Makame, Kisanga and Omar, JJ.A.: This appeal arises from a dispute over a house of which the appellant is the landlord and the respondent the tenant: We assume that Saide Salmin Ambar is the one person as Saide Salmin B Islam.
It is not necessary to go into the details of the controversy for the purpose of the task immediately in front of us. Enough it is to say that it was the present respondent who took the dispute to the High Court of Zanzibar sitting at Vuga and that Mnilla R.M., (Extended Jurisdiction), in an ex-parte judgment, found her still the lawful tenant of the C present appellant whom he also ordered to pay the present respondent some damages.
The appellant applied to have the ex-parte judgment set aside but the application was refused. He has now come D to this Court wanting to appeal against that order refusing to set aside the ex-parte judgment and is being represented by Mr Muccadam, learned advocate. The respondent is advocated for by Mr Kalunga, learned counsel.
Mr Muccadam filed a Notice of Motion asking to be permitted to file a supplementary record because, he said, E High Court Misc. Application No. 10 of 1991 had not been brought to his attention when he filed the record of appeal: That Misc. Application contained, inter alia, his client's affidavit explaining the reasons why the ex-parte judgment should be set aside. F
Mr. Kalunga resisted Mr Muccadam's application before us and submitted that Mr Muccadam had not really handled his brief with any seriousness otherwise he would have made sure that he had all the necessary papers. We wish to pause here and observe that Mr Muccadam should not have made a general search for the alleged affidavit. G He should have specifically asked for this file for Misc. application No. 10 of 1991 because Mr Mnilla's Rulling clearly indicated it was in that Misc. Application, 10 of 1991, and not in the main civil case or any other cause.
It appeared to the court that the application before us would turn on a different issue, infact, and accordingly we H invited both counsel to address us on that one. The issue is, whether the intending appellant was entitled to come on appeal as of right, or whether he had first to obtain leave to appeal against the order refusing to set aside the ex-parte judgment. Mr Muccadam submitted that the order by Mr Mmilla was itself a decree so he did not have to I obtain leave
A first. He was entitled to appeal as of right. Mr Kalunga argued that Mr Muccadam should have applied for leave.
Appeals to this court are governed by the Appellate Jurisdiction Act, 1979, section 5. Subsection (a) and (b) set B out all the situations in which a party may appeal as of right while subsection (c) provides:
With the leave of the High Court or of the Court of Appeal, against every other decree, order, judgment or finding of the High C Court.
We are of the considered view that appealing from an order refusing to set aside an ex-parte judgment does not come under sub-sections (a) or (b). It comes, rather, under subsection (c), for which it is necessary to obtain leave D first. As no such leave was sought and obtained, this intended appeal is incompetently before us. We accordingly strike it out with costs.
Appeal dismissed.
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