CHAPTER 52 |
THE COURT OF APPEAL RULES, 2005 |
ARRANGEMENT OF RULES |
PART I |
GENERAL |
RULE |
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1.
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Short title and commencement
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2.
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Interpretation
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3.
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Forms
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4.
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Sittings of the court
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5.
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Court's Registry
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6.
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Registers of appeals
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7.
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Service of documents
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8.
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Right of audience
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9.
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Extension of time
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PART II |
CIVIL APPEALS FROM THE SUPREME COURT |
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10.
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Notice of appeal
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11.
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Time within which to appeal
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12.
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Appeal not to operate as a stay of execution
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13.
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Settling record of appeal
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14.
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Non-compliance with Registrar's Order
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15.
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Preparation of record
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16.
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Setting appeal down for hearing
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17.
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Evidence of court below
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18.
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Evidence on appeal
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19.
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Copies of exhibits
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20.
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Respondent's notice
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21.
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Amendment of notice of appeal or respondent's notice
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22.
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Notice of preliminary objection to be filed
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23.
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Directions of the court as to service
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24.
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General powers of the court
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25.
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Powers of the court as to new trials
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26.
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Application of Part II to applications for new
trials
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27.
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Method of applications unless specified otherwise
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28.
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Withdrawal of appeal
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29.
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Powers of a single judge
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30.
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Application for security for costs
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31.
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Non-appearance of appellant and application to
re-enter after dismissal
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32.
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Non-appearance of respondent and application to set
aside ex parte judgment
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33.
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Judgment of court to be filed in court below
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34.
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Court fees
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35.
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Taxation of costs
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PART III |
CRIMINAL APPEALS FROM THE SUPREME COURT, |
MAGISTRATES COURT AND COURTS-MARTIAL |
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36.
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Institution of criminal appeals
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37.
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Where appellant is unable to write
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38.
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Waiver for non-compliance with Rules
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39.
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Service of documents on appellant imprisoned
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40.
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Preparation of record
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41.
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Transcripts
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42.
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Judge's report
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43.
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Copies of documents or exhibits for use by appellant
or respondent
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44.
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Conduct of prosecution and defence
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45.
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Legal aid for appellants
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46.
