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                      COURT APPEAL RULES

               1997

        

C.I 19 

PART II CIVIL APPEALS

.

8. Notice and grounds of appeal

(1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal".

(2) The notice of appeal shall be filed in the Registry of the court below and

shall-

                        (a) set out the grounds of appeal;

                        (b) state whether the whole or part only of the decision of the

                             court below is complained of and in the latter case specify the     

                             part;

                       (c) state the nature of the relief sought ; and

(d) state the names and addresses for service within the jurisdiction of all parties directly affected by the  appeal.                    (insert:  CI 25/98 r (e))

(3) The notice of appeal shall be as in Form I provided in Part I of the Schedule to

these Rules and shall be accompanied with sufficient number of copies for service on all parties.

(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.

(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(6) No ground which is vague or general in terms or which: discloses no reason-able ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

(7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just.

(8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.

 

9. Time limits for appealing

(1) Subject to any other enactment for the time being in force, no appeal shall be brought after the expiration of-

(a) twenty-one days in the case of an appeal against an interlocutory decision;

or

(b) three months in the case of an appeal against a final decision unless the court below or the Court extends the time.

(2) The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against.

(3) An appeal is brought when the notice of appeal has been filed in the Registry of the court below

(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.

(5) An application for extension of time must be supported by an affidavit setting out good and substantial reasons for the application and grounds of appeal which prima facie, show good cause for the extension of time to be granted.

(6) Where the extension of time is granted, the notice of appeal shall indicate the date of the grant and the judge or the court by which the grant is made.                                           (subst. CI 21/98 r. d)

(7) Notwithstanding rule 28 of these Rules, no application shall be made to the Court for extension of time within which to appeal after six months from the date of the decision appealed against.

(8) For the purposes of sub rule (4) of this rule and rule 28, where a person has applied to the court below for extension of time within which to appeal and after a period of not less than one month the court below fails or refuses to grant the application, the applicant may subject to sub-rule (5) of this rule move the Court to determine the application.

 

10. Service of notice of appeal

The Registrar of the court below shall, after the notice of appeal has been filed, cause to be served a true copy of it on each of the parties mentioned in the notice of appeal and shall thereafter issue a certificate of service of appeal as in Form 4 in Part I of the Schedule.                                                                                                  (subst: CI 25/99 . (a))

 

11. Settling record of appeal

(1) When an appeal is brought-in the court below, the Registrar of the court shall issue summons in Form 2 in Part I of the Schedule directing the parties to appear before him to settle the record of appeal and shall whether or not any of the parties attend the appointment, settle and sign the record and in due course file it.

(2) The Registrar of the court below, and the parties shall exclude from the record documents that are not relevant to the subject matter of the appeal and shall generally reduce the bulk of the record as far as practicable, taking special care to avoid duplication of documents; but the title of the documents not copied with the record shall be enumerated in a list at the end of the record.

(3) Where the Registrar of the court below or any party objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party insists upon its inclusion, the document shall be included and the record shall, with a view to the subsequent adjustment of the costs of and incidental to the inclusion of the document, indicate in the index of papers or otherwise that fact, and the party who objected to the inclusion of the document.

(4) The appellant shall within such time as the Registrar of the court below directs; deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal calculated at the full cost of one copy for the appellant and one-quarter cost for each of the five copies for the use of the Court.

 

12. Security for costs

The appellant shall within such time as the Registrar of the court below shall fix

(a) deposit such sum as shall be determined by the Registrar of the court below; or

(b) give security by bond as specified in Form 3 in Part 1 of the Schedule with one or more sureties to the satisfaction of the Registrar

for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant.

 

13. Additional security for costs

 

The Court may, where necessary, require security for costs or for performance of the orders to be made on appeal, in addition to the sum determined under rule 12(a).

 

14. Transmission of record

(1) The Registrar of the court below shall transmit the record when ready together

with-

(a) a certificate of service of the notice of appeal;

(b) a certificate as in Form 5 in Part I of the Schedule that the conditions imposed under rules 11(4) and 12 have been fulfilled;

(c) four copies of the record for the use of the Judges;   

(am:  CI 21/98 r f)

(d) the docket or file of the case in the court below containing all papers or documents filed by the parties concerned; and

(e) the exhibits, documents or other things received by the court below in respect of the appeal.

 

(2) The Registrar of the court below shall also cause to be served on all parties mentioned in the notice of appeal, a notice as in Form 6 in Part I of the Schedule that the record has been forwarded to the Registrar, and the Registrar shall in due course enter the appeal in the cause list mentioned in rule 2(1).                                                   (am:  CI 21/98 r ( f)

 

15. Notice by respondent of contention that judgment should be varied

(1) It shall not be necessary for the respondent to give notice by way of cross- appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, he shall within one month after service

upon him of the notice of appeal cause written notice as in Form 7 in Part I of the Schedule of his intention to be given to every party who may be affected by the contention.

