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Court of Appeal Rules

 

 

 

 

Contents

 

 

Order I

General

 

1.

Short title

2

Interpretation

3

Service

4.

Conflict with State Law or Rules

5.

Fees

6.

Registries and Filing of documents and proceedings

7.

Hours of opening to public

8.

Sessions

9.

Notification of sittings

10.

Adjournment

11.

Chief Registrar

12.

Other Registrars

13.

Seal of the Court

14.

Powers of the Chief Registrar

15.

Books to be kept by Registrar

16.

Files for documents

17.

Setting aside or varying order of Registrar

18.

Forms

19.

Appearance by counsel

20.

General Powers of the Court

21.

Powers of the Court as to new trial

22.

Control of proceedings during pendency of appeal.

 

 

Order 2

References as to Constitution and Reserved Points of Law

 

 

1.

Stating a case

2

Signature of a case stated

3

Form of case stated

4.

Right of audience

 

 

Order 3

Civil Appeals

 

 

1.

Application

2

Notice and grounds of appeal

3

Applications to the Court

4.

Enlargement of time

5.

When appeal is deemed brought

6.

Notice of appeal : on whom served

7.

Address for service

8.

Registrarís summons

9.

Record of appeal

10.

Cost of records

11.

Security for costs

12.

Additional security for costs

13.

Transmission of records

14.

Respondentís notice of contention that judgement should be varied or affirmed on other grounds

15.

Notice of preliminary objection

16.

Amendment of Notice of Appeal or Respondentís notice

17.

Directions of the Court as to service of notice of appeal or respondentís notice

18.

Withdrawal of appeal

19.

Appeal by respondent after appellantís appeal is withdrawn

20.

Non-compliance with conditions of appeal

21.

Exhibits

22.

Interlocutory judgement not to prejudice appeal

23.

Power of Court to give any judgement and make order

24.

Declaration by party not appearing

25.

Non-appearance of appellant and relishing an appeal struck out

26.

Non-appearance of respondent

27.

Application to set aside ex parte judgement

28.

Fees

29.

Proceedings by persons without means

30.

Cost of proceedings by persons without means

31.

Service of record of appeal to the Supreme Court

32.

Certification of service and transmission of record to the Supreme Court

 

 

Order 4

Criminal Appeals

 

 

1.

Appeals to which Order applies

2.

Applications not specifically provided for

3.

Notice of appeal, and application for leave to appeal, or of application for extension of time and amendments thereof

4.

Notice of appeal, etc. who should sign

5.

Application for extension of time

6.

Notice of application for leave to appeal

7.

Dealing with application for leave to appeal and other preliminary applications

8.

Forwarding of proceedings of court below to Registrar

9.

Fees

10.

Record in Criminal appeals from court below in original jurisdiction

11.

Record in criminal appeals from the court below in its appellate jurisdiction

12.

Report of the Judge of the court of trial

13.

Furnishing Judge of court of trial with materials for report

14.

Bail

15.

Fines

16.

Varying order of restitution of property

17.

Non-suspension of order of restitution

18.

Restriction on issue of certificate of conviction

19.

Abandonment of appeal

20.

Notice of abandonment of appeal may be withdrawn

21.

Non-attendance of appellant

22(1)

22(2)

Non-attendance of respondent

Setting aside judgement

23(2)

 

23(2)

 

22(3)

22(4)

 

22(5)

 

22(6)

22(7)

 

22(8)

 

22(9)

Attendance of witness before the court

Application to court to hear witnesses

Order appointing examiner

Furnishing examiner with exhibits, etc. for examination

Notification of date of examination

Evidence to be taken on oath

Deposition of witnesses : how to take

Expenses of witnesses before examiner

Presence of parties at examination of witnesses

24.

Proceedings on reference

25(1)

 

25(2)

Notification of final determination of appeal

Notification of appeals in capital cases

26.

Notification of result of appeal to court below

27.

Return of original depositions, etc.

28. Enforcement of order 29. Service of record of appeal to the Supreme Court 30. Certification of service and transmission of record to the Supreme Court

 

 

 

Order 5

Judgement

 

 

1.

Judgement

2

Enrolment of judgement

3

Review of judgement

4.