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Proceedings before a single judge
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47.
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Mode of application
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48.
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Notice of application deemed to be notice of appeal
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49.
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Suspension of orders and admission to bail
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50.
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Temporary suspension of orders made on conviction as
to money, etc.
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51.
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Procedure on application for bail
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52.
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Abandonment of appeal
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53.
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Varying order of restitution of property
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54.
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Judgments of the court
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55.
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Notification of final determination of appeals
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56.
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Restrictions on issue of certificate of conviction
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57.
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Procedure as to witnesses before court
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58.
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Proceedings on reference to special commissioner
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59.
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Appeals from Court-Martial
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60.
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Appeals from magistrate's courts
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PART IV |
CIVIL APPEALS FROM THE MAGISTRATES' COURTS |
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PART V |
SECOND APPEALS FROM THE SUPREME COURT OR
CIRCUIT JUSTICE |
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62.
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Mode of application
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63.
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Application of Rules
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64.
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Repeal of Court of Appeal Rules
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COURT OF APPEAL |
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THE COURT OF APPEAL ACT |
(CHAPTER 52) |
THE COURT OF APPEAL RULES, 2005 |
The President, in exercise of the
powers conferred by section 8 of the Court of Appeal Act, Chapter 52, hereby
makes the following Rules - |
PART 1 |
GENERAL |
1.(1) These Rules may be cited as the
Court of Appeal Rules, 2005. | Short title and commencement. |
(2) These Rules shall come into
force on the 18th day of July, 2005. |
| Interpretation |
“Act” means the Court of Appeal Act; | Ch. 52. |
“appellant” means the party appealing from a
judgment, conviction, sentence or order and includes his legal representative; |
“court” means the Court of Appeal; |
“court below” means the court from which the
appeal is brought; |
“file” means file in the Registry of the Court of
Appeal, and |
“filed” and "filing” have corresponding
meanings; |
“judge” includes the presiding officer of any
court from which an appeal lies to the court; |
“legal representative” means any counsel and
attorney admitted to practice in the courts of The Commonwealth of The
Bahamas; |
“order” includes decree, judgment, sentence or
decision of a court below or a judge thereof; |
“party” means any party to the appeal and includes
his legal representative; |
“President” means the President of the Court of
Appeal; |
“prison authority” means the Superintendent of
Prisons and includes the Deputy Superintendent or other officer discharging his
duties; |
“proper officer of the court below” means the
Registrar of the Supreme Court or the Magistrate of the court from which the
appeal is brought; |
“record” means the aggregate of papers relating to
an appeal (including the pleadings, proceedings, evidence and judgments) and
required by these Rules to be filed or laid before the court on the hearing of
the appeal; |
“Registrar” means the Registrar of the Court of
Appeal and any Deputy Registrar or other officer for the time being discharging
the duties of the Registrar or Deputy Registrar; and |
“respondent” means - |
(a) in a civil appeal, any party,
other than the appellant, directly affected by the appeal and includes his
legal representative; |
(b) in a criminal appeal, the person
who under the provisions of the Act has the duty of appearing for the Crown or
who undertakes the defence of the appeal. |
3. The forms set out in
Appendices A and B to these Rules, or forms as near thereto as circumstances
permit, shall be used in all cases to which such forms are applicable. | Forms. |
4.(1) Sittings of the court shall be
held at such times as the President may direct - | Sittings of the court. |
(a) in the Court of Appeal at Claughton
House, Shirley and Charlotte Streets, or in such other place as the the
President may direct; |
(b) throughout the year, except during
the month of August, unless circumstances require otherwise. |
(2) At least seven days before the
first day of each month, the Registrar shall cause to be posted on - |
(a) the notice board of the
court; and |
(b) the official website of the court,
a Cause List of the causes to be heard for the month following. |
(3) The court, in its discretion,
may hear any appeal and deal with any other matter whether or not the same has
been included in the Cause List so published. |
(4) The President may at any time
alter the Cause List. |
(5) Paragraph (2) of this rule
shall not apply to the hearing of any matter by a single judge. |
5. The Registry of the court
shall be open every day of the year except Saturdays, Sundays and Public
Holidays, from the hour of nine thirty o'clock in the morning until the hour of
four o'clock in the afternoon. | Court's Registry. |
6.(1) The Registrar shall cause to be
kept separate registers of all civil and criminal appeals filed, including
notices of application for leave to appeal. | Registers of appeals. |
