IN THE HIGH COURT OF TANZANIA

A T P A R ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO 31 OF 2010

(Rugazia, Kaduri, and Juma, JJJ.)
IN THE MATTER OF THE CONSTITUTION OF THE UNITED
REPUBLIC OF TANZANIA OF 1977, Cap 2 R.E. 2002, ARTICLES 30
(3), (4) and (5)

AND
IN THE MATTER OF THE BASIC RIGHTS AND DUTIES
ENFORCEMENT ACT, Cap 3 R.E. 2002, SECTIONS 5, 6, 8
andl O ( l )

AND

IN THE MATTER OF THE FAIR COMPETITION ACT NO 8 OF 2003,

SECTION 69 (l)

AND

IN THE MATTER OF FAIR COMPETITION (THRESHOLD OF

NOTIFICATION OF A MERGER) ORDER 2006

AND

IN THE MATTER OF THE PETITION

BETWEEN

TANZANIA CIGARETTE COMPANY LTD PETITIONER

AND

1. THE FAIR COMPETITION COMMISSION.... l ST RESPONDENT

2. ATTORNEY GENERAL..........................................2nd RESPONDENT

l
 JUDGMENT
JUMA, J:

This judgm ent arises from a Petition by the Tanzania Cigarette

Company, a body corporate governed by the laws of Tanzania and

hereinafter referred to as “the Petitioner”. The Petitioner is seeking

several declaratory orders of this Court revolving around the

contention that section 69 (l) of the Fair Competition Act No. 8 o f

2003 (hereinafter referred to as “FCA”) is unconstitutional in so far

as this provision denies the Petitioner:

(1) its right to be protected and its rights determined

by the courts of law or other state agencies

established by or under the law [[Article 13 (3)J,

(2) its right to a fair hearing, and to appeal [13 (6)

(»)].

(3) its right not to be punished for any act, which at

the time of its commission; that act was not an

offence under the law [Article 13 (6) (c)], and

 (4) its right to own property, and to the protection of

its property it holds in accordance with the law

[Article 24 (l)]].

This Petition was drawn and filed by Marando, Mnyele & Co.

Advocates. Apart from Mr. Marando and Mr. Mnyele, two other

learned counsel from South Africa, Mr. Jerome Unterhalter SC and

M r. Jerome Wilson also appeared on behalf of the Petitioner. Mr.

U nterhalter and Mr. Jerome had earlier applied and were accorded a

special admission by Hon. the Chief Justice of Tanzania to practice as

Advocates in Tanzania for the purpose of this Petition. Hon. Chief

Justice of Tanzania extended this dispensation under section 39-(2) of

the Advocates Act, [[Cap. 341 R.E. 2002]].

The Petitioner has cited the Fair Competition Commission

(hereinafter referred to as “the FCC”) as the 1st Respondent and the

Honourable Attorney General (hereinafter referred to as “the Attorney

General”) as the 2nd Respondent. Mr. Nyenza and Dr. Fred Ringo are

two learned Counsel who appeared on behalf of the FCC in this

Petition. Ms. Mwaipopo and Ms Matiku, the learned Senior State

3
Attorneys have on various occasions appeared on behalf of the

Attorney General.

The FCC is a statutory body that is established under section 62

of the FCA to perform several functions that include to administer and

to ensure compliance with the FCA. The Petitioner brought this

Petition under Articles 30 (3), (4) and (5) of Constitution o f the

United Republic o f Tanzania o f 1977, Cap 2 R.E. 2002 and sections

5, 6, 8 and 10 (l) the Basic Rights and D uties Enforcement Act,

Cap 3 R.E. 2002.

Facts leading up to this Petition are discernible from the

pleadings and from the written submissions. The Petitioner claims

that on or about 12th July, 2005 it received a communication from

Iringa Tobacco Company Limited (hereinafter referred to as “ITC”)

inquiring as to whether the Petitioner would be interested to purchase

specified assets belonging to the ITC. According to the Petitioner, the

ITC was contemplating to leave its cigarette manufacturing business

and offered to sell its assets to the Petitioner. Finally, the ITC agreed

to dispose of its assets at the consideration of US$ 3.6 Million. Prior to

the execution of its agreement with the ITC, the petitioner claims that

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it consulted the D ar es Salaam Stock Exchange (hereinafter referred to

as “DSE”) who endorsed the transaction. To ensure that the transfer of

assets and entire transaction remained within the requirements of the

law, the Petitioner sent its legal officer and also engaged a law firm,

the Law Associates Advocates, to follow up on the FCC to establish

whether the proposed transaction between the Petitioner and the ITC

was objectionable under the terms of the FCA. Mr. Vintan Willgis

Mbiro, the Director of Legal Affairs of the Petitioner and Mr. Sam

Allen Mapande of the Law Associates Advocates were the two learned

Advocates who made inquiries, follow-ups and consultations with

regulatory bodies.

