Rupiah Bwezani Banda v Post Newspaper Limited (APPEAL NO. 4 OF 2009; SCZ/8/258/2008) [2013] ZMSC 57 (13 December 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO . 4 OF 2009 SCZ/8/258/2008 BETWEEN: RUPIAH BWEZANI BANDA AND POST NEWSPAPERS LIMITED APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, PHIRI AND WANKI, JJS On '.24 th July, 2013 and 13th December, 2013 For the Appellant: Mr. C. L. Mundia, SC, of Messrs. C. L. • Mundia and Company For the Respondent: Mr. T. Chisanga of K. M. G. Chisanga Advocates Appearing with Mrs. S. N. Kateka of Messrs. Nchito and Nchito JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. 2. Khalid Mohammed -Vs- The Attorney General (1982) ZR 49. Robbie Tembo Milling Company and Yusiku Mainga, Appeal No. 30 of 2002. -Vs- National Milling Corporation, National 3. D. E. Nkhuwa -Vs- Lusaka Tyre Services Limited (1977) ZR 43. 4. Twampane Mining Co-operative Society Limited -Vs- E. M. Storti Mining Limited, SCZ Judgment No. 20 of 2011 page 16. 5. Stanley Mwambazi -Vs- Morester Farms Limited (1977) ZR 108. 6. Water Wells Limited -Vs- Wilson Samuel Jackson (1984) ZR 98. 7. John Clayton -Vs- Hybrid Poultry Farm Limited (2006) ZR 74. 8. China Henan International Economic Technical Co-operation - Vs- Mwange Contractors Limited SCZ Judgment No. 7 of 2002. LEGISLATION REFERRED TO:- 9. Rules of the Supreme Court (1999) Edition, Order 62. 10. Supreme Court Act, Chapter 25 of the Laws of Zambia, Sections 2, 5. By a Motion dated 11th October, 2013 filed pursuant to Rule 48 of the Supreme Court Rules Post Newspapers Limited the respondent is seeking that the Ruling of Judge Wanki dated 5th October, 2012 be varied discharged or reversed by the Court. The grounds upon which the Motion is based are as deposed to in the Affidavit in Support that was sworn by Nchima Nchito, Counsel seized with the conduct of the matter on behalf of the respondent. The grounds are that: the appellant herein was granted a Taxation Order by the Taxing Master on 13th September, 2010 for the Sum of K154,268,825.31 in the absence of the respondent; the respondent's failure to attend Court on the date in question was neither deliberate nor meant to disrespect the Honourable Court but rather when the matter came up for taxation on 13th J2 September, 2010, the respondent's Counsel were never served with the Notice of Hearing for taxation returnable on the said date; the respondent, being desirous to challenge the Bill of Costs filed objections to the Bill of Costs and made an application for review of the Taxation Order of 13th September, 2010 and the hearing of the application was scheduled for 29 th May, 2012. The grounds were further that: the appellant raised a preliminary issue before this Honourable Court and filed an Affidavit in Opposition to the aforementioned application for review before the Master arguing that there was inordinate delay by the respondent in applying for review and no sufficient reasons was furnished for the delay; Judge Wanki dismissed the preliminary application and held as follows:- "I have found that the application for review of the Taxing Master's Order was properly filed as such it was within the jurisdiction of the Taxing Master to determine the issues in contention. Further, it is in the interest of justice that issues are determined on their merit. It is with this in mind that I am inclined to reject the preliminary issue and direct that the Taxing Master should determine the application for review on its merits." J3 I I l I , ·~ I ' r When the matter came up for review on 29 th May, 2012 the Taxing Master stated that there was no exhibit in the Affidavit of Service to evidence that the Notice of Taxation returnable on 13th September, 2010 had indeed been served on Counsel for the respondent, further, that the respondent was not entitled to succeed by reason only that a defence had failed, on those grounds, the Master made a Ruling setting aside the Taxation Order granted on 13th September, 2010, to be heard on the merits. The grounds are further that: the appellant herein, being dissatisfied with the Ruling of the Taxing Master appealed before a Single Judge of this Court to set aside the Ruling of the Taxing Master; on appeal, Judge Wanki found in favour of the appellant and set aside the Ruling of the Taxing Master, without taking into account that the appellants allegation that they served the Notice of Hearing on the respondent and that the respondent failed to respond to the notice was a fabrication by the appellant intended to mislead the Court. And the grounds are further that: the Judge in his Ruling, did not take into account that as far as taxation is concerned, J4 I there is no provision in our law for an Order of Taxation to be made in default; the deponent is of the belief that the Judge having held that the matter be determined