APPEALS

Question 1

Sections 65 – 69, CPA

Answer 1

The detailed format of how to prepare a memorandum of appeal is set out

Question 2

Order 42, CPR (

Answer 2

set out the procedure relating to appeals

Question 3

Order 43, Rule 1, CPR

Answer 3

gives a list of orders from which an appeal lies from as of right

Question 4

What happens if one wants to appeal an order that is not on the list of orders to appeal?

Answer 4

To appeal an order that is not on the list one would have to seek leave of the court, and the application for leave should first be made to the court that made the order to be appealed from (Order 43, Rule 1(3), CPR)

Question 5

(Article 163(3) & (4), Constitution 2010)

Answer 5

The Supreme Court shall be the highest appellate court and final court of appeal in civil matters.
An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies, or reverses a judgment or order, including an interlocutory order, given by the High Court in the exercise of its original jurisdiction

Question 6

COURT OF APPEAL?

Answer 6

The appeal shall be from judgments or decrees from the High Court or the other courts and tribunals having the same status

Question 7

HIGH COURT?

Answer 7

• The High Court has appellate jurisdiction to determine appeals which lie to it by virtue of any enactment from decisions of the magistrates’ courts and other subordinate tribunals
• Any person aggrieved by an order of a Registrar may appeal from the order to the High Court and the appeal shall be by way of Notice of Motion
• Any person affected by an order or decision of a taxing officer may appeal within 30 days to a judge of the High Court, who on such appeal may make any order that the taxing officer could have made
• An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with the leave of the Chief Magistrate or of the High Court to High Court

Question 8

How is Leave of appeal done?

Answer 8

• Application for leave to appeal should be made in the first instance to the court which made the order that is being sought to be appealed against
• It should be made by Notice of Motion within 14 days from the date the order is made or orally in court at the time of making the order

Question 9

Can you appeal if leave is denied?

Answer 9

• If the Court of Appeal refuses to grant leave to appeal, there can be no appeal against this decision unless leave is denied on the basis of a question of law
• It is entirely possible that the party might find themselves having to obtain leave before they can appeal against a refusal of leave

Question 10

A judge’s decision should only be reversed in what cases?

Answer 10

(i) Where the appeal court is satisfied that the trial judge has erred in principle; or
(ii) Where, in order to promote consistency in the exercise of their discretion by judges as a whole, where there appears – in closely comparable circumstances – to be two conflicting schools of judicial opinion as to the relative weight to be given to particular consideration

Question 11

What is taken into consideration for an appeal to succeed?

Answer 11

The deciding judge:
(i) Failed to exercise any discretion at all, or exercised it in a way which no reasonable judge would have; or
(ii) Erred in principle or in law; or
(iii) Took irrelevant matters into account; or
(iv) Misinterpreted the facts or evidence

Question 12

How are appeals from the High court filed?

Answer 12

• Appeals from the High Court are filed by lodging a Memorandum of Appeal which is usually set out in the same manner as pleadings – as provided for in Order 42, Rule 1, CPR
• The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasons why you object to the decision of the court
• It is very important to make sure that your grounds are set out comprehensively because you will not be able to make submissions on any grounds not set out in your memorandum of appeal. You would have to seek the leave of the court to submit on a new ground, and the court has discretionary powers and so can deny you that

Question 13

How are appeals from the supreme court filed?

Answer 13

• An application for leave of appeal shall be by Notice of Motion
• The party applying for leave can do so informally at the time of the delivery of judgment or order or they may make a formal application
• The effect of failure to obtain leave of court where it is required will result in striking out of the appeal
• Once leave has been granted the appellant will proceed to file a Memorandum of Appeal
• Where the appeal is from the High Court, or a court with the same status as the High Court, reference shall be made to the Court of Appeal Rules, 2010 → Part 4, Rules 74 – 104 shall be relevant for civil appeals

Question 14

What are 6 important court of appeal rules?

Answer 14

COURT OF APPEAL RULES WHAT IT STATES
Rule 75(1) The notice in writing shall be lodged in duplicate with the Registrar of the Superior Court

Rule 75(2) The notice shall be lodged within 14 days of the date of the decision against which it is desired to
appeal

Rule 75(3) Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision, and where it is intended to appeal against a part only of the decision, shall specify the
part complained of. In addition, the notice shall state the address for service of the appellant and
the names and addresses of all persons intended to be served with copies of the notice

Rule 75(4) When an appeal lies only with leave or on a certificate that a point of law of general public
importance is involved, it is not necessary to obtain such leave or certificate before lodging the Notice of Appeal

Rule 75(5) Where it is intended to appeal against a decree or order, it shall not be necessary that the decree or order be extracted before lodging notice of appeal

Rule 75(6) A notice of appeal shall be substantially in the Form D in the First Schedule and shall be signed by or on behalf of the appellant

Question 15

What are the time deadlines to remember when appealing?