(2) The respondent shall clearly state in his written notice the grounds on which he intends to rely and within the same period shall file with the Registrar of the court

below five copies of the notice, one of which shall be included in the record.

(3) Omission give the written notice shall not affect any powers of the Court, but the Court may consider it a ground for adjournment of the appeal upon such terms as to costs or otherwise as the Court considers just.

 

16. Notice of preliminary objection to be filed

.           (1) A respondent who intends to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice before the hearing of the preliminary objection, setting out the grounds of objection, and shall file the notice specified in Form 8 in Part I of the Schedule

(am:  CI 21/98 r f)

 

(2) If the respondent fails to comply with this rule, the Court may refuse to entertain the objection or may adjourn the hearing at the cost of the respondent or may make such other order as it thinks fit.

17. Withdrawal of appeal

(1) Subject to rule 15, if the appellant files with the Registrar a notice of withdrawal of his appeal, the Registrar shall certify that fact to the Court, which may thereupon order that the appeal be dismissed with or without costs.

(2) Copies of the notice of withdrawal shall at the expense of the appellant be served on any of the parties with regard to whom the appellant wishes to withdraw his appeal, and any party served shall be precluded from laying claim to any costs incurred by him after the service unless the Court otherwise orders.

(3) A party served with a notice of withdrawal, may on notice to tile appellant apply to the Court for an order to recover any costs that he may necessarily or reasonably have incurred prior to the service on him of the notice of withdrawal together with his costs incurred for purposes of obtaining the order and for attendance in Court.

 

(4) Notwithstanding the dismissal of an appeal consequent upon a notice of withdrawal under subrule (1) a respondent who has filed a notice of intention to contend that the decision of the court below be varied shall be entitled to pursue his contention as if it were an appeal;                     

(Subst:  (CI 21/98 r. (h))

(5) Forms 9 and 10 in Part I of the Schedule shall apply for the purposes of this rule.                          (am: (CI 21/98. r h))

18. Non-compliance with conditions of appeal

(1) Where the appellant has not complied with any of the requirements of rules 11 (4), 12 or 13 the Registrar of the court below shall certify these facts to the court, which may then order that the appeal be dismissed with or without costs.

(2) If the respondent alleges that the appellant has failed to comply with a part of the requirements of rules 11(4), 12 or 13 and the Court, is satisfied that the appellant has so failed, it may dismiss the appeal for want of prosecution or make such other order as the justice of the case may require.

(3) An appellant whose appeal has been dismissed under this rule may apply by motion on notice that his appeal be restored, and the Court may order that the appeal be restored upon such terms as it may think fit.

(4) A certificate of non-compliance of conditions imposed upon a would be appellant shall be in Form 11 in Part I of the Schedule.

19. Exhibits

(1) Subject to these Rules, each party shall, immediately after an appeal becomes pending before the Court, deliver to the court below all documents and things (being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were produced or put in by him at the trial.

(2) Subject to these Rules each party to an appeal shall be prepared to produce at the hearing of the appeal exhibits, other than documents, which are in his custody or were produced or put in by him at the trial.

(3) Where a party finds it difficult to comply with sub rules (1) and (2) of this rule owing to the nature of the document or other exhibit or owing .to its being in the possession of a third party or any other reason, he may apply to the Registrar of the court below for directions.

(4) The Registrar of the court below may, either of his own motion or upon application, give any direction he considers fit, whether dispensing with the provisions of this rule or modifying its application in any way or for securing compliance with it.

(5) Any original document delivered to the court below under this rule shall re- main in the custody of the court below until the record of appeal has been prepared, and

shall then be forwarded with the record to the Registrar of the Court and shall remain in the custody of the Court until the determination of the appeal; except that the Court or the Registrar may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it or he may impose.

 

20. Written submission

 (1) An appellant shall within 21 days of being notified in Form 6 set out in Part I of the Schedule that the record is ready, or within such time as the Court may upon terms direct, file with the Registrar a written submission of his case based on the grounds of appeal set out in the notice of appeal and such other grounds of appeal as he may file.

(2) Where the appellant does not file the statement of his case in accordance with subrule (1), the Registrar shall certify the failure to the Court by a certificate as in Form 11A in Part I of the Schedule and the Court may upon that order the appeal to be struck out. (10) This rule shall not apply to criminal appeals.

(subrules1 & 2 subst: CI 25/99 r. (b))

 

(3) The Registrar shall as soon as practicable after the filing of the appellant's written submission, cause copies of the submission to be served on the respondent and on any other party to the appeal.

