Tanzania Daily News (Dar es Salaam)

Tanzania: Row On Windhoek Beer Imports Rages

PARTIES in the war on beer imports for the local market have disagreed on whether or not the Fair Competition Tribunal (FCT) has jurisdiction to determine the market monopoly case.

Advocates for Mabibo Beer Wine and Spirit Limited maintain that the Tribunal has jurisdiction to determine the application, seeking to challenge a decision by Fair Competition Commission (FCC) of stepping in the shoes of a party to oppose the company's monopoly on the business.

The Counsel for Tanzania Revenue Authority (TRA), Kyabukoba Mutabingwa, supports Mabibo's position. Mabibo, currently has exclusive rights of importing and distribution of Windhoek Premium lager from Namibia.

The company's products have a specific mark of MB66. On the other hand, advocates for the FCC and that of businessman Lucas Malya, trading as Baraka Stores, are of different opinion.

They allege that the FCT has no jurisdiction to hear the application in question. During hearing of the matter before the Chairperson of the Tribunal, Judge Razia Sheikh last week, advocates Respicius Didas and Michael Ngalo for Mabibo, sought dismissal of three grounds of objection raised by FCC and Baraka Stores, who are respondent, for lacking legal merits.

In the objections, the respondents claimed that the Tribunal lacked jurisdiction to entertain the application. They said that the application is bad in law for intending to interfere with investigation initiated by FCC on the matter and that the application was bad in law for misjoinder of parties. However, in their submissions to counter the objections raised, advocates for Mabibo submitted that the Tribunal has jurisdiction to revise, quash and set aside the decision of the FCC where there are material irregularities on the proceedings.

"We submit that there are material irregularities in FCC proceedings. It is clear that on September 19, 2011, the Tribunal made an order for remitting the matter to the FCC for hearing of complaint number three of 2009 on merit," advocate Didas told the Tribunal.

He added, "Instead of hearing the matter, the FCC hijacked the proceedings and stepped into the shoes of the complainant, Baraka Stores and filed a complaint stating that the applicants have breached the Fair Competition Act.

This conclusion is subjected for revision." Advocate Ngalo added his voice by reminding the Tribunal that where orders are given they must be obeyed to preserve the integrity of the court.

Otherwise, he cautioned, there would be no respect and the uprightness of the court would be at stake. Nevertheless, Dr Deo Nangela and Mr Justine Nyenza, for FCC submitted that the Tribunal lacked jurisdiction to determine the application because it was prematurely filed and that no decision by the Commission that has been issued to warrant intervention of the FCT.

"We are contesting the jurisdiction of the Tribunal on ground that it has no powers to quash and set aside the investigation processes that have been carried out by the first respondent (FCC) in respect of complaint number three of 2009," Dr Nangela told the chairperson.

Mr James Bwana, advocate for Baraka Stores, supported the entire submissions presented by advocates for FCC, but added that his client has been brought into the matter of which he has no means to participate.

He requested his client to be discharged with costs. After hearing the arguments from both parties, Judge Sheikh who is assisted by two members, Onesmo Kyauke and Ms Temba, said she would deliver her ruling on a date to be fixed later and the parties would be notified.

The dispute arose on September 3, 2007, when Baraka Stores imported containers of Heineken Beer without written consent of Mabibo. As these Heineken Beer were restricted imports, the TRA impounded the consignment.

Thereafter, Baraka Stores took the matter to the FCC, which was summarily rejected for lack of jurisdiction. Baraka Store crossed over to the FCT, which decided in its favour.

As a result the matter reached the Court of Appeal and all the proceedings were nullified. Mabibo's revision order sought was granted and the matter was referred back to the FCC for determination based on the pleadings which were already on record.

Instead of complying with such directions, the FCC refused to call for hearing of Complaint No. 3 of 2009. On December 27, 2012, FCC hijacked the proceedings in Complaint No. 3 of 2009 and assumed the role of Complainant, Baraka Stores, by filing a statement of the case in Complaint No. 3 of 2009.

It was at that juncture that Mabibo and TRA filed the application in question.

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