Telecommunication in Tanzania: Cases and Assessment

2013 Telecommunication in Tanzania. Important Case Laws and Assessment These are one of the good examples of the telecommunication cases in Tanzania, which clearly stipulate the roles and functions of the Regulatory Authority towards making decisions relating to various disputes arise between the customers and the phone companies. PREPARED BY ASHERRY MAGALLA Young Thinker Law Journal 6/24/2013 About the Author. Asherry B.P. Magalla., Ll.B, Ll.M Candidate of Information and Communication Technology Law at Iringa University (Formerly Tumaini University Iringa University College). The author currently a trainee teacher and candidate at Iringa University-Iringa, obtained his first degree of law in the same university in 2012. His Primary studies were at Kowedi Primary School in Dodoma (Mvumi Mission), Forodhani (currently St. Joseph High School), and Bunge Primary School where he finished. Ordinary Level studies at the Kaole Secondary School from 2002 to 2006, and in 2007 to 2009 it was when the Advance Level Certificate was given to him at Midland High School. In 2009, the Author was admitted by the Tumaini University Iringa University College, as it was known by then, after attending Crush Program. As the fact that the inspiration of learning Law was and still running in his blood vein, the Author had to change/shift the course of Community development where he was admitted at first time, to Law where his brain recognised. In 2012 the Author was granted his first degree of Law at Tumaini University Iringa University College, but due to his inspiration to study further, especially law particularly Information, Communication and Technology Law , and with the help of his family, relatives, friends, and the Faculty of Law at Tumaini University Iringa University College especially the Dean Faculty Advocate Renatus Mgongo, he was admitted to continue with Masters of Information, Communication and Technology Law for the year 2012-2013. This is his 13th article on the Development of Information, Communication and Technology Law. ~2~ ACKNOWLEDGEMENTS ALMIGHTY GOD is everything to me, everything I have been doing and I’m about to do, it is the results of His Holy Hands. The author would like to thank the following learned brothers and sisters, Dean Faculty of Law, Iringa University (Formerly Tumaini University Iringa University College) Adv. Renatus Mgongo, Dr. Lalteika, Dr. Pulluru, Dr. Lukumay, Philip Filikunjombe, Harry Henry Mwinuka, Nicas P. Ngimbwa and all of my Learned Brothers and Sisters at Iringa University for their full support in my studies that managed me to write this article. ~3~ DEDICATION; This article is dedicated to My Beloved Late Grand Father and Mother (Mr. And Mrs. Magalla Sr.) My Great Grand Mother Mrs. Ramadhani Sr. and Family, Grand Uncle Augustino Ramadhani and Family, Grand Uncle Paul Mzuka and Family, Grand Uncle Henry Ramadhani and Family, Uncle Sillas Magalla and Family, My Parents Mr. and Mrs. Kessy and My All of Relatives. Without You; I wouldn’t be in this Position. I Will Always Love You, Forever. ~4~ Introduction. These are one of the good examples of the telecommunication cases in Tanzania, which clearly stipulate the roles and functions of the Regulatory Authority towards making decisions relating to various disputes arise between the customers and the phone companies. Telecommunication in Tanzania Communications in Tanzania have in the past often been very unreliable. The mobile telephone services are usually available only in urban areas, although there are currently efforts to provide nationwide mobile phone coverage. Competition in Tanzania's telecommunication sector is expected to get stiffer after the country's regulatory authority licensed four more cell phone service providers to bring the number to ten. Although the network in Tanzania is still small and in poor condition, progress has been made since the publication of the Missing Link Report in 1984. Despite daunting social and economic obstacles, the country has set a goal of one telephone per hundred people by the year 2000. To accelerate the improvements necessary in the telecommunication sector in Tanzania, the government restructured the sector under the 1993 Parliamentary Acts which, among other things, sought to: limit the government's role in setting sector policy on telecommunications; and establish an independent regulatory body to regulate operator(s) and administer government sector policy. The Tanzania Communications Commission The Government of Tanzania established in 1994 the Tanzania Communications Commission to regulate, among other things, the provision of telecommunication services in Tanzania. In that regard, major functions of the Commission are: I. To licence providers of telecommunication services ~5~ II. To