The Fair Competition Commission vs Tanzania Breweries Ltd and 2 Others (Civil Application No. 108 of 2013) [2014] TZCA 2390 (23 May 2014)

IN THE ,COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUSSA, J.A., MMILLA, J.A. And MKUYE, J.A.) CIVIL APPLICATION NO. 108 OF 2013 THE FAIR COMPETITION COMMISSION ........................................ APPLICANT VERSUS :1. TANZANIA BREWERIES LTD} 2. SERENGETI BREWERIES LTD ........................................ RESPONDENTS 3,. COCA COLA KWANZA (Application for leave to admit the affidavit decision of the Fair Competition Tribunal at Dar es Salaam) (Sheikh, J.) 13 th & 28 th June, 2017 MUSSA, J.A.: dated the 6 th day of December, 2012 in Competition Tribunal Nos. 4 & 5 of 2010 RULING OF THE COURT In Civil Application No. 14 of 2013, which is pending before the Court, the applicant herein moves the Court to exercise its revisional Jurisdiction and revise the proceedings, rulings and judgment of the Fair Competition Tribunal in Consolidated Appeals Nos. 4 and 5 of 2010. The application which is by way of a notice of Motion is supported by two affidavits which were, respectively, affirmed and sworn by Ms. Fatma Amani Karume and Dr. 1

Deo John Na:ngela on the 2 nd February, 2013. It_ is noteworthy· that the referred application was lodged on the 4 th February, 2013. A little later, on the 26 th June, 2013 the applicant preferred the present application through which she seeks leave to admit the two affidavits accompanying the substantive application for revision. The quest was apparently prompted by two recent decisions of the Court which rendered the ju rat of attestation fatally defective for want of the name of the attesting officer. For some obscure cause, the present application was not consolidated to the substantive application for revision; rather, it was registered as a separate cause and assigned its own number. The same is also by way of a Notice of Motion which is predicated under Rules 2, 4 (2) (a), 4(2) (b) and 49 (l) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The Notice of Motion is supported by an affidavit which is, again, affirmed by Ms. Fatma Amani Karume. As it turns out, the first respondent greets the application with a Notice of preliminary points of objection which goes thus:- "TAKE NOTICE THAT on the first day of hearing of the Applicants application or any other adjournment thereto/ counsel for the First 2

Respondent shall raise preliminary objections on points of law pursuant to Rule .107(1) of the Tanzania Court of Appeal Rules 2009 as follows:-

1. That the Applicants application is incompetent as the Applicants application is stated to be an "Application for revision of the proceedings/ interlocutory rulings and judgment in Consolidated Appeal Nos. 4 & 5 of 2010 of the Fair Competition Tribunar; but it is clearly not an application for revision.
2. That the Applicant's application is incompetent as the affidavit supposedly in support of this application is stated to be in Civil Application No. 14 of 2013 and not Civil Application No. 1 OB of 2013,
3. That an affidavit with a defective jurat cannot be admitted into proceeding~ whether by notice of motion or othetwise.
4. That this Court has not been properly moved to entertain the Applicants application as this application seeks to admit affidavits into proceeding which are not before this Bench/ namely the proceedings in Civil Application No. 14 of 2013. Consequent!½ the Applicant's application must be dismissed in its entirety 00 in the alternative/ struck out,, with costs in either case. F/ 3

At the hearing before us, the applicant was represented by the referred Ms. Fatma Karume, learned Advocate, whereas the first respondent had the services of Dr. Ringo Tenga who was being assisted by Mr. Rosan Mbwambo, both learned Advocates. The second respondent was represented by another learned Advocate, namely, Mr. Alex Mgongolwa. As it were, Dr. Tenga argued the preliminary points of objection which were countered by both Mr. Mgongolwa and Ms. Karume. Nonetheless, for reasons which will shorty become apparent, we need not reflect on the details of the respective arguments by counsel. Suffice it to mention that Ms. Karume inter a/ia/ predicated her reply on the provision of Rule 48 of the Rules, which prompted our enquiry as to whether or not the particular provisions of the Rule were cited in the Notice of Motion. To this, Ms. Karume readilly conceded that the rule was not cited as an enabling provision in the Notice of Motion. And yet, we note, the Rule is a requisite enabling provision for every application other than an informal application made in the course of hearing. In this regard, we need only reiterate what has been stated upon numerous decisions to the effect that wrong citation or non - citation of the enabling provision has the effect of rendering incompetent the given application. The decided cases on this point are monumental but we need 4

