten years. Court.
As this was not enough, the young woman complained that the conduct of Judge Mgaya constituted a violation of the confidence of the Tanzanian judiciary and therefore asked the Ethics Committee to investigate the matter and to take the appropriate measures against him. After receiving this complaint, the Chief Justice opened the review suo motu (own motion) so that the Court of Appeal could investigate a number of issues, including the assignment of the case to Judge Mgaya, the proceedings, the orders, the judgment rendered and any other case. the court may consider an irregularity.
After hearing the parties, the judges of the highest temple of justice hastened to say that Mr. Hamis's allegations that Mgaya J. had given him responsibility for the case were quite unfounded.
They agreed with Mr Osman's Mr Masumbuko Lamwai's lawyer that it was implicit, according to a well-established practice, that reassignment of an application extended just as easily to the main cause, especially since the ancillary procedure was based on the legs of the main case.
With respect to the orders and the judgment rendered, the judges were fully satisfied with the re-examination of the proceedings, indicating that the request for transfer of the conspiracy and its final registration on behalf of the complainant were contained in the land claim complaint or in the land claim. be legally deducted.
In their decision, however, the judges agreed with Mr. Hamis' complaint of non-meeting of the parties and the requested party in the main case. The facts show that the plaintiff had sued the defendant in her own name and not as administrator of the inheritances of the father of the plea in dispute of Mr Hamis.
"Since the legal representative of the deceased was an indispensable part, his non-participation was fatal and the court of first instance, on his own initiative, was ordered to strike off (the name) of (Fatna Mohamed) and to replace him by appointing him as legal representative of the deceased during the initial phase of the trial, "they said in the judgment.
Unfortunately, the judges pointed out that this had not been done and that the non-appearance of the legal representative in the case under consideration was a serious procedural error that could apparently be detrimental to justice.
As a result, they had only one option to remove the name of Fatna Mohamed, who had been unduly joined as a defendant in her personal capacity.
Having done this, the whole process collapsed when the judgment and the decree that followed were handed down.
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