Commercial Court Division
Counsel for the MTN submitted that the above did not amount to an assignment of
code +256 to Southern Sudan, nor a guideline by the Minister under the UCA and
therefore was an illegal arrangement that could not be referred to as International
traffic.
If this arrangement was illegal, then in my view, the parties UTL and MTN are in pari
delicto (i.e. in equal fault) as they used the said questionable arrangement.
I agree with both Counsel that this arrangement was not an assignment because
under the ITU Constitution and Recommendation E. 190 (both parties rely on it in the
scheduling bundle), only the ITU can assign country codes. This was also recognised
by the Ministers of Uganda and GOSS.
The Uganda Minister’s letter I find also does not qualify as guidelines to the UCC as
this was not published in the gazette. This is a matter of industrial Regulation that
must be transparent and public. With the greatest of respect to Counsel to UTL such
gazetting of guidelines cannot be directory within meaning of the Sitenda Sebalu
case (supra).
If guidelines were not gazetted, the communications industry cannot
be deemed to have knowledge of them.
Such guidelines can only be effective when in writing and published by the UCC in the
gazette. In any event, the said letter (Exhibit P.7) was in principle written to Maj.
Gen. Gier Ghuang Aluong The Minister of Telecommunications and Postal Services
of GOSS and only copied to UCC and therefore further falls short of a guideline within
the meaning of Section 11 of The UCA.
That being the case, the said arrangement with Gemtel was also not done in
conformity with Ugandan law. Counsel for UTL submitted that the arrangement was
an exercise of sovereign or executive power of a state to break or breach its
obligations under an International treaty or law and is not justiciable in national courts
but elsewhere. He further submitted that; national courts are enjoined to apply the
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