on its merits he in effect made a determination on the subject matter of the appellant's appeal and as such became functus officio; and that in the premises he verily believes that there is merit in the respondent's appeal. The defendant exhibited a copy of the Ruling dated 3 rd April, 2012 as exhibit "NNl"; a copy of the Ruling of the Taxing Master as exhibit "NN2"; and a copy of the Ruling dated 5 th October, 2012 as exhibit "NN3." The respondent further filed heads of argument on which Mr. Chisanga and Mrs. Kateka solely relied at the hearing of the Motion. The respondent opened its heads of arguments by giving the background leading to the Motion that: on 28 th June, 2011, the appellant applied ex-parte for and obtained an order to stay sale of goods seized in execution of a Writ of Fiere Facias pending determination of the application to set aside the Order of Taxation dated 16th June, 2011 and to review taxation, the JS ' ' ' ' , ' '• '· ' ' ' Order of Taxation had been obtained by the appellant in default of appearance by Counsel for the respondent; on 8 th July, 2011, the parties attended before the Taxing Master for hearing of the application for review. The Taxing Master referred the matter to Justice Wanki sitting as a Single Judge of the Supreme Court. The background was further stated that: when the matter I came up for determination before Judge Wanki, the appellant raised a preliminary issue to the effect that the respondent could not avail itself of the provisions of Order 62 Rule 33 of the Supreme Court Rules (1999) due to lack of sufficient grounds in law for that application and further that the application to set aside the taxation was manifestly wrong and misconceived at law; in a Ruling dated 3 rd April, 2012, Judge W anki determined the preliminary issue that was before him as well as the substantive application for review and held inter alia that the taxation should be determined on its merits, he referred the matter back to the Taxing Master for determination of the application for review; on 29 th May, 2012, the Taxing Master rendered a Ruling on the application for review stating that there was no exhibit in the Affidavit of Service to evidence J6 I I I I ' \ i I ( that the Notice of Taxation returnable on 13th September, 2010 had indeed been served on Counsel for the respondent; further, that the respondent was not entitled to succeed by reason only that a defence had failed; and that on these two grounds, the Order of 13th September, 2012 was set aside so that the Taxation could be det ermined on merits. And the background is further that the appellant then appealed to Judge Wanki against the Ruling of the Taxing Master dated 29 th May, 2012; on appeal, Judge Wanki found in favour of the appellant and set aside the Ruling of the Taxing Master; and that it is against this Ruling by Judge Wanki that this Motion is before this Court. In relation to law and argument, it was submitted that the substance of the present appeal had already been determined by Judge Wanki's Court and hence he was functus officio. Reliance was placed on Section 5 of the Supreme Court Act (IO) which makes it unlawful for a Judge of the Court to hear an appeal from his own decision. J7 ,, , \ ' ' ' ' ' It provides inter alia:- "A Judge of the Court shall not sit on the hearing of an appeal, nor shall he exercise any power under Section four in respect of an appeal:- (a) from any judgment given by himself, or any judgment given by any Court of which he was a member." It was contended that the question of inordinate delay and sufficient reasons for the same was raised before this Court in the preliminary issue that culminated in Judge W anki's Ruling I of 3 rd April, 2012 at page R7. The Court dismissed the preliminary application and held inter alia as follows:- "I have found that the application for review of the Taxing Master's Order was properly filed, as such it was within the jurisdiction of the Taxing Master to determine the issues in contention. Further it is in the interest of justice that issues are determined on their merit. It is with this in mind that I am inclined to reject the preliminary issue and direct that the Taxing Master should determine the application for review on its merits." It was argued that having held that the matter should be determined on its merits Judge W anki was functus officio as he had already made a determination on the subject matter of the appeal. It was contended that in that regard Section 4 cited above made it unlawful for Judge Wanki to hear an appeal on a judgment that was given by him or by any Court in which he J8 ' ' I ' I I ,, ' ' ' ' I sat as a member. It was pointed out that in terms of Section 2 of the Supreme Court Act, (IO) the term judgment', includes decree, order, conviction, sentence and decision. It was therefore, submitted