The Petitioner claims that after these consultations with

regulatory bodies, the Petitioner had by 17th September 2005 been

satisfied that its transaction with the ITC was in accordance with the

law and was not notifiable under the FCA. The Petitioner further

believed that it was acting within the law because the thresholds for

the notification of mergers [the Fair Competition (Threshold for

N otification o f a Merger) Order, 2006]] made under section 11 (2) of

FCA had not yet been published. This Order was only published in the
Government Gazette on 19th January 2007 and was made to operate

retrospectively from 10th March 2006. The Petitioner avers that at the

time of its transaction with the ITC, the Commissioners of the FCC

were not yet appointed so as to constitute a formal FCC in terms of

section 62 (6) of the FCA. The Petitioner insists that by the time these

Commissioners of FCC were appointed on 24th November 2005, the

Petitioner and the ITC had already concluded their transaction of 17th

September 2005. Further, the Petitioner believes that under the

circumstances the Petitioner did not breach the FCA since the 2006

notification of mergers order is null and void because it was made to

operate retrospectively and infringed the Constitution.

Records show that the Division of Compliance of the FCC

prepared a Complaint Number 1 of 2008 against the Petitioner. Dated

24th June 2008, FCC is in this complaint accusing the Petitioner that:

“with intentio?i to strengthen their place o f dominance,

TCC [ th e P etitio n e rJ knowingly and wilfully

acquired assets, brands and existing stock o f finished

products o f ITC and by doing so TCC led to closure o f

busifiess o f the competitor and so strengthened the position

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 o f dominance in cigarette market contrary to the

provisions o f the FCA. W ith added emphasis-page

3, paragraph 14 o f Complaint No 1 o f 2008.

On 22 July 2008 the Advocate for the Petitioner filed a Reply to

Complaint Number 1 of 2008 containing preliminary points of

objections. The objecting Petitioner was basically contending that the

transaction between the Petitioner and the ITC was not notifiable

since no threshold for mergers had been published at the time

envisaged by section 11 (2) of the FCA. Even when the thresholds

were eventually published, the Petitioner contended that they were

made effective only from 10 March 2006. The Petitioner also pointed

out to the FCC that the Commissioners of the FCC had not been

appointed at the time the transaction between the Petitioner and ITC

was negotiated and concluded between July and September of 2005.

And in so far as its Constitutional rights were concerned, the

Petitioner in its objection pointed out that the exercise of FCC’s

accusatory and adjudicative powers infringes some of the rights of the

Petitioner guaranteed under the Constitution.

 The Ruling on the Preliminary Objections was delivered the

FCC on 14th January 2010. It was delivered by a Panel made up of

Nikubuka P. Shimwela (Chairman), Itika Hilda Mafwenga

(Commissioner), Godfrey E. Mkocha (Commissioner) and Geoffrey E.

Mariki (Commissioner). In its Ruling, the Panel overruled all the

preliminary objections which the Petitioner had raised, and further

ordered the hearing of the Complaint No. 1 of 2008 to proceed on

merit on a date to be noticed. The Panel explained to the objector (the

Petitioner) its right of appeal. On 15th April 2010 the Petitioner filed

this Petition.

The Petitioner believes that in making this finding, the FCC

made itself a Judge in its own cause thereby infringing Article 13 (6)

(a) of the Constitution. According to the Petitioner, its right to fair

hearing under article 13 (3) and (6) was further infringed when the

FCC invited the Petitioner for a hearing and proceeded to determine

the preliminary objections raised by the Petitioner in FCC’s favour.

The version narrated in support of the Petitioner was strongly

disputed by the FCC and the Attorney General. These two

respondents have contended that it is not true as contended by the

8
Petitioner, that it was the ITC who originated the initiative to transact

with the Petitioner. Rather, respondents believe, it was the Petitioner

who pressurized the ITC into the transaction and the takeover. The

FCC and the Attorney General maintain that Petitioner was obliged to

seek prior sanction of the FCC before completing its transaction with

the ITC. Respondents are in no doubt that at the time when the

Petitioner transacted with ITC, FCC was not only notionally

established but was already operational since May 2004 and FCC

already had a Director General responsible for day to day operations of

the FCC. The Attorney General pointed out that the Commissioners of

FCC were appointed on 6th July 2005 which was long before the

transaction between ITC and Petitioner was purportedly executed on

17th September 2005. The Attorney General also observed that since

FCC as a body corporate and had been in operation since 2004 when

the FCA came into operation, the transaction was statutorily notifiable

whether the Fair Competition (Threshold for Notification o f a

Merger) Order, 2006 was published or not.

On the claim that the transaction between the Petitioner and ITC

had received the blessing of the DSE, the Attorney General casts

9
doubt whether indeed the Petitioner received any regulatory approval

from the DSE. Further doubt is cast on the authenticity of exhibit P 5

evidencing the approval the Petitioner purportedly obtained from the

DSE. The Attorney General contends that there is no proof that this

exhibit P5 originated from the DSE.

Regarding the claim that section 69 (l) of the FCA has combined

and concentrated on the FCC, both accusatory and adjudicative powers

in respect of the same complaint, the FCC replied that within the FCC,

the accusatory and adjudicative powers are exercised separately and

the exercise of these powers under section 69 (l) of the FCA does not

contravene Article 13 (6) of the Constitution. The FCC pointed out

that its findings in Complaint Number 1 of 2008 and the punishment it

proposed, were not final and conclusive decision of the FCC.