Enforcement of judgement

5.

Execution of judgement by court below

6.

Costs

7.

Notification of judgement

8.

Final disposal of exhibits, documents, etc.

 

 

Order 6

Filing of Brief of Argument

 

 

1.

Application

2

Filing of appellant's brief

3

Forms and contents of brief

4.

Filing of Respondent's brief

5.

Filing reply brief

6.

Joint and several brief

7.

Cross Appeals of Respondent's Notice

8.

Number and service of documents

9.

Oral Argument

10.

Consequence of failure of filing briefs

11.

Power of court to accelerate hearing in exceptional cir4cumstances

 

 

Order 7

Miscellaneous

 

1.

Records of appeal from Sharia Court of Appeal or Customary Court of Appeal

2

Departure from the Rules

3

Non-compliance with Rules

4.

List of Law Reports, Text books, etc. to be forwarded to the Registrar

 

 

 

First Schedule

Civil Forms

 

Second Schedule

Criminal Forms

 

Third Schedule

Fees in Civil and Criminal matters


Court of Appeal Rules

 

 

Commencement: 1st day of July 1981

 

 

Order I

General

 

 

 

1.     These Rules may be cited as the Court of Appeal Rules.

 

2.     In these Rules, unless it is otherwise expressly provided or required by the context :

 

"The Act" means the Court of Appeal Act,

 

"appeal" includes an application for leave to appeal;

 

"appellant" means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf;

 

"cause" includes any action suit or other proceeding between an appellant and a respondent or any applicant and a  respondent, and any criminal proceeding;

 

"Chief Registrar: means the Chief Registrar of the Court;

 

"the Constitution" means the Constitution of the Federal Republic of Nigeria;

 

"the Court" means the Court of Appeal;

 

"court below" or "lower court" means any court or tribunal from which appeal is brought;

 

"High Court" means the Federal High Court, the High Court of the Federal Capital Territory, Abuja or any High Court established for a State under the Constitution"

 

"Justice" means a Justice of the Court;

 

"legal representative" means a person admitted to practise in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court;

 

"President " means the President of the Court;

 

"Presiding Justice" means the most senior Justice in charge of any Branch of the Court including Lagos;

 

"record" means the aggregate of papers relating to an appeal including the pleadings, proceedings, evidence and judgements proper to be laid before the Court on the hearing of the appeal;

 

"Registrar" means the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Senior Registrar, or Registrar of the Court, or any other officer of the Court by whatever title called exercising functions analogues to those of a Registrar of the Court;

 

"Registrar of the Court below" includes the Chief Registrar and any Registrar of whatever grade of the court below, and any officer of the court below exercising functions analogues to those of the Chief Registrar of the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal, Customary Court of Appeal or other court or tribunal from which an appeal is brought to the Court:

 

"respondent" in a civil appeal means any party (other than the appellant) directly affected by the appeal ; and in a criminal appeal means the person who undertakes the defence of the judgment appealed against :

 

"Rules" means these Rules or any amendment thereto or any other additional Rules made under the Constitution of the Federal Republic of Nigeria, 1979 and included the Fees and Forms as contained in the Schedules to these Rules;

 

"Supreme Court" means the Supreme Court of Nigeria.

 

3.     (1)     Any reference in these Rules to an address for service means an address within the Federal Republic of Nigeria where notices, orders, summonses, warrants and other documents, proceedings, and written communications, if not required to be served personally, may be left, or to which they may be sent.

 

(2)     Where under these Rules any person has given an address for service, any notice or other written communication which is not required to be served personally shall be sufficiently served upon him if it is left at that address or sent by registered post to that address " and in any case where the date of service by post is material section 25 of the Interpretation Act, 1964, shall apply.

 

(3)     Where under these Rules any notice or other application to the Court, or to the court below, is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such an address is endorsed on it.

 

(4)     Any person desiring to change his address for service shall notify the Registrar, who shall thereupon communicate the new address for service to anyone to whom he may have communicated the former address.

 

(5)     Where any person has given the address of a legal practitioner as his address for service and the legal practitioner is not pr has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the legal practitioner to inform the Registrar as soon as may be that he is not or no longer authorised to accept service on behalf of such person, and if he omits to do so he may be ordered to personally pay any costs occasioned thereby.

