Order 38 — Appeals From Customary Court, Magistrates Court, Etc.

Every appeal shall be brought by Notice of Appeal which shall be lodged in the lower Court within thirty days of the decision appealed from and served on all other parties affected by the appeal within that period.

(1) The Notice of Appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of the decision and the grounds for appeal in full.

(2) Where the Appellant complains only of a part of the decision, the Notice of Appeal shall specify the part complained of; otherwise the appeal shall be taken to be against the decision as a whole.

(3) The Notice of Appeal shall give addresses to which notices may be served on the parties.

(4) The Notice of Appeal shall be as in Form 35 and may be varied to suit the circumstances of the case but so that no variation of substance shall be made.

(1) The Registrar of the lower Court shall within sixty days of the decision appealed from, prepare as many certified true copies of the record of proceedings, including the Notice of Appeal required for the consideration of the appeal as there are parties on record upon the payment of fees for the preparation of the record of proceedings or such deposit thereof as may be determined by the Registrar: Provided that where the Registrar of the lower court fails, neglects or refuses to do so, the Appellant or his Legal Practitioner may prepare the Record of Appeal and serve same on all parties within fifteen days of the expiration of the time for the Registrar to have done so.

(2) The Registrar shall within seven days of preparing the certified true copies of the record of proceedings and Notice of Appeal referred to in sub-rule (1) of this Rule, serve the parties their own copies and shall transmit copies thereof to the Registrar of the Court in the Judicial Division in which the appeal lies and the appeal shall thereby be entered.

(1) The Appellant shall within thirty days of the receipt of the Record of Proceedings from the lower Court file in the Court the Appellant’s Brief of Argument which shall contain a succinct statement of his argument in the appeal.

(2) The Respondent shall within thirty days of the service of the Appellant’s Brief of Argument on him, file the Respondent’s Brief of Argument which shall answer all material points of substance contained in the Appellant’s Brief of Argument and contain all the points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed.

(3) The Appellant may, if necessary, within fourteen days of the service on him of the Respondent’s Brief of Argument file and serve the Appellant’s Reply Brief of Argument which shall deal with all new points arising from the Respondent’s Brief of Argument.

(4) All parties whose interests are identical or joint shall file joint Brief of Argument and separate Briefs of Argument may be filed only by those parties whose interests are separate or in conflict.

(5) Every Brief of Argument shall clearly identify the issues distilled from the Grounds of Appeal on the basis of which parties desire the Court to determine the appeal.

(6) Any issue which is not covered by any Ground of Appeal shall not be considered by the Court in its Judgment.

(1) At the hearing of the appeal, both parties shall adopt their Briefs of Argument and may be allowed a maximum period of fifteen minutes for oral argument in amplification of their Briefs.

(2) Where any party shall fail to appear to adopt his Brief on the day fixed for hearing, such Brief shall be deemed to have been adopted by him and the Court may proceed to Ruling or Judgement.

(1) The times prescribed in this Order may be enlarged or abridged at any time by the Court upon application by any party and on such terms, if any, as may seem fit.

(2) Where the time available to the Appellant for the taking of any step has expired before such step has been taken or completed, the Respondent may on notice to the Appellant, apply to strike out the appeal and the Court may strike out or enlarge the time for sufficient reason shown.

The appeal shall come on for hearing at such time and at such places as the Registrar of the Court shall notify to the parties.

At the hearing, it shall not be competent for the Appellant to go into any other reasons for appeal than those set forth in his Notice and Grounds of Appeal: Provided that the Grounds of Appeal may, on the application of the Appellant, be amended upon such terms and conditions as to service upon the Respondent and as the Court may think fit.

(1) A Respondent may give notice that he intends at the hearing to ask the Court to affirm the Judgement of the lower Court on grounds other than those stated by that Court.

(2) The notice shall be accompanied by a clear statement of the grounds on which the Respondent intends to ask the Court to affirm the Judgement of the lower Court.

(3) Such notice and grounds shall be filed in the Court within fourteen days of service on the Respondent of the Notice and Grounds of Appeal and shall be served on the Appellant or his Legal Practitioner.

(4) The provisions for the filing of Briefs of Argument in this Order shall apply to the Request in this Rule mutatis mutandi.