Responding to the claim that it lacks impartiality and independence,

the FCC stated that the forum in which the complaints are initiated is

impartial, independent and does not involve single individual or single

department within the FCC which both initiates and decides the

complaints.
 Like the FCC, the Attorney General also disputes the contention

that the exercise of the power of the FCC under section 69 (l) of the

FCA infringes Article 13 (6) (a) of the Constitution on the reason that

such powers include both accusatory and adjudicative powers in

respect of the same complaint. The Attorney General further disputes

the contention that exercise of the power of FCC under section 69 (l)

of the FCA infringes Article 13 (6) (a) of the Constitution requiring the

separation of accusatory and adjudicative powers.

As we have suggested above, the Petitioner would like this Court

to grant the following declarations:

(a) T hat section 69 (l) of the FCA is unconstitutional.

(b) T hat the initiation of the Complaint by the FCC before

itself, the subsequent prosecution of the same, the

determination of the preliminary objection and the intended

hearing of the complaint is unconstitutional.

(c) T hat the FCC has no jurisdiction to determine Complaints

initiated by itself infringes Article 13 (3) of the

Constitution.

li
 (d) T hat the retrospective application of the Fair Competition

(Threshold for Notification o f a Merger) Order o f 2006

contravenes Article 13 (6) (c).

(e) T hat the conduct of the FCC insofar as it intends to deprive

the Petitioner of its proprietary rights, contravenes Article

24 (l) of the Constitution.

(f) T hat the Petitioner is not punishable by fine or by any

other sanction under the FCA since it did not breach any

provision of this Act.

(g) T hat the ongoing prosecution or proceedings against the

Petitioner by the FCC based as it is on an impugned

transaction is unconstitutional.

(h) T hat the FCC pays and refund all the costs incurred by the

Petitioner, including costs for local and foreign counsel

engaged to prosecute this petition.

Paragraph 3 of the petition with its eleven (l l ) sub-paragraphs

contains the material part of the grounds upon which the Petitioner

now seeks redress from this court. Looked at closely, the eleven ( l l )

sub-paragraphs may be conveniently summarized to disclose two

12
major areas of grievance. Firstly, the Petitioner is aggrieved by the

way the FCC exercised its statutory powers under section 69 of the

FCA. Subsection (l) of section 69 allows the Commission to initiate a

complaint against an alleged prohibited practice, and at the same time

it also allows any person under subsection (2) to submit to the

Commission a complaint against an alleged prohibited practice. By

concentrating both the accusatory and adjudication powers on the

Commission, the Petitioner believes that section 69 (l) creates a

situation in which it is the Commission that investigates an alleged

prohibited practice, then prepares and files a Complaint before itself,

prosecutes the Complaint before itself and goes on to adjudicate over

the same Complaint. This, according to the Petitioner infringes the

Petitioner’s fundamental right to a fair hearing provided under Article

13 (6) (a) of the Constitution. Apart from infringing the principles of

fair hearing, the Petitioner further believes that by initiating a

Complaint and proceeding to hear and adjudicate it, the Commission

became partial and unqualified to determine the Complaint within the

meaning provided by Article 13 (3) of the Constitution.

13
 The second area of grievance relates to the allegation that the

Petitioner is being punished for an act which was neither an offence

nor illegal when it was committed. In this second area of grievance,

the Petitioner is not satisfied with the Complaint No. 1 of 2008 which

the FCC filed against the Petitioner accusing the Petitioner of failing

to notify a transaction thereby contravening section 11 (2) of the FCA

read together with the Fair Competition (Threshold for

N otification o f a Merger) Order o f 2006. In so far as the 2006

Order on threshold for notification of a merger was made to apply

retroactively, the Petitioner believes that it contravenes Article 13 (6)

(c) of the Constitution.

Paragraph 4 of the petition identifies specific provisions of the

Constitution which the Petitioner believes have been infringed with

respect to its rights. The Petitioner believes that its right to be

protected and the right to have its rights determined by courts or

agencies established by or under the law has been violated. The

Petitioner also in paragraph 4 of its petition claims that the FCC has

infringed its right to a fair hearing guaranteed under Article 13 (6) (a).

Similarly, the Petitioner in paragraph 4 of its petition identifies its

14
right not to be punished for an act which at the time of its occurrence

was not an offence. This, according to the Petitioner infringes its right

that is guaranteed by Article 13 (6) (c) of the Constitution. The

Petitioner in paragraph 4 of the petition also believes that its right to

own property as guaranteed under Article 24 has also been infringed

by the FCC.

On behalf of the Petitioner, Marando, Mnyele & Co. Advocates,

and David Unterhalter SC and Jerome Wilson filed the written

submissions on 29 August 2011. For the respondents, the Attorney

General’s Chambers filed replying written submissions on 30th

September 2011.

The Attorney General has in his written submissions urged us to

first determine two preliminary issues, which according to the

Attorney General, bears on the question whether this Court has

jurisdiction to entertain this Petition. First preliminary jurisdictional

issue is whether the Petitioner, as a body corporate has the

status/standing to claim protection of rights through the avenue of

Basic Rights and D uties Enforcement Act. The Petitioner in the

introductory paragraphs 1.2 to 1.5 of its written submissions believes

15
that corporate entities like the Petitioner is, are “persons” within the

meaning ascribed by both the Basic Rights and D uties Enforcement

Act and the definition of a “person” under section 4 of the

Interpretation o f Laws Act, Cap. 1 R.E. 2002.