 

(6)     Except as may be otherwise provided in these Rules or in any other written law, no notice or other written communication in proceedings in the Court need to served personally except the notice of appeal :

 

Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the respondent no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.

 

(7)     Where a Minister or Commissioner, or the Attorney-General, or the Director of Public prosecutions, or any other public officer, of the Federal Republic of Nigeria or of a State thereof is a party ex-officio or as representing the Federal or a State Government, as the case may be, in any proceedings in the Court, whether civil or criminal, any notice or other document may served on him by leaving it at or by sending it by registered post to his chambers of office and service in this manner shall be effective as if it were personal service.

 

(8)     Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the High Court having jurisdiction in the State in which service is to be effected, and if it appears to the Court that for any reason personal service cannot be conveniently effected, the court shall have the same power as that High Court to direct that service be effected in some other way.

 

(9)     Where any person out of jurisdiction of the Court is a necessary or proper party to an appeal before the Court and it is necessary to serve him with the notice of appeal or other document relating to the appeal, the Court may allow service of the notice of appeal or such other document out of the jurisdiction.

 

(10)           Every application for an order for leave to serve a notice of appeal or other document on a person out of the jurisdiction shall be supported by evidence by affidavit or otherwise showing in what place or country such a person is or probably may be found, and the grounds upon which the application is made.

 

(11)           Any order giving leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time within which such party may acknowledge such a service, such a time to depend on the place or country where or within which the notice or document is to be served, and the Court may receive an affidavit or statutory declaration of such service having been affected as prima facie evidence thereof.

 

4.     The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the States.

 

5.     The fees set out in the Third Schedule shall be payable in respect of the matters to which they relate.

 

6.     (1)     The Registries of the Court shall be situated at Lagos, Kaduna, Enugu, Ibadan, Benin City, and at the seat of such other branches of the Court as may be established.

 

(2)     Except when otherwise expressly provided, all document and proceedings shall be filed in the appropriate Registry, provided that whilst the Court is sitting in any branch or other place of session any documents or proceedings in connection with matter to be dealt with at such branch or other place session may be filed with Registrar of the Court at such a place.

 

(3)     A document may be filed in the appropriate Registry of the Court or such other place of session either by being delivered there by the party or his legal representative or agent in person or by being sent there by registered post.

 

7.     The Registries of the Court shall, subject to the directions of the President, be opened to the public on every day in the year from eight oíclock in the forenoon to one oíclock in the afternoon, except on Saturdays and Sundays or on any day declared a public holiday under any written law.

 

8.      Sessions of the Court may be convened and constituted, and the time, venue and forum for all session and for hearing interlocutory applications shall settled in accordance with general or specific directions to be given by the President.

 

9.     (1)           The sittings of the Court and the matters to be disposed of at such sitting shall be advertised and notified in such manner as the President may direct :

 

Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been advertised.

 

(2)     This Rule shall not apply to the hearing of any matter by a single Justice.

 

10.            The Court may at any time on application or of its own motion adjourn any proceedings pending before it from time to time and from place to place.

 

11.           The Chief Registrar shall have the custody of the records of the Court and shall exercise such other functions as are assigned to him by these Rules and by such directions as the President may give from time to time.

 

12.           The President may assign, and the Chief Registrar may, with the approval of the President, delegate to the Deputy Chief Registrar or to any Registrar of the Court any functions required by these Rules to be exercised by the Chief Registrar.

 

13.            The Seal of t he Court shall kept in the custody of the President who may entrust same or duplicate thereof to such officers of the Court as he may think fit.

 

14.            Except as may be otherwise provided in the Constitution, or in any other enactment, the Chief Registrar shall have such jurisdiction powers and duties as are given him by these Rules or such further powers and duties as the President may direct.

 

15.     (1)         The Registrar shall keep :

 

(a)         a Criminal Appeal Book ;

 

(b)         a Civil Appeal Book ;

each of which shall contain an index in alphabetical order.

