Engelbert Qorro & Jackal Adventure Limited vs Robin Meulemans & Another (Civil Appeal No. 405 of 2022) [2025] TZCA 910 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MKUYE. J.A.. KAIRO, 3.A. And ISSA J.A.^ CIVIL APPEAL NO. 405 OF 2022 ENGELBERT QORRO ............... JACKAL ADVENTURE LIMITED .1st APPELLANT 2 n d APPELLANT VERSUS ROBIN MEULEMANS.................................... R & M TANZANIA SPECIALIST LIMITED .... 1 st RESPONDENT 2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania 1st & 29th August, 2025 MKUYE, J.A.: The appellants, Engelbert Qorro and Jackal Adventures Limited, (the 1st and 2n d appellants) are appealing against the decision of the High Court of Tanzania at Arusha, Arusha Registry (M.G. Mzuna J as he then was) dated 13/10/2021 in Civil Case No. 18 of 2019 which was entered in favour of Robin Meulemans and R & M Tanzania Specialist Limited, the 1st and 2n d respondents. Before embarking on the merit of the appeal, we find it apt to give a background of the matter, albeit briefly, which goes as follows: at Arusha) (Mzuna, J.) dated the 13th day of October, 2021 in Civil Case No. 18 of 2019 JUDGMENT OF THE COURT l

Sometimes in 2017, the 1st appellant and the 1st respondent entered into a Joint Venture Agreement. The said agreement was communicated through an email and it centred on a profit sharing between Jackal Adventure Limited (2n d appellant) and Tanzania Specialist BV, which is not a party to this case. It was agreed that the 1st appellant should open a separate account to be used in their operation. According to the appellants, the joint venture business earned profit to the tune of USD 293,762.00 which was deposited in the said separate account in the name of the 2n d appellant with three signatories, that is, the 1st appellant, 1st respondent and one Epimark. It is alleged that the 1st respondent fraudulently misappropriated the generated profits for his personal gain and went ahead to establish the 2n d respondent company, R & M Tanzania Specialist Limited, in which he owns 49% of the shares without consulting the appellants. It was further claimed by the 1st appellant that, in the course of the joint venture business, they acquired twelve (12) motor vehicles, land, a storey building and furniture. It is on those claims that the appellants sued the respondents before the High Court of Tanzania at Arusha, based on breach of contract and prayed for judgment and decree against the respondent jointly and severally, payment of TZS. 442,917,944.00 as principal amount; payment of interest of 20% per annum from the date of institution of the suit to the 2

date of judgment; payment of interest of 12% from the date of judgment to the date of full payment; and costs for the suit. The respondents denied the allegations contending that the 2n d respondent was a tourism business that already had customers even before the completion of the requisite legal requirements, including acquisition of Tourism Agents Licensing Authority (TARA) licence. The respondents claimed further that even the land, house and furniture's allegedly acquired during the joint venture business were the appellant's exaggeration as the profits in question originated from the company formed in the Netherlands (Tanzania Specialist BV). They asserted further that, by the time these profits were generated, the joint venture between R & M Specialist Limited (the 2n d respondent) and the 1st appellant had already been dissolved. On top of that, the respondents claimed that they had secured a loan which facilitated the acquisition of various assets including a storey building in Kisongo area. They also contended that, the agreement between the parties was limited to the provision of tourist safari vehicles by the appellants whenever needed, and that all such services rendered were duly paid for. After the conclusion of the trial, the High Court dismissed the suit and held that the appellants had been paid their rightful dues and had no

further claims against the respondents- Aggrieved with the High Courts' decision, the appellants lodged this appeal to this Court on seven grounds of appeal which upon examination, we find that the 4th ground is sufficient to dispose of the matter without addressing the other grounds as doing so would amount to a mere academic exercise. The said ground reads as follows: "4 That, the tria l Judge erred in law and fact by disregarding that there was a conflict o f interest on the p art o f the respondent's legal representative who represented the respondents during tria l and yet witnessed the loan fa cility agreem ent" When the appeal was called on for hearing, Mr. Kampiti Mgalula, learned advocate, appeared representing the appellants while the respondents had the services of Mr. Ephrahim Koisenge, also learned advocate. Submitting on the 4th ground of appeal, Mr. Mgalula argued that the legal representation of the respondents was not proper since the advocates had a conflict of interest. Elaborating, Mr. Mgalula contended that the advocates who represented the respondents had a conflict of interest since Mr. Charles Abiel Abraham, learned advocate, participated in preparation of the loan facility agreement and the amended joint written

