ORDER
55D
APPEALS FROM SUBORDINATE COURTS
Application of Order to appeals (O. 55D, r. 1)
1.
This
Order applies to every appeal to the High Court from the Subordinate Courts
except for appeals to which Order 55C is applicable.
Application of Order to applications for new trial
(O. 55D, r. 2)
2.
This
Order (except so much of Rule 3 (1) as provides that an appeal shall
be by way of rehearing) applies to an application to the High Court
for a new trial or to set aside a finding or judgment after trial,
as it applies to an appeal to that Court, and references in this
Order to an appeal and to an appellant shall be construed accordingly.
Notice of appeal (O. 55D, r. 3)
3.
—(1)
An
appeal to the High Court from the Subordinate Courts shall be by
way of rehearing and must be brought by notice of appeal in Form
114.
(2)
Notice of appeal may be given either
in respect of the whole or in respect of any specified part of the
judgment or order of the Court below; and every such notice must
state whether the whole or part only, and what part, of the judgment
or order is complained of, contain an address for service, and be
signed by the appellant or his solicitor.
(3)
For the avoidance of doubt, any party
who desires to contend that the decision of the Court below should
be varied in any event must file and serve a notice of appeal.
(4)
The appellant must at the time of
filing the notice of appeal deposit in the Registry such sum as
the Registrar may require towards the fee for making copies of the record
of proceedings.
(5)
The appellant must at the time of
filing the notice of appeal provide security for the respondent’s
costs of the appeal in the sum of $2,000 for Magistrate’s
Court actions and $3,000 for District Court actions or
such other sum as may be fixed from time to time by the Chief Justice
by —(a)
depositing the sum in the Registry
or with the Accountant-General and obtaining a certificate in Form
115; or
(b)
procuring an undertaking in Form 116
from his solicitor and filing a certificate in Form 117.
(6)
The High Court may at any time, in
any case where it thinks fit, order further security for costs to
be given.
(7)
The Registrar must assign a number
to the notice of appeal and enter the appeal on the list of appeals,
stating therein the title of the cause or matter, the name of the appellant
and his solicitor, if any, and the date of such entry.
(8)
The notice of appeal must be served
on all parties to the proceedings in the Court below who are directly
affected by the appeal or their solicitors respectively at the time
of filing the notice of appeal.
(9)
Subject to Rule 9, it shall not be
necessary to serve the notice on parties not so affected.
Time for appealing (O. 55D, r. 4)
4.
—(1)
Subject
to this Rule, every notice of appeal must be filed and served under Rule
3 (8) within 14 days —(a)
in the case of an appeal against the
refusal of an application, from the date of the refusal; and
(b)
in all other cases, from the date
on which the judgment or order appealed against was pronounced.
(2)
A party applying for leave under section
21 (1) of the Supreme Court of Judicature Act (Chapter 322) to appeal
against an order made, or a judgment given, by a District Court
must file his application —(a)
to a District Court within 7 days
of the judgment or order; and
(b)
in the event leave is refused by the
District Court, to the High Court within 7 days of the refusal.
(3)
A party applying for leave under section
21 (1) of the Supreme Court of Judicature Act to appeal against
an order made, or a judgment given, by a Magistrate’s Court
must file his application —(a)
to a Magistrate’s Court within
7 days of the judgment or order; and
(b)
in the event leave is refused by the
Magistrate’s Court, to the High Court within 7 days of
the refusal.
(4)
A party who has obtained leave to
appeal under paragraph (2) or (3) shall file and serve the notice
of appeal within 14 days from the date on which such leave was given.
Record of proceedings (O. 55D, r. 5)
5.
—(1)
When
a notice of appeal has been filed, the Judge who gave the judgment or
made the order must, unless the judgment was written, certify in
writing the grounds of the judgment or order.
(2)
If no certified ground of the judgment
or order has been given by the Judge within a period of 3 months
from the date of the notice of appeal, the appellant shall nonetheless
proceed with the appeal and apply in writing to the Registrar for
a copy of the record of proceedings as hereafter provided.
(3)
As soon as possible after notice of
appeal has been filed, the Registrar shall cause to be served on
the appellant or his solicitor at his address for service specified in
the notice of appeal a notice that a copy of the record of proceedings
is available and thereupon the appellant or his solicitor shall
pay the prescribed fee.
(4)
The record of proceedings shall consist
of a certified copy of the judgment or grounds of judgment or order
(if any), and a copy of the certified transcript of the official
record of hearing taken at the hearing of the cause or matter.
Record of Appeal and Appellant’s Case (O.