 

 (2)           The following particulars shall be entered in the Criminal Appeal Book and the Civil Appeal Book

:

(a)         the number of the appeal or application ;

 

(b)         the names of the appellant or applicant and the respondent ;

 

(c)         the court from which the appeal is brought ;

 

(d)         the date and place of hearing of the appeal ;

 

(e)         the names of counsel ;

 

(f)         the subject matter of the appeal or application ;

 

(g)         the judgment of the Court ;

 

(h)         any subsequent proceedings and remarks.

 

16.            As soon as notice of appeal is delivered the Registrar shall prepare a file in which documents relating to the appeal shall be files and on the front page thereof shall be recorded particulars of such documents and dates on which they are received.

 

17.           Any person aggrieved by anything done or ordered to be done by the Registrar other than anything ordered or done by the direction of the President, may apply to the Court or a Justice to have the act, order, or ruling complained of set aside or varied and the Court or a Justice may give such directions or makes such order thereon as the Court or a Justice thinks fit. Such application shall be made by notice of motion supported by affidavits setting out the complaint the grounds for the complaint and the relief sought.

 

18.           The forms set out in the First and Second Schedules to these Rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.

 

19.            Except as may otherwise be permitted in writing by the Court in special cases a legal practitioner of less than five yearsí standing at the Bar may not appear in any cause or matter before the Court except as a junior to a legal practitioner of at least five yearsí standing at the Bar.

 

20.     (1)          In relation to an appeal the Court shall have all the powers and duties as to amendment and otherwise of the High Court including without prejudice to the generality of the foregoing words, in civil matters the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiry and report by, an official or special referee.

 

In relation to a reference made to an official or special referee, anything which can be required or authorized to be done by to or before the High Court shall be done by to or before the Court.

 

(2)             A single Justice may sit in Chambers.

 

(3)             The Court shall have power to receive further evidence on questions of fact, either by oral examination in court, affidavit, or by deposition taken before an examiner or commissioner as the Court may direct, but, in case of an appeal from a judgment after trial or hearing of any cause or matter on 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.

 

(4)             The Court shall have power to draw interferences of fact and to give any judgment and make order which ought to have been given or made, and to make such further or other order as the case may require, including any order as to costs.

 

(5)             The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondentís 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 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.

 

(6)             The Court may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just.

 

(7)             The powers of the Court in respect of an appeal shall not restricted by reason of any interlocutory order from which there has been no appeal.

 

(8)             The Court shall have power to make orders by way injunctions or the appointment of a receiver or manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below.

 

(9)             Documents impounded by order of the Court shall not be delivered out of the custody of the Court except in compliance with an order of the Court :

 

Provided that where the Attorney-General of the Federal Republic of Nigeria or of a State or the Director of Public Prosecutions of the Federal Republic of Nigeria or of a State makes a written request in that behalf, documents so impounded shall be delivered into his custody.

 

(10)           Documents impounded by order of the Court, while in the custody of the Court, shall not inspected except by a person authorized to do so by an order of the Court.

 

21.     (1)           On the hearing of any appeal the Court may, if it thinks fit, make any such orders 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.

 

  (2)          The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, 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 on any other question ; and if it appear to the Court that any such wrong or miscarriage of justice as is mentioned in paragraph (2) 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 the party only, or as to that party or these 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 the court below are excessive or inadequate, the Court may in lieu of ordering a new trial -

 

(a)             substitute for the sum awarded by the court below such sum as appears to the Court to be proper ;

 

(b)             reduce or increase the sum awarded by the court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included 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 the court below.

 

 (5)           A new trial shall not be ordered by reason of the ruling of any judge of the court below that a document is sufficiently stamped or does not require to be stamped.

 

22.           After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in theses Rules, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission of the Court.

 

 

Order 2

References as to Constitution and Reserved Points of Law

 

 

1.     When a lower court refers any question as to interpretation of the Constitution under section 259 of the Constitution, or reserves any question of law for the consideration of the Court in accordance with any written Law, the lower court referring or reserving the question of law, as the case may be shall state a case in Civil Form 1 or 2 in the First Schedule to these Rules, whichever may be appropriate, and the Registrar of the lower court shall forward ten copies direct to the Registrar.