licence and regulate the allocation and use of satellite orbits and the radio frequency spectrum III. To approve telecommunication tariffs IV. To promote competition in the provision of telecommunication services V. To approve equipment to be used in the provision of telecommunication services. Prior to the formation of the Tanzania Communications Commission, regulatory functions and the provision of postal and telecommunications services were being carried out by the same organization, the Tanzania Post and Telecommunications Corporation (TTPC) - an organization that was created in 1977 to replace the East African Posts and Telecommunications Corporation following the breakup of the East African community in 1977. The Tanzania Communications Commission is mandated to promote the development of rural telecommunications in Tanzania. To achieve this objective, the Commission has set up a Rural Telecommunications Development Fund to which all licenced operators of telecommunications networks in Tanzania have to contribute. This fund has so far not been set up. Once it is set up, however, all companies licensed to provide telecoms services in Tanzania will be obligated to contribute to the fund. Telecommunication services in Tanzania are provided to only a few individuals. These services will very soon cover not only voice telephony but also data and paging services. The services currently provided are inadequate and poor. A program for an expansion of the service, rehabilitation of the network and training of staff that has been embarked upon is hoped to improve the situation. The liberalization of the telecommunication sector, allowing in more operators and service providers, angers well for the future of telecommunications in Tanzania.1 1 (http://www.vii.org/papers/tanzania.htm-M. L. Luhanga ) ~6~ Challenges The broadband market in Tanzania is still unexploited. Many years of bandwidth starvation forced business to adopt low-bandwidth survival techniques that relied mainly on satellite services, which will gradually change. Power interruptions, a weak infrastructure base (especially the lack of computers available to access networks), low ICT literacy among the general public and low purchasing power are also key factors. The average revenue per user (ARPU) continues to fall. For example, Vodacom reported the following about Tanzania for the year 2009: ‘ARPU in local currency declined in most of the international operations due to the growth in lower-usage customers, shrinking disposable income due to economic conditions, and aggressive competitive pressure on tariffs in the form of discounted airtime and free on-net call promotions by competitors. Besides the pricing pressure, which is being exacerbated by worsening economic conditions, new licences are being awarded, raising the competitive stakes in all our markets considerably’ Access is not just about availability. Cost affects usage. The high cost of communication is still a barrier. While competition has brought down prices, the cost of access is still too high to have a transforming impact. More needs to be done to bring down call tariff s and educate people on how to exploit and use broadband for economic development. Computer hardware in use in Tanzania is imported, making high computer prices a barrier to access. E-business and telecommunication infrastructure is incomplete without affordable computing facilities. Like telephone and Internet costs, computer prices have been falling, but not to the extent of being affordable to most people. Many individuals, not just businesses, need to have access to reasonably priced computers for education, recreation, business and other activities. Poor electricity supply is a major problem. Efficient power supply is only guaranteed by power generators. This increases costs as fuel is very expensive, constituting a barrier to growth and development of e-services. While availability has grown, this has not been matched by quality of service. Fair and honest marketing and competition, and transparency in revenues and costs is important. ~7~ The need for ICT expertise in the telecom sector has not been matched with a human resource development plan to build the expert capacity for its maintenance and further development. More eff orts should be invested in encouraging the development of IT and telecoms expertise in Tanzania. There is a need to develop human capacity in areas such as technical, management, research and development, security, strategic planning, e-business and e-governance.2 IN THE FAIR COMPETITION TRIBUNAL AT DAR ES SALAAM (APPEAL NO.1 0F 2007) JUMA MPUYA…………………………………….. APPELLANT VERSUS CELTEL TANZANIA LIMITED………………… ...RESPONDENT (Appeal against the Decision of Tanzania Communications Regulatory Authority Complaint Committee dated 22nd July , 2006) On the Facts