20190613 TZHC Dar es Salaam 1

\ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 201 OF 2017 ALLY HAMISI HATIBU ................................................................ PLAINTIFF VERSUS PREMIER BETTING ENTERTAINMENT AFRICA LTD ................... DEFENDANT RULING Date of last Order: 07/5/2019 Date of Ruling:13/6/2019 MLYAMBINA, J. The Plaintiff herein has alleged that he played and won the betting game on 04th June, 2017:. Thereafter on 07th June, 2017 he referred the dispute to the Gaming Board_ of Tanzania. On 04th September, 2017 the Gaming Board heard both parties inter parties and the same failed to resolve the dispute. The Defendant above named, while filing Written Statement of Defence, raised the following plea in limine litis. a. That, the Honourable Court lacks jurisdiction to entertain this matter; b. That, the matter has been filed in an unknown registry/division of the High Court; c. This matter is hopelessly time barred; 1 . d. That, the plaint is bad in law for being incomplete. WHEREFORE the Defendant moved the Honourable Court to dismiss the suit with costs. In support of the first ground of objection, the respondent submitted that Jurisdiction is a creature of statute. A Court or Tribunal cannot entertain a matter unless it is satisfied that it has a requisite jurisdiction. The present matter is a gaming dispute whose jurisdiction emanates from the Gaming Regulations of 2003 G.N No. 385/2003. According to the Defendant, the relevant provision is Regulation 112 (1) which vests power to the Gaming Board of Tanzania to deal with all disputes between the licensee and the player of any gaming activity. The provision provides: 112 {1} All disputes between the licensee and a olaver of anv gaming activity arising from the implementation of the Act and this regulation shall be submitted to be Board within fourteen davs after the event has occurred {emphasis added} By virtue of Regulation 112 of G.N No. 385/ 2003, in view of the Defendant, the relevant forum vested with power to deal with the present dispute/case is the Gaming Board of Tanzania, for that reason, the Plaintiff has by passed the mandatory requirement of the law by referring the gaming dispute to this Honourable Court instead 2 .• to the Gaming Board of Tanzania. To back up its argument, the Defendant cited the case of TAMBUENI ABDALLAH & 86 OTHERS V. NATIONAL SOCIAL SECURITY FUND, Civil Appeal No. 33 of 2002, Court of Appeal of Tanzania at Dar es Salaam (unreported. In that case, the Appellant filed trade dispute to the High Court of Tanzania while the law required trade dispute to be referred to (1) union Branch within 7 and (2) to the Industrial Court within 21 days. The Appellant by passed the requirement of the law and filed the dispute to the High Court of Tanzania. The Court of Appeal of Tanzania had the following to say: ''It is a clear procedure to us that trade disputes have to follow that prescribed procedure and there is no room for going to the High Court straight. The High Court has no jurisdiction to entertain trade disputes. Such matter is dealt with in accordance with the Act"(Emphasis added). Similarly, in the case of EDNA WILLIAMS SITTA Vs. ERLING ERIKSEN & 2 OTHERS CIVIL CASE NO. 114 OF 2008 (unreported). The High Court of Tanzania speaking through Honourable Muruke, J while quoting with approval TAMBUENI's decision (supra) had this to say where special forums exists and a party opts not to use them and file the matter to the High Court, at page 5. 3 ''It is clear that at the moment, this court has no Jurisdiction to entertain the suit in the manner it has been brought'~ The Defendant went on to argue that lately the High Court has maintained its consistency in ruling out that where special forum or Tribunal is in place the matter has to be referred there before resorting to the Court. This was recently held by Honorable Banzi, J in the case of FARIDA SAGGIN LUKOMA Vs. FADHILI KALEMBA AND ANOTHER Civil Appeal No. 146 of 2017 (unreported), where the Appellant had filed an insurance dispute in the Resident Magistrates Court and dissatisfied with the decision of the RM's Court referred the appeal to the High Court. The High Court before hearing the appeal raised an issue of jurisdiction SUO MOTO to see if the trial Court had jurisdiction to hear insurance claims. The Court had the following to say at Page 8 of the typed decision. It is my firm view that, Ombudsman {Insurance disputes forum in Tanzania} was not established for decoration purposes but rather it was established for the purposes of resolving insurance disputes among them being the Appellant's complaint Therefore, it was not proper for the Appellant to file a normal suit at the Resident Magistrates Court after being dissatisfied with the payment given bv the Insurance Companv,. {emphasis added). 