SGS Societe Generale De Surveillance S.A. & Others vs VIP Engineering & Marketing Limited (Civil Appeal No. 804 of 2023) [2026] TZCA 315 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: SEHEL. J.A.. RUMANYIKA. J.A, And ISMAIL. J.A.^ CIVIL APPEAL NO. 804 OF 2023 SGS SOCIETE GENERALE DE SURVEILLANCE S.A.................1 st APPELLANT SGS TANZANIA SUPERINTENDENCE COMPANY LIMITED .... 2 nd APPELLANT CRAIG JIOHN WILSON ......................................... . ...........3 rd APPELLANT SAMUEL KOJO GYAN . ....................................... . ................ 4™ APPELLANT JEAN FREDRICK GEORGES MARIE HELLEN . ........................ . 5™ APPELLANT CARLA DENISE F. DE GEYSELLER ....................................... . 6™ APPELLANT KWOK WANG N G ............................................................... 7™ APPELLANT JEAN PAUL ANTOINE BONVIN ................. . ......................... 8™ APPELLANT VERSUS VIP ENGINEERING AND MARKETING LIMITED ..................... RESPONDENT (Appeal from the rulings of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Mkeha, J.) dated 28th day of February, 2022 & 17th March, 2022 in Miscellaneous Commercial Application No. 169 of 2021 RULING OF THE COURT 7th Nov, 2025 & 18th March, 2026 ISMAIL, J.A.: This appeal arises from Commercial Case No. 16 of 2000, which was instituted by the respondent, against the 1s t and 2n d appellants, and the Tanzania Revenue Authority (TRA) the latter of whom is not a party to l

these appeal proceedings. In that case, the respondent sued on an alleged negligence and/or fraudulent issuance of a clean report of findings that purported to certify that the consignment of 3,000 metric tonnes of rice that the respondent imported from Messrs Oreo International Pte Limited, a Singaporean company, conformed to contract specifications. The respondent's contention is that no inspection was ever carried out. As a result of the said failure, the respondent alleged, the imported rice was of inferior quality and lesser quantity thereby inflicting humongous loss on the respondent. It is significant to state that during this time, the 1s t appellant was under contract with TRA to carry out mandatory pre-shipment inspection of goods imported to Tanzania, along with her Tanzanian subsidiary, the 2n d appellant. In a judgment delivered on 19th December, 2005, the High Court, Commercial Division (trial court), put the 1s t and 2n d appellants to a blemished account. They were held to have breached the duty of care that they had towards the respondent and, in consequence, they were condemned to pay specific damages amounting to USD 650,350.08; general damages to the tune of USD 6,000,000.00 for consequential loss of profit and economic loss; court fees in the sum of TZS. 22,000,000.00;

plus, interest on the awarded sums at 20% per annum from 15th May, 1999 to the date of judgment, and, thereafter, at 7% to the day of full satisfaction of the decretal sum. The appellants were also condemned to payment of costs of the suit. For this or that reason, satisfaction of the decree stalled for about two decades until 2021, when the respondent initiated proceedings (Miscellaneous Commercial Application No. 169 of 2021) for lifting of the 1s t and 2n d appellants' corporate veil in order to enforce the decree against the judgment debtors' directors and principal officers. The respondent's quest was acceded to, when the trial court granted the application. The order, dated 28th February, 2022, directed that the decree be enforced against Benedict K. Karuho, Harry Leonard Freake, Andrew Siggy Collins and the 3r d to 8th appellants. These were, at the time, directors, managers and principal officers of the judgment debtors. Besides the order that lifted the corporate veil, there was an order for the issuance of notices to show cause as to why the cited individuals should not be committed to civil prison for their failure to pay the decretal sum. These proceedings culminated into a ruling of the trial court, dated 17th March, 2023 pursuant to which six warrants of arrest were issued for the arrest and imprisonment of the 3r d to 8th appellants for six months. 3