Answer 15

• The time for appeal begins to run when judgment or ruling is delivered
• A notice of appeal must be filed within 14 days after the date of the decision which is desired to appeal
• Except as otherwise specifically provided in any other law, every appeal shall be entered:
  a) Within 30 days of the date of the decree or order of the court; or
  b) Within 7 days of the date of the order of a Registrar
• For appeals requiring leave, the Notice of Appeal must be filed and served within 14 days from the date of granting leave
• An appeal shall be instituted in the court by lodging in the registry, within 60 days after the date when the notice of appeal was lodged, and shall contain:
  (i) A memorandum of appeal, in quadruplicate;
  (ii) A record of appeal, in quadruplicate;
  (iii) The prescribed fee; and
  (iv) Security for the costs of appeal (Rule 82(1), Court of Appeal Rules) * The Registrar may exclude the time required for the preparation and delivery of a copy of the proceedings of the lower court. However, this may only be done if the appellant had applied in writing within 30 days of the delivery of the decision which is to be appealed from and a copy of the request is served upon the respondent

Question 16

How to file an appeal according to the rules?

Answer 16

COURT OF APPEAL RULES WHAT IT STATES
Rule 77(1) An intended appellant shall, before or within 7 days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal
Rule 79(1) Every person on whom a notice of appeal is served shall within—
(a) 14 days after service on him of the notice of appeal lodge in the appropriate registry and serve on the intended appellant notice of a full and sufficient address for service; and
(b) A further 14 days serve a copy of such notice of address for service on every other person
named in the notice of appeal as a person intended to be served
Rule 79(2) A notice of address for service shall be substantially in the Form E in the First Schedule and shall be signed by or on behalf of the person lodging it
Rule 81 A party who has lodged a notice of appeal may withdraw the notice of appeal by notice in writing to all the parties who have been served. The costs of the withdrawal shall be borne by the party
withdrawing the notice of appeal

If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time,
they shall be deemed to have withdrawn their notice of appeal and the court may on its own motion

Question 17

What is an application to strike out an appeal?

Answer 17

• A person affected by an appeal may at any time, either before or after the institution of the appeal, apply to court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time

Rule 84 The application to strike out a notice of appeal or an appeal shall not be brought after the expiry of
30 days from the date of service of the notice of appeal or record of appeal

Rule 85(1) An appeal shall not be instituted in the name of a deceased person, but it may be instituted in the name of the legal representative

Rule 85(2) An appeal shall not be incompetent by reason that the respondent is dead at the time it was
instituted, but shall on an application by an interested party cause the legal representative to be made a party in place of the deceased

Question 19

What is a memorandum of appeal?

Answer 19

COURT OF APPEAL RULES WHAT IT STATES
Rule 86(1) A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are
alleged to have been wrongly decided, and the nature of the order in which it is proposed to ask the court to make
Rule 86(2) The grounds of objection shall be numbered consecutively
Rule 86(3) A memorandum of appeal shall be substantially in the Form F in the First Schedule and shall be signed by or on behalf of the appellant

Question 20

What is an application for an extension of time?

Answer 20

• Where any period is fixed by the court for doing of any act prescribed or allowed, the court may in its discretion from time to time enlarge such period, even though the period originally fixed or granted may have expired (Order 50, Rule 6, CPR)
• An application for an extension of time is usually before a Registrar

Question 21

What are the requirements for a valid appeal?

Answer 21

(i) It must be in the form of a memorandum setting forth the grounds on which one objects to the decree
(ii) It must be in the format and present as a record of appeal
(iii) It must be signed by the appellant or their agent
(iv) It must be presented to the court or to such officer as appointed by the court
(v) The memorandum must be accompanied by a certified copy of the decree unless the court dispenses with it
(vi) Where the appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court

Question 22

How is an application for stay of execution made?

