Court throws out FCC appeal in 25bn/- beer war

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THE Court of Appeal has rejected the application by Fair Competition Commission (FCC) in an anti-competitive behaviour dispute involving two giant beer companies, Tanzania Breweries Limited (TBL) and Serengeti Breweries Limited (SBL), over payment of 25bn/- fine.

Justices Bernard Luanda, Augustine Mwarija and Rehema Mkuye ruled in favour of TBL after granting a ground of objection that the affidavits filed by FCC’s Advocate Fatma Karume and its Director of Compliance, Dr Deo Nangela, in supporting the application, were fatally defective.

In the application, the FCC was asking judges of the appellate court, the highest temple of justice in Tanzania, to revise the decision given on December 6, 2012 by Fair Competition Tribunal (FCT), which overturned the payments by TBL to SBL.

The justices agreed with submissions by advocates, Dr Ringo Tenga and Rosalin Mbwambo from Law Associates and Fayaz Bhojan of FB Attorneys, that the affidavits lacked names of attesting officers, as per Section 8 of Notaries Public and Commissioners for Oaths, as amended in 2016.

Such provision states that every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under the Act shall insert his name and state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made.

“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 renders the application incompetent. Consequently, we strike the application with costs,” they declared. Jurat is derived from jurare, Latin for “to swear.” It is proof that an oath was taken before an administering officer, such as a notary.

In an Affidavit, a jurat is the clause at the end of the document stating the date, place, and name of the person before whom it was sworn.

In the case, the SBL had complained that TBL was removing its signage and posters from retail outlets countrywide in order to prevent its visibility to the public. The SBL, therefore, requested the FCC to investigate the TBL’s conduct as 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 pack 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 anti-competitive branding agreement with outlet owners and removing SBL posters and signage.

Having been aggrieved by the decision, the TBL, through its two Counsels, Dr Ringo Tenga of Law Associates and Fayaz Bhojan of FB Attorneys, 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. TBL argued that the Chairman had been appointed by the Minister for Industries and not by the President as per the requirements of the Fair Competition Act. Hence, the lawyers argued, any decision made by the Chairman was a nullity and should be dismissed. They further submitted that similarly the Director General of the FCC at the time, Mr Geffrey Mkucha, was not properly appointed. Judge Radhia Sheikh, sitting with two FCT members, agreed with TBL arguments, ruling that since the FCC at the time of hearing the matter was not properly constituted, the decision to impose fine of five per cent to TBL of its turnover was inappropriate. The Tribunal, thus, quashed the FCC decision. The decision appears as a sigh of relief for TBL, which was likely going to be forced to pay the 25bn/- had the appeal swayed the other way. TBL is owned by thousands of Tanzanians and a good performer at the Dar es Salaam Stock Exchange. TBL is part of SAB Miller, one of the world’s leading brewers with more than 200 beer brands and some 70,000 employees in over 75 countries.

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