This decision aggrieved the convicted appellants who, together with the 1s t and 2n d appellants, instituted the instant appeal. As a prelude to the institution of the appeal, the said appellants lodged a notice of appeal. This notice of appeal which is found at pages 2389 to 2391 of the record of appeal was filed on 6th April, 2023. The intended appellants were 3r d to 8th appellants, while 1s t and 2n d appellants, along with the respondent in the appeal, were intended to be the respondents. The second notice of appeal features at pages 2378 to 2380, and it was instituted by the 1s t and 2n d appellants as the intended appellants. The respondent and 3r d to 8th appellants were consigned to the role of respondents. This notice was filed on 13th April, 2023. While it is not on record that the appellants featuring in the notices of appeal filed on 6th April, 2023 and 13th April, 2023, instituted appeals in respect of each of the notices of appeal, what is on record is that a document, christened joint memorandum of appeal, was filed on 22n d December, 2023. This document impleaded the 1s t and 2n d appellants who were intended respondents, along with the 3r d and 8th appellants on one side, whereas the respondent who consistently featured as the intended respondent remained the sole respondent in the joint memorandum of appeal. 4

It is this variance or mismatch which informed our decision to invite learned counsel to address us on the propriety and competence or otherwise of the appeal. At the hearing of the appeal, Mr. Timon Vitalis, learned advocate appeared for the appellants whilst his counterparts; Messrs. Respicius Didace and Sisty Bernard, both learned counsel, represented the respondent. Mr. Vitalis, who addressed us first, conceded that the appeal carried a few shortcomings. He quickly submitted, however, that, such shortcomings are curable by applying the principle of overriding objective catered for under section 4 of the Appellate Jurisdiction Act, Cap. 141 (AJA). This, he argued, would allow the appellants to amend the memorandum of appeal with a view to separating the parties to align with the notices of appeal. The learned counsel argued on the notice of appeal that, in terms of rule 88 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), there is only one notice of appeal as all other subsequent notices are deemed to be notices of address for service. Mr. Vitalis contended that, deducing from the substance of the cited rule, the actual notice is that which was filed by the 3r d to 8th appellants. This effectively reduced the notice by 1s t and 2n d appellants to a notice of address for service. He 5

contended that, since the two notices sought to challenge the same decision and all the appellants were cited as judgment debtors in the decision sought to be appealed from, he knew of no law that prohibits the parties from filing one common appeal though notices are different. He was adamant that rule 88 (1) of the Rules raises a technical point which can be addressed by way of overriding objective, arguing that, this would save time instead of preferring multiple appeals. Mr. Vitalis argued as an alternative that, should the Court find that the appeal requires rectification, then it should be pleased to grant his two prayers, as follows: One, that leave should be granted to allow the appellants to file separate memoranda of appeal in terms of rules 111 and 4 (2) (a) and (b) of the Rules. Two, the appellants be allowed to file a supplementary record of appeal by allowing correction of a certificate of delay, in terms of rule 96 (7). This correction of the certificate of delay, Mr. Vitalis argued, would be done alongside the separation of memoranda of appeal. When prompted on whether preference of an appeal was the right course of action while the individual appellants were not impleaded as parties to the application that resulted in the impugned order, Mr. Vitalis argued that he did not consider revision as a plausible route. He 6

contended that, an appeal was the right call since the said appellants were made parties to the final order. He found nothing untoward in the action taken by the 3r d to 8th appellants. As he hold onto his position, the learned counsel conceded, however, that the present appeal would be withdrawn once the appellants are granted leave to amend the memorandum of appeal and file a supplementary record of appeal. Mr. Didace began his rebuttal submission by reminding us of his counterpart's concession to the shortcomings in the appeal. He singled out the existence of two notices of appeal in one appeal as the most glaring shortcoming. On the import of rule 88 (1) of the Rules, Mr. Didace submitted that, the said provision clearly states that notices of appeal filed subsequent to the filing of the first notice of appeal shall be notices of address for services and that all the intended appellants shall be the respondents. While insisting on the imperative nature of rule 88 (1) of the Rules, the learned counsel argued that non-adherence to that requirement constitutes an infraction which cannot be circumvented by the principle of overriding objective. He implored us to be guided by our decisions in Puma Energy Tanzania Limited v. Ruby Roadways Tanzania Limited [2020] T7CA 1947; Njake Enterprises Limited v. Blue Rock Limited & Another [2018] TZCA 304; and Mondorosi