55D, r. 6)
6.
—(1)
Within
one month after service of the notice referred to in Rule 5 (3),
the appellant must file —(a)
the record of appeal; and
(b)
subject to Rule 7, the Appellant’s
Case referred to in that Rule,
and serve a copy each thereof on every
respondent to the appeal or his solicitor.
(2)
The record of appeal shall consist
of a copy each of —(a)
the notice of appeal;
(b)
the certificate of payment of security
for costs;
(c)
the record of proceedings referred
to in Rule 5 (4);
(ca)
the affidavits of evidence in chief;
(d)
the documents in the nature of pleadings;
(e)
other documents, so far as are relevant
to the matter decided and the nature of the appeal; and
(f)
the judgment or order appealed from.
(3)
A draft index of the documents to
be included in the record of appeal shall be sent by the appellant’s
solicitor to the solicitors for the respondents who or (if more than
one) any of whom may within 3 days object to the inclusion or exclusion
of any document.
(4)
Where in the course of preparation
of the record of appeal one party objects to the inclusion of a
document on the ground that it is unnecessary or irrelevant and
the other party nevertheless insists on its being included, the
record of appeal, as finally printed or typed shall, with a view
to the subsequent adjustment of the costs of and incidental to such
document, indicate, in the index of papers, or otherwise, the fact that,
and the party by whom, the inclusion of the document was objected
to.
(5)
Where an appellant omits to comply
with paragraph (1), the appeal shall be deemed to have been withdrawn,
but nothing in this Rule shall be deemed to limit or restrict the
powers of extending time conferred upon the High Court.
(5A)
Where an appeal is deemed to have
been withdrawn pursuant to paragraph (5) and all the parties to
the appeal consent to the payment of any sum lodged in Court as
security for the costs of the appeal to the appellant, the appellant
shall file the document signifying such consent signed by the parties
or by their solicitor, and in such event any sum lodged in Court
as security for the costs of the appeal shall be paid out to the
appellant.
(6)
In the event of a cross-appeal, a
joint record of appeal may be filed if all the parties to the appeal
and the cross-appeal consent.
(7)
Written notice of intention to file
such a joint record must be given to the Registrar within the time
specified in paragraph (1).
(8)
Subject to paragraph (6), any party
to the appeal or the cross-appeal may apply to the Registrar for
directions as to the filing of the record of appeal.
Preparation of Cases (O. 55D, r. 7)
7.
—(1)
The
appellant must file his Case (referred to in this Order as the Appellant's
Case) within the time specified in Rule 6.
(2)
The respondent must file his Case
(referred to in this Order as the Respondent’s Case) —(a)
within one month after service on
him of the record of appeal and the Appellant’s Case; or
(b)
in the event a joint record of appeal
is filed, within one month after service on him of the Appellant’s
Case.
(3)
The form of the Case shall comply
with the following requirements:(a)
it shall consist of paragraphs numbered
consecutively;
(b)
it shall state, as concisely as possible —(i)
the circumstances out of which the
appeal arises;
(ii)
the issues arising in the appeal;
(iii)
the contentions to be urged by the
party filing it and the authorities in support thereof; and
(iv)
the reasons for or against the appeal,
as the case may be;
(c)
it shall be in the same size and style
as the record of appeal with alphabetical lettering in the left
hand margin at every fifth line, the first letter “A” being placed
against the first line in each page, and with references in the
right hand margin to the relevant pages of the record of appeal;
and
(d)
care shall be taken to avoid, as far
as possible, the recital of long extracts from the record of appeal.
(4)
If a party —(a)
is abandoning any point taken in the
Court below; or
(b)
intends to apply in the course of
the hearing for leave to introduce a new point not taken in the
Court below,
this should be stated clearly in the
Case, and if the new point referred to in sub-paragraph (b)
involves the introduction of fresh evidence, this should also be
stated clearly in the Case and an application for leave must be
made under Rule 11 to adduce the fresh evidence.
(5)
A respondent who, not having appealed
from the decision of the Court below, desires to contend on the
appeal that the decision of that Court should be varied in the event
of an appeal being allowed in whole or in part, or that the decision
of that Court should be affirmed on grounds other than those relied
upon by that Court, must state so in his Case, specifying the grounds
of that contention.
(6)
Except with the leave of the High
Court, a respondent shall not be entitled on the hearing of the
appeal —(a)
to contend that the decision of the
Court below should be varied upon grounds not specified in his Case;
(b)
to apply for any relief not so specified;
or
(c)
to support the decision of the Court
below upon any grounds not relied upon by that Court or specified
in his Case.