only refer to a f:ew unreported decisions in Civil Application No. 20 of 1997 - :Nat'iona 1 I Bank of Commerce vs Sadrudin Meghji; Civil Application No. 88 of 1988 -Almas Iddie Mwinyi vs National Bank of Commerce; Civil Application No. 64 of 2003 - Citibank Tanzania Ltd vs Tanzania Telecommunications Company Ltd and; Civil Application No. 37 of 2003 Marcky !Mhango vs Tanzania Shoes Co. Ltd. To say the least, on account of the non-citation of the referred Rule, this application has been rendered incompetent and, in the final result, the same js struck out but, in view of the fact that the non-compliance was raised by the court, suo motu.r we give no order as to costs. DAT.ED at DAR ES SALAAM this 20 th day of June, 2017. '~ ..

• ~ . \ :1; ~11 ~i • I / K.M. MUSSA JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. E.F. F DEPUTY R COURTO RAR EAL 5

-- IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 181 OF 2013 SEIF STORE LIMITED ..............•......•...........•....•.......• APPLICANT VERSUS ZULFIKAR H. KARIM •••••••••••••••.•••••••••••••••••••••••••..••• RESPONDENT (Application for extension of time to file a Notice of Appeal and an application for leave to appeal against the decision of the High Court of Tanzania at Mwanza) (Sumari, J.) Dated the 12 th day of June, 2012 In Land Revision NO. 5 of 2011 RULING Date 31 st March & 26 th May, 2014 BWANA, J.A.: Filed under a Certificate of Urgency, the Notice of Motion before me seeks an Order that the applicant be granted extension of time within which to file a notice of appeal and for an application for leave to appeal to the Court of Appeal of Tanzania. Several grounds have been advanced including inter alia/ the following, as paraphrased- • That an earlier application filed by the applicant was summarily dismissed by the High Court. 1

', • That the applicant was denied a chance to be heard thus denying it a fundamental right. • That the decision of the High Court was based on an illigality. The matter before me has a chequered background, starting from the District Land and Housing Tribunal at Mwanza, going through the High Court Land Division up to the Court of Appeal of Tanzania. The subject matter thereat was a claim for restitution and compensation. The Court of Appeal ordered a trial de nova. When the present proceedings came.before the High Court following the trial de nova as ordered, it was summarily dismissed. Gross negligence on the part of the applicant was cited to be the main cause for the summary dismissal. Undaunted by that decision, the applicant challenged it before a single Justice of this Court (Prof. Dr Juma, J.A.) who observed thus:- ''After looking at the records of this application ... an Order of the High Court (Sumart J.} in Misc. Land Application No. 99 of 2012 summarily dismissing an application before it ... has matters 2

which may require further attention of this Court.... " (emphasis provided). In my considered view, Prof. Dr. Juma's observation is clear indication that justice in this matter requires further and better examination of the issues involved as opposed to a mere summary dismissal by the High Court . Even Mr. George Obuya Hezron, learned counsel for the respondent, does admit that fact when he states in his submissions thus:- " ... . so when the applicant said that the application was dismissed summarily without being hearct we thought it would be for the interest of Justice not to oppose the application. We were also aware that failure· to accord a party to a case a right to be heard constitutes sufficient ground for the Court to extend time within which to file Notice of Appeal and leave to appear~ (Emphasis provided). I agree entirely with Mr. Hezron's stance. 3

