Fair Competition Commission vs Tanzania Breweries Limited and 2 Others (Civil Application No. 14 of 2013) [2017] TZCA 1149 (23 October 2017)

,, ,. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUANDA, J.A., MWARIJA,).A. And MKUV:E, J.A.) CIVIL APPLICATION NO. 14 OF 2013 THE FAIR COMPETITION COMMISSION ......................................... APPLICANT VERSUS

1. TANZANIA BREWERIES LIMITE·o7 ____ _
2. SERENGETI BREWERIES LTD r- ................................ RESPONDENTS
3. COCA COLA KWANZA LIMITED I ·--- (Application for revision of the proceedings, interlocutory Rulings and Judgment from the Fair Competition Tribunal at Dar es Salaam (Sheikh, J., Kironde, Bundala.) dated the 6 th day of December, 2012 in

• ~ --- -~ -· '., --• ....... ""' ... . ... ,- ... ·-- ... - -···- ..... - {. ..... ··-..__. .. __ , ---~ ~---.,. .,. Consolidated Tribunal Appeals Nos. 4 and 5 of 2010 · RULING OF THE COURT 5 th & 26 th October, 2017 M KUYE, J .A.: The applicant, the Fair Competition Commission, •lodged the present application seeking this Court to exercise its revisional powers over the decision of the Fair Competition Tribunal which was made by Madame Sheik, a judge of the High Court of Tanzania, and Pro. L. Kironde and Dr. Malima Bundala (Members of the Tribunal). In the application, the applicant has moved the Court to accordingly call for and examine the record of the prereeEli A§S--13ef-ere-tl9e Fair--Eempet-itien- 'fribunal-at I:lares-S--alaam--in-Appeai- ~- - ·· 1

Nos 4 and 5 of 2010 for the purpose of satisfying itself as to the correctness, regularity, legality or propriety of the judgment dated 6 th December, 2012 and the proceedings of the Fair Competition Tribunal which led to the said I judgment. The application was made under section 4(3) of the Appellate Jurisdiction Act, Cap 141 RE 2002 (the AJA), section 84(1) and (2) of the Fair Competition Act (No. 8 of 2003) and Rules 38, 48(1) and 65( 1), (3) and (4) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by affidavits deponed by Dr. Deo John 'Nangela who is the Director Of'··· Compliance of the applicant and Ms. Fatma Amani Karume from I_MMA ... Advocates, the learned advocate for the applicant. - _ . The 1 st respondent Tanzania Brewerie:\s Ltd {TBL)~ th"foU9h tl\e :lavi· ffrm.. . going by the name of Law Associates (Advocates) and FB. Attorrleys has. raised four points of preliminary objection (PO) the notice of which was lodged on 7/6/2017 to the effect that:

1. The Court of Appeal does not have jurisdiction to revise the judgment of the Fair Competition Tribunal because section 61(8) and 84(1) of the Fair Competition Act, 2003 provide that the decision of the Fair Competition Tribunal shall be final. 2

\ . 2. Tha 0 the Court of Appeal does not have Jurisdiction to revise the Judgment of the Fair Competition Tribunal under section 4(3) of the Appellate Jurisdiction Act because decisions of the Fair Competition Tribunal are not proceedings before the High Court as the Fair Competition Tribunal is not the High Court within the meaning of that section. 3. Without prejudice to the foreqoing/ that the Court of Appeal does not have Jurisdiction to revise the Judgment of the Fair Competition Tribunal because there are no pending proceedings before the High Court as requiredby-section4(3)ofthe Appellate Jurisdiction Ac 0 because the rnatter has been finally determined by the Fair Competition I Tribunal. 4. That the applicants' application is incompetent as the affidavits of Ms. Karume and Dr. Nangela lodged on 4fh February, 2013 in support thereof, are fatally defective for being wrongly attested. At the hearing of the PO the applicant was represented by Ms. Fatma Karume, learned advocate whereas the 1 st respondent was represented by Dr. Ringo Tenga who was assisted by Mr. Rosalin Mbwambo and Mr. Fayaz Bhopan, learned advocates; and the 2 nd respondent was represented by Mr. 3

• f .•.. , Alex Mgongolwa also learned advocate. The 3 rd respondent did not enter appearance though she was duly served. According to the practice of the Court, the PO had to be argued first. Both Dr. Tenga and Ms. Karume argued all the points of PO at length of which we are grateful but for obvious reasons to be revealed shortly we propose to begin with the 4 th ground of PO which relates to the defective affidavit. We have opted to do so because we want to satisfy ourselves as to whether the application is properly before us. Submitting in support of the said PO, Dr. Tenga conten9~g that the .. affidavits.of Ms. Karume and that of Dr. Nangale in supporrofthe notice of··· motion are fatally defective for having been wrongly attested as they did not have the written names of the Commissioner for Oaths. Dr. Tenga contended that 1 the name of Ms. Khadija Kinyaka, shown in the stamp embossed in the affidavit was not sufficient. He argued that the authorities require the names of the attesting officer to be written in the jurat of attestation. He referred us the cases of Rajani Industries Ltd Vs Consolidated Holding Corporation Civil Application No. 53 of 2008; and Sharita A. Kaidi Vs Magreth Massawe Civil Application No. 6 of 2001. The learned counsel contended further that, in fact, the applicant's attempt I 4