statement of defence (the amended WSD) in which he appended his signature. Apart from that, he testified for the respondents during the trial and tendered the said loan facility agreement which was admitted as Exh. D8 while admitting to be the company secretary of the 2n d respondent. According to Mr. Mgalula this act was in contravention of section 7 of the Notary Public and Commissioners for Oaths Act, Cap 12 R. E. 2019 (the NPCOA). To bolster his argument, he referred us to the case of Twiga Bancorp Limited v. Grayson Kionde, Civil Appeal No. 4 of 2016 (unreported) pages 9 - 10. For that matter, it was argued that, Mr. Abraham and his office was in a serious conflict of interest on this matter. Under such circumstances, he was of the view that, the High Court ought to have expunged all the documents prepared by Mr. Abraham and allow other advocates to deal with the matter. As to the way forward, Mr. Mgalula prayed to the Court to expunge the amended joint WSD and nullify the proceedings and judgment thereof as the irregularity was incurable and thereby retain the plaint which would remain unchallenged. In response, Mr. Koisenge who happened to be an advocate from the same firm with Mr. Abraham resisted the argument by Mr. Mgalula that they were in a conflict of interest. He argued that, the case of Twiga Bancorp Limited (supra) was distinguishable to this case as in this case, 5

the loan facility agreement (Exh. D8) is between the 2n d respondent and another party (third party) who is not a party to this case. He contended that, the restriction made under section 7 of the NPCOA specifically prohibits the commissioner for oaths to act on a party in which he is personally interested. At any rate, he contended, Mr. Abraham willingly agreed to disqualify himself to avoid any problem which could arise in future. He added that, the fact that Mr. Abraham prepared the loan facility agreement, prepared the amended joint WSD in collaboration with Mr. Koisenge from the same firm, testified in court for the respondents and tendered Exh. D8 in court, it was on ground of "common interest" as opposed to the notion of conflict of interest. When asked by the Court if he had any authority to that effect, he said he had none, though on 4/8/2025 he furnished us with a document titled The Review of Banking Financial Services, A Periodic Review of Special Legal Developments Affecting Lending and Other Financial Institutions Vol 38 No. 9, September 2022 which tried to define the term "common interest doctrine" In rejoining, Mr. Mgalula insisted that the Court disqualified Mr. Abraham for contravening section 7 of the NPCOA and that it is not true he willingly disqualified himself. 6

Having heard the rival submissions from either side and examined the record of appeal, we think, the issue for our determination is whether the representation of the respondents in the trial court was by advocates who had a conflict of interest over the matter. We begin with the definition of the term "conflict of interest" The term "conflict of interest" is defined in the Advocates (Professional Conduct and Etiquette) Regulations 2018 (GN No 118 of 2018) (the Etiquette Regulations) as follows: ”C onflict o f interest" includes a situation that has the potential to undermine the im partiality o f an advocate because o f the p ossib ility o f a dash between the advocates self-interest and the public interest A part from that, regulation 45 (1) of the same Regulations further defines the same term as hereunder: "A conflict o f interest is one that would be like ly to affect adversely the advocate's judgm ent or advise on behalf of, or loyalty to a clien t or prospective clie n t" Elaborating the issue of conflict of interest, the Court in the case of UAP Insurance Tanzania Limited v. Akiba Commercial Bank PLC, [2023] TZCA 17784 TANZLII, stated as hereunder: 7