(4) A party upon whom an appellant's written submission is served shall, if he wishes to contest the appeal, file the written submission of his case in answer to the appellant's written submission within three weeks of the service, or within such time as the Court may upon terms direct.

(5) The appellant may, within fourteen days of the service on him of the respondent's written submission, file with the Registrar a reply to the respondent's written sub- mission.

 

(6) The written submission of each party to the appeal shall set out-

 

(a) the full case and arguments to be advanced by the party including relevant authorities, references to any relevant decided cases and statute law upon which the party intends to rely; and

 

(b) in the case of a respondent may include a contention that the decision of the court below be varied.

 

(7) Notwithstanding anything to the contrary contained in this rule, counsel may agree to submit a joint submission for the determination of the appeal before the Court.

 

(8) Where a respondent does not file a written submission of his case and does not agree to make a joint written submission under the provisions of this rule, he shall not be heard at the hearing of the appeal except as to question of costs.

(9) Notwithstanding anything to the contrary contained in these Rules, a party to a civil appeal may at any time before judgment apply to the Court to amend any part of the written submission and the Court may, having regard to the interest of justice and to a proper determination of the issues between the parties, allow the amendment on such terms as it may consider fit

(10) This rule shall not apply to criminal appeals   (subs: CI 25/99 r. (b)

 

(11) Notwithstanding any provision of this rule to the contrary, the Chief Justice or the Court may on an application by any of the parties waive the requirement for the filing of written submission under this rule.                                                                                (subst:  CI 21/98 r. (i)

 

21. Control of proceedings during pendency of appeal

After the record of appeal has been transmitted from the court below to the Court the Court shall be seised of the whole of the proceedings as between the parties and every application shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court.                                           (am: CI 21/98 r. (j))

22. Submission by party not appearing

At any time before the hearing of an appeal any party to the appeal may file a declaration in writing as specified in Form 12 in Part I of the Schedule that he does not wish to be present in person or by counsel at the hearing of the appeal and in such a case, the party shall file five copies of the arguments he desires to submit to the Court, a copy of which shall be supplied to the other party at the appropriate stage of the hearing, and the appeal shall be dealt with as if the party had appeared.

23. Non-appearance of appellant

(1) Where the appellant fails to appear when his appeal is called for hearing and he has not taken action under rule 22, the appeal may be struck out or dismissed with or without costs.

(2) When an appeal has been struck out or dismissed owing to the non-appearance of the appellant the Court may, direct the appeal to be re-entered for hearing on such terms as to costs or otherwise as it may think just.

 

24. Non-appearance of respondent

Where the respondent fails to appear when the appeal is called for hearing and he has not taken action under rule 22, the Court may proceed to hear the appeal in his absence.

 

25. Application to set aside ex parte judgment

(1) Where an appeal has been heard under rule 24 and judgment has been given against the respondent, he may apply to the Court to set aside the judgment and to re-hear the appeal.

(2) No application to set aside a judgment and re-hear under this rule shall be made after the expiration of twenty-one days from the date of the judgment sought to be set aside; except that, a respondent who has failed within the period of twenty-one days to make an application under this rule may at any time within a further period of three months after the twenty-one day period apply to the Court on notice to the appellant to set aside the judgment, and the Court may, grant the application and make such order in relation to the application or as to costs as it may consider fit in the circumstances.

(am: CI 21/98 r. (k)

(3) An application to set aside a judgment shall be by motion accompanied with an affidavit stating the reasons and grounds for the application, and the Court may set aside the judgment and order that the appeal be re-heard at such time and upon such other conditions as to costs or otherwise as it may consider fit.

 

26. New evidence on appeal

(1) It is not open as of right to any party to an appeal to adduce new evidence in support of his original case but, in the interest of justice, the Court may allow or require new evidence to be adduced; such evidence shall be in the form of oral examination in Court, an affidavit or a deposition taken before an examiner or commissioner as the Court may direct.

(2) A party may, by leave of the Court, allege any facts essential to the issue that has come to his knowledge after the decision of the court below and adduce evidence in support of the allegations.

 

27. Effect of appeal

(1) An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except where the court below or the Court otherwise orders -

(a) in the case of the court below, upon application made orally or by motion on notice to it; and

 

(b) in the case of the Court, upon application made to it by motion on notice, and except as provided in this rule no intermediate act or proceedings shall be invalidated.

 

(2) When an application is pending for determination under sub-rule (1) of this rule any proceedings for execution of the judgment or decision to which the application relates shall be stayed.

