HALIMA ADEN v ALI FUNGO 1997 TLR 181 (HC)

 

HALIMA ADEN v ALI FUNGO 1997 TLR 181 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Kaji J

G

MISCELLANEOUS CIVIL CAUSE 114 OF 1996

26 June 1997

Flynote

Civil Practice and Procedure - Costs - Whether taxing master functus officio after

making a decision in the H absence of the other party

Civil Practice and Procedure - Costs - Whether Civil Procedure Code of 1966 can be

applied together with the Advocates Remuneration and Taxation of Costs Rules 1991

(GN 515/91) I

-Headnote

The senior resident magistrate dealing with a bill of costs as a taxing officer

1997 TLR p182

A was faced with two issues which were referred to the court for clarification

apparently under Order XLI of the Civil Procedure Code 1966. The two issues were:

(a) Whether the taxing master was functus officio after making a decision in the

absence of the other party; and (b) whether the Civil Procedure Code of 1966 could

be applied together with the Advocates Remuneration and Taxation of Costs Rules

1991 (GN 515/91).

B Held:

(i) Where a taxing master taxes a bill of costs ex-parte he is not functus

officio as far as application for setting it aside is concerned. If there was no express

provision in the Code for setting aside an ex-parte application the court could use its

inherent powers under s 95 CPC unless there was a provision in the Advocates

Remuneration and Taxation of Costs C Rules 1991 to the contrary;

(ii) The Civil Procedure Code 1966 could be applied together with the

Advocate's Remuneration and Taxation of Costs Rules 1991 where appropriate.

Case Information

D Order accordingly.

No cases referred to.

[zJDz]Judgment

Kaji J:

E The learned Senior Resident Magistrate dealing with a Bill of Costs as a Taxing

Officer was faced with two issues, namely:

(1) Whether a Taxing Master is functus officio after making a decision in

the absence of the other party.

(2) Can the Civil Procedure Code 1966 be applied together with the

Advocates Remuneration F and Taxation of Costs Rules 1991 (GN 515 of 1991)?

It all started as follows:

On 13 March 1996 the applicant/decree holder Halima Aden filed a Bill of Costs in an

amount of Shs G 6,289,260/= through her learned counsel Dr Lamwai. The same was

fixed for taxation on 29 March 1996.

On the taxation day the applicant's learned counsel was absent, apparently without

notice. The H respondent/judgment debtor Ali Fungo who had been served through

his advocate Mr Kambamwene was also absent without notice. Neither Kambamwene

nor anybody from his chambers appeared. The applicant applied orally to proceed exparte

whereby her oral application was granted. The Bill of Costs was heard ex-parte

whereby it was taxed and allowed at Shs 6,289,260/= as presented.

I Judgment debtor was alerted to this fact. He attempted to have

1997 TLR p183

KAJI J

the ex-parte taxation set aside through his advocate Kambamwene but the decree

holder's learned A counsel resisted and raised some preliminary objections which

included the above issued.

The learned Taxing Master held that since the taxation proceeded ex-parte he still had

power to set it aside just as any order. He further held that his powers to set it aside

are derived from the Civil B Procedure Code 1966 and that since GN 515 of 1991

does not have any provision for setting aside an ex-parte taxation the Civil Procedure

Code 1966 is applicable in such situation.

However he was not sure whether what he had held was right. He therefore referred

the matter to this court for clarification apparently under Order 41 of the Civil

Procedure Code 1966. C

I have carefully considered the arguments raised by the learned counsels before the

trial court. I have also carefully considered the opinion of the learned Taxing Master.

It is my considered view that when a Taxing Master taxes a Bill of costs ex-parte he is

not functus D officio as far as an application for setting it aside is concerned just as is

the case with any other ex-parte decisions in civil matter. If there is no express

provision in the Civil Procedure Code 1966 for setting aside an ex-parte taxation the

court can use its inherent powers under s 95 Civil Procedure Code unless there is a

provision in the Advocate's Remuneration and Taxation of Costs E Rules 1991 to the

contrary.

As far as application of the Civil Procedure Code is concerned the Civil Procedure

Code is the enabling law governing the procedure in all civil matters before the High

Court, courts of Resident Magistrates and District Courts unless expressly excluded by

any provision of any written law F concerned with a particular matter. This is

provided for under s 2 of the Civil Procedure Code 1966.

Taxation of a Bill of Costs is a civil matter. Taxation of a Bill of Costs before a Resident

Magistrates Court is governed by the Advocate's Remuneration and Taxation of Costs

Rules 1991 (GN 515 of G 1991). There is no provision in those Rules expressly

excluding the application of the Civil Procedure Code where its application would be

relevant.

It is therefore my holding that a Taxing Master is not functus officio after taxing a bill

of costs ex-parte as far as an application to set it aside is concerned and that the Civil

Procedure Code H 1966 can be applied together with the Advocate's Remuneration

and Taxation of Costs Rules 1991 where appropriate.

1997 TLR p184

A