 

2.     (1)     When the lower court making an application consists of three more judges, the case shall be stated on behalf of the lower court by a majority of those judges

 

(2)    When a question is referred or reserved by the lower court the question shall be signed by all or by a majority of the judges of the lower court referring or reserving the question.

 

3.     A case stated under this Order shall be divided into paragraphs, which, as near as may be, shall be confined to distinct portions of the subject whether facts, point of law, or document and every paragraph shall be numbered consecutively. It shall state such of the findings of fact as are necessary to explain the question on which the decision of the Court is sought but except where in a criminal matter, the question is whether there is any evidence to support any decision, or whether the evidence for the prosecution disclosed a case for the defendant to answer, it shall not contain a statement of the evidence. It shall also state the contentions of the parties, the opinion or decision (if any) of the court stating the case and the question of law for the determination of the court. In cases to which section 243A of the Criminal Procedure Act (or similar provision in any State law) applies, the case shall state whether the hearing has been adjourned or the verdict has been postponed or sentence has been respited and whether the person accused or convicted has been committed to prison or admitted to bail.

 

4.     (1)     Subject to the provisions of this rule, the following persons shall be entitled as of right to appear in person or by a legal practitioner at the hearing of any case stated under this Order :

 

(a)     the parties to the proceedings in which the question of law arose ; and

 

(b)     in any case states involving a substantial question of law as to the validity of any law enacted by the National Assembly, the Attorney-General of the Education.

 

(2)     The following persons may by leave of the Court, appear in person or by a legal practitioner at the hearing of any case stated on the reference to the Court of any question s to the interpretation of the Constitution or any section of the Constitution pertaining to a State, as the case may be :

 

(a)     Where he is not entitled to appear as of right under paragraph (1) (b) of this rule, the Attorney-General of the Federation ; and

 

(b)     the Attorney-General of the State.

 

3.     The Registrar shall forward to the Attorney-General of the Federation or of a State, as the case may be, a copy of any case stated to which this rule applied. Any other person who is entitled as of right to appear, and any person who may appear by leave of the Court, may obtain a copy of the case stated from the Registrar of the lower court on payment of such fee as may be prescribed.

 

 

Order 3

Civil Appeals

 

 

1.     This Order shall apply to appeals to the Court from any court or tribunal acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.

 

2.     (1)     All appeals shall be by law of rehearing and shall be brought by notice (hereinafter called "the notice of appeal") to be filed in the Registry of the court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

 

(2)     If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection of error shall be clearly stated.

 

(3)     The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

 

(4)     No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

 

(5)     The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.

 

(6)     Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant :

 

Provided that the Court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.

 

(7)     The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.

`

3.     (1)     Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.

 

(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 by notice of motion which shall be served on the party or parties affected.

 

(3)     Where under these Rules an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.

 

(4)     Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the court below.

 

(5)     If leave to appeal is granted by the Court or by the court below the appellant shall file a notice of appeal within the time prescribed by section 25 of the Act.

 

(6)     Where an application for leave to appeal from a decision of the court below has been brought within the time specified by section 25 of the Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in a proper grant leave to appeal.

 

(7)     The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely :

 

(a)     Civil Form 5 duly completed.

 

(b)     A certified true copy of the judgment of the court below sought to be appealed against.

 

(c)     A copy of the proposed grounds of appeal ; and

 

(d)     Where leave has been refused by the lower court a copy of the order refusing leave.

 

4.     (1)     The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.

 

(2)     Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.

 

5.     An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below.

 

6.     (1)     The Registrar of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected.

 

Provided that the Court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and makes such order as might have been made if the persons served with such notice had been originally parties to the appeal.

 

(2)     Notwithstanding anything in Rule 3 (6) of Order I where in any proceeding in the court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, notwithstanding that the address may b that of a legal representative who has not been retained for the purpose of an appeal, and notice of any application preparatory or incidental to any such appeal may be served in like manner at any time before the date on which the respondent gives notice of his address for service in accordance with the immediately following rule.