(2) Each register shall contain
particulars of the date on which - |
(a) the notice of appeal or of
application for leave to appeal was lodged; |
(b) any interlocutory order was
made; |
(c) the record of the appeal was
received; |
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(e) judgment was delivered. |
(3) Every appeal filed shall
indicate on the top left hand corner of the form the abbreviation showing the
specific category of the appeal as set out in the Schedule. | Schedule. |
(4) The Registrar may refuse to
receive, or allow to be filed, any appeal that the appellant may attempt to
file out of time. |
7.(1) Subject to any provision contained
in these Rules relating to the service of any particular document, service of
the documents mentioned in Column 1 hereunder shall be effected by the
appellant or the intended appellant by leaving or sending a true copy thereof
in the manner specified in Column 2 - | Service of documents. |
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Column 1
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Column 2
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(a) all documents required to be served
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by personal service -
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(i) on parties to an action who have
not filed an address for service; and
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(i) on the party or his authorised agent; or
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(ii) on a person not a party to the
appeal;
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(ii) on the person not a party to the appeal;
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(b) all documents required to be served
on parties who have an address for service
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(i) by leaving the document at the address for service with a person employed at or associated with such place of business; or
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(ii) by registered post to such address,
in which case, such service shall be deemed to be effected five days after
the posting thereof.
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(2) An
affidavit of service shall be filed within seven days from the date of service
as proof thereof. |
(3) If it be made to appear to a
judge upon application supported by affidavit that prompt personal service of a
document cannot be effected, the judge may make such order for substituted
service as may be appropriate. |
(4) Subject to the provisions of
rule 4(2), any document required to be served under these Rules may be served
by - |
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(b) leaving the document at the
address for service with a person resident at or belonging to such place; |
(c) registered post to such address,
in which case service shall be deemed to be effected five days after the
posting thereof; |
(d) facsimile transmission; |
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(f) posting same on the court's
official website (www.court ofappeal.org.bs); or |
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(5) Proof of service of a document
served by means referred to in subparagraphs (d), (e) and (g) of paragraph (4),
may be proved by - |
(a) a facsimile transmission
verification report; |
(b) an electronic mail return
receipt; or |
(c) a record of the details of the
telephone conversation. |
8.(1) In all proceedings before the
court, the parties may appear in person or by any legal representative
appearing on behalf of that party. | Right of audience. |
(2) In all proceedings before the
Registrar and in all preliminary and interlocutory proceedings and
applications, the parties thereto may appear in person or may be represented by
a legal representative. |
9.(1) The Court may, on such terms as
it thinks just, by order - | Extension of time. |
(a) extend the period prescribed by
these Rules for the doing of anything to which these Rules apply; |
(b) extend the period specified in any
judgment, order or direction of the court, or of the court below, for the doing
of anything to which the judgment, order or direction relates; or |
(c) direct a departure from these
Rules in any other way where this is required in the interests of justice. |
(2) The power of the court, under
the provisions of paragraph (1), to extend any period so prescribed or
specified, is exercisable notwithstanding the expiration of the period so
prescribed or specified. |
PART II |
CIVIL APPEALS FROM THE SUPREME COURT |
10.(1) An appeal to the court shall be
by way of re-hearing and shall be brought by notice of motion in Form 1 in
Appendix A (in this Part referred to as "notice of appeal"). | Notice of appeal. |
(2) A 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 shall specify the
grounds of the appeal and the precise form of the order which the appellant
proposes to ask the court to make. |
(3) Except with the leave of the
court, the appellant shall not be entitled on the hearing of an appeal to rely
upon any grounds of appeal, or to apply for any relief, not specified in the
notice of appeal. |
11.(1) Every notice of appeal shall be
filed and a copy thereof served by the appellant upon all parties to the
proceedings in the court below who are directly affected by the appeal- | Time within which to appeal. |
(a) in the case of an appeal from an
interlocutory order, fourteen days; |
(b) in any other case, six weeks,
calculated from the date on which the judgment or order of the court below was
pronounced or made. |
(2) In the case of an appeal from
an award or determination by an arbitrator, tribunal or such other authority, a
notice of appeal shall be filed and a copy thereof served by the appellant upon
all parties directly affected by the appeal within six weeks from the date on which
the award or determination was made. |
12.(1) Except so far as the court below
or the court may otherwise direct - | Appeal not to operate as a stay of
execution. |
(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 from the Supreme
Court, interest at six per cent per annum for such time as execution has been
delayed by the appeal shall be allowed unless the court otherwise orders. |
13.(1) The Registrar shall upon an
appeal being filed, and with not less than seven days notice, summon the
parties before him in Form 2 in Appendix A - | Settling record of appeal. |
(a) to settle the list of documents
which shall comprise the record and shall- |
(i) along with the parties,
endeavour to exclude from the record all documents (more particularly such as
are merely formal) that are not relevant to the subject matter of the appeal,
