With great honour, on the 9^th August 2022, the High Court of Tanzania (the court), at the Dar es Salaam District Registry, in a Ruling authored by His Lordship Kisanya J, in ABRI GENERAL TRADERS vs. ABRO INDUSTRIES INC (Our Client) in CIVIL CASE NO. 41 of 2022, delivered a fruitful judgement in favour of our Client, relating to the rules and procedure for appeals against the Fair Competition Commission’s (FCC) decision on suspected counterfeit goods.

The Plaintiff in the matter claimed for payment TZS 1,000,000,000 being damages for loss of business, that was caused by the seizure of the Plaintiff’s goods and constant harassment from the defendant and resulting to disruption of her business.

The defendant vehemently disputed the Plaintiff’s claims. Not only did the Defendant file a Written Statement of Defence, but the Defendant lodged a Notice of Preliminary objection on points of law that, the Court had no jurisdiction to entertain the matter, and the suit being incompetent for failure to join the necessary party (FCC).

FINDINGS OF THE COURT

The Court held that, as far as the limb of objection is concerned, it is settled principle of law that, the question of jurisdiction goes to the root of the power of the court to entertain the matter before it. In that regard, the court is enjoined to satisfy itself whether it has mandate to determine the matter lodged before it, as rightly argued by the Learned Counsel for both parties Section 2 (1) of the Judicature Application of Laws Act, empowers the High Court to hear civil cases. However, such power is limited. It is exercised basing on the provisions of other written laws as provided for under Article 108 (1) and (2) of the Constitution of the United Republic of Tanzania, 1977 (as amended) and section 2(3) of JALA. The law also establishes special mechanism, procedure or forum of determining the dispute or claim.

The objection is founded on the contention that the claim arose from the action of the FCC through the Chief Inspector and thus, determined in accordance with the procedure and before the forum set out under Section 2 (c) (2) of the Written Laws (Miscellaneous Amendment) Act No. 2 of 2007 and Regulations 23 and 51 of the Merchandize Marks Regulations. The court considered the provisions relied upon by the Defendant’s Counsel.

It is not disputed that the Defendant lodged her complaint to FCC in terms of regulation 12 Merchandize Marks Regulations, a person who has reasonable ground to suspect importation of counterfeit is entitled to make an application to the Chief Inspector.

Where a complaint is made frivolously or with improper motive, the Chief Inspector has discretion of ordering the applicant to pay the owner of the goods, appropriate compensation for any harm or loss occasioned through wrongful detention of the goods. This is pursuant to Regulation 23 of the Regulations.

In light of the above provision, it is clear that the compensation for loss occasioned through the wrongful detention of goods is determined by the Chief Inspector after working on the complaint lodged before it. That being the case, failure to make a compensation order is part and parcel of the Chief Inspector exercising the powers conferred upon him. Therefore, I am of considered view that, the Chief Inspector’s decision in which compensation order is not granted is appealable to the Fair Competition Tribunal under Regulation 51 of the Regulations.

It is a considered view of the Court that, the first limb on jurisdiction is sufficient to dispose of the matter. As stated afore, the issue of jurisdiction goes to the root of the case. I, therefore, find it not necessary to address the second limb of objection on non-joinder of the necessary parties.

CONCLUSION

From the above reasoning of the Court, it is clear that, our laws provide for the rules and procedures to be followed, where a party is aggrieved by the decision of the FCC as provided for under section 2 C (2) of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2007 and Regulation 23 and 51 of the Merchandise Marks Regulations of 2008.

Furthermore, any reliefs sought by the Plaintiff ought to have been lodged through an appeal (under Regulation 51 of the Merchandise Marks Regulations of 2008), against the decision of the Chief Inspector, for failure to order the Applicant to pay the owner or consignee or consignor of the goods appropriate compensation for any harm or loss occasioned through the wrongful detention of the goods, if the application made under Regulation 12 by the Defendant herein was made frivolously or with an improper motive, as provided under Regulation 23 of the Merchandise Marks Regulations of 2008.

In a nutshell, it is worth and also pertinent to say “courts would not normally entertain a matter for which a special forum has been established unless the aggrieved party can satisfy the court that no appropriate remedy is available in special forum”, as stated in the case of Attorney General vs. Lohay Akonaay & Another, [1995] TLR 80.

If you would like to read the entire Ruling, please follow our website www.vemmaattorneys.co.tz where the ruling is published or click the provided link herein.

Download Ruling Document

Regulation 18 of the Banking and Financial Institutions (Corporate Governance) Regulations, Government Notice Number 767 of 2021, requires Bank’s Board Members to submit to the Bank of Tanzania (BoT), a written undertaking that the Board Members shall fulfil their obligations towards maintaining a safe, sound and profitable bank and comply with the provisions of Regulation 18 of the Banking and Financial Institutions (Corporate Governance) Regulations, Government Notice Number 767 of 2021 and directives issued by Bank of Tanzania (BoT).

Regulation 18 the Banking and Financial Institutions (Corporate Governance) Regulations, Government Notice Number 767 of 2021 states that:

A member of the Board shall make and submit to the Bank of Tanzania a written undertaking that he shall:

Fulfil his obligations towards maintaining a safe, sound, and profitable bank or financial institution; and
Comply with the provisions of the Banking and Financial Institutions Act, Bank of Tanzania Act, Foreign Exchange Act, regulations, guidelines, and directives issued by the Bank from time to time.

The main objective of the law is to ensure that Banks maintain stability, safety, and soundness of the financial system, aimed at reduction of risk of loss to depositors. The

Regulations go further under Regulation 34 to stipulate that:

In the performance of his functions under the Act and these Regulations, a director: –

Shall execute an undertaking that he shall: –
Jointly and severally ensure that the bank or financial institution operates in a safe, sound, and profitable manner; and
Liable for non-compliance with such undertaking.

A director who violates any provision of Acts or Regulation issued thereunder may be fined, removed from office, or disqualified from holding any position or office in any bank or financial institution in Tanzania.

It is important therefore Board Members to understand that, once they are appointed as Board Members of any Bank of Financial Institution in Tanzania, adherence to the provisions of Regulation 18 the Banking and Financial Institutions (Corporate Governance) Regulations, Government Notice Number 767 of 2021, is mandatory.

You can read more about us here: https://vemmaattorneys.co.tz/the-protection-of-well-known-trademarks-loudly-recognised-in-tanzania-by-the-decision-of-the-high-court-commercial-division/