2020 TZHC 3360

IN THE HIGH COURT OF TANZANIA
(MAIN REGISTRY)
AT PAR ES SALAAM
MISC. CIVIL CAUSE NO. 26 OF 2020
FIRST ASSURANCE COMPANY LTD........................... APPLICANT
VERSUS
TANZANIA INSURANCE AMBUDSMAN 1st RESPONDENT

INTEGRATED COMMUNICATION LTD. 2nd RESPONDENT
THE ATTORENY GENERAL................. 3rd RESPONDENT
RULING
07/10/2020 & 22/10/2020
Masoud, J.
The applicant was aggrieved by a conciliation agreement in complaint
No. 503/2018 entertained by the first respondent between the applicant
and the second respondent. The complaint, as a result of which, the
conciliation agreement was entered, was filed by the second respondent
to the first respondent against the applicant. The total amount claimed in
the said complaint was Tshs 454,474,008.60.
The allegation of the applicant is that on 29/11/2019, the first

respondent through the conciliation agreement determined the complaint
and ordered the applicant to pay the second respondent a total amount
of Tshs 350,000,000/-, which amount was beyond the jurisdiction of the
first respondent. According to the applicant the jurisdiction of the first
i
first respondent, through its mediator, only facilitated the applicant and
the second respondent to conclude an amicable settlement.
They also in opposition of the application through their counter affidavit

averred that the applicant's rights were not affected by the settlement
entered by the parties themselves. This was because, firstly, they were
duly represented, as was clearly evidenced by the proceedings leading to
the settlement agreement, and secondly, the settlement originated from
the relevant parties themselves and not the first respondent. Since there
was no fraud or undue influence which was pleaded and proved, the
issue of violation of law and rules of natural justice could not arise.
The submissions in chief by the applicant, through Mr Adrian Mhina,

learned Advocate, expounded on the context of the applicant's complaint
which was set out herein above and which formed the basis of the
statement and the affidavit supporting the application. It should suffice
to say that the applicant's submissions only focused on the grounds of
complaint on excess of jurisdiction by the first respondent in entertaining
the Complaint No. 503/2018, and violation of law. The submissions
heavily relied on the provisions of regulation 3, 6(l)(a), 15(1), and 20 of
the Insurance Ombudsman Regulations, GN No. 411 of 2013 only. The
other grounds which were reflected in the statement of facts
accompanying the application were not addressed in the submissions.
Regulations 3 and 20 provide as follow in relation to what constitutes a

complainant:
3
It was on the basis of these provisions that the applicant's counsel
maintained that the first respondent acted in excess of its jurisdiction
when it admitted and entertained the complaint by conciliation. As far as
the applicant is concerned, the determination of the Complaint by
conciliation by the first respondent was also subject to regulation 6(l)(a)
of the Regulations which requires the first respondent to administer
complaints with monetary value of maximum Tanzania Shillings forty
million.
Replying to the applicant's submissions in chief, the respondents,

through Mr Yohana Marco, learned State Attorney, referred the court to
principles of statutory interpretation which, in their view, apply in
resolving the issue whether or not the first respondent acted ultra-vires
when she admitted the Complaint No. 503 of 2018 which culminated into
the disputed conciliation agreement. The starting point of the
submissions of the learned State Attorney was section 124(1) of the
Insurance Act, No. 10 of 2009 which reads thus:
Section 124(1) The Ombudsmen shall have powers to

grant an award to the complainant for direct losses and
damages suffered by the complainant unto a
maximum of fifteen million shillings.[emphasis
added].
It was the argument of the learned State Attorney for the respondents
that the ordinary meaning of the above provision is that the limit of the
first respondent is not in the admission of a complaint as purported by
regulation 6(l)(a) of the Regulations (supra), but in the amount she is
5
It was accordingly submitted that the primary purpose of establishing
the office of the first respondent was, firstly, to enhance access to justice
to insurance consumer through alternative dispute settlement
mechanism; and secondly, enhancing insurance consumers confidence in
the insurance industry.
Of significance, it was argued, there was nothing at all suggesting that

the parliament intended the first respondent to admit and resolve
insurance complaints whose monetary value does not exceed Tshs
15,000,00 or Tshs 40,000,000/- as partly implied by regulation 6(l)(a) of
the Regulations. In respect of this argument, the court was told that the
principal legislation deliberately excluded providing specifically for a
mechanism of dealing with insurance complaints whose monetary value
exceeds Tshs 40,000,000/-, as doing otherwise would have contravened
the whole essence of alternative dispute settlement mechanism which
the principal legislation sought to introduce.
The averments and arguments in relation to the failure of the first

respondent to observe rules of natural justice and the applicant's rights
being affected were countered by the learned State Attorney. In this
respect, reference was made to the relevant averments in the
respondents' counter affidavit. In a nutshell, the counter arguments
were that the complaints were baseless as the applicant was represented
in the first respondent's proceedings, and in so far as fraud and undue
influence were neither pleaded nor proved, there were no room the
conciliation settlement agreement can be challenged by either of the two
parties.
7
1. Mr Joseph Werema - General Manager for the
Complainant
2. Mr Bosco J. Bugali - CEO- First Assurance; accompanied
by
Mr GodfreyNsebo- Claim Manager
Ms Saumu Abdi Sekuiu - Legal Officer
ISSUES CONSIDERED:
(1) Amount payable as benefits.
(2) Time within which to be discharged.
ISSUES AGREED UPON