(1) The Respondent may file Grounds of Appeal against any part of the Judgement of the lower Court.

(2) The Grounds shall be filed by the Respondent within thirty days of service on him of the Appellant’s Notice and Grounds of Appeal and shall be served on the Appellant or his Legal Practitioner before the hearing.

(3) The provisions for the filing of Briefs of Argument in this Order shall apply to the Cross-Appeal in this Rule mutatis mutandi.

(1) No objection on account of any defect in the form of setting forth any Ground of Appeal shall be allowed, unless the Court is of opinion that the Ground of Appeal is so imperfectly or incorrectly stated as to be insufficient to enable the Respondent to enquire into the subject matter thereof or to prepare for the hearing.

(2) Where the Court is of opinion that any objection to any Ground of Appeal ought to prevail, the Court may allow the Ground of Appeal forthwith to be amended upon such terms and conditions as the Court may think just.

(1) On an appeal from a decision of a lower Court, no objection shall be taken or allowed to any proceedings in such Court for any defect or error which might have been amended by that Court, or to any complaint, summons, warrant, or other process to or of such Court for any alleged defect in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof in such Court.

(2) Where an error, defect or variance mentioned in this Rule appears at the hearing of the appeal to be such that the Appellant has been thereby deceived or misled, it shall be lawful for the Court either to refer the case back to the lower court with directions to re-hear and determine it, or to reverse the decision appealed from, or to make such other Order for disposing of the appeal as justice may require.

(1) No objection shall be taken or allowed on an appeal to a Notice of Appeal or to any recognisance entered into under this Order for the due prosecution of the appeal for any alleged error or defect therein.

(2) Where the error or defect appears to the Court to be such that the Respondent to the appeal has been thereby deceived or misled, it shall be lawful for the Court to allow an adjournment of the further hearing of the appeal and an amendment by the Appellant on such terms as the Court may think just.

The fees in the First Schedule shall be chargeable in civil appeals save where they would have to be paid by a Government Officer acting in his official capacity or where the lower Court or the Court waives or remits the fees on the ground of the poverty of the person chargeable therewith where it appears that there are substantial grounds of appeal.

Allowances may be made to witnesses in accordance with the provisions of the Second Schedule.

The Court may make such Order as to the payment of costs by or to the Appellant as it may consider to be just and the Order may be made also in any case where an appeal has not been heard or prosecuted.

(1) The Court may, in special circumstances, upon application on notice supported by affidavit, order the Appellant to deposit such sum or give such security as may seem fit for the Respondent’s costs of appeal including the costs incidental to the application.

(2) The Order shall limit the time (not exceeding thirty days) within which the deposit or security shall be made or given and may direct that in default of its being made or given within the time so limited,the appeal shall without further Order be dismissed.

(3) Where an appeal is dismissed, the Respondent shall be entitled to all reasonable costs occasioned by the appeal and the amount of such costs may be stated in the Order made by the Court or on application made ex-parte or on notice, as the Court may deem fit.

(4) Where an appeal is struck out, the Appellant shall take no further step or proceeding therein except by leave of the Court for reinstatement of the appeal, which may be granted on such terms as may seem fit upon application by Motion on Notice given within a month of such striking out.

(5) Subject to the discretion of the Court to grant costs where it seems proper on an application made under sub-rule (1) of this Rule, costs may not be granted to the Applicant except where the net proceeds of execution levied on the Appellant’s goods are sufficient to satisfy the amount payable under the Judgement or decision appealed from.

(1) Where a case is decided on appeal, the Court shall certify its Judgement or Order to the lower court in which the decision appealed against was pronounced.

(2) The lower Court to which the Court certifies its Judgement or Order shall thereupon make such Orders as are conformable to the Judgement or Order of the Court and if necessary, the records shall be amended accordingly.

After the pronouncement of the Judgement of the Court, the lower court from which the appeal came shall have the same jurisdiction and power to enforce and shall enforce any decision which may have been affirmed, modified, amended or substituted by the Court or any Judgement which may have been pronounced by the Court, in the same manner in all respects as if such decision or Judgement had been pronounced by itself.

Any Order given or made by the Court may be enforced by the Court or by the lower Court as may be most expedient.

In this Order, the “lower court” means the Court whose judgement is appealed against.