(7)
A Case may be amended at any time
with the leave of the High Court.
(8)
Except to such extent as may be necessary
to the development of the argument, a Case need not set out or summarise
the judgment of the Court below, nor set out statutory provisions,
nor contain an account of the proceedings below or of the facts of
the case.
(9)
Every Case must conclude with a numbered
summary of the reasons upon which the argument is founded, and must
bear the name and signature of the solicitor who has prepared the
Case or who will appear before the High Court.
(10)
The solicitor of any party, in drafting
a Case, should assume that it will be read in conjunction with the
documents included in the record of appeal.
(11)
All the appellants may join in one
Appellants’ Case, and all the respondents may similarly
join in one Respondents’ Case.
(12)
A party whose interest in the appeal
is passive (such as a stake-holder, a trustee or an executor) is
not required to file a separate Case but should ensure that his position
is explained in one of the Cases filed.
(13)
The filing of a joint Case on behalf
of both appellant and respondent may be permitted in special circumstances.
(14)
A party to an appeal shall file together
with his Case a bundle of authorities relied on by the Court below
as well as other authorities to be relied on at the hearing of the
appeal and serve such bundle of authorities on the other party.
(15)
A respondent who fails to file his
Case within the time specified in paragraph (2) may be heard only
with the leave of the High Court and on such terms and conditions
as the High Court may impose.
(16)
Where 2 or more appeals arise from
the same judgment or order below, an appellant or respondent to
one or more of the appeals may apply to the High Court for leave
to file a single Case or record of appeal covering all such appeals.
Transmission of record of appeal, etc. (O. 55D, r.
8)
8.
The
Registrar must, on receiving copies of the record of appeal and
the Appellant’s and Respondent’s Cases and bundles
of authorities, transmit these documents, together with the exhibits
put in evidence at the hearing, to the Registrar of the Supreme
Court and give notice to the parties to the appeal in Form 118.
Directions of Court as to service (O. 55D, r. 9)
9.
—(1)
The
High Court may, in any case, direct that the record of appeal and
the Cases be served on any party to the proceedings in the Court
below on whom it has not been served, or on any person not party
to those proceedings.
(2)
In any case in which the High Court
directs the record of appeal and the Cases to be served on any party
or person, the High Court may also direct that a Case be filed by
such party or person.
(3)
The High Court may in any case where
it gives a direction under this Rule —(a)
postpone or adjourn the hearing of
the appeal for such period and on such terms as may be just; and
(b)
give such judgment and make such order
on the appeal as might have been given or made if the persons served
in pursuance of the direction had originally been parties.
Withdrawal of appeal (O. 55D, r. 10)
10.
—(1)
An
appellant may, at any time before his appeal is called on for hearing, file
and serve on the parties to the appeal a notice to the effect that
he does not intend further to prosecute the appeal.
(2)
If all parties to the appeal consent
to the intended withdrawal of the appeal, the appellant must file
the document signifying such consent signed by the parties or by their
solicitor, and the appeal shall thereupon be deemed to have been
withdrawn and shall be struck out of the list of appeals by the
Registrar.
(3)
In such event, any sum lodged in Court
as security for the costs of the appeal shall be paid out to the
appellant.
(4)
If all the parties do not consent
to the intended withdrawal of the appeal, the appeal shall remain
on the list, and shall come on for the hearing of any issue as to costs
or otherwise remaining outstanding between the parties, and for
the making of an order as to the disposal of any sum lodged in Court
as security for the costs of the appeal.
General powers of Court (O. 55D, r. 11)
11.
—(1)
The
High Court shall have power to receive further evidence on questions of
fact, either by oral examination in the High Court, by affidavit,
or by deposition taken before an examiner, but, in the case of an
appeal from a judgment after trial or hearing of any cause or matter
on the merits, no such further evidence (other than evidence as
to matters which have occurred after the date of trial or hearing)
shall be admitted except on special grounds.
(2)
The High Court shall have power to
draw inferences of fact and to give any judgment and make any order
which ought to have been given or made, and to make such further
or other order as the case may require.
(3)
The powers of the High Court under
paragraphs (1) and (2) may be exercised notwithstanding that —(a)
no notice of appeal has been given
in respect of any particular part of the decision of the Court below
or by any particular party to the proceedings in that Court; or
(b)
any ground for allowing the appeal
or for affirming or varying the decision of that Court is not specified
in any of the Cases filed pursuant to Rule 7 or 9,
and the High Court may make any order,
on such terms as the High Court thinks just, to ensure the determination
on the merits of the real question in controversy between the parties.