of the Case; The Appellant, Mr. Juma Mpuya did appeal against the decision of the Tanzania Communication Regulatory Authority (TCRA). Theatre on 28th June, 2004, while stationed at Mahuta, Newala, Mtwara, as a Police Officer and a CELTEL customer, bought from the Respondent (CELTEL) a SIM-CARD with No.0748 819736 bearing serial No. 8925505010005197362. On Appellant’s request and treading on his choice, the Respondent changed his original number and gave him a 2 Tanzania ICT Sectoral performance review, 2009/2010-Mary Materu- Behitsa and Betrina. ~8~ special No.0748650081. On 28th August Appellant’s phone displayed SIM-CARD REGISTRATION REJECTED so his enjoyment in the use of his special number however came to abrupt dead, which affected his work, lowered his respect, and denied him commendations, recommendations and award of distinguished service. The Appellant made a response to the Respondent’s customer care dialing on number 100, but got no assist in the problem at hand rather than telling him to wait and lastly advised him to visit the Respondent’s Head Office in Dar Es Salaam. He could not make it earlier than 26th January 2005 when the Respondent Ex-Telecoms office in Dar Es Salaam proclaimed that his number was already sold to another customer as the Appellant failed to recharge his account assertion which was not true; his account’s balance was Tshs. 3600/= which could not be re-sell earlier than December 2004 as per subscriber de-registration procedures. Being not satisfied the Appellant visited the Respondent’s Ex-Telecoms at Kijitonyama where by the data recorded shows that there was an error committed in typing number 1 instead of number 2 in registering customer’s number thus leading to cut off of services to him, therefore he had no alternative service at his disposal. Grounds of Appeal. 1. The Committee erred in law by grossly underestimate the awarded damages, 1000 per day, instead of 40,000 Tshs. 2. The Committee erred in procedures and law by awarding a single trip to Dar Es Salaam when attending Committee procedures. ~9~ 3. The Committee erred in law in its award in the ground two by disregarding breakdown computation ion in relation to the number of days covered and allowance rates. 4. The Committee erred in law by failing to punish the respondent accordingly to the law convicted them. The Instruments used in the Case. 1. Tanzania Communication Regulatory Authority Act 12 of 2003 2. The Fair Competition Tribunal Rules of 2006. History of Proceedings; The case proceedings started from the Tanzania Communications Regulatory Authority Complaint Committee dated on 22nd July, 2006, to the Fair Competition Tribunal at Dar Es Salaam, in which the Appellants appeal against the decision made by the Committee of the Tanzania Communications Regulatory Authority. Counsellors Opinions In this case, the Appellant and the Respondent’s Counsellor had some point of interaction. The Respondent’s Chancellor argued that the Appellant did not act promptly in notifying the Respondents, that if he had faced such sufferings as alleged, the Appellant would have acted promptly, while the Appellant argued that, immediately after the disruption he contacted the Respondent’s customer care for the assistance but they did not assist. Separate opinions on the issue of the relevant and irrelevant to the case (Revocatus I. Kidaha vs. National Housing Corporation (1998) TLR 59), the Appellant presented the case as a ~ 10 ~ relevant fact in his appeal, but the Respondent’s Counsellor rejected the case on the fact that, the case is related to tress pass on land while the matter in hand is disruption of services. Another issue was in the absence of the copy of the record of the Committee’s proceedings. The Appellant argued that while it is necessary, procedurally before the courts of law, it is not a mandatory requirement under the Tribunal proceedings, that if they wanted it they (Respondent) could have applied for it. The Respondent argued on the basis of rule 9 (4), that the copy of the record of the Committee’s proceedings must be attached to the Memorandum of Appeal. The Judgment On the issue of underestimating the damages, the Tribunal agreed that the Committee erred in law by underestimating the damages suffered due to the SIM-CARD REJECTION, thus giving the Appellant general damages and the case referred by the Appellant (Revocatus I. Kidaha vs. National Housing Corporation (1998) TLR 59) as irrelevant to the matter in hand that the Appellant cannot deserve substantial. If the Appellant had suffered severely due to the SIMCARD REJECTION he could not have failed to adduce even piece of evidence to back him up. The award given to the Appellant was different from what the Appellant pleaded. The compensation was not for the airtime credit worth (30,000/= SHS) but for they suffered due