that Judge Wanki was functus officio as he had already rendered his decision on the subject matter of the appeal. I It was secondly, submitted that there is no prov1s1on 1n our law for an Order of Taxation to be made in default. It was argued that even where a party does not attend taxation, the Taxing Master is obliged to actually address his/ her mind to the merits of the Bill of Costs and not accept it as presented thereby entering judgment in default against the other party. Order 62 Rule 12 of the Rules of the Supreme Court was cited which provides as follows regarding taxation:- "1) On a taxation of costs on the standard basis there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing officer may have as to whether the costs were reasonably incurred or were reasonable in the amount shall be resolved in favour of the paying party; and in these rules the term "the standard basis" in relation to the taxation of costs shall be construed accordingly. 2) On a taxation on the indemnity basis all costs shall be allowed except insofar as they are of an unreasonable amount or have been unreasonably J9 ' t t ' ' incurred and any doubts which the taxing officer may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party; and in these rules the term "the in relation to the taxation of costs shall be construed accordingly. indemnity basis" 3) Where the Court makes an order for costs without indicating the basis of taxation or an order that the costs be taxed on basis other than the standard basis or the indemnity basis, the costs shall be taxed on the standard basis." It was submitted that it is clear that under Rule 12 cited above, the Taxing Master was required to satisfy himself that the costs in the bill were reasonably incurred before allowing them. It was pointed out that as demonstrated in the preliminary issue that was argued before Judge Wanki, in item 13 of the Bill of Costs for instance, it is shown that Counsel for the appellant spent fifty hours on 22 nd April, 2009 perusing and studying the Record of Appeal. This, it was argued was glaringly wrong in light of the fact that a single day has only twenty-four hours. It was contended that the Taxing Master contravened Order 62 Rule 12 of the Rules of the Supreme Court (9 ) when she allowed the Bill of Costs as was presented and thereby entered a default judgment against the respondent. It was JlO submitted that the Taxing Master was therefore, on firm ground in setting the Order of 13th September, 2010 aside in her Ruling of 20 th May, 2012. Thirdly, it was submitted that even if there had been a provision for entry of default judgment which it was contended there is not, in relation to an Order of Taxation, it is trite law that matters should be determined on their merits. Reference was made to the Ruling of the Single Judge at page R7 as stated as follows:- "Further it is in the interest of justice that issues are determined on their merit. It is with this in mind that I am inclined to reject the preliminary issue and direct that the Taxing Master should determine the application for review on its merits." It was pointed out that the position of the law as regards default judgment has been stated in cases which include \ • STANLEY MWAMBAZI -VS- MORESTER FARMS !5l where the Court held inter alia that:- is the practice in dealing with bona "It fide interlocutory applications for Courts to allow triable issues to come to trial despite the default of parties; where a party is in default he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard." Jl 1 ' I ' I, \ ' I This position of the law was reiterated in the case of WATER WELLS LIMITED -VS- WILSON SAMUEL JACKSON(6 l where the Court in an appeal against a refusal by the High Court to set aside a judgment in default of defence held inter alia as follows:- "Although it is usual on an application to set aside default judgment not only to show a defence on the merits, but also to give an explanation of that default, it is the defence on the merits which is the more important point to consider... If no prejudice will be caused to a plaintiff by allowing the defendant to defend the claim, then the action should be allowed to go to trial." It was submitted that premised on the law cited above, triable issues should be allowed to come to trial and in setting aside a default judgment, the Court will consider whether or not the applicant has a defence on the merits. It was contended that their defence on the merits in this matter is that the - Taxing Master contravened Order 62 Rule 12 of the Supreme Court Rules (9l in entering a default Judgment/Order of Taxation and further that Counsel for the respondent were never served with the requisite Notice of Hearing and were thus unable to attend Taxation on 13th September, 2010. J12 \ I It was fourthly argued that the Master