(3) There shall, in any case, be a stay of execution of the judgment or decision, or of proceedings under the judgment or decision appealed from-

(a) for a period of seven days immediately following the giving of the judgment or decision; and

(b) for a period of seven days immediately following the determination by the court below or any application under sub-rule (1)(a) of this rule where the application is refused by the court below.

 

27A. Interlocutory appeals-

The Court may in any interlocutory appeal, civil or criminal before it, grant stay of proceedings pending the determination of the interlocutory appeal subject to such terms as the Court considers fit.                       

(insert: CI 21/28 (l))

 

28. Court to which application should be made

Subject to these Rules and to any other enactment, where under any enactment an application may be made either to the court below or to the Court, it shall be made in the first instance to the court below, but if the court below refuses to grant the application, the applicant shall be entitled to have the application determined by the Court.

 

29. Determination of doubts as to finality of judgment

Whenever any doubt arises as to whether any judgment or order is final or interlocutory, the question may be determined summarily by the court below or by the Court and any determination by the court below shall, notwithstanding rule 28, be final and binding on all parties for the purpose of determining the time within which an appeal may be brought.

 

30. Interlocutory judgment not to prejudice appeal

No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving a decision upon the appeal as may seem just.

 

31. General powers of the Court

The Court may-

(a) make any order necessary for determining the real question in controversy;

(b) amend any defect or error in the record of appeal;

 

(c) The Court may also direct a notice of appeal to be served on all or any of the parties to the action or other proceedings or on any person not a party, and may adjourn the hearing of the appeal upon such terms as may be just, and also make any order as if the person served with the notice had originally been a party to the appeal.              

(insert: CI 21/98 r. (m))

 

(d) direct the court below to enquire into and certify its finding on any question which the Court considers fit to determine before final judgment;

(e) make any interim order or grant any injunction which the court below is authorised to make or grant; and

(f) direct any necessary enquiries or accounts to be made or taken and shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a court of first instance.

 

32. Power of Court to give judgment and make an order

(1) The Court shall have power to give any judgment and make any order that ought to have been made, and to take such further or other order as the case may require including any order as to costs.

(2) These powers of the Court may be exercised notwithstanding that the applicant may have asked that part only of a decision be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties may not have appealed from or complained of the decision.

 

33. Time limit for delivery of judgments

(1) At the close of a case before it the Court shall fix a date, which shall not be later than eight weeks after close of the case, for the delivery of judgment.

(2) It shall be the duty of the Court to deliver judgment as soon as possible after the close of each case before it, and in any event not later than eight weeks after the close of any case.

(3) For the purposes of this rule a case shall be considered closed when the final arguments have been concluded.

(4) The times of vacation in any year shall not be reckoned in the computation of .the period of eight weeks referred to in this rule.

(5) Where for any reason judgment has not been delivered within the period of eight weeks referred to in this rule the Court shall forthwith inform the Chief Justice in writing of that fact and shall state the reasons for the delay and the date upon which it is proposed to deliver judgment.

(6) Subject to sub-rule (4) of this rule where judgment has not been delivered within the period of eight weeks referred to in this rule, any party to the proceedings may notify the Chief Justice in writing of that fact and request that a date be fixed for the delivery of judgment.

(7) Upon receiving a notification from the Court or a party under sub-rule (5) or (6) the Chief Justice may fix a date for the delivery of judgment by the Court and notify the Court accordingly, and it shall be the duty of the Court to ensure that judgment is delivered upon the date so fixed by the Chief Justice.

 

34. Review of the decision of the Court in exceptional cases

The Court shall not review any judgment after it has been delivered unless it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review.

 

35. Costs

(1) Where the costs of an appeal are allowed they may either be fixed by the Court at the time when the judgment is given or may be ordered to be taxed.

(2) The Registrar shall be the Taxing Officer and all such costs shall be taxed by him according to the rules in force in the High Court.

(3) Any person aggrieved by an order, decision or ruling of the Taxing Officer may apply to the Court to set aside that order, decision or ruling and to make such further order as it may consider fit.

(4) Any application to the Court under sub-rule (3) shall be by motion supported by an affidavit, and notice of such motion shall be served upon the Taxing Officer and upon any party who has an interest in the matter.

(5) The form of a notice of taxation and a bill of costs shall be as specified in Forms 13 and 14 in Part I of the Schedule.

 

36. Enforcement of judgments

Any judgment given by the Court may be enforced by the Court, the court below or any other court which has been seised of the matter or as the Court may direct.

 

37. Execution of judgment by court below

Where the Court directs any judgment to be enforced by any other court, a certificate under the seal of the Court and the hand of the presiding Judge setting out the judgment as specified in Form 15 in Part Iof the Schedule shall be transmitted by the Registrar to that other court, and the latter shall enforce the judgment in terms of the certificate.

 

 

 

 

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