Misc Application No. 77 of 2022
The applicant, Engen Petroleum (T) Limited, had its Civil Appeal No. 100 of 2005 against the Commissioner General (TRA) dismissed for non-appearance on 27th February, 2014. The record shows that the applicant had instructed the firm Nyange & Co. Advocates (Mr. Nyange and Mr. Ringia) to lodge and represent it in the appeal. When the summons for hearing was served, Mr. Nyange declined service and purportedly directed that it be served on Mr. Ringia; it was never served on the applicant personally. Counsel for the respondent asked the Court to dismiss the appeal for non-appearance, which the Court did. The applicant's managing director deposed that the applicant only learned of the dismissal on 28th March, 2014, when the respondent served a demand notice for Tshs. 1,793,332,896/= (the subject matter of the appeal). The applicant then applied under Rules 55(2) and 112(1) and (3) of the Tanzania Court of Appeal Rules, 2009, to restore the dismissed appeal, filing the application on 23rd April, 2014. The respondent opposed, contending that since Nyange & Co. had been duly instructed and had received the notice, service on the firm sufficed, and that the appeal was correctly dismissed. The respondent's counsel raised a preliminary objection that the application was time-barred under Rule 112(3) and incompetent for failing to cite the rule empowering an order for maintenance of status quo. The applicant countered with its own preliminary objection challenging the respondent's objection as improperly grounded.
(1) Whether the application for restoration of the dismissed appeal was time-barred under Rule 112(3) of the Tanzania Court of Appeal Rules, 2009; specifically, from which date the thirty-day limitation period should run — from the date of the Court's dismissal decision, or from the date the applicant claims it first learned of the dismissal, given its assertion that it was not personally served with the hearing notice. (2) Whether the respondent's preliminary objection was properly brought given the rule cited.
The respondent, through Mr. Beleko, argued that the application was time-barred because Rule 112(3) required an application for restoration to be filed within thirty days of the Court's dismissal decision (27th February 2014), whereas the application was filed 55 days later, on 23rd April 2014. He also argued the application was incompetent for failing to cite the rule empowering an order for maintenance of status quo. The applicant, through Mr. Mukebezi and Mr. Kileo, argued that it fell within the second limb of Rule 112(3), which allows thirty days to run from the date a party who should have been but was not served with notice of hearing first learns of the dismissal — here, 28th March 2014, when the applicant was served with the tax demand notice. The applicant separately filed a pre-emptive preliminary objection contending the respondent's notice of objection was defective for being grounded on Rule 4(2)(a) instead of Rule 107, which it claimed was the appropriate provision.
The Court (Juma, J.A.) dismissed the applicant's pre-emptive objection, holding that Rule 107 applies only to objections against the hearing of an appeal and that, since Part III of the Rules governing applications contains no specific provision on notice of preliminary objection in applications, the respondent was correct to proceed under Rule 4(2)(a). On the substantive point, the Court held that because the applicant had instructed Nyange & Co. Advocates to lodge and prosecute the appeal, and had never lodged a notice of change of advocate under Rules 24 and 32, service of the hearing notice on that firm constituted sufficient and valid service on the applicant itself. The applicant could not claim it was unserved merely because its instructed advocates declined or mishandled service. Relying on its earlier decision in Fahari Beverages Limited & Another v. NAS Hauliers Limited, the Court reiterated that advocates cannot abandon their clients by declining service without a formal notice of change of advocate, and that such advocates remain counsel of record until such notice is filed. Consequently, the applicant was deemed to have known of the hearing date and the risk of dismissal, and the thirty-day limitation period ran from 27th February 2014, not from 28th March 2014. As the application was filed 55 days after the dismissal, it was time-barred under Rule 112(3). The Court sustained the first ground of the preliminary objection, struck out the application with costs, and declined to consider the remaining ground concerning the status quo order.
The ruling reinforces the principle that service of court process on a duly instructed advocate of record constitutes valid service on the client, and that a client cannot circumvent this by later claiming lack of personal notice unless a formal notice of change of advocate under Rules 24 and 32 of the Tanzania Court of Appeal Rules has been filed. It clarifies the operation of the two alternative limitation periods under Rule 112(3) for restoring appeals dismissed for non-appearance, confirming that the extended limitation period (running from when an unserved party first learns of the dismissal) applies only where the party was genuinely not served — not merely where its own advocates mishandled or declined service. The decision also affirms and applies the earlier precedent in Fahari Beverages Limited & Another v. NAS Hauliers Limited regarding advocates' continuing responsibility to their clients absent formal withdrawal, discouraging advocates from evading service obligations to the detriment of their clients.
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