The Court of Appeal postponed to another session hearing of a commercial dispute involving two giant beer companies, Serengeti Breweries Limited (SBL) and Tanzania Breweries Limited (TBL), over 25bn/- payments, because one of advocates was reportedly sick.
Tanzania Breweries Limited (TBL)
In the case, presided over by Justices Steven Bwana, Bernard Luanda and Kipenka Mussa, four leading law firms in the country are involved in a legal battle.
The panel could not proceed with the hearing because one of the advocates was sick. The Fair Competition Commission (FCC), which is represented by lawyers from IMMMA Advocates in the matter, has moved the court to revise proceedings and decisions made by the Fair Competition Tribunal (FCT) on December 6, last year, under the chairperson of High Court Judge Razia Sheikh.
Counsel Fatma Karume from IMMMA Advocates, who was sick, was to appear for FCC, while advocates Ringo Tenga and Fayaz Bhojan of Law Associations, and FB Attorneys, respectively, are for TBL, whereas Wilbard Kapinga, from Mkono and Company Advocates, represents SBL.
The applicant seeks orders of the court to exercise its supervisory powers over the Tribunal and accordingly call and examine the records of proceedings before the Tribunal for the purpose of satisfying itself as to their correctness and legality and revise them.
SBL has supported the FCC position, stating that the Court of Appeal was vested with the jurisdiction to revise proceedings of lower tribunals such as the FCT where there are special circumstances and material irregularities.
“Where proceedings and decisions of an inferior tribunal, such as the FCT, are marred by confusion, the proper remedy is not an appellate process, but rather such proceedings are amenable to provisional process,” reads a reply affidavit filed in court by SBL in part.
In its case, SBL had complained that TBL was removing its signage and posters from retail outlets countrywide in order to frustrate its public visibility. It, therefore, requested FCC to investigate TBL’s conduct alleging that it was engaging in unfair practices.
For its part, TBL had cross-appealed to FCC against SBL, alleging that the latter has also contravened the Fair Competition Act by, among others, using its bottles and crates to pack its products to the point of even embossing TBL’s bottles with its marks.
But on May 21, 2010, the FCC ruled against TBL, ordering it to pay a fine amounting to five per cent of its turnover for the year of its latest audited account for entering into an anti-competitive branding agreement with outlet owners and removing SBL posters and signage.
Having been aggrieved by the decision, TBL, through it two counsel, Dr Ringo Tenga of Law Associations and Fayaz Bhojan of FB Attorneys, appealed to the Tribunal, submitting that when hearing the anti-competitive dispute the FCC was not properly constituted.
They submitted that Mr Nikubuka Shimwela was not properly appointed as FFC chairman. The advocates argued that the chairman had been appointed by the minister for Industries and not by the president as required by the Fair Competition Act; hence, any decision made by him was a nullity.
Judge Sheikh, sitting with two other members of the FCT, agreed with TBL arguments and ruled that since the FCC at the time of its hearing the matter was not properly constituted, the decision to fine TBL five per cent of its turnover was inappropriate and, therefore, quashed the decision.
By FAUSTINE KAPAMA, Tanzania Daily News