taking special care to avoid duplication of documents and unnecessary
repetition of headings, but the documents intended to be omitted shall be
enumerated in a list at the end of the record; and |
(ii) if the Registrar or any party
objects to the inclusion of a document on the ground that it is unnecessary or
irrelevant and the other party nevertheless insists upon it being included,
include the document and the record shall, with a view to the subsequent
adjustment of the costs of and incidental to the inclusion of such document
indicate the fact that, and the party by whom, the inclusion of the document
was objected to; |
(iii) in the event that only the appellant
is present at the appointed time and provided that notice has been duly served
on the other party, settle the record as far as practicable; and |
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(aa) only the respondent is present
at the appointed time; or |
(bb) neither of the parties are
present at the appointed time, |
and provided that notice has been duly served on
all parties, certify such fact to a judge, who may thereupon order that the
appeal stands dismissed either with or without costs or otherwise as the judge
thinks fit; |
(b) to fix the amount to be deposited
by the appellant or secured by bond for - |
(i) the due prosecution of the
appeal; |
(ii) security for costs, but such
amount may, upon application by either party to a single judge, be subject to
review; and |
(c) to fix the time within which - |
(i) the record shall be prepared
and filed by the appellant; and |
(ii) the amount fixed under
paragraph (b) must be deposited or secured by bond. |
(2) In exceptional circumstances,
the Registrar may at the written request of either party and with the written
consent of both parties, with not less than five days notice proceed under
paragraph (1) - |
(a) via teleconference, provided that
such communication is recorded by mechanical means of some sort; or |
(b) in such other manner as the
Registrar in his discretion thinks fit. |
(3) The appellant shall within
such time as the Registrar directs under paragraph (1)(c) - |
(a) prepare and file the record of
appeal; |
(b) deposit such sum or enter into
such bond in Form 8 in Appendix A as the Registrar shall have fixed under
paragraph (1)(b). |
(4) No deposit or bond shall be
required to be paid or secured by the Crown or any statutory body. |
(5) An affidavit of compliance
shall be filed by the appellant upon satisfying the conditions of the
Registrar's order. |
(6) The Registrar shall, in
determining whether to fix a sum to be deposited or secured by bond for
security for costs - |
(a) take into consideration the
provisions of Order 23, r 1 of the Supreme Court Rules; and | Ch. 53. |
(b) satisfy himself that a written
demand was made by the respondent and either - |
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(ii) an offer of security was made
by the appellant and not accepted by the respondent. |
(7) The Registrar shall notify all
parties in Form 3 of Appendix A that an appeal has been dismissed pursuant to
paragraph 13(1)(a)(iv). |
(8) The court may, upon
application, in its discretion for good and sufficient cause, order that an
appeal dismissed under this rule be restored upon such terms as the court
thinks fit. |
14.(1) If the appellant fails to comply
with any of the requirements of rule 13 (3), the Registrar shall certify such
fact to a judge who shall thereupon order that the appeal stands dismissed
either with or without costs, and shall cause the appellant and the respondent
to be notified in Form 3 of Appendix A of the terms of his order. | Non-compliance with Registrar's
Order. |
(2) Where an appeal has been
dismissed under paragraph (1), a respondent who has given notice under rule 20
may give notice of appeal and the provisions of rule 10 shall apply as if the
appeal were brought under that rule. |
(3) If the respondent alleges in
writing addressed to the Registrar that the appellant has failed to comply with
a part of the requirements of rule 13 (3), a judge, if satisfied that the
appellant has so failed, may dismiss the appeal for want of due prosecution or
make such order as the justice of the case may require. |
(4) An appellant whose appeal has
been dismissed under this rule may apply to the court by motion that the appeal
be restored. |
(5) The court may in its
discretion for good and sufficient cause order that such appeal be restored
upon such terms as it thinks fit. |
15.(1) Every document or paper required
by these Rules to be filed or left with the Registrar shall - | Preparation of record. |
(a) be legibly duplicated or
typewritten with black ink upon strong white paper of good quality; |
(b) be eleven inches in height and
eight and a half inches in width, having a margin, not less than 1½ inches wide
to be left blank on the left side of the face of the paper and on the right
side of the reverse; and |
(c) contain a space of not less than
three eighths of an inch between every two lines. |
(2) There shall be an index to the
record and every page thereof shall be numbered consecutively. |
(3) All correspondence and
exhibits shall be arranged in chronological order at the end of the record. |
(4) The Registrar may refuse to
receive, or allow to be filed, any documents including carbon copies, not
strictly conforming to the requirements of paragraph (1), and the court may
disallow the costs of any such document notwithstanding that it may have been
filed or received. |
16. When the record has been
prepared and filed, the Registrar shall, upon the filing of an affidavit of
compliance by the appellant pursuant to rule 13(5), set down the appeal for
hearing before the court, and thereupon give notice by any of the means set out
in rule 7(4) to the appellant and to all parties upon whom the notice of appeal
was served. | Setting appeal down for hearing. |
17.(1) A person who desires to appeal
to the court from a judgment of the Supreme Court given in its original
jurisdiction, shall be entitled - | Evidence of court below. |
(a) on making, written application to
the Registrar of the Supreme Court; and |
(b) on payment of the prescribed fee, |
to a copy of the notes of evidence taken by the
trial judge or, as the case may be, of the transcription of the evidence and
proceedings mechanically recorded pursuant to section 77 of the Supreme Court
Act. | Ch. 53. |
(2) If no written judgment is
given by a judge of the court below at the time of giving judgment, where any
record of the oral judgment whether in shorthand or long hand or however
otherwise recorded, has been made by counsel or by a person employed by such
