Moshi-based building contractor Ravji Construction Company has lodged a complaint in the Office of Chief Justice (CJ) Othman Chande against High Court Judge Stella based in Moshi.
The firm complains about the Judge’s decision in an application filed against it on February 3, this year, the day the nation was celebrating the Law Day describing it as a violation of the right to be heard.
The application was described to be of extreme urgency by Arusha based advocates Maro & Company on behalf of its clients M/s Emslies Ltd of Moshi against Ravji Construction and the applicant requested the High Court to remove the contractor, its agents and employees from the site where it was constructing an eight-storey twin towers building for the applicant M/s Emslies to allow the applicant to hire new contractors to complete the work.
In a letter written to the CJ on February 9, this year, by Ravji Construction Company managing director Ravji Govind Varsan, he requested the CJ to remove Judge Stella Mugasha from continuing hearing the case on the ground that she had given an interim order which in effect amounted to a judgement in favour of the applicant leading to his company being forcibly removed from the site by Majembe Court brokers without affording it the right to be heard.
In that letter (which this reporter has a copy), Varsan alleges that the case (Civil Case No.2/2012) was filed by Maro & Company on the Law Day when the High Court does not normally deal with civil cases and the case was heard by the judge on that day and the judgment was delivered on that very same day which an execution order given to the Majembe Court brokers to remove the complainant from the site was in total disregard for its right be heard by the judge on the matter.
The fact of the case from the ruling of Judge Mugasha shows that a dispute over payment had arisen in March last year in a contract for the construction of a commercial building named Alpine Tower on Plot No.23 along Old Moshi road in Moshi town between the contractor and Emslies Ltd following the failure by Emslies Ltd to pay the contractor a sum, which had been certified by their architect Ravji Construction stopped the work and held on the building as security for its unpaid contract sum, then Emslies Ltd terminated the contract.
According to the application, which was filed by the applicant who is also a renowned travel agent, he claimed that Ravji Construction was preventing his client and his prospective tenants, including two banks from entering the premises and complete the work. Ravji Construction asserts that was holding the uncompleted building as security for its unpaid dues in accordance with contract terms.
“If a restraining order is refused, the applicant’s right in respect of the property will be in jeopardy, while the main application is yet to be heard and ends of justice will be defeated in the circumstances and in terms of section (e) and Order xxxvii Rule 2(1)… I order that respondent (Ravji) its workmen, employees and agents be restrained from entering and or interfering with the applicant’s peaceful possession and carrying out completion works, branding works and finishing works on properties on Plot No.23 Block I section CBD with the Moshi municipality pending the determination of the application inter partes,” said Judge Mugasha.
In his complaint to the CJ, the managing director of Ravji Construction asserts that the decision by Judge Mugasha was in flagrant violation of its right to be heard and casts a lot of doubt on her partiality for the judgment being delivered on the very same day, she was hosting the Law Day in Moshi when under normal circumstances courts would not handle civil cases.
Apart from the haste with which the case was handled by the judge, Ravji Construction also complains that grave injustice was done to it by the judge dealing with an issue which involved a building contract, which provided for parties to sort out their grievances through mediation and arbitration before they institute suits in the ordinary courts of law.
Ravji also complaints that, although Mr Maro has had described the case as of most extreme urgency, Judge Mugasha having given judgment to Emslies Ltd on February 3, this year, she fixed the case for a mention on March 30, this year, ignoring the urgency of the matter and also claims that the suit was instituted in the ordinary Division of the High Court when in fact it should have been filed in the High Court, Land Division.
Ravji concludes on requests the CJ to call for the record to see the kind of justice which was meted out to him and place the case before another judge by March 30 and give him an opportunity of being heard.
When Appeals Court Registrar Francis Mutungi was asked about the complaint and the letter he said the issue was in a court of law and would be solved accordingly.