6 May 2013

Tanzania: Four Dar es Salaam Law Firms Sucked in Beer War

FOUR leading law firms are battling in court in a dispute between beer brewers, Serengeti Breweries Limited (SBL) and Tanzania Breweries Limited (TBL), over 25bn/- payments.

Lawyers from IMMMA Advocates, Mkono and Company Advocates, Law Associates and FB Attorneys, last Friday appeared before Justices Engela Kileo, Steven Bwana and Sauda Mjasiri at the Court of Appeal, for hearing of an application lodged by Fair Competition Commission (FCC).

Advocate Fatma Karume from IMMMA Advocates for FCC, while advocates Ringo Tenga and Fayaz Bhojan of Law Associates and FB Attorneys, respectively, are for TBL, whereas advocate Wilbard Kapinga, from Mkono and Company Advocates represents SBL.

The hearing could not proceed because one of the judges had not gone through the appeal records. "Since one of us has not gone through the records to prepare for the hearing, we adjourn the hearing to another session," the chair of the panel, Judge Engela Kileo declared.

In the application, the FCC is asking the appelate court to revise the decision given by Fair Competition Tribunal (FCT) on December 6, last year, under the Chairperson of High Court Judge Razia Sheikh, on a number of issues, including the said payments.

"The application seeks orders of the court to exercise its revisionary powers over the Tribunal and accordingly call and examine the records of proceedings before the Tribunal for the purpose of satisfying itself as to correctness and legality and revise them," reads part of the application.

The 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 revisional process," reads part of a reply affidavit filed in court by SBL.

In its case, the SBL had complained that TBL was removing its signage and posters from retail outlets countrywide to prevent its visibility to the public. The SBL, therefore, requested the FCC to investigate the TBL's conduct as it was engaging in unfair practices.

On its part, the TBL had cross-appealed with the FCC against the SBL, alleging that the latter has also contravened the Fair Competition Act by, among others, using its bottles and crates to park its products to the point even embossing TBL's bottles with its marks.

But on May 21, 2010, the FCC ruled against the TBL that it should pay a fine of five per cent of its turnover for the year of its latest audited account for the offence of entering into anticompetitive branding agreement with outlet owners and removing SBL posters and signage.

Having been aggrieved by the decision, the TBL, through its two counsel, Dr Tenga and Mr Bhojan, appealed before 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 FCC Chairman. The advocates urged that the Chairman had been appointed by the Minister for Industry and Trade and not the President as required by the law; hence, any decision made by him was 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 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.

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