court, such record or a transcript thereof shall be submitted to the judge who
may approve the same in whole or in part or himself prepare a note of his
judgment, and such note and every such approved record or transcript shall be
included in the record. |
(3) On the hearing of an appeal
the court shall have power - |
(a) if the notes of the judge of the
court below or a transcript of, the evidence are not produced; or |
(b) if there are no such notes or
transcript, |
to hear and determine such appeal upon any
other evidence or statement of what occurred before such judge which the court
may deem sufficient. |
18. Where a question of fact is
involved in an appeal, the evidence taken in the court below bearing on such
question shall, subject to any direction of the court, be brought before the
court as follows - | Evidence on appeal. |
(a) in the case of evidence taken by
affidavit, by the production of such affidavits, or of office copies
thereof; |
(b) in the case of evidence given
orally, by the production of a record of the court made in accordance with
section 77 of the Supreme Court Act or by such other means as the court may
direct. | Ch. 53. |
19.(1) Any party may apply to the
Registrar of the Supreme Court and, on payment of the prescribed fee, obtain an
office copy of the exhibits for the purpose of an appeal to the court or
otherwise. | Copies of exhibits. |
(2) All original documents
tendered in evidence in the court below shall remain in the custody of the
court below unless requested in writing by the Registrar, and shall then be
forwarded with the record to the Registrar and shall remain in the custody of
the court until the determination of the appeal. |
(3) The Registrar shall permit a
party for the purpose of preparing his record to take copies of all such
documents and the court or Registrar may allow the return of any document to
any party pending the hearing of the appeal and subject to such conditions as
may be imposed by the court or the Registrar. |
20.(1) 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, either in any event or in the
event of the appeal being allowed in whole or in part, shall give notice to
that effect (Form 4 in Appendix A), specifying the grounds of that contention and
the precise form of the order which he proposes to ask the court to make, or to
make in the event that the appeal be allowed, as the case may be. | Respondent's notice. |
(2) A respondent who desires to
contend on the appeal that the decision of the court below should be affirmed
on grounds other than those relied upon by that court shall give notice to that
effect specifying the grounds of that contention. |
(3) Except with the leave of the
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 a notice given
under this rule; |
(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 such
a notice. |
(4) Any notice given under this
rule (in this part referred to as a "respondent's notice") shall be
filed and a copy thereof shall be served on the appellant, and upon all parties
to the proceedings in the court below who are directly affected by the
contentions of the respondent, and shall be served within fourteen days after
the service of the notice of appeal on the respondent. |
21. A notice of appeal or a
respondent's notice may be amended - | Amendment of notice of appeal or
respondent's notice. |
(a) by or with the leave of the
court, at any time; or |
(b) without the leave of the court, by
supplementary notice, served upon each of the parties upon whom the notice to
be amended was served, not later than seven days before the date set down for
the hearing of the appeal. |
22.(1) A respondent intending to rely
upon a preliminary objection to the hearing of the appeal shall give the
appellant three clear days' notice thereof before the hearing setting out the
grounds of objection and shall file such notice (Form 5 in Appendix A) together
with four copies thereof with the Registrar within the same time. | Notice of preliminary objection to
be filed. |
(2) If the respondent fails to
comply with this rule, the court may - |
(a) refuse to entertain the
objection; |
(b) adjourn the hearing thereof at the
cost of the respondent; or |
(c) make such other order as it
thinks fit. |
23.(1) The court may in any case direct
that the notice of appeal be served upon any party to the proceedings in the
court below on whom it has not been served, or upon any person not party to
those proceedings. | Directions of the court as to
service. |
(2) In any case in which the court
directs the notice of appeal to be served on any party or person, the court may
also direct that any respondent's notice shall be served upon him. |
(3) The 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 upon 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. |
24.(1) In relation to an appeal, the
court shall have all the powers and duties as to amendment and otherwise of the
Supreme Court. | General powers of the court. |
(2) The court shall have full
discretionary power to receive further evidence upon questions of fact, either
by oral examination in court, by affidavit, or by deposition taken before an
examiner or commissioner: |
Provided that in the case of
an appeal from a judgment after trial or hearing of any cause or matter upon
the merits, no such further evidence (other than evidence as to matters which
have occurred after the date of the trial or hearing) shall be admitted except
on special grounds. |
(3) The 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. |
(4) The powers of the court under
the foregoing provisions of this rule may be exercised notwithstanding - |
(a) that no notice of appeal or
respondent's notice 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) that any ground for allowing the
appeal or for affirming or varying the decision of that court is not specified
in such a notice, |
and the court may make any order, on such terms
as the court thinks just, to ensure the determination on the merits of the real
question in controversy between the parties. |
(5) The court may make such order
as to the whole or any part of the costs of an appeal as may be just, and may,
in special circumstances, order that such security shall be given for the costs
of an appeal as may be just. |
(6) The powers of the court in
respect of an appeal shall not be restricted by reason of any interlocutory
order from which there has been no appeal. |
25.(1) On the hearing of any appeal the
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 a verdict, finding or
judgment of the court below. | Powers of the court as to new
trials. |
(2) A new trial shall not be
ordered on the ground - |
(a) of misdirection, or of the