Village Council & Two Others v. Tanzania Breweries Limited & Four Others [2018] TZCA 303, in which it was held that the overriding objective principle would not apply where mandatory procedural requirements are at stake. Mr. Didace further contended that the principle of overriding objective cannot apply amidst the concession by Mr, Vitalis that the appeal would be abandoned should the Court grant his prayers. This, in the counsel's argument, was the clearest indication that the appeal is incompetent and that, bringing it on course would require applying for an extension of time that will enable the appellants to institute a fresh appeal. This means, Mr. Didace argued, the memorandum of appeal cannot be rectified. It would require filing new separate memoranda of appeal and then pray to consolidate them. Turning on to the prayers made by the appellants' counsel, Mr. Didace scoffed at the propriety of such prayers in the instant case. He argued that the Court is moved by a competent and correct record of appeal. In this case, he said, the appeal is incompetent and that, the only remedy is to strike it out with costs. He maintained that, there was no consolidation order by this Court as to justify lumping together of all the appellants some of whom were intended respondents in the notices of 8

appeal. He was adamant that the Court cannot adjourn the hearing of something that is incompetent. In his brief rejoinder, Mr. Vitalis resisted the respondent's prayer for costs, arguing that the anomalies were raised by the Court. He was of the contention that, despite the anomalies, the appeal can still be salvaged. Regarding the holding in Puma Energy Tanzania Limited (supra), the argument by Mr. Vitalis is that, the same is distinguishable as the issue in contention in the said matter was the timeliness or otherwise of the matter. He was convinced that such issue was weighty as it touched on jurisdiction. He argued that nothing makes separation of the memorandum of appeal impossible. We have heard the counsel's rival submissions. We have also reviewed the record of appeal. In our view, the contending submissions distil one singular question for our attention. This is whether the appeal is competent. As alluded to earlier on, Mr. Vitalis has addressed us on his intention to ask for two prayers. One, leave to amend the memorandum of appeal with a view to separate the parties and align it with what appears in the notices of appeal. In this prayer, the learned advocate has urged us to be 9

guided by section 4 of the AJA which introduced the principle of overriding objective. Two, to file a supplementary record of appeal to allow correction of the certificate of delay. In either or both of the prayers, we think, with profound respect, that this is a missed glorious opportunity that the learned counsel will live to rue. Starting with the amendment of the memorandum of appeal, we are aware that rule 111 of the Rules vests powers in the Court to allow amendment of notice of appeal, notice of cross-appeal, memorandum of appeal or other part of the record of appeal, with a view to addressing errors. We hasten to state, however, that, the amendments envisioned under rule 111 of the Rules relate to trifling errors which are curable, and not fundamental procedural improprieties. While we take cognizance of the full force of the principle of Overriding Objective, introduced by section 4 of the AJA, we wish to sound a caution, yet again, that, not every ailment in the record of appeal is curable through invocation of this principle. Unless the ailment is a mere technicality which is curable, an attempt to bring this provision into play is nothing but an effort that can hardly persuade us. Thus, in Juma Busiya v. Zonal Manager, South Tanzania Postal Corporation [2021] TZCA 522, we accentuated our earlier position as follows: 10