(4)
The powers of the High Court in respect
of an appeal shall not be restricted by reason of any interlocutory
order from which there has been no appeal.
Powers of Court as to new trial (O. 55D, r. 12)
12.
—(1)
On
the hearing of any appeal, the High Court may, if it thinks fit,
make any such order as could be made in pursuance of an application
for a new trial or to set aside any finding or judgment of the Court
below.
(2)
The High Court shall not be bound
to order a new trial on the ground of misdirection, or of the improper
admission or rejection of evidence, unless in the opinion of the
High Court some substantial wrong has been thereby occasioned.
(3)
A new trial may be ordered on any
question without interfering with the finding or decision on any
other question.
(4)
If it appears to the High Court that
any such wrong as is mentioned in paragraph (2) affects part only
of the matter in controversy, or one or some only of the parties, the
High Court may order a new trial as to that part only, or as to
that party or those parties only, and give final judgment as to
the remainder.
(5)
In any appeal on the ground that damages
awarded are excessive or inadequate, the High Court may, in lieu
of ordering a new trial —(a)
substitute for the sum awarded such
sum as appears to the High Court to be proper; or
(b)
reduce or increase the sum awarded
by such amount as appears to the High Court to be proper in respect
of any distinct head of damages erroneously included in or excluded
from the sum so awarded,
but except as aforesaid the High Court
shall not have power to reduce or increase the damages.
(6)
A new trial shall not be ordered by
reason of the ruling of any Judge that a document is sufficiently
stamped or does not require to be stamped.
Stay of execution, etc. (O. 55D, r. 13)
13.
—(1)
Except
so far as the Court below or the High Court may otherwise direct —(a)
an appeal shall not operate as a stay
of execution or of proceedings under the decision of the Court below;
(b)
no intermediate act or proceeding
shall be invalidated by an appeal.
(2)
On an appeal, interest for such time
as execution has been delayed by the appeal shall be allowed unless
the High Court otherwise orders.
Extension of time (O. 55D, r. 14)
14.
Without
prejudice to the power of the High Court under Order 3, Rule 4,
to extend the time prescribed by any provision of this Order, the
period for filing and serving the notice of appeal under paragraph
(1) of Rule 4 may be extended by the Court below on application
made before the expiration of that period.
Appellant or respondent not appearing (O. 55D, r.
15)
15.
—(1)
If
on any day fixed for the hearing of an appeal, the appellant does
not appear in person or by an advocate, the appeal may be dismissed.
(2)
If the appellant appears, and any
respondent fails to appear, either in person or by an advocate,
the appeal shall proceed in the absence of such respondent, unless the
High Court for any sufficient reason sees fit to adjourn the hearing
thereof.
(3)
Where any appeal is dismissed or allowed
under paragraph (1) or (2), the party who was absent may apply to
the High Court for the rehearing of the appeal and where it is proved
that there was sufficient reason for the absence of such party,
the High Court may order that the appeal be restored for hearing
upon such terms as to costs or otherwise as it thinks fit.
Expedited appeals (O. 55D, r. 16)
16.
—(1)
Where
an appeal is one of urgency, any party may apply to a Judge of the High
Court for such directions as may be appropriate with a view to expediting
the appeal.
(2)
Such an application shall be made
by summons supported by affidavit or may, with the leave of the
Judge of the High Court, be made orally.
(3)
Such an application may be made at
any stage of the proceedings.
(4)
The Judge of the High Court may deal
with such an application in such manner as he considers fit in the
interests of justice, including —(a)
making directions without the need
to inform or to hear any party; and
(b)
dispensing with compliance with any
of these Rules (including this Rule) or any Practice Direction,
or directing that such Rule or Practice Direction be modified in
its application to the proceedings.
(5)
Any party seeking a revocation or
variation of any directions made under this Rule, or seeking further
directions, may apply in the manner hereinbefore provided.
Judgment or order on appeal to be sent to Registrar
(O. 55D, r. 17)
17.
Whenever
an appeal is decided by the High Court, the Registrar of the Supreme Court
must send to the Registrar a certified copy of the judgment or order.
Enforcement of judgments which have been the subject-matter
of an appeal (O. 55D, r. 18)
18.
The
taking of any steps for the execution or enforcement of a judgment
or order which has been the subject-matter of an appeal must be
in the Subordinate Courts.
Interpretation (O. 55D, r. 19)
19.
In
this Order, “Court” means the Subordinate Courts
and “Registrar” means the Registrar of the Subordinate
Courts.