to the SIM-CARD REGISTRATION REJECTION. On the issues of Air and Bus-Tickets, the Tribunal was not persuaded by the Appellant on the existence of other air travel expenses. The Appellant did not provide sufficient evidence to back up the costs incurred on Air-tickets and Bus Tickets. No year was displayed in the Air Ticket issued in 16th October, at 13.00 hours. However, the Tribunal rejected the Committee’s award of ~ 11 ~ a single trip, called it unrealistic. Item 8.7 was accepted, and all other items to be concluded as travel by Bus (Mahuta-Mtwara-Dar Es Salaam and back). It is for the Appellant and the Respondent work on the rates of the bus fares. On the issue of Committee jurisdiction and authority, as argued by the Mr. Mwandambo that the Committee cannot award the damages, as prescribed by Section 41 of the Tanzania Communication Regulatory Authority Act 12 of 2003, it empowers the Committee to make many orders as may deem necessary or reasonable. Thus the Committee decision to award such damages was within its power or jurisdiction. On the issue of punishing the Respondent accordingly, as prescribed in ground number four, the Tribunal is of the view that, Section 48 of the Act 12 of 2003 is irrelevant as the fact that the Section here referred to criminal offences and not a civil offence as argued and claimed by the Appellant. Even Section 17 of the Act is irrelevant as it refers to the offence against a person who fails to respond to the Authority’s summons to provide information, and neither of the Authority nor Respondents is in breach of it. Thus the appeal succeeds in part, and the decision of the Committee under item 5.1 is set aside. Personal Assessment. In this case, the Respondent had some responsibility and duties to fulfil. As the Appellant was their customer, they had a duty to make sure that the Appellant fully enjoyed his rights to communicate with others and make full use of his SIM-CARD. The Respondent had a duty to quickly respond to the problem in hand, by making sure that the Appellant’s SIM-CARD returns to a normal situation, performing its normal activities as soon as the problem was recognized. ~ 12 ~ The power of the Committee as prescribed by Section 41 of the Tanzania Communication Regulatory Authority Act 12 of 2003, instead of making them generally, to some extent particularization of Committee jurisdiction is needed, so as to avoid the arbitrary use of power. Well, the case showed the importance of developing the information technology law. As we can see now there is a lot of telecommunication cases relating to the above case, but many of the parties to the case or matter in hand do not prefer to settle the matter before the court of law as the fact that the laws relating to telecommunication and information technology are not exhaustive to deal with the relating matters. This is especially in the matter of electronic evidence presentation before the court of law, even though the Evidence Act (miscellaneous Amendment of 2007) tried to involve electronic evidence before a court of law, still there is a need for further development of this field of law so as to cater the need to serve justice, so that it could not be seen, but seen done. Many of the legal issues which have been described in this case, have been already explained in the 2010 Act, The Electronic and Postal Communication Act. For instance, Section 131 dealing with the use of unregistered SIM-CARD without license, Section 93 dealing with the requirement of registration, Section 86 dealing with the IMEI registration and others. Even though, we have this Act, more amendments has to be made, because as I said before, the laws dealing with the information,communication and technology in Tanzania are not sufficient enough to cater the needs of the development of science and technology. ~ 13 ~ BIBLIOGRAPHY The Tanzania Communication Regulatory Authority Act 12 of 2003 Revocatus I. Kidaha vs. National Housing Corporation (1998) TLR 59 ~ 14 ~ VODACOM TANZANIA v. TANZANIA COMMUNICATIONS REGULATORY AUTHORITY On the facts of the case The Appellant, VODACOM TANZANIA is a company with a limited liability registered at PPF Tower, Ohio Street, engaging in the business of supplying telecommunications services. The Appellant is appealing against the decision of the TANZANIA COMMUNICATIONS REGULATORY AUTHORITY (THE RESPONDENT), a body corporate established under Section 4 of the Tanzania Communication Regulatory Act No.12 0f 2003, in interconnection Determination No. 2of 2007 issued in 27/12/2007. By G.N. No. 247 of 14th December 2007, the respondent gave a notice of intention to hold a public inquiry, which was duly held to review the cost based interconnection rates applied among the telecommunication operators. Determination No. 2 of 2007 and letter dated on 28/12/2007 was issued by the respondent to inform the telecommunication operators on the decision reached on the interconnection rates. The Appellant was aggrieved with the decision of the determination and by 31st December 2007, filed with the Fair Competition Tribunal at Dar Es Salaam, a notice of appeal from interconnection determination No. 2 on 27th December 2007. Grounds for the appeal. 