Rule 20(6): contents of the written submission of an appellant
In as much as the Defendant failed to abide by the rules of court requiring him to prosecute his appeal in the Court of Appeal in the manner prescribed by law (for which the Plaintiff has taken him on here praying this court dismisses the appeal because the Defendant has offended the provisions of Rule 20(6) of C.I. 19, the Court of Appeal), we are of the view that the Court of Appeal was right in not dismissing the appeal and proceeding to hear the Defendant on the merits of its appeal. This is because the non-compliance did not cause any undue surprise or miscarriage of justice on the Plaintiff and should therefore not be used to deliver a technical knockout.
Rule 23 of the Court of Appeal Rules, 1997 (C.I. 19), provides: “23. Non-appearance of appellant (1) Where the appellant fails to appear when his appeal is called for hearing and he has not taken action under rule 22, the appeal may be struck out or dismissed with or without costs. (2) When an appeal has been struck out or dismissed owing to the non-appearance of the appellant the Court may, direct the appeal to be re-entered for hearing on such terms as to costs or otherwise as it may think just.” (Emphasis). My lords, subrule (2) of Rule 23 above, vests the Court with discretionary power, after the Court has dismissed an appeal under subrule (1), to order a restoration or relistment of the appeal. Being a discretionary power, therefore, it ought to be exercised by the Court judicially, reasonably and not arbitrarily, and an appellate court such as this Honourable Court, ought to exercise great caution in interfering with the exercise of that discretion.
Therefore, where an act of non – compliance with the Rules is one which is capable of being waived, the Court of Appeal may exercise a discretion to waive same. The exercise of such discretion is clearly on a case-by-case basis, depending on the nature and effect of the non – compliance. Where the non- compliance goes to jurisdiction or is a breach of the rules of natural justice, or a breach of statute (other than the rules), or an infringement of the constitution, same clearly cannot be waived.
Rule 8(4): particulars of misdirection or error in law
The Court of Appeal’s determination that grounds (a) to (d) were inadmissible was premised on Rule 8 (4) of CI 19, which provides as follows: “Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”. The language of Rule 8 (6) states in part, that “…and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent”. This Rule gives the Court of Appeal a discretion to strike out any ground of appeal not permitted by Rule 8 of CI 19.
As the jurisprudence establishes, there is no inherent right for any litigant to appeal, as an appeal is a creature of statute. Therefore, a party who is piqued by a ruling/judgment and desires to appeal against the same must comply with the conditions spelled out by the law regarding an appeal. To that extent, the 1st Appellant is mandated by law to provide particulars of the alleged errors in the grounds of appeal set out in the Notice of Appeal because, without the particulars, the Court is left to speculate as to what the alleged errors are. The allegation of error(s) must be set out in concise, clear, and plain terms as required by the rules. It is not for the Court to speculate and infer. As this Court is bound by its own rules and the decisions of the Supreme Court, the impugned grounds of appeal set out in the 1st Appellant’s Notice of Appeal as grounds (a), (b), (c), (d), (f), and (g) contravene the mandatory provisions in Rule 8(4) of C.I. 19. Consequently, all those grounds of appeal are inadmissible and unarguable as they are not compliant with the rules of court. They are hereby struck out.
Rules 11 and 14: settling and transmission of the record of appeal
My lords, a combined reading of Rules 11 and 14 of C.I 19 suggests that the Registrar of the trial Court is duty bound, unless agreed upon by the parties, to compile and include in the Record of Appeal all relevant materials that went before the trial Court, and transmit the record to the Registry of the Court of Appeal with all the exhibits, documents, papers and other things that were received by the trial Court.