The second preliminary jurisdictional issue according to the

Attorney General is whether the Petitioner ought to have exhausted

available remedies before filing this Petition under the Basic Rights

and D uties Enforcement Act. On the exhaustion of the remedies

available under the FCA, the Attorney General submitted that

Complaint No. 1 of 2008 against the Petitioner is still pending and no

final decision has been made out of that complaint. Further, the

Attorney General submitted that instead of coming to this Court by

way of the Basic Rights and Duties Enforcement Act, the Petitioner

should have first resorted to sections 61 (3) and (4) of the FCA which

provides an avenue to appeal to the Fair Competition Tribunal against

the decisions of FCC. The relevant provisions state:

Section 61 (3)- Any person that has a pecuniary and

material grievance arising from a decision o f the
Commission other than a decision referred to in sub-section
(1) may appeal to the Tribunal fo r review o f the decision
 within 28 days after the notification or publication o f the
decision.

T he Attorney General contends that the Petitioner, who has

expressed an opinion that the FCC has no jurisdiction to determine

Complain Number 1 of 2008 should have waited until the m atter was

finally determined by the FCC and exercise its right of appeal to the

Fair Competition Tribunal (hereinafter referred to as “FCT”)

established under Part XI of the FCA. The Attorney General

submitted that section 61 (4) (d) of the FCA identifies grounds of

appeal which the Petitioner should have employed to lodge its appeal

to the FCT. Amongst the grounds include one contesting jurisdiction

of FCC which reads:-

61 (4) - The groundsfo r an appeal under sub-section (3) shall

be that:
(a)....
(b)...
(c)...
(d) the Commission did not have power to make the
determination.

The Attorney General also submitted that the duty on the

Petitioner to first exhaust other available remedies is underscored by

section 8 (2) of the Basic Rights and D uties Enforcement Act.

17
According to the Attorney General, the language of this provision is

categorical that the High Court shall not exercise its powers under

this section if it is satisfied that there are adequate means available to

the Petitioner under any other law, for redressing the contravention

that is alleged in the petition. Section 8 (2) in addition to the

requirement to exhaust other available remedies, also prohibits the

High Court from exercising its powers under the Basic Rights and

D uties Enforcement Act if it is satisfied that the petition is merely

frivolous or vexatious. It is the contention of the Attorney General

that the Petitioner should have sought first redress under the FCA

instead of petitioning this Court under the Basic Rights and Duties

Enforcement Act.

From the foregoing submissions of the learned Counsel on

preliminary jurisdictional issues, we are of the considered opinion that

we should first determine the jurisdictional issue regarding the

availability of adequate means of redress before we move on to decide

other grounds of this petition. This preliminary issue of availability of

means of redress also concerns the question whether, having subjected

itself to the jurisdiction of the FCA when the Petitioner replied to the

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Complaint Number 1 o f 2008, the Petitioner can abandon the

procedures prescribed under FCA to seek remedies available under the

Basic Rights and D uties Enforcement Act. W e must point out here

that the Petitioner did not offer submissions to explain why it did not

pursue the Complaint Number 1 of 2008 through the Fair Competition

Commission (FCC) and subsequent appeal to the Fair Competition

Tribunal (FCT) as is provided under the Fair Competition Act,

2003.

In our determination of the preliminary albeit jurisdictional issue,

we shall continue to seek guiding principles from the decisions of High

Court and those of the Court of Appeal of Tanzania, which have

interpreted the provisions of the Constitution. For example, it is now

settled law that until the contrary is proved, a piece of legislation or a

provision in a statute shall be presumed to be constitutional. The

Court of Appeal in Julius Ndyanabo vs. Attorney General [[2004]]

TLR 14, regarded it as a sound principle of constitutional

construction that, if possible, a legislation should receive such a

construction as will make it operative not inoperative. We have noted

that the Petitioner is asking this court to declare to be unconstitutional

19
the provisions of section 69 (l) of FCA on the reason that it infringes

the Petitioner's right to fair hearing, right of appeal and right not to be

punished for an act that was not an offence when it was committed.

Apart from the principle of constitutionality of Acts of

Parliament, we think, law in Tanzania is also the settled on the

principle that litigants should first exhaust other lawfully available

remedies under statutory or case law, before they can seek remedies

under the Basic Rights and D uties Enforcement Act. This principle

of resorting to lawfully available remedies before seeking basic rights

remedies complements the principle of constitutionality of Acts of

Parliament. The duty to exhaust other lawfully available remedies

before resorting to basic rights and duties remedies is borne out from

our reading of sections 4 and 8 (2) of Basic Rights and Duties

Enforcement Act. Section 4 of the Basic Rights and Duties

Enforcement Act in essence restates the position of law that is also

articulated under subsection (2) of section 8. W e think that these

provisions exhort litigants to first exhaust other lawfully available

remedies before seeking remedies under the Basic Rights and Duties

Enforcement Act.
 Section 8 (l) of the Basic Rights and D uties Enforcement Act,

read together with section 4, gives this court original jurisdiction to

hear and determine any application made by any person who alleges

that any of the provisions of sections 12 to 29 of the Constitution has

been, is being or is likely to be contravened in relation to him. The

relevant section 8 provides:

8.-(l) The High Court shall have and may exercise

originaljurisdiction-
(a)-to hear and determine any application made by
any person in pursuance o f section 4;
(b)- to determine any question arising in the course o f
the trial o f any case which is referred to it in
pursuance o f section 6, and may make such orders
and give directions as it may consider appropriate
fo r the purposes o f enforcing or securing the
enforcement o f any o f the provisions o f sections 12 to
29 o f the constitution, to the protection o f which the
person concerned is entitled.

