Mabibo Beer Wines and Spirits Limited and Tanzania Revenue Authority (TRA) have asked the Fair Competition Tribunal (FCT) to quash and set aside the Fair Competition Commission’s decision, regarding exclusive rights of importing and distribution of Windhoek Beers in Tanzania.
The decision in question was issued by the Commission (FCC) on October 17, this year, ordering Mabibo to stop issuing information about the exclusive right to import the beer brand pending investigations into the matter and that it should cease demanding competitors to seek their consent on the matter.
In their joint submissions filed at the FCT on Tuesday, Mabibo and TRA (applicants) seek a declaration that the FCC had a notice since November 4, 2010 of the Kinondoni District Court’s decree dated October 15, 2010, prohibiting any person from importing and selling Windhoek without Mabibo’s consent.
The applicants are further asking for orders that on the authority of the Court of Appeal dated February 23, 2009, the FCT has jurisdiction to call for record of the exparte order of the FCC and examine it as to its manifest irregularities and illegalities leading to the miscarriage of Justice.
According to the submissions filed under the legal services of advocates Respicius Didas, Michael Ngalo, Dosca Mutabuzi and TRA legal service Department, the applicants are requesting for declaration that the FCC is judicially subordinated to the Kinondoni District Court and duty bound to enforce all its decrees.
It is also requested that under the Rules of the Fair Competition Commission Procedure Rules, 2013 G.N. No. 73 published on April 5, this year, the FCC is barred from interfering with the statutory registered exclusive rights of Mabibo in the importation and sale of Windhoek beers as already decreed by the court.
The applicants are requesting for a declaration that the exparte order of the FCC failed to afford Mabibo the basic requirements of due process by purporting to adjudicate their rights without giving them a chance to be heard and that the FCC has no jurisdiction to stay the Kinondoni District Court’s decree.
Furthermore, they are seeking for declaration that the FCC exparte order converted Mabibo’s property rights in the Windhoek beer brand illegally, without the authority of law and without fair and adequate compensation, and was causing irreparable damage to the applicants.
On November 20, this year, the applicants filed in the FCT the application against respondents in the case are FCC, Lucas Pius Malya, trading as Baraka Stores and S.H. Amon Enterprises Company Limited.
The application was supported by an affidavit deponed by Mabibo’s International Independent Consultant, Mr James Rugemalira.
In the affidavit, Mr Rugemalira stated that the FCC published its illegal order in English and Kiswahili Newspapers in total defiance of the pending Tribunal Application No. 2 of 2013 which had been duly served upon the respondents since February, this year.
“I deny that Mabibo ever engaged in misleading or deceptive conduct or in conduct that is likely to mislead or deceive. I state that unless the FCC strictly proves this allegation, it should also be deemed to be illegal on this ground for citing a wrong and an in applicable provision of law to support the FCC order,” reads part of the affidavit.
Mr Rugemalira stated that on October 25, this year, he served on behalf of Mabibo a notice of objections to the illegal order of the FCC, on grounds that the Commission has no jurisdiction to stay the decreed orders of the Kinondoni District Court (Sundi Fimbo, R.M.) in Civil Case No. 6 of 2009.
According to him, the FCC, Lucas Pius Mallya and S.H. Amon have at all material times been aware of the Kinondoni District Court proceedings in Civil Case No. 6 of 2009 since April 2009, having being served with the court’s order by Didace and Company Advocate.
He stated further that on October 29, this year, Mabibo published in the ‘Daily News’ and ‘Jambo Leo’ Newspapers the Notice of objections to the Illegal order of the FCC dated October 17, this year.
Despite such publication, he stated, S.H. Amon and his companies and conspirators (Land Mark Hotels ltd, Ambele Mwaseba and F.Q. Motel), Lucas Pius Mallya and his Companies and conspirators (Jaluma Store and Jaluma General Supplies Ltd), continued to import illegal Windhoek Beer.
By FAUSTINE KAPAMA, Tanzania Daily News
