Commercial Court Division
The above functions put this current dispute squarely on the door step of the UCC.
Indeed all significant correspondence relating to this dispute was copied to UCC
including one dated 23rd May, 2007 (Exh. D.13) when UTL blocked MTN traffic. What
is lacking is action by UCC which could have regulated this process and averted this
suit. I shall refer more to this at the end of the Judgment.
The aforementioned notwithstanding, I am persuaded by the opinion of PW2 on this
matter. She had the best qualifications and experience to handle the technical issues.
Her testimony was clear and consistent. She also had the added advantage of having
worked as a telecom regulator in Nigeria.
The compelling testimony of DW1
notwithstanding of how MTN traffic to +256 477 xxx would have to be routed through
their Mpoma Satellite as would other International calls, the evidence shows that in
reality, the UTL and Gemtel network were one and the same. This conclusion is akin
to the company law principle of “lifting the veil” to ascertain the reality of the
transactions. Gemtel had no network outside that of UTL and without the code +256
477 xxx which was a local code for Ugandan purposes, Gemtel could not operate. As
found earlier, this was an ad hoc arrangement of a temporary nature that had been
sanctioned by the Minister in Uganda.
Everything technical about the said
arrangement was Ugandan and I accordingly so find.
As to the rate, UTL had notified MTN that a rate of USD 0.50 would be applicable to
them from 1st June, 2006. A perusal of the Interconnection Agreement and especially
the tariff table Section A4 on International transit traffic shows that no such tariff
existed. Article 28 of the Interconnection Agreement makes it impossible to apply the
rate of USD 0.50 without a variation of the agreement as envisaged under Article 21.
No evidence of a variation was presented to court. In any event, my aforementioned
findings leave only one logical conclusion that the said traffic to Gemtel from MTN
was locally terminated within the meaning of Section A1 (i.e. at UShs.100) of the tariff
table of the Interconnection Agreement and so I find accordingly.
HCT - 00 - CC - CS- 297- 2008
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