LEGAL PRINCIPLE: APPELLATE PRACTICE – Brief Writing – Consideration of Wrong Brief – Whether Amounts to Denial of Fair Hearing
PRINCIPLE STATEMENT
The test of fairness in appeal proceedings is different from loss of fairness at court of first instance where the true test is impression of reasonable person who was present at trial; in appeal court, test is whether having regard to rules of court and law justice has been done and appears to have been done to parties; justice was not done to party whose case before appellate court was not considered on their brief before decision affecting their right was reached; this is against rule of natural justice as well as violation of constitutional right to fair hearing.
RATIO DECIDENDI (SOURCE)
"The test of fairness in appeal proceedings is different from the loss of fairness at the court of first instance where the true test is the impression of a reasonable person who was present at the trial. In the appeal court, the test is whether having regard to the rules of court and the law justice has been done and appears to have been done to the parties. Justice was not done to a party whose case before the appellate court was not considered on his brief before a decision affecting his right was reached. This is against the rule of natural justice as well as a violation of the respondent's right embodied in section 33 of the 1979 Constitution."
EXPLANATION / SCOPE
Fair hearing standards differ between trial and appeal: Trial court fairness: Assessed from perspective of reasonable person present at trial—did proceedings appear fair? Appellate court fairness: Assessed objectively against rules and law—was justice actually done and seen to be done? Not based on observer impression but legal compliance. Appellate standard: Did court follow proper procedure? Consider parties’ actual cases? Apply law correctly? The difference reflects: trial involves live proceedings with atmosphere and demeanor, appeals are more technical, based on record and briefs. Violation finding: When appellate court doesn’t consider party’s actual brief before deciding: justice wasn’t done (party’s case unconsidered), natural justice violated (right to be heard denied), and constitutional fair hearing right breached (section 33 of 1979 Constitution, now section 36 of 1999 Constitution). This serves: ensuring appellate process integrity, protecting constitutional rights, and requiring courts to consider parties’ actual presented cases. Courts must: consider correct briefs, base decisions on parties’ current arguments, and ensure procedural compliance. Failure constitutes: natural justice breach, constitutional violation, and grounds for setting aside decision. This principle establishes that considering wrong brief is fundamental procedural error vitiating appellate judgment.