1. The decision to alter interconnection charges was reached without being based on evidence. 2. The respondent did not accord the applicant adequate opportunity to be heard during the enquiry process. 3. The respondent acted without jurisdiction when it purported to regulate non interconnection operators in its determination. 4. The respondent issued the determination without the authority of or passing through the Board. ~ 15 ~ 5. The respondent made the determination before the network service provider had agreed on the price for delivery of electronic communication service. History of proceedings The case started from the decision of the TANZANIA COMMUNICATIONS REGULATORY AUTHORITY, on the interconnection Determination No. 2of 2007 issued in 27/12/2007. And then a notice of appeal was filed with the Fair Competition Tribunal at Dar Es Salaam on 31st December 2007. The Judgment With respect to ground number one, the Tribunal was of the view that, the respondent did involve stakeholders in reviewing the interconnection rates. The respondent sought an expert advice from an independent source such as Consultant Analysis, (U.K) with its own cost which adhere to Section 16 (2), 16 (2) (c) and Section 5 of the Tanzania Communication Regulatory Authority Act No.12 0f 2003. The report of the Panel of Inquiry on the review of interconnection rates did also take into consideration, the views and submissions by the operators, consumers and other stakeholders in the industry, based on the cost of making, producing and supplying the goods or services, consumer and investor’s interest, the return on assets in comparable interest and any other factors the AUTHORITY considered it relevant, rather than relying on the report of the Analysis (U.K.). Ground number two, had no merits because all the operators including the appellant were fully represented, and was aware that the Determination No.1 of 2004 was due to expire on 31/12/2007.The appellant received a written notice of the inquiry on 14/12/2007, and fully participated in public inquiry held at the Karimjee Hall on 21/12/2007. The process of the inquiry leading to Determination No.2 of 2007 was commenced in May, 2007 with the High Level Consultative Forum on Interconnection Arrangement post 31/12/2007 held on 23/05/2007, each member including the appellant was given the opportunity to present his views and recommendations on what would be the ideal interconnection arrangement effective from ~ 16 ~ 1/01/2008. It was evident that this Forum was not challenged by any party, including the appellant. The appellant had a meeting with the inquiry panel on 17/12/2007 before the public inquiry held. The appellant did neither seek for the adjournment of the inquiry as per rule 8 (9) nor postpones the submissions of its submissions under rule 8 (8) and 9 (1) of the Public Inquiry Rules G.N. No. 307 0f 2004 The appellant was afforded sufficient notice and adequate opportunity to be heard during the whole inquiry process. On ground 3, the determination of international outgoing calls is not subject to regulation by the respondent since they terminate outside the country (international gateway) with no jurisdiction and the costs are unknown. In Tanzania, incoming international calls from outside terminating on a national network and transit arrangement in which cost, routine and transit within it are known, and have jurisdiction over it. On ground 4, the Tribunal disagreed with the appellant’s counsel that the respondent issued determination with no authority or passing through the board. On 27/12/2007 there is evidence of respondent board meeting and minutes which proves that the matter was approved. The quorum of the meeting of the Board of Directors was determine at the commencement of the meeting, no member of the board who favor the determination step out during the deliberation, but after the meeting was declared constituted. On ground 5, the Tribunal agreed with Mr. Chaula that, in the absence of interconnection agreements among the operators, it was lawful for the respondent to determine the interconnection rates as described in section 16 (1) (2), 17 and 18 (1) and (2) of the TCRA Act and section 5 (1) and items 7 and 32 of the schedule to the TC Act, and that, nowhere in the relevant provisions of the law, the principal legislations and in particular the interconnection Regulations 2005, provided that interconnection charges or any rates shall be fixed by negotiation and agreement