4 Notable legal author Bindra, N.S in the book; Interpretation of Statutes, 07th Edition, 1987 Allahabad, the Law Book Company Ltd, writes at Page 230. "Where a special tribunal out of the ordinary course is appointed by an AcC to determine questions as to the rights which are the creation of that Act that tribunal's Jurisdiction to determine those questions is exclusive/ except in so far as is expressly provided for or necessary implied" The above being said, it was the Defendant's submission that the matter was supposed to be referred to the Tanzania Gaming Board as per Regulation 112 (1) of the Gaming Regulation, 2003. The other authority cited by the Defendant was the Court of Appeal decision in DPP v. ABDALLAH ZOMBE AND 8 OTHERS which ruled as follows at page 7: "The case of Abdallah Zombe established that where a case is instituted in a wrong forum/ it makes such a case incompetent Applying such principle in the present case it makes the current suit which was filed in the High Court instead of appealing to the Fair Competition Tribunal, incompetent" In reply the Plaintiff submitted that this instance disputes had passed through the proper channel before had instituted in this honourable 5 Court as per the statutory requirement provided under Regulation 112 {1) of the Gaming Regulations of 2003. It was the humble submission of the Plaintiff that though the statutory requirement require the dispute passing through the Gaming Board but still the law does not prohibit or close room the betting game disputes being entertained by the Court as maintained under Section 82 of the Gaming Board Act Cap 41 of 2003 which vest power to the Court to deal with anything produced to it. From the aforesaid narrated facts, it was the Plaintiff assertion that he properly followed the required forum and the Game Board has failed to resolve it. Therefore, this honourable Court has properly been moved and has jurisdiction to entertain this instance suit. I have paid attention to the parties' submissions. I do understand that it is the legal requirement and it has been the practice of the Courts to satisfy with issues related to jurisdiction. Indeed, on several occasions Courts have raised suo moto the issue of jurisdiction even if it was not in the minds of the parties. The court in Fanuel Mantriri Ng'unda Vs. Herman Mantiri Ng'unda and two Others {1995) TLR 155 was of the firms view that: 11 The question ofJurisdiction for any court is basic, it goes to the ve,y root of the authority of the court to adjudicate upon cases of different nature... The question of iurisdiction is so 6 fundamental that courts must as a matter of practice on the face of it be certain and assured of their turisdictional position at the commencement of the trial... it is riskv and unsafe for the court I to proceed with the trial of a case on the assumption that the court has turisdiction to adjudicate upon the case" {emphasis added). Therefore, I'm of the firm view that this court has to determine first the issue of jurisdiction. In this matter, it is not disputed that under Regulation 112 (1) of the Gaming Regulation, 2003 all disputes between the licensee and a player of any gaming activity arising from the implementation of the Act must be submitted to be Board within 14 days. Under Regulation 112 (2) (supra) the Board is mandated to determine the dispute before it within 30 days after the receiving date of the dispute and inform the parties. Further, under Regulation 112 (3) (supra) within 14 days after receiving written decision of the Board, any of the parties has the right to file a petition with the Board requesting a hearing to reconsider the decision. The petition must set forth the basis of the request for consideration as per Regulation 112 (4) {supra). Under Regulation 112 (5) (supra) in case no petition is filed within 14 days, the decision of the Board becomes final and not subject to reconsideration by the Board. 7 .. The Plaintiff has argued that though the statutory requirement require the dispute passing through the Gaming Board but still the law does not prohibit or close room the betting game disputes being entertained by the Court as maintained under Section 82 of the Gaming Board Act Cap 41 of 2003 which vest power to the Court to deal with anything produced to it. I find the argument of the Plaintiff not representing true state of affairs. The law cannot create two forums for doing so would be encouraging forum shopping. Before I proceed to give analysis, it sounds proper to reproduce the said Section 82 of the Gaming Board Act. It provides: "The court by or before which any person is convicted of any offence under this Act may order anything produced to the court and shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in " I have said the law cannot create forum shopping for obvious reasons. First, under the provisions of Section 3 of the Gaming Board Act (supra) the term "court" means Resident Magistrate's court or a district court presided over by a resident magistrate. It does not refer to the High Court. Second, Section 82 is purely on criminal aspects of the gaming part. It does not deal with civil aspect. The Plaintiff claims are not of criminal in nature. Even if this Court would be clothed with jurisdiction on the matter, the proper forum was at the Gaming Board. If the Plaintiff was aggrieved with the decision of the Gaming Board, 8 ·• he could seek for reconsideration before the Gaming Board itself within the time limit prescribed by the law. In the circumstances of the above, I find this Court have no jurisdiction to entertain the matter. Therefore, there is no legal need to determine the rest of the legal objections because by doing so would be serving a mere academic purpose. That observed, the suit stands dismissed with costs for want of jurisdiction. Judge 13/06/2019 Dated and delivered this 13th day of June, 2019 in the presence of the Plaintiff and Ditrick Mwesigwa advocate for the Defendant as well as holding brief of Manyanga advocate for the Plaintiff. Judge 13/06/2019 9