of the Supreme Court was on firm ground in setting aside the Order of 13th September, 2012 as there is no proof of service of the Notice of Hearing on the Court Record. The case of CHINA HENAN INTERNATIONAL ECONOMIC TECHNICAL CO-OPERATION - VS- MWANGE CONTRACTORS LIMITED (8l was cited where the Court set aside a judgment on admission that had been entered in default of appearance in the absence of proof of service of a Notice of Hearing on Counsel for the appellant. In a judgment that was rendered by Justice Mambilima, the Court stated as follows:- "We allowed this appeal for the reason that the Judgment on Admission in this case was entered in the absence of Counsel and the reason given for the Counsel at the Scheduling Conference was that the Counsel was not aware of the return date of the Scheduling Conference since she was not served with the notice for the Scheduling Conference. The record shows that there was no Affidavit of Service filed by the plaintiff to contract this position. The Court below ought to have been satisfied with the service of the notice of the Scheduling Conference before entering Judgment on Admission. It is our view that had the defendant's Counsel been present at the Scheduling Conference, he would have an opportunity to make an appropriate application to amend the defence. To this effect, procedural justice was compromised. For these reasons, we allowed the appeal and referred the matter back to the Court below to proceed with the Scheduling Conference." J13 It was submitted that in the absence of proof of service of the Notice of Taxation that was returnable on 13th September, 2010 on the Court record procedural justice was compromised in making the Order of Taxation of even date. It was argued that as a consequence, there can be no question of inordinate delay in applying for review. It was contended that the respondent was not aware that there was a hearing on 13th September, 2010 on account of the failure by the appellant to serve the Notice of Hearing on the respondent's Counsel on record. It was further contended that the respondent was only made aware that there was an order of Taxation on 16th June, 2011 when the formal order was filed and it made its application for review on 28 th June, 2011 which was within the requisite fourteen days period. It was argued that the Taxing Master was therefore on firm ground when she set aside the Order of Taxation in her Ruling of 29 th May, 2013. It was therefore, submitted that the appellant cannot rely on its own default in serving both the Notice of Hearing and the Order of Taxation to put up the defence of inordinate delay in opposing the application for review when in fact the delay was J14 occasioned by Counsel for the appellant. Premised on the law and facts cited, the Court was prayed to allow the appeal with costs. The appellant opposed the Motion on the grounds deposed by Christopher Lubasi Mundia, SC in the Affidavit in Opposition to the Notice of Motion to appeal that was filed on 23 rd October, 2013. These are that: it is not in contention that the Taxing Master granted the Taxing Order in dispute on 13th September, 2010 in the sum of K154,268,825=31 in the absence of the respondent but the said respondent was served with the process which it deliberately and without excuse ignored; the Notice of Hearing was issued out of the Supreme Court Registry as can be seen from exhibit at page 62 of the • Bundle of the Notice of Motion; the Court's attention was drawn to exhibits at pages 60 and 61 in which the respondent acknowledged receipt of process; prior to the hearing of the matter on 13th September, 2010 one Fitzjohn Muleya, Legal Assistant in the employ of C. L. Mundia and Company served the Notice of Taxation on the respondent's Advocates and he confirmed that through the Affidavit of Service; throughout this JlS action the respondent through its Advocates ignored attending Court and the purported objections were only filed on the 28 th June, 2011; paragraph 7 of the Affidavit in Support of the Motion is not in dispute except that his Lordship did not make a determination on the issues before the Master of the Supreme Court but guided her to hear matters on their merits; the Taxing Master misdirected herself by arriving at a conclusion that because there was no exhibit attached to the Affidavit of Service, she decided to set aside her earlier Order of Taxation granted on 13th September, 2010. The Affidavit in Opposition further showed that: the appellant appealed against that order as the Taxing Master did not address her mind to the issues raised particularly why the • respondent and its Advocates ignored Court orders requiring them to attend Court hearings when they were duly served with the process; there was no fabrication by the appellant to mislead the Court as appropriate Notice of