WHAT RECOURSE

FOR THE AGGRIEVED

PARTY
LECTURE 21: APPEALS
APPEALS

 There is no right of appeal against a judgment or order of

court of a competent jurisdiction unless a statute expressly
so provides
 Therefore, an appeal does not automatically lie against every
order. Order 43 Rule 1 gives a list of orders from which an
appeal lies from as of right.
 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. (O43 r 1(3))
 Especially from interlocutory matters, appeals lie usually
only by leave of the court
 No appeal shall lie from a decree passed by court
with the consent of the parties
 The detailed format of how to prepare a
memorandum of appeal is set out in Sections 65-69
CPA and in Order 42.
 Sections 65-69 of the Civil Procedure Act enact the
substantive law as regards first appeals, while Order
42 lays down the procedure relating to it.
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.
 However there is a threshold that should be met.
 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)
(b) Court of Appeal
 An appeal shall lie to the CoA from such decisions of
the HC, courts having the same status as the HC, or
other tribunals 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
(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 could have made
 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
 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.
 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
 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
 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
 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 appears, in
closely comparable circumstances, to be two conflicting
schools of judicial opinion as to the relative weight to be
given to particular consideration
 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
 Time limits and triggering effects
 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.
 As per the Civil Procedure Rules, a party has 14 days
with in which to file an appeal to the higher court for
determination.
 Appeal to the HC
 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.
 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.
 The court has discretionary powers and can deny you
that.
 Appeal from a superior court
 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
 Appeal from a superior court
 Where the appeal is from the HC or a court with the
same status as the HC, reference shall be made to
the Court of Appeal Rules, 2010.
 Part 4, rules 74-104 shall be relevant for civil
appeals
 Notice of appeal
 The first document that must be filed is a notice of
appeal
 The notice in writing shall be lodged in duplicate
with the Registrar of the superior court (r 75(1))
 It shall be lodged within 14 days of the date of the
decision against which it is desired to appeal (r 75(2))
 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 (r 75(3))
 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 (r 75(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(r 75(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 (r 75(6))
 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
 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 (r 82(1))
 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 (r 82(1) proviso
and (2))
 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 (r 77(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. (r 79(1))
 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 (r 79(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. (r 81)
 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 (r 83)
 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 (r 84)
 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. (r 85(1))
 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. (r 85(2))
 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. (r 86(1))
 The grounds of objection shall be numbered consecutively.
(r 86(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.(r 86(3))
 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;
(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 which may be directly
relevant
 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
 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 decree holder should not be prevented
from enforcing its judgment by an appellant who fails
to prosecute its appeal for no good reason
 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.
 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
 The memorandum must be accompanied by a
certified copy of the decree 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.
 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.
...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.
 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.
 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
 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))
 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.
 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.
 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.
 Appeal to the High Court
 The first appeal is an appeal from the subordinate
courts to a superior court that has inherent
jurisdiction.
 This will be the High Court which also has an
appellate jurisdiction
 The first appeal will be an appeal on both facts and
the law
 The relevant provisions for procedure are Orders 42
& 43 of the Civil Procedure Rules, 2010
 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
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
 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:
 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).
 Appearance
 Order 42 rule13 thereof now provides for the filing
of written submissions where a party does not intend
to appear at the hearing.
 How courts deal with appeals
 Section 79B of the Civil Procedure Act –
 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.
 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
 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
 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
 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
appellate court as well.
 Powers of appellate court
 Upon hearing the appeal the appellate court may
exercise the following powers:
1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to
be taken;
5. Order a new trial;
 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.
 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).
 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.
 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 appellate court.
 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 .
 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.
 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
 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.