"The principle o f Overriding Objective envisaged in that section so as to save this appeal. With due respect to learned counsel, we cannot invoke that principle. The principle o f Overriding Objective is not the ancient Greek goddess o f universal remedy called Panacea, such that its objective is to fix every kind o f defects and omissions by parties in courts" The foregoing position picks its foundation in previous decisions of the Court. In Njake Enterprises Limited (supra), for instance, we stressed the limited scope of applicability of the overriding principle as follows: "Also, the overriding objective principle cannot be applied blindly on the mandatoryprovisions o f the procedural law which goes to the very foundation o f the case. This can be gleaned from the objects and reasons o f introducing the principle in the Act. According to the Bill it was said thus; "The proposed amendments are not designed to blindly disregard the rules o f procedure that are couched in mandatory terms". In the instant matter, the critical ailment relates to the inclusion of the 1s t and 2n d appellants as appellants in the appeal the notice of which 11

designated them as respondents. Mr. Didace is of the contention that this was fundamental procedural impropriety as, in no circumstance, would the intended respondents assume the position unless the notice of appeal on which the appeal is predicated is amended to reflect the new position. We fully subscribe to this contention. In the instant case, the notice which designated the 1s t and 2n d appellants as respondents, along with the respondent, was filed ahead of another notice in which the said appellants were the only appellants while the rest of the appellants in the instant matter joined the respondent as intended respondents. This is the notice on the basis of which the "joint memorandum of appeal" was filed. What was expected was that the subsequent notice of appeal which was instituted by the 1s t and 2n d appellants would be treated in line with what rule 88 (1) of the Rules stipulates. We venture to think that, even then, such treatment would not alter the 'equation' in terms of who the appellants and respondents would be. For ease of reference, we find it apt to reproduce the substance of the said provision. It states as follows: "88.-(1) Where two or more parties have given notice o f appeal from the same decision, the second and aii subsequent notices to be lodged shaii be deemed to be notices o f address for service within the meaning o f rule 86 and the 12

party or parties giving those notices shaif be respondents in the appear. [Emphasis is added]. The clear import that we gather from this excerpt is that parties who give notices of appeal subsequent to the first notice become and remain to be respondents. At no point in time, even when consolidation is ordered, do they change roles or position in the appeal proceedings. Mr. Vitalis has conceded to this legal position and that this is what the current status ought to have reflected through the memorandum of appeal. In our view, this concession has narrowed the contention. The question we ask ourselves after that is whether this infraction, that Mr. Vitalis has taken responsibility for, is curable under section 4 of the AJA. In our considered view, rule 88 (1) sets a mandatory procedural requirement which goes to the foundation of the appeal proceedings. It is not a mere technicality that can easily be fixed by bringing section 4 of the AJA into play. We think that the contravention is far serious, attracting a more severe consequence. It would require a more serious prescription than mere separation as Mr. Vitalis would make us believe and hold. In Torya Machinery Limited & Another v. Epsom Limited [2025] TZCA 51, 13

this Court rejected the contention that variance of the names of the parties appearing in the notice of appeal and memorandum of appeal, and those which were in the judgment and decree appealed against was a mere error which could be address through invocation of overriding objective principle. In holding that the appeal was incompetent, the Court held as follows "It is our considered view that, since the iearned counsel for the appeiiants is the one who lodged the notice o f appeal on l& h May, 2022 and the memorandum o fappeal on 13thJuly, 2022f he had an obligation to lodge a correct and competent record in the Court as he certified it on the same date. This would have properly moved the Court to determine the appeal on m erit" We are of the firm view that the transgression committed by the appellants is in the mould of a fundamental violation of the law which cannot salvage the appellants'fledging case. It, in fact, renders the appeal wanting and that no amount of injection of the oxygen principle i.e. overriding objective can bring life into it. Any attempt to amend the appeal is an attempt to amend an untenable appeal. We see no point of indulging in that futile attempt. 14

In consequence of the said anomaly, we hold that the appeal is incompetent and, accordingly, we strike it out with costs. It is so ordered. DATED at DODOMA this 2n d day of February, 2026. B. M. A. SEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Ruling delivered this 18th day of March, 2026 in presence of Mr. Timon Vitalis, learned counsel for the Appellants, Messrs. Respicius Didace, Sisty Bernard and Novatus Muhangwa, learned counsels for the Respondent via virtual court, and Mr. Issa Bakari, Court Clerk, is hereby certified as a true copy of the original. 15