the Hearing dates of the Taxation were duly acknowledged by the respondent through its Advocates; as the Notice of Taxation and Bill of Costs were received and acknowledged by the respondent J16 through its Advocates as shown by exhibits at pages 60 and 61 of the Bundle of Notice of Motion the respondent through its Advocates had a duty as officers of Court to carry out searches on the progress of the case but ignored to do so; the affidavit that was sworn by one Mujuda did not in any way give good reasons why the respondent did not attend Court and the said affidavit filed on 28 th June, 2011 at paragraph 8 read, "that the appellants' failure to attend Court on the date in question was neither deliberate nor meant to be disrespectful to this Honourable Court"; that deposition clearly showed that the process was received but ignored by the respondent and the reasons given for non attendance were a total disregard to the Court Orders. And the Affidavit in Opposition shows that: as to paragraphs 11 and 12 of the affidavit the respondent herein has misdirected itself as no determination of the main matter was done by Hon. Mr. Justice Wanki and therefore his Lordship was never functus officio when he heard the appeal subject to this application; and that in the premises the Notice of Motion to appeal should be refused as it has no merit whatsoever J17 ' I I ' . ' \ I I taking into account that even if the application was granted there would be no likelihood of success of the appeal to the full bench and it should therefore be dismissed with costs to the appellant. Further to the Affidavit in Opposition Mr. Mundia on behalf of the appellant filed appellant's Heads of Argument on which Mr. Mundia wholly relied at the hearing of the Motion. Mr. Mundia submitted at the outset that the Motion be dismissed with costs as one without merit and an abuse of Court process. State Counsel from the outset brought to the attention of the Court the background of the matter that on 28 th June , 2011 the respondent applied to the Master by way of Summons for an Order to set aside Order of Taxation dated 16th • June , 2010 and for review; and at the same time via an ex parte order the respondent obtained Stay of Sale of goods seized in execution on 28 th June , 2011. The Master referred the matter to Hon. Mr. Justice Wanki for guidance. The appellant herein filed a Notice of Intention to Raise Preliminary Issues on 7 th July, 2011 challenging the respondent's application to set aside J18 Order of Taxation dated 16th June, 2010 and for review of Taxation on three grounds. On 3 rd April, 2012 the Hon. Mr. Justice W anki delivered his Ruling in which he rejected the preliminary issue and referred back to the Master the application for review. Mr. Mundia contended that there is no where Hon. Mr. Justice W anki could be said to have heard the main matter It which would have rendered him functus officio to hear the subsequent appeal from the Taxing Master. State Counsel pointed out that the respondent's application was twofold, namely: to set aside the Order of Taxation and to review taxation. Mr. Mundia contended that the Master did not address her mind to the issue of why there was no attendance by Counsel for the respondent in total disregard to the orders of Court. State Counsel argued that the Master was required to address her mind to all issues before her. It was submitted that it was against that Ruling that an appeal was made to a Single Judge in Chambers on 14th June, 2012. Mr. Mundia contended that it is total misdirection by the respondent as submitted by J19 I ' .. _ ~ ts Advocates that Hon. Mr. Justice W anki determined the ,,_, ~!.; •' . " preliminary issue and the substantive application for review as Hon. Mr. Justice Wanki made it clear in his Ruling of 3 rd April, 2012 when he stated at page 15 line 25, "The Master should proceed to appoint the date of the hearing for the Application for Review." It was argued that what the Hon. Justice Wanki decided - falls squarely in what this Court decided in the case of ROBIE TEMBO -VS- NATIONAL MILLING CORPORATION, NATIONAL MILLING COMPANY AND YUSIKU MAINGA (2l where it was held that matters should be determined on merit and not technicalities . By giving the direction in line with the MAINGA (2) case the Court was simply guiding the Taxation Master to hear the Parties on merit and that it was not in the interest of justice to determine issues on technicalities. State Counsel submitted that indeed the Taxing Master as guided by Hon. Mr. Justice Wanki heard Parties but failed to take into account that there were no reasons upon which the respondent and its Advocates failed to appear before the Court twice before the J20 third time on 13th September, 2010 when the matter was heard by her. Mr. Mundia pointed out that it was after the Ruling of the