The applicant, advocated by Mr. Protace Zake, learned counsel, came before this Court under Rule 10 of the Court of Appeal Rules, 2009 (the Rules) advancing three major good cause, as paraphrased above. Now, it is settled law that in an application such as the instant one, an applicant has to show good cause to the satisfaction of the Court. Has the applicant done so herein? First, it is uncontroverted that the High Court of Tanzania at Mwanza, (Sumari, J.) summarily dismissed the application. Both Mr. Hezron and Mr. Zake, learned advocates are at par on this point. In an earlier note by this Court (Porf. Dr. Juma, J.A.) on the point, it was of the firm view that there were matters which required further attention of this Court. That in my view meant that the matter be exhaustively considered by the Court as opposed to being summarily dismissed. Indeed, it is settled law, that where there are matters of a complex nature or which require thorough consideration in the interest of justice, then courts of law should avoid invoking summary procedure. Instead, they should allow the matter come to the full and exhaustive scrutiny of the court as provided for by law. 4

Summary dismissal has a further consequence: it denies the parties, particularly the losing party, the right to be heard. It is trite law that before adverse orders are made against a party the said party must be accorded a fair hearing. To deny such a hearing offends a fundamental principle of natural justice. In Abbas Sherally and Another vs Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 ( unreported) the Court held: "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. The right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been hearct because the violation is considered to be a breach of natural Justice... " (Emphasis provided). I subscribe to the foregoing views. In a similar stance, the Court held in the case of Bank of Tanzania vs Said A. Marinda and Others, Civil Application No. 74 of 1998, that- 5

•~ .. failure to afford an opportunity of being heard to a necessary party vitiates the proceedings" (Emphasis provided). The above considered, I am of the firm view that the proceedings that culminated to the High Court's decision of summary dismissal, was therefore, tainted with illegality basically because the applicant was denied a basic right - the right to be heard. Would such failure be considered as being a g~od cause in terms of Rule 10 of the Rules? Rule 10 provides; - "The Court may, upon good cause shown/ extend the time limited by these Rules or by any decision of the High Court or Tribunal, for the doing of any act authorized or required by these rules whether before or after the doing of the act and any reference in these Rules to any such time shall be construed as a reference to that time as so extended"(Emphasis provided). The interpretation of what constitutes good cause is entirely left to the discretion of the Court - a subjective approach. However, categories of what constitutes a good cause, are never closed. It depends on the circumstances of each case. In Mantrac (T) Limited vs. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court held - 6

''In cases of application for extension of time under Rule 10 of the Rules, this Court has consistently held that illegality in the impugned judgment constitutes good cause for extending time ... " (Emphasis provided). As stated hereinabove, the applicant was denied a fundamental right to be heard. That denial, in my firm view, vitiated the proceedings before the High Court. In the consolidated cases Nos. 6, 7 and 8 of 2006 involving VIP Engineering and Two Others vs Citibank (T) Limited, this Court held, inter alia, thus - •~.. equally established is the law to the effect that a decision arrived at in breach of the rules of natural justice is null, because it is tainted with illegality ... that point constitutes sufficient reason ... for extension of time to file a notice of appeal and applying for leave to appeal.." (Emphasis provided). The "sufficient reason" and "good cause" phenomena have interchangeably replaced each other between the 1979 and 2009 Rules of the Court. However, in my considered view, their interpretation and 7

meaning accorded to them, remain the same - governed by a subjective test. In fine, all the above considered, I am settled in my judgment that the applicant has shown good cause in support of his application. Accordingly, this application for extension of time to file a Notice of Appeal and an application for leave to appeal against the decision of the High Court at Mwanza, is granted. The said application to be filed within fourteen (14) days from the date of delivery of this Ruling. No order as to costs. It is so ordered. DATED at DAR ES SALAAM, this 23 rd day of May 2014. S. J. BWANA JUSTICE OF APPEAL M.A. M PUTYR OURTOFA 8