improper admission or rejection of evidence; |
(b) that the verdict of the jury was
not taken upon a question which the judge at the trial was not asked to leave
to them, |
unless in the opinion of the court some
substantial wrong or miscarriage of justice has been thereby occasioned. |
(3) A new trial may be ordered on
any question without interfering with the finding or decision upon any other
question and if it appears to the court that any such wrong or miscarriage as
is mentioned in paragraph (2) of this rule affects part only of the matter in
controversy, or one or some only of the parties, the 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. |
(4) In any case where the court
has power to order a new trial on the ground that damages awarded by a jury are
excessive or inadequate, the court may, in lieu of ordering a new trial - |
(a) with the consent of all parties
concerned, substitute for the sum awarded by the jury such sum as appears to
the court to be proper; |
(b) with the consent of the party
entitled to receive or liable to pay damages, as the case may be, reduce or
increase the sum awarded by the jury by such amount as appears to the 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 court shall not
have power to reduce or increase the damages awarded by a jury. |
(5) 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. |
26. This Part (except so much of
paragraph (1) of rule 10 as provides that an appeal shall be by way of
rehearing, and except paragraph (1) of rule 25) applies to an application to
the court for a new trial or to set aside a verdict, finding or judgment after
trial with or without a jury, as it applies to an appeal to that court, and
references in this Part to an appeal and to an appellant shall be construed
accordingly. | Application of Part II to
applications for new trials. |
27.(1) Except as otherwise provided by
these Rules, every application to a judge of the court shall be by Notice of
Motion in Form 6 of Appendix A. | Method of applications. |
(2) Any application to the court
for leave to appeal (other than an application made after the expiration of the
time for appealing) shall be made ex parte in the first instance. |
(3) Notwithstanding paragraph (2),
if it appears to the court that the other parties should be present, then, the
court shall adjourn the application and give directions for the service of
notice thereof upon the party or parties affected, and if on the adjourned
application leave to appeal is refused the court may make such order as to the
costs of any such party as may be just. |
(4) Where an ex parte application
has been refused by the court below, an application for a similar purpose may
be made to the court ex parte within seven days from the date of the refusal. |
(5) Wherever under the provisions
of the Act or of these Rules an application may be made either to the court
below or to the court, it shall be made in the first instance to the court
below. |
28.(1) An appellant who desires to
withdraw an appeal may do so by filing a notice in Form 7 in Appendix A and
such appeal shall stand dismissed with costs to the date on which such notice
is filed. | Withdrawal of appeal. |
(2) The appellant shall serve
copies of the notice of withdrawal on all or any of the parties with regard to
whom the appellant wishes to withdraw his appeal, and any party so served shall
be precluded from laying claim to any costs incurred by him after such service unless
the court shall otherwise order. |
29.(1) In any cause or matter pending
before the court, a single judge of the court may, upon application, make an
order - | Applications to a single judge. |
(a) fixing security for costs,
whether or not upon application to review a decision of the Registrar made
under paragraph 13(1)(b)(ii); |
(b) for the issue of a certificate
that any point of law involved in an appeal is one of general public
importance; |
(c) for a stay of execution on any
judgment appealed from pending the determination of such appeal; |
(d) for an injunction restraining the
defendant in the action from disposing or parting with the possession of the
subject matter of the appeal, pending the determination thereof; |
(e) for an extension of time;
and |
(f) on any other interlocutory
application. |
(2) Every order made by a single
judge of the court in pursuance of this rule may be discharged or varied by the
court. |
(3) An application made under
paragraph (1) shall be made by way of summons and shall be supported by
affidavit, a copy of which shall be served with the summons. |
(4) Where an application is made
by summons, an order may be made adjourning the hearing into open court. |
(5) Where an application made by
summons is heard by the court, it shall be treated as if it were a motion, and
it shall be heard in open court. |
30.(1) An application for security for
costs must be made to the court within twenty-one days of a notice of appeal
being served. | Application for security for costs. |
(2) No application for security
for costs may be made unless the applicant has made a prior written demand for
such security and if the demand is refused or if an offer of security is made
by the appellant and not accepted by the respondent, the court shall in dealing
with the costs of the application consider which of the parties has made the
application necessary. |
(3) An order for security for
costs shall direct that in default of the security being given within the time
limited therein, or any extension thereof, the appeal shall stand dismissed
with costs. |
(4) A bond with sureties for
securing the costs of an appeal shall be made as in Form 8 in Appendix A. |
31.(1) If an appellant fails to appear
when his appeal is called on for hearing, the appeal may be struck out or
dismissed with or without costs. | Non-appearance of appellant and
application to re-enter after dismissal. |
(2) When an appeal has been struck
out or dismissed owing to non-appearance of the appellant, the court may, on
application by the appellant by notice of motion, supported by an affidavit, if
it thinks fit, and on such terms as to costs or otherwise as it may deem just,
direct the appeal to be re-entered for hearing. |
(3) An application for re-entry of
an appeal under this rule shall be made within twenty-one days from the date of
the judgment or order sought to be set aside. |
32.(1) If a respondent fails to appear
when an appeal is called on for hearing the court may proceed to hear the
appeal in his absence. | Non-appearance of respondent and
application to set aside judgment. |
(2) Where an appeal has been heard
in the absence of the respondent and a judgment has been given therein adverse