Answer 22

by way of a Notice of Motion under Order 42, Rule 6, CPR and Section 3A, Civil Procedure Act

Question 23

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

Answer 23

• For the purposes of a stay of execution, an appeal is deemed to have been filed as soon as the Memorandum of Appeal or the Notice of Appeal (as the case may be) is filed
• Under Order 42, Rule 13(1), upon notice being delivered to parties within 21 days after service of memorandum of appeal it is now the duty of the appellant to cause the appeal to be listed for direction through a chamber summons application

Question 24

What are the DOCUMENTS REQUIRED IN COURT RECORD during an appeal?

Answer 24

(i) The Memorandum of Appeal;
(ii) The pleadings;
(iii) The notes of the trial magistrate made at the hearing;
(iv) The transcript of any official shorthand, typist notes, electronic records or palantypist notes made at the hearing;
(v) All affidavits, maps and other documents, whatsoever put in evidence before the magistrate;
(vi) The judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal, provided
that:
o A translation into English shall be provided of any document not in that language; and
o The judge may dispense with the production of any document or part of a document which is not relevant

Question 25

How do courts deal with appeals?

Answer 25

• Section 79B, Civil Procedure Act specifies that the court has power to summarily reject an appeal – i.e. the court has the opportunity in the first instance to peruse the record of appeal, and if they find there are no sufficient grounds for interfering with the decree, the court may reject the appeal
• If the court does not reject the appeal, then it proceeds with the hearing
• The fact that the court has admitted your appeal does not mean you cannot get a default judgment, so if you do not appear, the court can dismiss the appeal for default, and it can also allow the appeal for default
• The court is limited to inquiring whether there has been an error in the court below and if so, ordering a new trial
• The court may also review the case on the basis of the evidence contained in the record and may make such order as the
  case may require
• It is the duty of the first appellate court to consider and evaluate the evidence and come to its own conclusion
• The appellant court has power to admit fresh evidence not adduced in court below, either by affidavit, deposition, or oral
  examination, but will do so after proving

Question 26

What are the powers of the appellant court?

Answer 26

POWER TO DETERMINE THE CASE FINALLY
* This power is exercised by the court where the evidence on the record is sufficient to enable the
appellate court to pronounce Judgment and to finally determine the case

POWER TO REMAND THE CASE
* In certain cases, the record of appeal may not be sufficient to enable the appellate court to
pronounce judgment or to enable it finally determine the appeal, in which case they will opt to
remand the case.
* To remand the case means to send back the case (to the court appealed from)
* A court can remind the case when:
(i) Where the trial court disposed of the case on preliminary point without hearing and
recording evidence on other issues
(ii) Where the appellate court disagrees with the trial court. In such a case the appellate
court will set aside the judgment and decree of the trial court and remand the case to
the trial court for re-hearing and determination
(iii) The appellate court may also direct what issues shall be tried in the case so remanded
(iv) By passing an order of remand the appellate court directs the lower court to reopen
and retry the case.
(v) On remand the trial court will readmit the suit under its original number in the register
of civil suits and they will proceed to determine to hear it as per the directions of the
appellate court
FRAME ISSUES AND REFER THEM TO TRIAL
* The appellate court may order that certain issues be framed and that they be referred with
certain directions to the lower court to be tried
* The appellate court will exercise this power where the trial court did not frame issues properly
or omitted to try a certain issue or omitted to determine a certain question of fact which is
essential to the right decision of the suit upon the merits
* The appellate court frames the issues sends them back to lower court and after they are dealt
with, they are sent back to the appellate court
TAKE ADDITIONAL EVIDENCE OR REQUIRE
SUCH EVIDENCE TO BE TAKEN
* No additional evidence is taken at the appellate court unless:
(i) The lower court refused evidence which ought to have been admitted;
(ii) Where the appellate court needs certain documents or certain evidence to enable it to
pronounce judgment; or
(iii) For any other substantial cause
* The appellate court takes fresh evidence in the following ways:
(i) The appellate court may take the additional evidence itself;
(ii) It may direct the original court to take the evidence;
(iii) It may direct a lower court to take the evidence for it;
(iv) Once the evidence is obtained, it is sent to the appellate court and is used by the
appellate court to make its decision
ORDER A NEW TRIAL * The power to order a new trial is intertwined with the power of review
* Usually this power arises where the entire trial was considered on misconceived facts or upon
the wrong law and therefore it would not be possible for the appellant court to justifiably
reverse, vary or set aside that decision i.e., it is the means by which the appellate court looks at
the way the case was conducted