This presentation is on appeals. It discusses the recourse an aggrieved party has, to an adverse Court decision. It discusses the procedure for appealing, and the jurisdiction of the different courts, with regards to hearing of appeals. It also discusses the documents to be filed in an appeal.

1. WHAT RECOURSE FOR THE
AGGRIEVED PARTY
LECTURE 21: APPEALS

2. APPEALS
 Every decree may be appealed from unless barred by
some law.
 There is no right of appeal against a judgment or
order of court of a competent jurisdiction unless a
statute expressly so provides
 However an appeal does not automatically lie
against every order. Order 42 Rule 1 gives a list of
orders from which an appeal lies from as of right.
 If you want to appeal on an order that is not on the
list, you have to seek leave of court.
 Especially from interlocutory matters, appeals lie
usually only by leave of the court

3.  A court can only exercise appellate jurisdiction
where that jurisdiction is given by statute
 There is no such thing as inherent appellate
jurisdiction
 Any party who seeks to avail themselves of the
right of appeal must strictly comply with the
conditions prescribed by the statute
 No appeal shall lie from a decree passed by court
with the consent of the parties

4. Appellate courts
(a) Supreme Court
 The Supreme Court shall be the highest
appellate court and final court of appeal in civil
matters (Art 163(3) & (4))
 An appeal shall lie as of right to the SC where
the Court of Appeal confirms, varies or reverses
a judgment or order, including an interlocutory
order, given by the HC in exercise of its original
jurisdiction

5.  Where an appeal emanates from a judgment or
order of a chief magistrate in exercise of their
original jurisdiction, but not including an
interlocutory matter, a party aggrieved may
lodge a third appeal to the SC on the certificate
of the CoA that the appeal concerns a matter of
law of great public or general importance, or if
the SC considers, in its overall duty to see that
justice is done, that the appeal should be heard
(S.16(2) Supreme Court Act)

6. (b) Court of Appeal
 An appeal shall lie to the CoA from such decisions
of the HC, courts having the status of the HC, or
other tribunal as may be prescribed by law
 The appeal shall be from judgments or decrees
from the HC or the other courts and tribunals
mentioned above

7. (c) High Court
 The HC 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 HC 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 HC who on such appeal may make
any order that the taxing officer might have
made

8.  An appeal shall lie from decrees and orders made
on appeal by a chief magistrate, with the leave of
the CM or of the High Court to High Court

9. Leave to appeal
 An appeal is a creature of statute and where there is
no such right, then an appeal shall be by leave of the
court
 An appeal under the Civil Procedure Rules, 2010 shall
not lie from any other order save with leave of the
court making the order or of the court to which the
appeal would lie, if leave were given
 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.

10. Appealing against a refusal of
leave
 The circumstance in which leave should be granted
are left to the discretion of the courts
 Generally, leave is considered where the case
involves ...”a question of importance upon which
further argument and a decision of the court would
be to the public advantage”
 If a CoA refuses leave there can be no appeal against
this decision unless it was denied on a 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

11. Justification for leave
requirement
 The main aim of the leave requirement is to
prevent frivolous and needless appeals
 It also helps uphold the principle that there
should be an end to litigation
 It also does the potential litigant service by
refusing them leave to appeal where their appeal
is clearly doomed to fail

12. Appeals on matters of judicial
discretion
 Where a decision is based on the exercise of
discretion of a judge, such a decision will not be
reversed merely because the appeal judges
would have exercised the discretion differently if
they had been presiding in the court below
 When a decision against the exercise of
discretion on an interlocutory matter is appealed
against, the appellate court must not substitute
its own ‘discretion’ for that of the judge

13.  The function of the court in interlocutory appeals
is ‘primarily a reviewing function’ and the judge’s
decision should be reversed only in cases:
(1) where the appeal court is satisfied that the trial
judge has erred in principle;
(2) in order to promote consistency in the exercise
of their discretion by judges as a whole where
there appear, in closely comparable
circumstances to be two conflicting schools of
judicial opinion as to the relative weight to be
given to particular consideration

14. Discretion in interlocutory
matters
 As most interlocutory matters are decided in the
exercise of judges’ discretion it is a basic principle
that the appellate court will not interfere by
substituting its own exercise of discretion unless it is
shown that the judge below:
(a) failed to exercise any discretion at all, or exercised
it in a way which no reasonable judge would have
exercised it; or
(b) erred in principle or in law; or
(c) took irrelevant matters into account; or
(d) misinterpreted the facts or evidence