. to cure the defect through Civil Application No. 7 of 2013 was an admission by the applicant that the affidavits were defective. For that matter he submitted that as the application has no feet to stand on it should be struck out with costs. On her part, Ms. Karume argued that the case of Kaidi (supra) relied upon by the respondent cannot stand as an authority since it is not the most recent decision. She argued that the case of Arcopar (OM) S.AV Harbert Marwa and Family Investment Co. Ltd and 3 Others CivitApplicatio.n · I No. 94 of 2013 which was the most recently decided case should be.taken as an authority. To show that the name Khadija Kinyaka appearing irithe 0 - - • stamp was sufficient she argued that the word "writing" as defined in the Interpretation of Laws Act, Cap 1, RE 2002 includes stamping. She, therefore, prayed that the PO should be overruled. The requirement of attestation in the jurat of attestation is provided I for under section 8 of the Notaries Public and Commissioners for Oaths, Cap 12 RE 2002 (Cap 12). Before the enactment of Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016) which came into force on 8/7/2016. That section provided as follows: 5

8. Every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath I or affidavit is taken or made. 11 The above quoted provision requires the attesting officer to show the place and the date when the oath or affirmation was made in the jurat of attestation. As the provision was not clear on whether to show or not the name of the attester, there emerged two t6nflicting decisions of this Court. One school of thought required the name of a person who administered oath or affirmation to be written in the jurat of attestation. [See Rajan Industries Ltd (supra); Sharita A. Kaidi (supra); Vodacom Tanzania Ltd Vs Zawadi Bahenga and 6 Others Civil Application No. 35 of 2013]. This school of thought went further to even reject the name appearing in the rubber stamp to be not part of the jurat. [See Vodacom Tanzania Ltd's case (supra); Sharifa A. Kaidi (supra)]. For example, in I Kaidi case (supra) the Court stated: " However ✓ we agree with Mr. Makange that the decisions in the cases of Felix Francis Mkosama/i ---·-····---- -----------------·--·----- --

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v Jamal A. Tamin and M/S Bulk Distributors Ltd Vs Happiness William Mole/ {supra) in which the Court restated the requirement to indicate the name of the attesting officer on the portion of the Jurat attestation is good law. In our view it is not enough for the attesting officer to just sign and impress a rubber stamp thereat... " The other school of thought propounded that inserting the name of the person who administered oath or affirmation in the jurat of attestation was not necessary_ or rather not an incurabre:defect partid.1lar1y·so; since - ·- ··· section 8 of Cap 12 did not state so. Such authorities include Arcopar (OM} S.As' case (Supra} where it was held that: •~ .. So/ in our view until such time as the full bench would convene to resolve the conflict ✓ or the statute is amended, the position of the law on this point ✓ should be that ✓ the absence of an attesting officer's name in the jurat of affidavit by itself, is not an incurable defect." 7

Section 8 of Cap 12 is now amended through Written Laws (Miscellaneous Amendments) (No. 2) Act 2016, (supra) which came into force on 8/7/2016 in order to resolve the conflict. The amendment has put as a mandatory requirement that the name of the attesting officer is to be inserted in the jurat. Thus, the provision as of now reads as follows: "8. Every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall insert his name and state truly. in the jurat of attestation at what place and on wHar-- -i;:::~t--·· - :'-i. date the oath or affidavit is taken ortnade>/' < - Though Ms. Karume argued that the term "writing" included the rubber stamping, in the sense that the name of Khadija Kinyaka appearing in the rubber stamp embossed therein suffices, the position of the law is settled that rubber stamp is not part of the jurat of attestation. [See Vodacom Tanzania Ltd's case (supra)]. So, we take the ratio decidend in Kaidi's case (supra) which discussed the two positions and came up with the need to indicate the name of the Commissioner for Oaths in the jurat of attestation. 8

I ' . In the instant case, it is not disputed that the affidavits in support of the application lack the names of the attesting officers. As the affidavits of Ms. Karume and Dr. Nangela have only signatures of the attesting officer without the names of such attesting officers, the jurats are defective, a defect which render the application incompetent. We thus sustain the 4 th point of preliminary objection. Consequently, we strike out the application with costs to the ist respondent. B.M. LUANDA JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. #(, ~,-,- A.H. MI DEPUTY REGISTRAR COURT OF APPEAL 9