8-(2) The High Court shall not exercise its powers

under this section i f it is satisfied that adequate
means o f redressfo r the contravention alleged are or
have been available to the person concerned under
any other law, or that the application is merely
frivolous or vexatious.

In our interpretation, subsection (2) of section 8 suggests that

recourse to provisions of the Basic Rights and D uties Enforcement

Act is not to be resorted to where there are other adequate means of

21
redress available to a potential petitioner. Subsection (2) of section 8 of

the Basic Rights and Duties Enforcement Act provides that the

jurisdiction of High Court is not to be exercised if the High Court is

satisfied that adequate means of redress are or have been available to

the person concerned under any other law, or that the application is

merely frivolous or vexatious. In fact, this interpretation of section 8 of

the Basic Rights and Duties Enforcement Act gives effect to the

presumption of constitutionality of statutory provisions. This means

that the reliefs and remedies available under the Fair Competition

Act, 2003 are as constitutional as reliefs and remedies that are

available under the Basic Rights and Duties Enforcement Act.

Section 4 of the Basic Rights and D uties Enforcement Act

underscores what subsection (2) of section 8 by providing:

“4. - I f any person alleges that any o f the provisions

o f sections 12 to 29 o f the Constitution has been, is
being or is likely to be contravened in relation to him,
he may, w ith o u t p reju d ice to any o th e r action
w ith resp ec t to th e sam e m a tte r th a t is
la w fu lly available, apply to th e H igh C ourt
fo r redress. [.E m phasis p ro vid ed ']

For purposes of this petition before us, the words “without

prejudice to any other action with respect to the same matter that

22
is lawfully available” in above-cited section 4 of the Basic Rights and

Duties Enforcement Act imply that the Petitioner should have

exhausted the forum of being heard in Complaint Number 1 o f 2008,

and thereafter exhaust an appeal to the Fair Competition Tribunal

under section 61 of the Fair Competition Act, 2003. These forums

are lawfully available to the Petitioner and the Petitioner should have

taken them up before resort to the forums under the Basic Rights and

Duties Enforcement Act.

The words “without prejudice to any other action with

respect to the same matter that is lawfully available” appearing in

subsection (2) of section 8 were exhaustively discussed in a persuasive

decision of the Privy Council decision in Jaroo vs. Attorney General

o f Trinidad & Tobago [2002]] UKPC 5 by a Panel of five Law

Lords- (Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Scott

of Foscote, Sir Christopher Slade and Sir Andrew Leggatt).

The case of Jaroo vs. Attorney General o f Trinidad & Tobago

(supra) provided the Privy Council with an occasion to determine

whether a litigant can bring his case by way of a constitutional motion

to the High Court where his vehicle was unlawfully impounded by the

23

i
police. In October 1987 a motor car which the appellant had recently

purchased in good faith was suspected by the licensing authorities of

being a stolen vehicle. On their instructions he took the motor car to

the police so that they could examine it and conduct such inquiries into

its theft as they thought appropriate. After the Police had failed to

return his vehicle, he took his case by way of a constitutional motion to

the High Court. He was unsuccessful, as the vehicle had still not been

returned to him. Fourteen years later, a dispute which ought to have

been resolved much earlier was subject of an appeal as of right to the

Judicial Committee of the Privy Council.

It was observed that the appellant’s case for the return of his

vehicle was capable of being dealt with relatively simply in the

ordinary courts in Trinidad & Tobago by means of processes which

were available to him under the common law. Appellant’s plea for

return of his vehicle had been complicated by the fact that he chose to

apply instead by way of an originating motion under section 14 of the

Constitution o f the Republic o f Trinidad & Tobago 1976 to the

High Court. The question whether it was appropriate for him to assert

his constitutional rights in a case of this kind was at the heart of his

24
appeal to the Judicial Committee of the Privy Council. The Privy

Council applied the provisions of section 14 (l) of the Constitution o f

the Republic o f Trinidad & Tobago o f 1st August 1976 which

provides,

14.-(1) - For the removal o f doubts it is hereby

declared that i f any person alleges that any o f the
provisions o f this Chapter has been, is being, or is
likely to be contravened in relation to him, then
w ith o u t p reju d ice to any o th er action w ith
resp ect to th e sam e m a tte r w hich is la w fu lly
available, that person may apply to the High Court
fo r redress by way o f originating motion.
[Emphasis provided]

The words “w ith o u t p reju d ice to any o th er action w ith

re sp e c t to th e sam e m a tte r which is la w fu lly available," in section

14 (1) of the Constitution o f Trinidad and Tobago are in pari

materia with the words “w ith o u tp reju d ice to a n y o th er action w ith

re sp e c t to th e sam e m a tte r th a t is la w fu lly available,”- under

section 4 of the Basic Rights and Duties Enforcement Act.

