balbir singh ruprai vs mic tanzania ltd another 2011 tzhc 2019 23 may 2011

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE No. 117 of 2007 BALBIR SINGH RUPRAI............................. PLAINTIFF VS MIC TANZANIA LTD................................ 1ST DEFENDANT SIMON KAKOROZYA.............................. 2nd DEFENDANT

RULING Date of last Order: 04 04-2011 - Date of Ruling: 23 05-2011 - JUMA, J.: This Ruling relates to a Preliminary Objection which the first defendant (MIC TANZANIA LTD); filed together with its amended written statement of defence on 23rd August 2010. The first defendant in effect contends that this court lacks jurisdiction to hear the CIVIL CASE No. 117 of 2007 because before filing this suit, the plaintiff BALBIR SINGH RUPRAI was first supposed to comply with conditions specified under the Tanzania Communications (Consumer Protection) Regulations, GN No. 271 of 2005. Regulation 6-(l) referred to by the objecting first defendant, covers the duty of the electronic communication operators, to notify their respective clients about the existence of a complaint procedure and special forms. These special forms are to be filled in case any complainant wants to set into motion an investigation arising from any complaints:- 6-(l) All postal and electronic communication operators shall be required to notify customers about the availability of consumer complaint procedures and have in place forms to be used for registering complaints. First defendant's written submissions in support of the preliminary point of objection were prepared and filed by the Law Associates Advocates. Plaintiff's opposing submissions were prepared and filed by M.A. Ismail & Co. Advocates. Submitting in support

of the preliminary objection, the Law Associates (Advocates) reiterated that Tanzania Communications (Consumer Protection) Regulations (supra) provides for preliminary stages; which an aggrieved consumer like the plaintiff, should have resorted to before coming to court. It was submitted further that even where the plaintiff is not satisfied with any decision of the first defendant, he ought to have taken his complaint to two other appellate organs (i.e. the Tanzania Communications Regulatory Authority and the Fair Competition Tribunal before resorting to the Court of Appeal of Tanzania after obtaining prior leave of the Fair Competition Tribunal. In other words, High Court of Tanzania has no jurisdiction over matters complained of in this suit. In the understanding of the first defendant, the forum for determining the subject matter of this suit are provided for by the Tanzania Communications (Consumer Protection) Regulations (supra) and the 2 suit which the plaintiff preferred against the defendants is a violation of the governing law and is against the public policy. In his replying submissions, M.A. Ismail & Co. contended that this court; vested as it is with unlimited jurisdiction, can determine this present suit. On avenues to channel complaints provided under the Tanzania Communications (Consumer Protection) Regulations (supra); the learned counsel submitted that these

avenues are mere options open to the plaintiff to prosecute his complaints. These options did not preclude the filing of Civil Case Number 117 of 2007 in this court. Further; it was submitted on behalf of the plaintiff that only the High Court and not the organs created under the Tanzania Communications (Consumer Protection) Regulations (supra); which can provide remedy arising from the prayers contained in the plaint. The prayers which incidentally arise from the plaint are a request for a declaration that the defendants had breached their duty of secrecy; the prayers that the plaintiff's right to privacy have been infringed and the prayer demanding an award of TZS 5 billion as general damages. I have benefitted from detailed submissions made by opposing counsel in this matter. The main issue for my determination is whether the proper forum to address the complaints on invasion of privacy arising from alleged recording of mobile phone conversation is exclusively restricted to the Tanzania Communications Regulatory Authority, the Fair Competition Tribunal) and finally to the Court of Appeal of Tanzania. 3 According to the first defendant, the plaintiff should have followed the two steps before ultimately going to the Court of Appeal of Tanzania as provided for by sub Regulations (5) and (7) of Regulation 6: 6-(5) Where a customer who is dissatisfied with the

licensees's response provided under sub regulation (4), he may refer the complaint, to the Authority. 6-(7) Any person aggrieved by the decision of the Authority under these Regulations may, within fourteen days of the receipt of the decision appeal to the Fair Competition Tribunal established by the Fair Competition Act, 2003. I have scrutinised Tanzania Communications Regulatory Authority Act, CAP. 172 RE 2002 specifically its complaints and dispute resolution Part VIII. I have also studied the Tanzania Communications (Consumer Protection) Regulations (supra). The relevant section 36 of Tanzania Communications Regulatory Authority Act provides, 36. - (1) Any person aggrieved by the decision of the Authority or any other decision made in connection to the purposes of this Act may appeal to the Fair Competition Tribunal. (2) Subject to the provisions of the subsection (1), the grounds of appeal shall be on the following, 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 Authority were not complied with and the non­ compliance materially affected the determination; (d) the Authority did not have power to make the determination. (3) Notwithstanding the provisions of sections 35, the decision of the Fair Competition Tribunal shall be final. 4 With respect, the

Plaintiff is right in contending that the Tanzania Communications (Consumer Protection) Regulations (supra) provides an option which the plaintiff could choose to prosecute his complaints and the plaintiff is not precluded from filing the present Civil Case Number 117 of 2007 in this court. The unlimited jurisdiction of this court is provided for by the Constitution and other statutory provisions. Ouster of jurisdiction of courts cannot be lightly assumed or presumed. I have no doubt in my mind that there is nothing in the statutory provisions cited by the first defendant suggesting matters falling under the subject matter of this suit are excluded from the jurisdiction of the High Court despite its unlimited jurisdiction. It is my finding and I hereby hold that the Tanzania Communications Regulatory Authority Act, CAP. 172 RE 2002 and the Tanzania Communications (Consumer Protection) Regulations made under it, have not by expressly or by very clear implication ousted unlimited jurisdiction of this court. Right to access justice in courts is another reason why I think the preliminary point of objection should fail. Access to justice in this court should not in my view be held hostage to the tenuous and winding procedures for handling complaints provided under the Tanzania Communications (Consumer Protection) Regulations, 2005. There is nothing in these Regulations obliging all

those aggrieved by any matter pertaining to postal and electronic communication should first lodge their complaints before they can access justice in courts of law. In fact, the word "complaint" is defined under Regulation 3 to mean statement 5 of dissatisfaction with the postal or electronic services which are made by the consumers. In his Plaint, the plaintiff claims that the defendants have breached their duty of secrecy and in the process infringed the plaintiffs right to privacy. This suit is beyond mere complaint and this court cannot shut out the right of the plaintiff to access justice in this court. In the upshot, having considered all matters placed before this court, I do not find any merit in the preliminary point of objection. It is hereby dismissed and first defendant shall 1 the costs. It is so ordered. I.H. Juma

JUDGE 23-05-2011 Delivered in presence of: Mr. Arafat, Advocate (for 1st defendant) and also on behalf of Mr. Shirima for th° I.H. Juma

JUDGE 23-05-2011 6