between operators. Ground 5 had no merits. ~ 17 ~ Failure of the respondent to issued the interconnection negotiation procedure and guidance as under regulation 5 of Interconnection Regulation G.N. No 264 of 2005, was declared as a fault and save for the complaint. Accordingly the decision of the respondent in Determination No.2 of 2007, confirmed save for the determination 3.8 implemented after the respondent complies with regulation 5 of G.N. No 264 of 2005. Appeal devoid of any merit, each party bears its own costs. Separate and Dissenting Opinions. The concrete issue was on the quorum of the meeting of the Board of Directors. The appellant’s counsel did disputes the number of the members of the quorum that they are below the minimum requirement of 4 members as per section 7 of the TCRA Act No.12 of 2003. The respondent’s counsel argued that the law TCRA Act No. 12 of 2003 is silent about the minimum requirement of the quorum, thus it could be any number that is deemed fit. The authority of the respondent to issue the Determination No.2 of 2007 on the international outgoing calls. Mr. Galeba argued that the respondent has no mandate to regulate international gateway operations whether incoming or outgoing calls thus improperly regulated incoming calls. Mr. Chaula responded that in the absence of agreements among the network operators it is lawful under sections 16 (1) (2), 17 and 18 (1) and (2) of the TCRA Act and section 5 (1) and items 7 and 32 of the schedule to the TC Act, to determine price based rates on the basis of the best information available. The matter of sufficient time. The appellant’s counsel argued that, the appellant was not given sufficient time for making consultations and preparing a well reasoned submission with respect to the proposed review of rates. Mr. Chaula submitted that the appellant was given adequate opportunity to be heard through consultative meetings, particularly the High Level Consultative Forum on Interconnection Arrangement Post 31/12/2007 held on 23/12/2007. ~ 18 ~ Personal Assessment. The judgment, evidence collection including documentation in this case is fair. Both parties had a duty to inform each other on the relating matter. For instance, they were both legally required to quickly respond to the Determination No. 2 of 2007. The appellant had a right to either adjournment the inquiry as per rule 8 (9) or postpones the submissions of its submissions under rule 8 (8) and 9 (1) of the Public Inquiry Rules G.N. No. 307 of 2004. The respondent had a duty to issue the interconnection negotiation procedure and guidance under regulation 5 of Interconnection Regulation G.N. No 264 of 2005, but failed to do so. The judgment was just and fair. Significance of the case for the further Development. The case entails the importance of taking care of the duties of the AUTHORITY towards its subjects. For instance, in the future the AUTHORITY will have to make sure that they must issue the interconnection negotiation procedure and guidance to the network operators at the early stage of negotiating the price rates for their services, as we have seen in this case. The case entails the importance of taking the opportunities given by the laws, rules or regulations in achieving our rights. For instance, the appellant in this case, did fail to take its opportunity given by rule 8 (9), 8 (8) and 9(1) of Public Inquiry Rule G.N. No. 307 of 2007, to either adjourn the inquiry or postpones the submissions which leads them failing to prepare a well reasoned submissions in respect to the proposed review of rates. ~ 19 ~ BIBLIOGRAPHY Tanzania Communication Regulatory Act No.12 0f 2003, Interconnection Regulation G.N. No 264 of 2005. Public Inquiry Rule G.N. No. 307 of 2007. ~ 20 ~ TANZANIA BREWERIES LTD V. SERENGETI BREWERIES LTD, AND 2 OTHERS Introduction. In this Ruling of the Appeal Case of Tanzania Breweries Ltd V. Serengeti Breweries Ltd, and 2 Others, brief facts of the case, the grounds of appeal, applicable laws and rules, history of proceedings, legal issues and arguments of the parties, the decision of the Tribunal, and personal assessment of the ruling are going to be discussed. Brief facts of the case. The appellant Tanzania Breweries Ltd (TBL) appeal against the decision of the Fair Competition Commission (FCC). That on 17/9/2009, Serengeti Breweries Ltd (SBL) lodged a complaint before the Fair Competition Commission against the appellant on unfair trade practices harming competition in the beer industry. The Commission pursuant to Sections, 58 (1) (3) 60 (1) and 78 (1) (f) of the Fair Competition Act No.8 of 2003, and Rule 41 of the Fair Competition Procedures Rules of 2009, ordered that, “Tanzania Breweries Limited to pay a fine of 5 percent of its turnover for the year of their latest audited accounts, for anti-competitive branding agreements with outlet owners and removing SBL posters and signage. Branding agreements between TBL and outlet owners were declared null and void, and to immediately refrain from removing its competitor’s POS materials at the outlets and entering into anti-competitive branding agreements with outlet owners”. Grounds of Appeal. 