to the respondent, the respondent may apply by notice of motion to the court to
set aside such judgment and re-hear the appeal and the court may, if it thinks
fit, and on such terms as to costs or otherwise, as it may deem just, direct
the appeal to be re-entered for hearing. |
(3) An application under paragraph
(2) must - |
(a) be made within twenty-one days
from the date of the judgment sought to be set aside; and |
(b) be supported by an affidavit
setting forth the reasons and grounds for the application. |
(4) The court may in its
discretion set aside the judgment and order that the appeal be re-heard at such
time and upon such conditions as to costs or otherwise as it may think fit. |
33. A certificate under the seal
of the court and the hand of the Registrar (Form 9 in Appendix A) setting out
the effect of the judgment of the court shall be forwarded to the Registry of
the court below, and the judgment shall be enforced by that court. | Judgment of court to be filed in
court below. |
34. Except as is otherwise
provided, the court fees prescribed in Appendix C shall be charged in respect of
the matters to which they are respectively assigned and shall be collected and
received by impressed stamps. | Court fees. |
35.(1) Where the costs of an appeal are
allowed, costs may either be - | Taxation of costs. |
(a) fixed by the court at the time
when judgment is given; |
(b) agreed upon by the parties at the
time when judgment is given; or |
|
(2) A party entitled to have costs
taxed as ordered by the court shall begin proceedings for the taxation of those
costs by filing within three months after the judgment, direction or order was
pronounced or made - |
(a) a detailed and accurate account
of the Bill of Costs as shown in Form 10 of Appendix A; |
(b) a statement of the parties; |
(c) an affidavit verifying any claim
by or on his behalf for disbursements; and |
(d) legible copies of all receipts and
invoices necessary to support such claims for disbursements or other sums paid, |
and in the event a party fails to file within
the specified time any of the documents referred to in paragraphs (a) – (d),
the Registrar may disallow such item or items due to the failure to submit a
particular document. |
(3) The Registrar shall be the
taxing officer and shall within not less than seven days, notify the party
applying to tax his costs and any other party entitled to be heard in the
taxation of the day and time appointed for the taxation. |
(4) The taxing officer may request
such further documentation or submissions to substantiate a disputed or
questionable claim and such further documentation shall be filed within seven
days of the request, failing which the Registrar may disallow the disbursement
in question. |
(5) If a party entitled to be
heard on a taxation does not attend within a reasonable time after the time
appointed for the taxation, the Registrar, if satisfied that the party had due
notice of the time appointed, may proceed to tax the Bill of Costs in his
absence. |
(6) Costs in respect of out of
pocket expenditure such as — |
|
(b) accommodation, hotel or
otherwise; |
(c) air travel and ground
transportation; |
|
(e) time spent by the applicant's
support and administrative staff acting in their capacity in connection with
the proceedings, |
will generally not be allowed, but may in the
sole discretion of the taxing officer be allowed if the taxing officer
considers such expenses to be necessary and reasonable. |
(7) Professional fees of counsel
shall be allowed only in respect of counsel who presents the appeal, unless the
court certifies that the appeal required two or more counsel. |
(8) No brief fee of counsel shall
be allowed by the taxing officer unless supported by a voucher or receipt duly
authenticated by the party paying the brief fee. |
(9) Where an appeal is presented
by Queens Counsel, costs will generally be allowed to such counsel and any
junior counsel who appeared with him, unless the court directs otherwise. |
(10) The taxing officer shall not
allow any costs charged by a counsel and attorney in respect of advice given to
that counsel and attorney by any other counsel and attorney, unless otherwise
directed by the court. |
(11) If counsel is claiming costs
calculated on an hourly basis, he shall produce, if requested to do so by the
taxing officer, accurate records which shall contain - |
(a) the date on which the work was
done; |
(b) the amount of time spent on the
work; and |
(c) a brief description of the work
carried out, |
and in the event that the party fails so to do,
such failure may result in a claim being disallowed in respect of such work. |
(12) In determining whether or
not the claim by counsel is reasonable or excessive, the taxing officer shall
have regard to all the relevant circumstances, and in particular to - |
(a) the complexity of the item or of
the cause or matter in which it arises and the difficulty or novelty of the
question involved; |
(b) the skill, specialised knowledge
and responsibility required of, and the time and labour expended by
counsel; |
(c) the number and importance of the
documents (however brief) prepared and perused; |
(d) the place and circumstances in
which the business involved is transacted; |
(e) the importance of the cause or
matter to the client; |
(f) where money or property is
involved, its amount or value; |
(g) any other fees and allowances
payable to counsel in respect of other items in the same cause or matter, but
only where work done in relation to those items has reduced the work which
would otherwise have been necessary in relation to the item in question. |
(13) If upon the taxation of costs
more than one-sixth is deducted from a bill of costs taxed - |
(a) as between party and party, no
costs incurred in the taxation shall be allowed as part of such bill, nor shall
such costs of taxation be charged as between solicitor and client; |
(b) as between counsel and client, no
costs incurred in the taxation shall be allowed as part of such bill, |
and on a taxation resulting in paragraph (b),
it shall be lawful - |
(i) for the taxing officer to
assess the costs of being represented by an attorney which may have been
incurred by the client or other party or parties on whom notice of taxation has
been served, and to sign an allocatur for the amount so assessed; and |
(ii) for the client, or other party
or parties as aforesaid, to sue out execution for the amount so assessed
without any further or other proceeding. |
(14) In the computation of one-sixth
of all bills of costs for the purposes of paragraph (13), fees paid to counsel
shall be excluded. |
(15) A party to a taxation
proceeding who is dissatisfied with the allowance or disallowance in whole or
