Court name
High Court of Tanzania

Halima Aden vs Ali Fungo () [1997] TZHC 12 (26 June 1997);

Law report citations
1997 TLR 181 (TZHC)
Media neutral citation
[1997] TZHC 12
Coram
Kaji, J.

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 ex-parte 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

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 BProcedure 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-partedecisions 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.

A