1. The Fair Competition Commission (FCC) erred in law and fact by failing to observe the principle of natural justice and procedural fairness. 2. The proceedings and decision of the FCC are a nullity because was not properly constituted when it determine the matter. ~ 21 ~ Applicable Laws and Rules. Fair Competition Act No.8 of 2003, Fair Competition Procedures Rules of 2009, Fair Competition Commission Procedure Rules 2010, Fair Competition Tribunal Rules, G.N NO.189 of 2006 History of Proceedings. On 17/9/2009, Serengeti Breweries Ltd (SBL) lodged a complaint before the Fair Competition Commission against the appellant. On 27/5/2010 a notice of appeal, Serengeti Breweries Limited as the respondent was filed. Memorandum of Appeal was lodged in 25/6/2010 Serengeti Breweries Ltd as respondent in Fair Competition Tribunal at Dar es Salaam with appeal No. 4 of 2010. On the same date another appeal was lodges by the appellant, appeal No.5 of 2010, FCC as the respondent. On 13/12/2010 Tribunal granted a leave to the appellant to add Fair Competition Commission as a respondent in Appeal No.4 of 2010, and on 17/12/2010 Memorandum of Appeal was amended to allow FCC to be a second respondent. FCC has taken objection to Appeal No.4 and Appeal No.5 of 2010. Legal Issues and arguments of the parties. 1. Whether the Appeal No. 4 of 2010 against the 2nd respondent (FCC) was incompetent. The appeal was incompetent due to the failure by the appellant to file a notice of appeal in respect to the 2nd respondent as per Rule 7 (1), (4) and (5) of the FCT Rules as argued by Mr. Nyenza learned counsel for the 2nd respondent, that the FCC did not appear as respondent as it was held in the case of Dhow Mercantile (EA) LTD & Others Civil Appeal No.56 of 2005 (CAT) (Dar Es Salaam). Mr. Ng’maryo learned counsel for the 1st respondent argued that it was not necessary to file a fresh notice of appeal naming FCC as the 2nd respondent before joining the FCC. ~ 22 ~ Dr. Tenga learned counsel for the appellant argued that, there is no provision in FCT Rules requiring a fresh notice of appeal when joining subsequent respondents who were not named before instituting the appeal. Once an appeal is instituted the consequent proceedings including the joinder of parties are in the discretion of the Tribunal. 2. Whether the Appeal No. 4 of 2010 is Sub-judice. Mr. Nyenzi argued that, the appeal is sub-judice due to the pendency before the Tribunal of another Appeal No.5 of 2010, in which the appellant and 2nd respondents are parties. Both appeals originate from the same decision, and the grounds of appeal are similar, it was improper to join the respondent. Mr. Ng’maryo, argued Appeal No.4 of 2010 was filed before Appeal No. 5 of 2010, thus cannot be said to be sub-judice. Dr. Tenga and Mr. Nyange learned counsel for the intervener Coca Cola Kwanza Ltd associated with the submissions made by Mr. Ng’maryo on the preliminary grounds objection. 3. Whether it was proper to make FCC a respondent in an appeal before the Tribunal. Mr. Nyenza cited the case of Peter Mushi V. The Minister for Land Housing and Urban Development 1984 TLR 64 (CA) arguing that the FCC was wrongly joined as respondent in appeal as it was not a party to the proceeding from which the appeals arise and was only acting as an adjudicator. Dr. Tenga argued that the FCC is not a court that the proceedings before it were not trial but an investigation and Peter Mushi case was irrelevant to this appeal. Rule 31 and 32 of the FCT Rule of 2006, and Rules 75 (4-6) of FCC Rule of 2010 showed FCC as an interested party through Director of Compliance who defends the Commission’s decision. In the UK the Office of Fair Trading and in Europe the European Commission are the authorities equivalent to FCC, that decision of the respective competition authorities are challenged in the Competition Appeal Tribunal in U.K. and General Court in Luxembourg. ~ 23 ~ Mr. Nyenza in response to Dr. Tenga, argued that EU authorities relied are not relevant to our jurisdiction since the union have different countries with different legal systems, the matter would be authorities if had been before the East Africa Court of Justice instead if Tribunal. FCC cannot be a part of the case or proceedings of the case if it acted as an adjudicator upon a complaint submitted by another person. Rule 75 (4), (5) and (6) of Fair Competition Commission Rule of 2010 is applicable only to an appeal arising from a decision made by the FCC as an investigation of a complaint