1 1 Conflict o f interest would arise when the advocate is required to uphold ju stice but h is personal interest o r interest o f his client reveals a contrary intention Yet, regulation 35 (1) of the said Regulations which deals with duties of advocate to the clients, prohibits among others, an advocate to act for a client where the client's interest and personal interest of the advocate or the interest of any person in the advocates' firm are in conflict - (See also: UAP Insurance Tanzania Limited (supra). We note that at page 479 of the record of appeal, the issue that the respondents' advocates had conflict of interest on the matter, cropped up whereby the counsel for the plaintiffs (now appellants) raised such issue and for clarity, we let the portion of the record to speak for itself: " M s . M a ria n a M ich ael, A d vo cate M y lord, in our reply to am ended WSD paragraph 2 we raised the point that the co u n se l fo r th e d e fe n d an ts a re d is q u a lifie d from re p re se n tin g th e d e fen d an ts b ecau se th e y p re p a re d a n d a tte ste d th e lo a n ag re e m e n t a n n e xe d to th e W SD. M r. A b araham A d vo ca te I am the one who prepared it ; I am w illing to leave so that other counsel can defend the defendants. M s. M a ria n a A d vo ca te I t is th e sam e firm . They sh o u ld fin d a n o th e r ad vo cate , 8

M r. K o ise n a e A d vo ca te I p re p a re d th e W SD b u t M r. A b rah am can le a v e it fo r u s to d e fe n d th e d efen d an ts. The objection should not cover a ll advocates w ithin the law firm . M s. M a ria n a A d vo ca te B o th p re p a re d th e W SD so th e y m u st be d is q u a lifie d u n d e r se ctio n 7 o f th e N o ta rie s P u b lic a n d C om m ission ers fo r O ath s A ctf Cap 1 2 R.E. 2 0 0 2 because th e y h ave in te re s t on th e m atter. C o u rt Mr. Charles A. Abraham is disqualified to appear and defend the defendants because he appeared as the Com m issioner fo r Oath in the alleged loan fa cility agreement. T his d isq u a lific a tio n sh o u ld n o t co v e r M r. K oisen g e, A d vo ca te because th e re is n o d o cu m en t he h a d a tte ste d a s C o m m issio n er fo r O ath s a s p e r th e law . Objection is p artly allowed. Sgd M.G. Mzuna JU D G E 0 2 /6 /2 0 2 1 ." [Emphasis added] According to the above excerpt, Mr. Abraham was disqualified by the Court and not on his own as Mr. Koisenge tried to suggest and the court also allowed Mr. Koisenge to proceed with defending the defendants (now the respondents) as according to the trial Judge, he did not attest the loan 9

agreement as a Commissioner for Oaths. Unfortunately, the trial Judge did not say anything regarding the amended joint WSD which was prepared by both Mr. Abraham and Mr. Koisenge, learned advocates as was pointed out by that plaintiff's advocate. Mr. Mgalula's argument is that after the trial court had disqualified Mr. Abraham to represent the respondents, it ought to have expunged the joint amended WSD since it was prepared by Mr. Abraham in contravention of section 7 of NPCOA. At this juncture, we wish to revisit the provisions of section 7 of the said Act. It states as follows: "Z No Com m issioner for Oaths sh all exercise any o f h is powers as Com m issioner fo r Oaths in any proceedings o f m atter which he is advocate to any o f the parties o r in which he is interested" In our understanding, this provision imputes conflict of interest by the advocate on a matter he is in one way or another involved by being an advocate for any of the parties or to which he has an interest. Fortunately, this provision was interpreted in a persuasive High Court decision by Hon. Mackanja J. (as he then was) which was cited with approval in the case of TwigaBancorp Limited (supra) in which he observed two areas in which the Commissioner for Oaths is disqualified from exercising his