Taxing Master dated 29 th May, 2012 that an appeal was made against that Ruling after the Master heard parties. State Counsel contended that the Single Judge was therefore on firm ground when he allowed the appeal against - the Ruling of the Taxing Master setting aside her earlier order of 13th September, 2010 without any good reasons shown by the respondent's failure to appear before the Court when process was served and indeed acknowledged. It was further contended that the Single Judge of this Court was also on firm ground when he stated , as can be seen at page 54 of the Motion line 12, "I am inclined to agree with him that the holding by the Taxing Master is not the requirement of the Rules of procedure. There was an Affidavit of Service unlike in the case of CHINA HENAN INTERNATIONAL ECONOMIC TECHNICAL CORPORATION -VS- MWANGE CONTRACTORS (8l where we set aside the J21 ' . ' Judgment on Admission because of the absence of an Affidavit." Mr. Mundia argued that it is very clear that the respondent has not accepted its default that it failed to appear before the Court on the dates scheduled for Taxation without any good reason. It was further argued that to blame the Counsel for the appellant for the delay is a total misdirection as evidence before the Taxing Master and before the Single Judge was quite clear that the respondent never adhered to the Orders of the Court. State Counsel contended that the respondent only decided to challenge the Order of Taxation almost after one year from 13th September, 2010. It was submitted that Advocates being Officers of the Court and having the conduct of the matter have a responsibility to ensure that they follow up and verify facts as they obtain on the Court file, particularly where dates of hearing were served and/ or brought to their attention. The Court was referred to the case of D. E. NKHUWA -VS- LUSAKA TYRE SERVICES LIMITED (3l where the Court had this to say, "Those who choose to ignore rules of the Court J22 • r do so at their own peril"; and to the case of TWAMPANE MINING CO-OPERATIVE SOCIEITY LIMITED -VS- E. M. STORTI MINING LIMITED (4 l where the Court had this to say, "In sum the appellant did not merit to be granted an extension of time as it sat on its rights by not appealing within the prescribed period; by not filing its application for extension of time promptly and also by failing to attend arbitration - proceedings whose award was final. In this regard, we cannot over emphasise the importance of adhering to the rules of the Court. This is intended to ensure that, matters are heard in an orderly and expeditious manner. Allowing this appeal will be tantamount to us encouraging laxity and none observance of the rules by Practitioners in general." Mr. Mundia pointed out that the Taxing Master in her Ruling particularly at page 23 of the Notice of Motion confirmed that there were two adjournments prior to the last one before the Taxation was heard. State Counsel argued that no explanation has been given why officers of the Court ignored their responsibilities to appear before Court, serious aspect that J23 the Taxing Master failed to address in her Ruling there by prompting the appeal to the Single Judge. It was contended that the Single Judge was on firm grounds when he stated in his Ruling at page 54 of the Notice of Motion starting from paragraph 19, "That considering that the events in this case demonstrates lack of seriousness on the part of the respondent; failing to file objections and absence of the respondent on two occasions; one wonders why the Taxing Master gave the respondent a benefit of doubt. As the appellant proved service on the respondent on the material day and there being no excuse for the failure on the part of the respondent, I find the action of the Taxing Master to set aside her Order of 13th September, 2010 a misdirection." State Counsel further submitted that the Single· Judge was on firm ground in allowing the appeal and to rely on the cases of STANLEY MWAMBAZI -VS- MORESTER FARMS LIMITED (5l AND WATER WELLS LIMITED -VS- WILSON SAMUEL JACKSON (6l is a serious misdirection because the Court in the case of JOHN CLAYTON -VS- HYBRID POULTRY J24 FARM LIMITED t7l held inter alia "What happened in this case was unheard of to say the least. By his own averment, the appellant went to negotiate with the respondent over a matter that was already pending in Court." It was argued that, that was an appeal against judgment in default of appearance by an ordinary undefended lay person, Clayton, but the Court rejected his appeal as he was expected to react to process served on him and not to find sanctuary in negotiations when the matter was before Court. Mr. Mundia submitted that in this case here is a situation where officers of the Court, namely, Advocates are served with process on behalf of their client, the