The Respondent instituted a civil suit in the District Court
against the Appellant claiming special damages after the Appellant wrongly
instructed Yono Auction Mart to sell his house to one Elswida Mbunda. The trial
Court decided in favour of the Respondent. The Appellant was aggrieved,
unsuccessfully appealed to the High Court. Still aggrieved, the Appellant
instituted a second appeal to this Court after properly acquiring leave to
appeal. However, the appeal was struck out by the Court upon noticing that the
same was lodged out of time. The Appellant went back to the High Court where he
applied and was granted extension of time to lodge notice of appeal to this
Court. Consequently, the present appeal was lodged. However, the Appellant did
not apply for fresh leave to appeal. Instead, he opted to incorporate in the
record of appeal the leave he had obtained earlier on. As a result, the
Respondent lodged a notice of a preliminary objection on a point of law that
the appeal is incompetent for want of a proper leave to appeal. The issue
before the court is whether the leave to appeal survived after the striking out
of the appeal.