powers, that is to say: One, in any proceedings in which he/she is an advocate; and Two, in proceedings on a matter in which he is interested. In the matter at hand, there is no doubt that the loan facility agreement as shown at page 727 to 734 of the record of appeal was prepared and attested by Mr. Charles Adiel Abraham from the National Attorneys Firm, and he appended his signature and affixed the firm's stamp (see page 734). Apart from that, the amended joint WSD for both respondents as appearing at pages 157 to 162 of the record of appeal, was drawn and filed by Charles A. Abraham Esq. and Ephrahim A. Koisenge Esq., both from the same law firm known as National Attorneys. It is also apparent that on 2/6/2021 when the plaintiffs' case was opened, the counsel for appellants raised an objection on the representation of the respondents by advocates who represented the respondents in the loan facility agreement and upon a short dialogue between the trial court and the parties, as alluded to earlier on, the trial court partly allowed the preliminary objection leading to the disqualification of Mr. Abraham to represent the respondents in court while specifically allowing Mr. Koisenge to represent them for reason that there was no document that he had attested as a Commissioner for Oaths. We note that from there, Mr. Koisenge proceeded to represent the respondents until the conclusion of the trial. Even when Abraham testified li

in court as DW2, he examined him in chief (pages 501 to 503) and re - examined him as shown at page 505 of the record of appeal. Following the conclusion of the trial, Mr. Koisenge filed final submission for the respondents as shown at pages 455 to 460 of the record of appeal and it is clearly shown that the same was drawn and filed by Ephrahim Koisenge advocate from National Attorneys. As it can be seen in the above sequence of events, it is not in question that, much as Mr. Abraham was disqualified from representing the respondents in court, the pleadings, that is the amended joint WSD which was drawn and filed by Mr. Abraham in collaboration with Mr. Koisenge remained intact. That amended joint WSD was the one that was used to controvert the averment in the plaint and in disapproving the plaint, which, in our view, was not proper. In defending his status in representing the respondents, Mr. Koisenge tried to convince us that the loan facility agreement did not involve the parties in this case but the 2n d respondent and the 3rd party who is not a party in this case. However, we think, such argument is not tenable. In our view, so long as the loan facility agreement (Exh. D8) was annexed in the amended joint WSD and there was a dispute on how the 2n d respondent company was established to which, the respondents in their defence sought reliance on the said agreement to exonerate the 2n d respondent's 12

existence, then it had an interest to serve and hence, the said Abraham must have made himself conflicted on the matter at hand. In fact, this is explicit due to the fact that he was called to testify for the respondents as DW2. We also understand that Mr. Koisenge insisted that, much as Mr. Abraham might have contravened section 7 of the NPCOA as was found by the trial court, such contravention does not extend to other advocates from the same firm. Hemade reliance to the doctrine of common interest though he did not come out loudly to show as to what it entailed. Fortunately, we have passed through the document he supplied to us, The Review of Banking Financial Services, A Periodic Review of Special Legal Developments Affecting Lending and Other Financial Institutions (supra). It defines the term "common interest" as a legal principle that protects the confidentiality of communications shared between the parties who have a shared legal interest and allows those parties being represented by separate lawyers to share privileged information and communications without waiving the lawyer - client privilege, of which we could not see its relevancy in the matter at hand. In other words, it is distinguishable to this case. The issue on conflict of interest on the part of the respondents' advocates has taxed our mind considerably. As alluded to earlier on, the 13

amended joint WSD was drawn and filed by Mr. Abraham and Mr. Koisenge both advocates from National Attorneys. It is the argument by the appellants that so long as the same was prepared by those advocates, it ought to have been expunged as it was against section 7 of the NPCOA. We find that this argument makes sense. In the case of Twiga Bancorp Limited (supra), when the Court was faced with an akin scenario, it stated as follows:- 7/7 the present case d e sp ite h a v in g a tte ste d th e re sp o n d e n ts' sig n a tu re in th e lo a n agreem ent, M r. Byam ungu p ro ce e d e d to d ra w th e p ia in t In o u r co n sid e re d view , th a t is a d e a r b reach o f th e p ro v isio n o f se c tio n 7 o f th e A c t because, b y d ra w in g th e p ia in t, th e ie a rn e d co u n se l a cte d a s th e re sp o n d e n t's a d vo cate w h ile he h a d e x e rcise d h is p o w e rs a s a co m m issio n e r fo r o a th s b y a tte stin g h is c lie n t's sig n a tu re in th e lo a n a g re e m e n t The effect o f that contravention is to render the pleadings file d by Mr. Byamungu invalid. In the circum stances, we agree with Mr. Zake that the p la in t ought to have been struck ou t We fin d therefore, that the 1st ground o f appeal has m erit and thus allow it". [Emphasis added] 14