and not as an adjudicator. Decision of the Tribunal on the Ruling In response to ground 1 the Tribunal was of the view that, as the notice of appeal which initiated Appeal No.4 of 2010 was filed within time, and as at the time FCC joined as a 2nd respondent there was already in a place a properly lodged appeal, there is no requirement to file a fresh notice of appeal or amend it. It became required at the commencement of an appeal as per Rule 7 (3) (b) and (4) of Fair Competition Tribunal Rules, G.N NO.189 of 2006. Dhow Mercantile (E.A) Ltd case cited by Mr. Nyenza is distinguishable as there was no notice of appeal in place as upon the appeal in question being struck out, the same applied to notice of appeal. In the instant case, a notice of appeal still exists which form the basis of Appeal No.4 of 2010, ground overruled. On ground 2, sub-judice as provided in section 8 of the Civil Procedure Code, Act No.49 of 1966, it is not applicable to proceedings before this Tribunal in the light of Rule 20 of the FCT Rules 2006, which allows two or more proceedings pending in respect of the same decision or issues, to be consolidated at the discretion of the Tribunal or upon application by any of the parties. Ground overruled. Ground 3, the Tribunal held that, Rules 75 (4), (5) and (6) of the Fair Competition Commission Procedure Rules 2010 expressly provides that the Director of Compliance shall represent the commission in any appeal before the Tribunal, that show the interest of the Commission towards the case before the Tribunal, thus became a necessary and proper party in any appeal in Tribunal ~ 24 ~ arising from its own decision whether as an investigator or adjudicator as per section 69 (1) and 69 (2) of the Fair Competition Act No.8 of 2003. In the aspect of relevant authorities, what is material is that U.K competition law as whole is no different from our laws, regarding to objectives, functions, and the limits of its jurisdiction. Even though they are persuasive but for the purpose of preserving natural justice and fairness to human being, there would be no hesitation to their application to our laws. We are satisfied by the authorities from the U.K., EU and India. FCC was properly made a respondent in the two appeals consolidated. The preliminary objection against the joinder of the two appeals is misconception. Ground 3 of Appeal No. 4 of 2010, and ground No.1 of Appeal No.5 of 2010 were overruled and dismissed with cost. It is so ordered. Personal assessment Criticism in Ground 1 of Appeal No.4 and No.5 The appellant used various words to convey a single meaning, Natural Justice. The requirement of natural justice depend on the circumstances of the case, the nature of the inquiry the rule under which the tribunal is acting, the subject matter that is being dealt with and so forth3. Natural justice includes the rights to be heard (audi alteram parten) which includes the right to be given notification of hearing, to be given indications of any adverse evidence, to respond to the evidence, to legal representation at hearing, to question the witnesses, to give reasons, and rule against bias (nemo iudex in causa sua)4. There was no necessary to use words such as reasonable opportunity to be heard, failing adequate to state the reasons for the factual findings and fairness procedures while at the same time using the word natural justice which includes them. 3 Lord Tucker LJ in Russel v. Duke of Norfolk (1949) ALL ER 109. 4 H. Bernett, Constitutional and Administrative Law, 4th Edition, Cavendish Publishing Limited, Sydney, Australia2002, p 898, 901 and 902. ~ 25 ~ Lord Bridge in Lloyd V. McMahon (1987), argued that, “the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better express the underlying the concept”. The appellant could use the word Natural Justice, instead of expressing it widely on the ground. Lord Lane CJ in R V. Commissioner of Racial Equality ex parte Cottrell and Rothon (1980) argued that, “all that the rules of natural justice mean is that the proceedings must be conducted in a way which is fair in all circumstances”. That means the term Natural Justice was enough to express what the appellant seek. For instance, the ground could be, the Fair Competition Commission (FCC) erred in law and fact by failing to observe the principle of natural justice. The ground could be expressed more widely while defending it. The Tribunal’s decision to allow Rule 20 of the Fair Competition Tribunal Rules, G.N NO.189 of 2006 to prevail against section 8 of the Civil Procedure Code, Act No.49 of 1966, showed the maturity of the Tribunal in making its own decision. If a person or an entity filed a case before the Tribunal must be obliged by the rules of FCT. If the decision could be otherwise, there would be no meaning of settling Tribunal proceedings to the case. ~ 26 ~