Interpretation of these words by the Privy Council in the case of Jaroo

vs. Attorney General o f Trinidad & Tobago (supra) is of immense

persuasive value to our own understanding of the significance of these

25
words in section 4 of the Basic Rights and Duties Enforcement Act

of Tanzania. In paragraph 29 of its decision, the Privy Council stated:

Nevertheless, it has been made clear more than once by their

Lordships’ Board that th e r ig h t to a pply to th e H igh
C ourt w hich sectio n 1 4 (l) o f th e C o n stitu tio n
p ro vid es sh o u ld be exercised o n ly in excep tio n a l
circum stances w here there is a p a ra llel rem ed y. In
H arrikissoon v A tto r n e y G eneral o f T rinidad &
Tobago [1980J AC 265, 268, Lord Diplock said with
reference to the provisions in the Trinidad & Tobago
(Constitution) Order in Council 1962:-

The notion that w henever there is a failure b y

an organ o f g o vern m en t or a p u b lic a u th o rity
o r p u b lic o ffic er to com p ly w ith th e la w th is
n ecessarily enta ils th e contravention o f som e
hum an r ig h t or fun d am enta l freedom
g u a ra n teed to individuals b y C hapter I o f th e
C o n stitu tio n is fallacious. The right to apply to
the High Court under section 6 o f the Constitutionfo r
redress when any human right or fundamental
freedom is or is likely to be contravened, is an
important safeguard o f those rights andfreedoms; but
its value w ill be dim in ish ed i f i t is allow ed to
be m isu sed as a g en era l s u b stitu te fo r th e
n o rm a l p ro ced u res fo r in v o k in g ju d ic ia l
co n tro l o f adm in istra tive action. In an
originating application to the High Court under
section 6(1J, the mere allegation that a human right
or fundamental freedom o f the applicant has been or
is likely to be contravened is not o f itself sufficient to
entitle the applicant to invoke the jurisdiction o f the
court under the subsection i f it is apparent that the
allegation isfrivolous or vexatious or an abuse o f the
process o f the court as being made solely fo r the

26
 purpose o f avoiding the necessity o f applying in the
normal way fo r the appropriate judicial remedy fo r
unlawful administrative action which involves no
contravention o f any human right or fundamental
freedom.

From the persuasive decision of the Privy Council in Jaroo vs.

Attorney General o f Trinidad and Tobago (supra), we can deduce

as a principle of law that the right to apply to the High Court under

Basic Rights and Duties Enforcement Act should not be granted in

Tanzania where the law has already prescribed a statutory remedy.

This principle is in line with the presumption of constitutionality of all

the Acts of Parliament and the obligation law has imposed on courts to

not only take judicial notice of Acts of Parliament but to also adopt an

interpretation that gives effect to the statutory provisions. This Court

therefore presumes that both the FCA, 2003 and the Basic Rights

and D uties Enforcement Act are constitutional and this Court is

obliged to give effect to all their respective provisions. And as long as

the provisions of the FCA, 2003 and the Basic Rights and Duties

Enforcement Act are clear, this Court is similarly obliged to give

plain and ordinary meaning of the words used in the two Acts.
 From the totality of sections 4 and 8 (2) of the Basic Rights and

D uties Enforcement Act, two questions require our initial

determination in this petition. First is whether the Petitioner had

other adequate statutory means to redress its claims other than

through the remedies available under the Basic Rights and Duties

Enforcement Act. The second question is whether, having subjected

itself to statutory procedures for dealing with the Fair Competition

Commission’s Complaint Number 1 o f 2008, the Petitioner can opt

for procedures and remedies under the Basic Rights and Duties

Enforcement Act.

It is common ground that PART XI of FCA titled as “Appeals to

the Fair Competition Tribunal” provides the Petitioner with a remedy

of appeals to the Fair Competition Tribunal against the decisions or

acts of the Fair Competition Commission. Section 61 in Part XI of the

Fair Competition Act, 2003 states:

61.-(I) Any person that has a pecuniary and material

grievance arising Appeals from a decision o f the
Commission:
(a) to grant or refuse to grant an exemption under
section 12 or o f the 13;
(b) to make or not to make a compliance order under
section 58; or
28
(c) to make or not to make a compensatory order
under section 59,
may appeal to the Tribunal fo r review o f the
decision within 28 days after notification or
publication o f the decision.
(2) An appeal under sub-section (1) shall be by way
o f a rehearing.
(3) Any person that has a pecuniary and material
grievance arisingfrom a decision o f the Commission
other than a decision referred to in sub-section (1)
may appeal to the Tribunalfo r review o f the decision
within 28 days after the notification or publication
o f the decision.