15. Procedure
 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 Notice of Appeal

16. Notice of appeal
 The first document that must be filed in an
appeal
 The notice in writing shall be lodged in duplicate
with the Registrar of the superior court (R75(1))
 It shall be lodged with 14 days of the date of the
decision against which it is desired to appeal
(R75(2))

17.  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, shall state the address
for service of the appellant and shall state the
names and addresses of all persons intended to
be served with copies of the notice (R75(3))

18.  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 (R75(4))
 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(R75(5))
 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 (R75(6))

19. Time for appealing
 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
(b) Within 7 days of the date of the order of a
registrar

20.  For appeals requiring leave – 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:
(a) a memorandum of appeal, in quadruplicate;
(b) a record of appeal , in quadruplicate;
(c) The prescribed fee; and
(d) security for the costs of appeal (R81(1))

21.  The Registrar may exclude the time required for
the preparation and delivery of a copy of the
proceedings of the lower court
 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 served upon the
respondent (R81(2))

22.  An intended appellant shall, before or within
seven days after lodging notice of appeal, serve
copies thereof on all persons directly affected by
the appeal (R77(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. (R79(1))

23.  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 (R79(2))
 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. (R81)

24.  If a party who has lodged a notice of appeal fails
to institute an appeal within the appointed time
he shall be deemed to have withdrawn his notice
of appeal and the court may on its own motion or
on application by any party make such order.
 The party in default shall be liable to pay the
costs arising there from of any persons on whom
the notice of appeal was served (R83)

25. Application to strike out
notice of appeal or appeal
 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.
 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 (r84)

26.  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
 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. (r85)

27. Memorandum of appeal
 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 which it is
proposed to ask the court to make. (r86(1))
 The grounds of objection shall be numbered
consecutively. (r86(2))
 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.(r86(3))

28. Record of appeal
 The record of appeal shall contain copies of the
following documents –
(a) an index of all the documents in the record with
the numbers of the pages at which they appear;
(b) a statement showing the address for service of
the appellant and the address for service
furnished by the respondent and as regards any
respondent who has not furnished an address or
service, his last known address and proof of
service on him of the notice of appeal;
(c) the pleadings;
(d) the trial judge's notes of the hearing;

29. (e) the transcript of any shorthand notes taken at
the trial;
(f) the affidavits read and all documents put in
evidence at the hearing, or, if such documents are
not in the English language, certified translations
thereof;
(g) the judgment or order;
(h) the certified decree or order;
(i) the order, if any, giving leave to appeal;
(j) the notice of appeal; and
(k) such other documents, if any, as may be
necessary for the proper determination of the
appeal, including any interlocutory proceedings

30. Application for extension of
time
 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 period originally fixed or
granted may have expired (O50 r6)
 An application for extension of time is usually
before a Registrar
 It is wrong to make an application for extension
of time orally and before a full bench after the
application to strike out notice of appeal has
been filed

31.  Courts have often ruled that the discretion to
extend time for filing a complete record of
appeal will not be exercised where good and
sufficient reasons for delay have not been shown
to persuade the court to extend the time to give
cogent reasons for delay
 The principle is compatible with the idea of fair
play of justice that a judgment creditor should
not be prevented from enforcing its judgment by
an appellant who fails to prosecute its appeal for
no good reason

32. Requirements for a valid appeal
 It must be in the form of a memorandum setting
forth the grounds on which one objects to the
decree.
 It must be in the format and present as a record
of appeal.
 It must be signed by the appellant or their agent.
 It must be presented to the court or to such
officer as appointed by the court.

33.  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. The court has
discretionary powers and can reject the
appeal

34.  The memorandum must be accompanied by a
certified copy of the decree.
 It must be accompanied by a certified copy of the
judgment unless the court dispenses with it.
 Where the appeal is against a money decree the
Appellant must deposit the decretal amount or
furnish the security if required by the court.

35. How to prepare a memorandum of
appeal
 The Pleadings;
 The Issues – issues substantially in issue
 The Findings thereon;
 The Judgment and the decree and also the
record of proceeding in court.

36. ...the judge erred and
misdirected himself in issues
raised before him
 For e.g., Suppose the court finds you negligent
and thus liable. You can appeal on the ground of
damages and say for instance that the judge
erred in assigning the quantum of damages.

37. Presentation of the appeal
 The appeal must be presented within a
prescribed time.
 If the limitation period for filing an appeal has
expired, you can apply for an extension of time to
file the appeal.