fact they never denied except making an allegation that the Affidavit of Service should have been accompanied by an exhibit when they knew or ought to have known that there is no procedural rule at least known to the Common law process that an Affidavit of Service must always be accompanied by an exhibit. State Counsel argued that that was in fact an afterthought and arising only in the submissions which are neither evidence nor pleadings. J25 It was contended that Mujuda in his affidavit for the respondent never raised any good reasons for non appearance except saying that the respondent's failure to attend Court on the dates in question was neither deliberate nor disrespectful to the Court. The deponent was referring to the three dates when the respondent failed to respond to the Notices of Hearing duly served and two of them acknowledged through office stamps and signatures of those that received the Notices of Hearing on behalf of the respondent. Mr. Mundia added that the last date of hearing was confirmed by the affidavit duly sworn before a Commissioner for Oath. State Counsel submitted that there was a dereliction of duty by the respondent and its Advocates not to attend Court and as this Court rightly pointed out in the authorities cited above, those who disobey Court orders do so at their own peril. It was contended that the Single Judge in this matter can never be faulted and was indeed on very firm ground when he allowed the appeal. J26 Mr. Mundia submitted that as there was a senous disregard of Court Orders, namely, the Notices of Hearing, the Taxing Master should have come to a finding of fact that the process having been served but ignored there were no grounds upon which she could set aside her earlier order. The Judge was therefore, on firm ground that the Taxing Master misdirected herself. In conclusion, Mr. Mundia submitted that this Motion has no merit and should therefore, be dismissed with costs to the appellant. We have considered the affidavit evidence before the Court; the heads of argument on behalf of the parties; and indeed the Ruling of the Single Judge of this Court sought to be varied, discharged or reversed. We have noted that the Motion is based on two grounds contained in paragraphs 10, 11 and 12 of the Affidavit in Support namely:- 10. That on appeal, Judge Wanki found in favour of the appellant and set aside the Ruling of the Taxing Master, without into account that the appellant's allegation that they served the Notice of Hearing on the respondent and that the respondent taking J27 failed to respond to the notice was a fabrication by the appellant intended to mislead the Court. 11. That further, the Judge in his Ruling, did not take into account that as far as taxation is concerned there is no provision in our law for an order of Taxation to be made in default. 12. That I am of the belief that the Judge having held that the matter be determined on the merits he in effect made a determination on the subject matter of the appellants' appeal and as such became functus officio. In relation to the first ground, we have perused the Ruling of the Single Judge and we have considered the material before the Court. We have found that the Single Judge cannot be faulted for having found as he did that the absence of the respondent on two occasions was not justified as there was no excuse for the failure and that the appellant proved service. We further wish to state that from our examination of the material on file which material was available to the Single Judge we have remained with no doubt that the respondent was served with the Notice of hearing of the taxation. In the circumstances, we find no merit in the first ground of the Motion. J28 In relation to the second ground as contained 1n the paragraph 11 of the Affidavit in Support. From the material before the Court we have found that though served with the Bill of Costs the respondent did not file objections. However, despite there being no objections to the Bill of Costs, the Taxing Master is required to tax every item on - the Bill. Perusal of the Taxing Master's Ruling has shown that the Taxing Master did not tax every item on the Bill. In light of the failure of the Taxing Master to tax every item on the Bill, we find merit in the second ground. In the circumstances, the matter is referred back to the Taxing Master for taxation of every item on the Bill of Costs. Because of the decision we have made in relation to the second ground, we have decided not to deal with the third ground. J29 Since the respondent was aware of the date of taxation but deliberately failed to attend we order that it has to pay the costs of the Motion and the costs before the lower Court. ' F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE G. . hiri, SUPREME COURT JUDGE M. E. Wanki, .- SUPREME COURT JUDGE J30