in part of any item by the taxing officer, may - |
(a) at any time before the
certificate or allocatur is signed; or |
(b) at such earlier time as may in any
case be fixed by the taxing officer, |
apply to the taxing officer to review the
decision of the taxing officer in respect of same and shall deliver to the
taxing officer and to each party who attended the taxation, his objection in
writing to such allowance or disallowance, and shall specify, in a short and
concise list the items or parts objected to and the grounds and reasons for
such objections. |
(16) The taxing officer may issue,
if he thinks fit, pending the consideration of such objections, a certificate
of taxation or allocatur for or on account of the remainder of the bill of
costs and such further certificate or allocatur as may be necessary shall be
issued by the taxing officer after his decision upon such objections. |
(17) The taxing officer shall
reconsider and review his taxation upon such objections, and may, if he shall
think fit, request or receive further evidence in respect thereof. |
(18) If requested to do so by either
party, the taxing officer shall state in his certificate of taxation or allocatur,
or otherwise by reference to the objections, the grounds and reasons for his
decision on the review and any special facts or circumstances relevant to it. |
(19) The taxing officer may tax the
costs of such objection and add them to or deduct them from any sum payable by
or to any party to the taxation. |
(20) Any person aggrieved by a
decision of the taxing officer on such review may apply to the court within
fourteen (14) days from the date of the certificate by motion accompanied by an
affidavit in support - |
(a) to set aside such decision;
and |
(b) to make such further order as the
court may think fit. |
(21) Notice of such motion shall be
served upon the taxing officer and upon all parties having any interest
therein, within three days of the filing of such notice. |
(22) The court may make such order
as the circumstances require, and in particular may order an amendment to the
certificate of the Registrar. |
(23) The taxing officer may in the
discharge of his functions with respect to the taxation of costs - |
(c) take into account any dealings in
money made in connection with the payment of the costs being taxed, if the
court so directs; |
(b) require any party represented
jointly with any other party in any proceedings before him to be separately
represented; |
(b) examine any witness in those
proceedings; |
(d) direct the production of any
document which may be relevant in connection with those proceedings. |
(24) The taxing officer may - |
(a) extend the period within which a
party is required by or under this rule to begin proceedings for taxation or to
do anything in or in connection with proceedings before the taxing
officer; |
(b) where no period is specified by or
under this rule or by the court for the doing of anything in or in connection
with such proceedings, specify the period within which the thing is to be done. |
(25) Where a party entitled to be
paid costs is also liable to pay costs, the taxing officer may - |
(a) tax the costs which that party is
liable to pay and set off the amount allowed against the amount he is entitled
to be paid and direct payment of any balance; or |
(b) delay the issue of a certificate
for the costs he is entitled to be paid until he has paid or tendered the
amount he is liable to pay. |
(26) The taxing officer by whom any
taxation proceedings are being conducted may, if he thinks it necessary to do
so, adjourn those proceedings from time to time. |
PART III |
CRIMINAL APPEALS FROM THE SUPREME COURT, |
MAGISTRATES COURT AND COURTS-MARTIAL |
36.(1) A person desiring to appeal to
the court against conviction or sentence shall commence his appeal by
submitting to the Registrar - | Institution of criminal appeals. |
|
(b) a notice of application for leave
to appeal; or |
(c) a notice of application for
extension of time within which such notice shall be given, |
as the case may be, in the form of such notices
set forth in Forms 1 or 2 in Appendix B, and in the notice or notices so sent,
shall answer the question and comply with the requirement set forth thereon,
subject to the provisions of rule 38. |
(2) A notice referred to in
paragraph (1) shall be served on the Registrar of the Supreme Court by the
person desiring to appeal or his legal representative. |
(3) Every person making an
application for an extension of time shall send to the proper officer of the
court below, together with the proper form of such application, a form, duly
filled up, of notice of appeal, or of notice of application for extension of
time for leave to appeal, setting out the ground or grounds upon which he desires
to question his conviction or sentence, as the case may be. |
(4) Every notice referred to in
paragraph (1) shall be signed by the appellant himself, except under the
provisions of rule 37(1), (2) and (3). |
(5) Any other notice required or
authorised to be given shall be in writing and signed by the person giving the
same or by his legal representative. |
(6) All notices required or
authorised to be given shall be addressed to the Registrar and a copy sent to
the proper officer of the court below. |
37.(1) When an appellant or other
person authorised or required to give or send any notice of appeal or notice of
any application is unable to write, he may affix his mark thereto in the
presence of a witness who shall attest the same, and thereupon, such notice
shall be deemed to be duly signed by such appellant. | Where appellant is unable to write. |
(2) Where it is contended that a
person is not responsible according to law for his actions on the ground that
he was insane at the time the act was done or the omission was made by him, any
notice required to be given and signed by the appellant himself may be given
and signed by his legal representative. |
(3) In the case of a body
corporate, where any notice or other document is required to be signed by the appellant
himself, it shall be sufficient compliance therewith if such notice or other
document is signed by the secretary, clerk, manager or legal representative of
such body corporate. |
38.(1) Non-compliance on the part of
the appellant, in any criminal cause or matter with these Rules or with any
rule of practice for the time being in force shall not prevent the further
prosecution of his appeal if the court considers that such non-compliance was
not wilful and that it is in the interest of justice that non-compliance be
waived. | Waiver for non-compliance with
Rules. |
(2) The court may, in such manner
|