(4) The grounds fo r an appeal under sub-section (3)

shall be that:
(a) the decision made was not based on evidence
produced;
(b) there was an error in law;
(c) the procedures and other statutory requirements
applicable to the Commission were not complied with
and non-compliance materially affected the
determination;
(d) the Commission did not have power to make the
determination.
(5) On an appeal under this section the Tribunal
shall make a determination affirming; setting aside
or varying the decision o f the Commission or it may
direct the Commission to reconsider the matter or
specified parts o f the matter to which the appeal
relates.
(6) In reconsidering a matter referred back to it
under sub-section (5), the Commission shall have
29
 regard to the Tribunal's reasons fo r giving the
direction.
(7) For the purposes o f an appeal under this section,
the Tribunal:
(a) may perform all thefunctions and exercise all the
powers o f the Commission; and
(b) may make such orders as to the payment o f any
person's costs o f the review as it deems appropriate.
(8) The decisions o f the Tribunal on appeals under
this section shall befinal.

It seems to us that once a person has begun to pursue remedies

under the above cited FCA, that person must ensure that the forums

for redress under this FCA have been exhausted. One cannot jump

from statutory remedies under the FCA onto the remedies available

under the Basic Rights and Duties Enforcement Act. It is our

further opinion that where a Petitioner had an adequate means of

statutory redress but opted to file a constitutional petition, the

resulting petition falls under the rubric of frivolous or vexatious

petitions under subsection (£) of section 8 of the Basic Rights and

D uties Enforcement Act.

It is common ground that Complaint Number 1 o f 2008 is still

pending before the FCC. W ith the decision on Complaint No. 1 o f

30
2008 still pending at FCC, it would not be open to the Petitioner to

by-pass the Fair Competition Tribunal envisaged by Part XI of FCA

and file a Petition under the Basic Rights and D uties Enforcement

Act. It seems to us that it cannot have been the intention of the

Constitution o f United Republic o f Tanzania, the Basic Rights and

D uties Enforcement Act, and FCA, 2003 to allow litigants to jump

from one statutory forum for redress to another statutory forum for

redress. W e are of the settled opinion that while the remedy pursuant

to the Basic Rights and Duties Enforcement Act is theoretically

available, it cannot be considered to be an effective remedy in a

situation where the present Petitioner had subjected itself to the

procedures under FCA before abandoning it in favour of the forum

under the Basic Rights and D uties Enforcement Act.

Apart from the persuasive decision of the Privy Council in Jaroo

vs. Attorney General o f Trinidad & Tobago (supra), the position

we have taken that the Petitioner should have first exhausted the

remedies available under the FCA is supported by several decisions of

this Court and at least one of the Court of Appeal of Tanzania.

31
 Msumi, JK, Chipeta, J and Kyando, J. (as they then were) in the

case of Federation o f Mines Associations o f Tanzania and 2 Others

vs. MS Africa Gem Resources AFGEM and 7 Others Misc Civil

Case No 23 o f 2001 determined a matter where the petitioners

sought several declaratory reliefs under the Basic Rights and Duties

Enforcement Act against the respondents which included a prayer for

an order for exhumation of dead bodies of small-scale miners allegedly

buried alive in various pits dug at Merelani mines. Msumi JK (as he

then was) observed that all the declaratory reliefs and damages prayed

in the petition should have been sought by way of ordinary suit.

Further, the petitioners in their paragraphs 11, 14, 15 and 16 of their

petition had alleged criminal offences ranging from simple assault,

corruption, economic sabotage and murder. Instead of filing their

complaints to police to set in motion criminal trials under the Penal

Code and the Criminal Procedure Act, the petitioner filed a petition

under the Basic Rights and Duties Act. Msumi, JK stated on page 5:

“...... This does not, however, mean that a party in a human right case can

disregard compliance o f legal requirement with impunity. The mentioned

liberal approach is not applicable i f it renders a provision o f law nugatory....”

32
In other words, existence of Basic Rights and Duties Act should not

be allowed to make other statutory remedies nugatory. T hat petition

was found incompetent and was struck out with costs.

Recently, High Court had yet another occasion in the

M iscellaneous Civil Cause No 34 o f 2011 (Jane Chabruma and

Minister for Labour and Employment and Hon. Attorney

General) where Juma, Mwakipesile, and Munisi, JJJ dealt with a

preliminary point of objection that had contended that subsection (2)

of section 8 of the Basic Rights and Duties Enforcement Act

disqualifies the automatic right to file a constitutional petition to High

Court where the Petitioner had a statutory right to appeal to the Court

of Appeal provided for by section 57 of the Labour Institutions Act,

2004 Act No. 7 o f 2004. This Court sustained the objection observing

that the petitioner Jane Chabruma (supra) had adequate means of

redress through an opportunity to appeal to the Court of Appeal

against the decision of the High Court Labour Division in accordance

with the provisions of section 57 of the Labour Institutions Act,

2004.

33
 There is also a binding precedent of the Court of Appeal of

Tanzania in Athumani Kungubaya & 482 Others vs. 1. Presidential

Parastatal Sector Reform Commission 2. Tanzania

Telecom munications Civil Appeal No. 56 o f 2007 (Lubuva, J.A.,

M soffe, J.A., and Mbarouk, J.A.). This decision confirms our legal

proposition that where there is a statutory provision providing for

right to be heard and a right to appeal, a party cannot come to this

court through the Basic Rights and D uties Enforcement Act and

complain that his constitutional rights to be heard and his right to

appeal have been infringed. He should first pursue and exhaust his

statutory rights to be heard and of appeal.