(1) That the actual amount payable was Tshs 454,474,008.60.
However, it is agreed between the parties that the
settlement amount will be Tsh. 350,000,000/- less the
Tshs. 50.000.000/- which was paid previously on the 10th
July 2019.
(2) That the Tshs 300,000,000/- will be paid by instalment as
appearing in the period between December, 2019 and
March, 2020.
RECONCILIA TION A GREEMENT
(1) It is agreed that the Registrant will pay the complainant a
total o f TZ5 350,000,000/- less 50,000/- which has
already been paid.
(2) It is agreed that the said amount will be paid in four equal
instalments o f TZS 75,000,000/- each commencing from
December 2019 to March 2020.
(3) It is agreed that the Registrant shall issue a new discharge
voucher reflecting the said amounts, mode o f payment
and actual dates for payment
(4) It is agreed that the D.O will be issued today and further
that the Registrant will notify the TIO on every
disbursement until final payment.
9
enforcement of the amicable settlement reached had already started
prior to the filing of the above mentioned complaint. The agreed total
sum of Tshs 350,000,000/- payable to the second respondent in four
equal installments of Tshs 75,000,000/- is therefore less Tshs
50,000,000/- which had already been paid to the second respondent.
Needless to say, the record tells loud and clear that the conciliation was
a result of a decision of the parties on their own volition.
It is apparent that parties are in agreement that the applicant and the
second respondent through the first respondent concluded the
conciliation agreement requiring the applicant to pay the agreed sum of
money of 350,000,000/- of which Tshs 50,000,000/- had already been
paid prior to the conclusion of the agreement before the first
respondent. They only part company with each other on whether the
first respondent, violated rules of natural justice, acted ultra vires, and
did not act in accordance with the law, when it admitted the second
respondent's complaint (i.e Complaint No. 503 of 2018) which
subsequently culminated to a conciliation agreement between the
applicant and the second respondent.
I should point out that in resolving the above issue, I was guided by the
authoritative decision of the Court of Appeal of Tanzania in Sanai
Murumbe vs Mhere Chacha [1990] TLR 54. The decision laid down
guiding principles upon which an order of certiorari can issue against a
decision of a subordinate court, or a tribunal or a public authority. The
principles are; firstly, taking into account matters which it ought not to
have taken into account; two, not taking into account matters which it
li
complaint cannot therefore support the issuance of the prerogative
orders sought. I need not go into the details as the reproduced extract
of the conciliation proceedings and the conciliation agreement provide a
clear testimony of what I have observed and found herein above.
The nature of the remaining grounds of complaint concerns violation of

the law, and excess of jurisdiction. This complaint involves consideration
of and deliberation on the relevant provisions of the Insurance Act
(supra) and the Insurance Ombudsman Regulations (supra), which were
referred to me by the learned counsel for the applicant and the learned
State Attorney for the respondent.
The crux of the applicant's counsel submission is hinged on the

argument that the legal framework within which the first respondent
resolves dispute does not allow her to entertain a complaint which
exceeds Tshs 40,000,000/- as provided by regulation 6(l)(a) of the
Regulations (supra). On the other hand, the respondents' learned State
Attorney has it that the pecuniary jurisdiction of the first respondent
under the Insurance Act (supra) is unlimited, which also means that
regulation 6(l)(a) of the Regulations (supra) cannot hold as it is, as it is
in conflict with the principal legislation.
I agree with the learned State Attorney that the above regulation, in so
far as it conflicts with the principal legislation, has to be interpreted in a
manner that is in harmony with the principal legislation and the objects
and reasons for its enactment. I was in this respect, admittedly, guided
13
As to powers of the first respondent to grant an award, I was of a
considered view that the provision relates to a decision which was
arrived at by an inquiry and adjudication and not by the parties' own
volition as is the present application. My reasoning, partly, owes support
from the meaning of an award as defined by Black's Law Dictionary
(Abridged 6th Edition) and Osborn's Concise Law Dictionary (11th Edition
2009) which respectively define award as "to grant\ concede, or
adjudge...,The decision or determination rendered by arbitrators or
commissionersand "the finding or decision o f an arbitrator....
Decision o f arbitrator is called an award..”.
Consequently, regulation 15 of the Regulation as it relates to mediation

and reconciliation does not fall within the strict sense of a grant of an
award within the context of a determination arrived at through inquiry

and adjudication. My reasoning in this respect has had regard to section
123(1)&(2) of the Insurance Act (supra) which envisages adjudication
and inquiry. Whilst mediation and reconciliation are means of resolving
dispute, they do not necessarily entail inquiry and adjudication. As the
decision reached was reached by the parties themselves on their own
volition, I am not convinced that there is anything entirely and solely
decided by the first respondent to be removed into this court. My afore
going reasoning caters for the other grounds of complaints, namely,
failure to give reason for the alleged decision, and illegality of the alleged
decision.
15
Court
Ruling delivered in the presence of Mr Yohana Marco, learned State
Attorney for the first and third respondents this 22nd October 2020.
B. S. Masoud
Judge
22/ 10/2020
17

2020 TZHC 3360

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IN THE HIGH COURT OF TANZANIA

FIRST ASSURANCE COMPANY LTD........................... APPLICANT

TANZANIA INSURANCE AMBUDSMAN 1st RESPONDENT

The allegation of the applicant is that on 29/11/2019, the first

They also in opposition of the application through their counter affidavit

The submissions in chief by the applicant, through Mr Adrian Mhina,

Regulations 3 and 20 provide as follow in relation to what constitutes a

Replying to the applicant's submissions in chief, the respondents,

Section 124(1) The Ombudsmen shall have powers to

Of significance, it was argued, there was nothing at all suggesting that

The averments and arguments in relation to the failure of the first

ISSUES AGREED UPON

The nature of the remaining grounds of complaint concerns violation of

The crux of the applicant's counsel submission is hinged on the

Consequently, regulation 15 of the Regulation as it relates to mediation

award within the context of a determination arrived at through inquiry

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