In this case, this is almost what happened with an exception that in the former case, the advocate drew the plaint while in the matter at hand the advocate drew the amended joint WSD. Although, the trial judge in his order disqualified Mr. Abraham, the advocate who attested the loan facility agreement while leaving the document drawn by the same advocate with another advocate from the same Advocates firm intact, we think, that was a misdirection. In our view, it was a misdirection by the trial Judge in two folds, one, the amended joint WSD to which Mr. Abraham had a hand on it, meant that the said advocate acted as the respondents' advocate. For that matter, such amended joint WSD ought to have been expunged/struck out under the circumstances because it was drawn by a person who had an interest in the matter for having prepared and attested Exh. D8. Two, the fact that Mr. Koisenge, was allowed to represent the respondents while he was from the same firm with Mr. Abraham, was not proper as per the provisions of regulation 35 (1) of the Etiquette Regulations disallowing an advocate to act for a client where the client's interest and the interest of another advocate (Mr Abraham) in the same advocates' firm are in conflict. In essence there was imputed conflict of interest. This is so because, it depicts a situation where it would have been impossible for the said advocate to act on the client's interest and at the same time serve as an 15

officer of the court without violating the conditions in the Advocates Etiquette Regulations. This position was well articulated in the case of Sinani Building Contractors Limited and 2 Others v. CRDB Bank PLC, [2025] TZCA 80 TANZLII, where the Cout stated among others: "Even if a litig an t is assured o f the undivided loyalty o f the advocate, neither the public nor the litig an t w ill have confidence that the legal system , which m ay appear to them to be hostile and hideously com plicated environm ent, is a reliable and trustw orthy m eans o f resolving their disputes. We are increasingly o f the view that, if such a conduct is le ft to stand, w ill dim inish p ublic confidence in the adm inistration o f ju stice which is not expected from a country which is governed by the rule o f law and constitutionalism " We are alive that the power of commissioner for oaths is vested into an individual advocate and not in the firm so as to affect all advocates in the firm. However, in order to promote the notion that justice must be seen to be done and affording the other party a fair hearing, it will not augur well if the matter to which an advocate from a firm who attested the documents for such party is represented in court by the same firm but with a different advocate merely because he did not attest the party's documents. We think, it clearly depicts a situation whereby the opposite party would not be afforded a fair hearing. 16

Besides, the act of Mr. Abraham (DW2) testifying before the court greatly impaired fair trial as he is an advocate of the same firm representing the respondents. It was, therefore, impossible to balance the duty of impartiality vis-a-vis the duty of loyalty. In this regard we agree with Mr. Mgalula that, there was a no fair trial on the appellants as the respondents7 advocates had a conflict of interest by, One, leaving the amended joint WSD that was prepared by an advocate who attested the loan facility agreement to be used in the trial. Two, by allowing Mr. Koisenge from the same firm where Mr. Abraham is an advocate to represent the respondents. In the circumstances, we are of settled view that, everything which took place from when the amended joint WSD was filed was vitiated and hence, a nullity. As a result, we expunge the amended joint WSD. As to the way forward, ordinarily, it could have been taken as if the plaint was not contested and therefore a default judgment could follow. However, given the circumstances of the case, we invoke our revisional powers vested on us under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2023 and nullify the proceedings and judgment thereof, quash the judgment and set aside subsequent orders. Considering the circumstances of this case and in the interest of justice, we order that the respondents file a proper written statement of defence within ninety days 17

from the date of this judgment. We further order that, the case file be remitted back to the trial court for continuation of the trial and determination. It is so ordered. DATED at DODOMA this 28th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 29th day of August, 2025 in the presence of Mr. Ephraim Koisenge, learned Counsel for the Respondents and also holding brief for Mr. Kapimpiti Mgalula learned Counsel for the Appellants, via virtual Court and Mr. Oscar Msaki, Court Clerk; is hereby certified as a ta ie copy of the original. R. W. CHAUNGU

• DEPUTY REGISTRAR 'j& / COURT OF APPEAL 7 / 18