The case of Athumani Kungubaya (supra) was an appeal against

a decision of the High Court constituted of three Judges. Facts were

that upon the retrenchment of Athumani Kungubaya and other

appellants, a dispute arose over the payment of the retrenchment

benefits. As the appellants were not satisfied, the m atter was referred

to the Commissioner for Labour who in turn referred the same to the

Industrial Court for inquiry. The result of the inquiry was that the

second respondent, Tanzania Telecommunications Company Limited,

34
the employer of the appellants, was ordered to reinstate some of the

appellants and also to pay retrenchment benefits to the other

appellants. Respondents were not satisfied with the decision of the

Industrial Court of Tanzania on inquiry and they filed for a revision.

In terms of the provisions of Section 27 of the Industrial Court Act

1967 as amended by Act No. 2 o f 1993, the revision proceedings were

heard by the Industrial Court of Tanzania presided by the Chairman

sitting with two Deputy Chairmen. The Industrial Court allowed the

revision and stopped the payment of the retrenchment benefits to some

of the appellants who had not been paid following the decision in the

inquiry. From the decision of the Industrial Court, the m atter was

taken on appeal to the High Court.

W hen the appeal in the High Court was called on for hearing, the

respondents raised a preliminary objection. The ground of objection

was to the effect that the High Court has no jurisdiction to hear the

appeal from the Industrial Court. The reason advanced was that there

was no specific provision in the Industrial Court Act 1967 (as

amended at the time). In the absence of such specific provision in that

Act establishing the Industrial Court, it was submitted that no appeal

35
from the Industrial Court could be entertained even by invoking the

provisions of Article 13 (6) (a) of the Constitution o f the United

Republic o f Tanzania, 1977. The High Court sustained the

preliminary objection resulting in the appeal being struck out.

Aggrieved, Athumani Kungubaya and 482 others went to the Court of

Appeal to contest the decision of the High Court that had sustained the

preliminary objection that had contended that that no appeal from the

Industrial Court could be entertained even by invoking the provisions

of Article 13 (6) (a) of the Constitution.

It was conceded at the Court of Appeal, that at the time when the

appeal was instituted in the High Court against the decision of the

Industrial Court on revision proceedings, there was no specific

provision in the Industrial Court Act 1967 providing for an appeal

such as the instant one from the Industrial Court to the High Court.

Despite conceding, it was still strongly contended that since right of

appeal is entrenched in the constitution, therefore the appeal could still

be entertained under the provisions of Article 13 (6) (a) of the

Constitution. The Court of Appeal was therefore called upon to decide

whether in that situation an appeal would lie to the High Court by

36
invoking Article 13 (6) (a) of the Constitution. The Court of Appeal

noted:

“... It is also common knowledge that appeals in any

judicial system are as it were, creatures o f specific
statutes. In the relevant statutes the right o f appeal
would be provided and the applicable procedure in
instituting the appeal would also be spelt out. In the
instant case, as already indicated, the Industrial
Court Act, 1967 prior to the amending Act did not
provide fo r appeals to the High Court. It would
thereforefollow that there was no bridge, so to speak,
upon which the appeal to the High Court could be
processed, "-page 7

The Court of Appeal in Athumani Kungubaya & 482 Others

(supra) underscore the need to exhaust all available statutory avenues

for appeal before seeking the right of appeal guaranteed under Article

13 (6) (a) of the Constitution. On this the Court of Appeal stated:

“....it is at once clear to us that the Constitution

provides and guarantees the individual right o f
appeal and being heard fully. The further question
arises as to how the right to appeal can be achieved in
this case which is the central issue in this appeal. In
our view, the answer is not fa r to seek. As seen from
thefirst part o f sub-article 6 (a), th e r ig h t to a fu ll
and fa ir hearing as w ell as th e r ig h t to appeal
w ould be ensured b y an appropriate
p ro ced u ra l m achinery p u t in p la ce b y th e
S ta te A u th o rity . This, understandably, would be by
way o f appropriate legislation. In this case, the

37
 appropriate legislation would be the Industrial Court
Act, 1967. - p a g es 8 and 9, em phasis added.”

Applying the foregoing principle laid down by the Court of

Appeal, it seems to us that, the FCA, 2003 has appropriate procedural

machinery under section 61 providing the right to a hearing as well as

the right to appeal. W e can state without hesitation that where

statutory provision is already in place to provide for a right of appeal,

then that right of appeal should be pursued. Therefore, the Petitioner

should not claim that its rights to be heard and its right of appeal that

is guaranteed under Article 13 (6) (a) of the Constitution has been

infringed if in fact it is the Petitioner who had opted out of the

available statutory right to be heard in Complaint No. 1 of 2008 and its

potential right of appeal under section 61 of FCA.

W e are satisfied that the parties to this petition should first

exhaust the opportunity to be heard under Complaint No. 1 of 2008

and to lodge subsequent appeal as provided for under the FCA. The

Petitioner having elected not to seize up the statutory avenue to be

heard, the question of having been denied the opportunity to be heard

does not arise.

38
This Petition is incompetent and is dismissed with costs.

P. A.

28*^ptem|a(fer, 2012

L. K. N. KADURI
JU D G E
28th September, 2012

I
I.H. JUMA,
JU D G E
28th September, 2012

39