THE EXECUTIVE SECRETARY WAKF AND TRUST COMMISSION MAMBOMSIIGE ZANZIBAR v SAIDE SALUM AMBAR 1991 TLR 198 (CA)

THE EXECUTIVE SECRETARY WAKF AND TRUST COMMISSION MAMBOMSIIGE ZANZIBAR v SAIDE SALUM AMBAR 1991 TLR 198 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Makame JJA, Kisanga JJA and Omar JJA

E 6 December, 1991

Flynote

Civil Practice and Procedure - Appeals to Court of Appeal- Appeal from an order

refusing to set aside an ex-parte decree - F Whether leave is a pre-requisite -

Appellate Jurisdiction Act, 1979

-Headnote

The High Court of Zanzibar gave an ex-parte judgment in favour of the respondent.

The appellant then applied to have the ex-parte judgment set aside but the application

was refused. So he decided to appeal against the decision G of the High Court

refusing the application to the Court of Appeal. No leave was sought and obtained to

appeal to the Court of Appeal.

Held: Appealing from an order refusing to set aside an ex-parte judgment comes

under sub-section (c) of section 5 H of the Appellate Jurisdiction Act, 1979 for

which it is necessary to obtain leave first. As no such leave was sought and obtained

this intended appeal in incompetent.

Case Information

I Appeal dismissed.

1991 TLR p199

MAKAME, KISANGA AND OMAR JJA

Muccadam, for the appellant A

Kalunga, for the respondent

[zJDz]Judgment

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

1991 TLR p200

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.

1991 TLR p200

F