38. Stay of execution
 The appeal does not automatically operate as a
stay of execution.
 Even if an appeal has been lodged, and all parties
served, the decree holder can proceed and apply
for execution.
 The court appealed from may for sufficient cause
order stay of execution of such decree or order

39.  If a stay of execution is granted an application
may be made to the appellate court to set aside
order of stay from the court appealed from if it
seems just to the appellate court and person
upon whom such order is made stands
aggrieved. (Order 42 Rule 6(1))

40. Requirements for order of stay
 the court is satisfied that substantial loss may
result to the applicant unless the order is made
and that the application has been made without
unreasonable delay; and
 such security as the court orders for the due
performance of such decree or order as may
ultimately be binding on him has been given by
the applicant.

41. Powers of Appellate Court on
order of stay
 However, the appellate court shall have power to
stay executions upon such terms as it deems fit
even without a formal application having been
made pending hearing of a formal application.
 An application for stay of execution may be
made informally immediately following the
delivery of judgment or ruling.

42. How is application for stay
made?
 It is made by way of Notice of Motion under
Order 42 Rule 6 and Section 3A of the Civil
Procedure Act.

43. When is appeal deemed to have
been filed?
 For the purposes of a stay of execution an
appeal is deemed to have been filed as soon as
the notice of appeal 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

44. Documents required to be in the
court record - Order 42 Rule 13(4)
 (a) the memorandum of appeal;
 (b) the pleadings;
 (c) the notes of the trial magistrate made at the
hearing;
 (d) the transcript of any official shorthand, typist notes
electronic recording or palantypist notes made at the
hearing;
 (e) all affidavits, maps and other documents
whatsoever put in evidence before the magistrate;
 (f) the judgment, order or decree appealed from, and,
where appropriate, the order (if any) giving leave to
appeal:

45.  Provided that—
 a translation into English shall be provided of any
document not in that language;
 the judge may dispense with the production of
any document or part of a document which is not
relevant, other than those specified in
paragraphs (a), (b) and (f).

46. Appearance
 Rule 13 thereof now provides for the filing of
written submissions where a party does not
intend to appear at the hearing.

47. How courts deal with appeals
 Section 79B of the Civil ProcedureAct –
 The court has power to summarily reject an
Appeal.
 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.

48. The hearing
 If the court does not reject the appeal, then it
proceeds to 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;
 Instead the court may 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

49.  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:
(a) that the evidence could not have been obtained
with reasonable diligence for use at trial
(b) the evidence must be such that, if given, it
would probably have an important influence on
the result of the case, though it need not be
decisive
(c) the evidence must be such as is presumably to
be believed, or in other words, it must be
apparently credible, though it need not be
incontrovertible

50. Findings of fact
 The appellate court is not bound to follow the
trial judge’s findings of fact if it appears either
that he failed to take account of particular
circumstances or probabilities or if the
impression of the demeanor of the witness is
inconsistent with the evidence generally
 The court is under a duty to subject the entire
evidence on the record to an exhaustive scrutiny
and to re-evaluate and make its own conclusion,
while bearing in mind the fact that the court
never observed the witness under cross-
examination so as to test their veracity

51.  The procedure is that the appellant has the right
to begin.
 After hearing the appellant in support of the
appeal, if the court finds that the Appeal has no
substance it can dismiss the appeal without
calling the respondent.
 Addition of parties or amendments can be done
in the CoA as well.

52. Powers of appellate court
 Upon hearing the appeal the Appellate Court
may exercise the following powers:
 It can opt to determine the case finally;
 Remand the case;
 Frame issues and refer them for retrial;
 Take additional evidence or require such
evidence to be taken;
 Order a new trial;

53. 1. 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.

54. 2. 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.
 This means to send back (to the court appealed
from).

55. When can a court remand the case
1. Where the trial court disposed off the case on
preliminary point without hearing and
recording evidence on other issues.
2. 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.

56.  The appellate court may also direct what issues
shall be tried in the case so remanded.
 By passing an order of remand the Appellate
Court directs the lower court to reopen and retry
the case.
 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 court of appeal.

57. 3. 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 .

58. 4. Take additional evidence or
require such evidence 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;
(iii) for any other substantial cause.

59. How does the appellate court take
fresh evidence
(a) The appellate court may take the additional
evidence itself;
(b) It may direct the original court to take the
evidence;
(c) It may direct a lower court to take the evidence
for it;
(d) Once the evidence is obtained, it is sent to the
appellate court and is used by the appellate
court to make its decision

60. 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 fact 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
way the appellate court looks at the way the case
was conducted.