 

7.     (1)     Every person who by virtue of service on him of a notice of appeal becomes a respondent to any appeal or intended appeal shall within thirty days after service on him of the notice of appeal file in duplicate with the Registrar of the court below notice of a full and sufficient address for service in such number of copies as the said Registrar shall require. The Registrar of the court below shall forthwith send a copy of the notice of address of the Registrar and shall cause a copy thereof to be served on the appellant.

 

(2)     Such notice may be signed by the respondent or his legal representative.

 

(3)     If any respondent fails or omits to file such notice of address for service it shall not be necessary to serve on him any other proceedings in the appeal or any notice of hearing thereof.

 

(4)     Any party to an appeal or intended appeal may change his address for service at any time by filing and serving on all other parties to the appeal or intended appeal notice of such change.

 

8.     (1)     The Registrar of the court below shall after the expiration of the time prescribed for filing notice of address for service summon the parties before him to :

 

(a)     settle the documents to be included in the record of appeal ;

 

(b)     fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal ;

 

(c)     fix the amount to be deposited by the appellant or secured by bond for the due prosecution of the appeal and the payment of any costs.

 

(2)     The said Registrar shall whether any of the parties attend or not, provided that notice has been duly served on those parties who filed an address for service, proceed to settle and determine those matters in accordance with the provisions or Rules 9, 10 and 11 of this Order.

 

9.     (1)     The record of appeal shall contain the following documents in the order set out :-

 

(a)     the index ;

 

(b)     a statement by the Registrar of the court below giving brief particulars of the case and including a schedule of the fees paid ;

 

(c)     copies of documents settled by the Registrar of the court below for inclusion in the record of appeal in accordance with Rule 8 of this Order ;

 

(d)     a copy of the notice of appeal and other relevant documents filed in connection with the appeal.

 

(2)     The Registrar of the court below, as well as the parties, shall 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 and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents omitted to be copied shall be enumerated in a list at the end of the Record. Where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal, it shall be permissible to omit to copy such parts of the documents as are neither directly relevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.

 

(3)     If the Registrar of the court below 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 its being included, the document shall be included and the record shall, with a view to the subsequent adjustment of the costs of and incidental to the inclusion of such document, indicate in the index of papers or otherwise the fact that, and the party by whom, the inclusion of the document was objected to.

 

(4)     It shall not be necessary for copies of individual documents to be separately certified but the Registrar of the court below shall certify as correct each copy of the record transmitted by him in accordance with these Rules.

 

10.            The appellant shall within such time as the Registrar of the court below directs deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal at the full cost of one copy for the appellant and one-seventh cost for each of the seven copies for the use of the Court, or where twenty copies are sent, one twentieth.

 

11.            The appellant shall within such time as the Registrar of the court below directs deposit such sum as shall be determined by such Registrar or give security therefore by bond with one or more sureties to his satisfaction as such Registrar may direct for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant.

 

Provided that no deposit or security shall be required where the deposit would be payable by the Government of the Federal Republic of Nigeria or of a State, or by any Government department.

 

12.            The court may, where necessary require security for costs or for performance of the order to be made on appeal, in addition to the sum determined under Rules 10 and 11 of this Order.

 

13.     (1)         The Registrar of the Court below shall transmit the record when ready together with :-

 

(a)         a certificate of service of the notice of appeal ;

 

(b)         a certificate that the conditions imposed under Rules 10 and 11 of this Order have been fulfilled ;

 

(c)         either -

 

(i)             seven copies of the record for the use of the Justices together with, where stencil was used for production of the record, copies of such stencils duly and carefully preserved, or

 

(ii)             twenty copies of the record ;

 

(d)            the docket or file of the case in the court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.

 

  (2)           The Registrar of the court below shall also cause to be served on all parties mentioned in the notice of appeal who have filed an address for service a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list.

 

14.     (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, must give notice to that effect, 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 that event, as the case may be.

 

  (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 must 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 to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or 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 by a respondent under this rule (in this Order referred to as a "respondentís notice) must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served--

 

(a)             in the case of an appeal against an interlocutory order, within 15 days, and

 

(b)             in any other case, within one month, after the service of the notice of appeal on the respondent.

 

  (5)          A party by whom a respondentís notice is given shall file with the Registrar of the court below seven copies of such notice of which one shall be included in the record, and the other copies provided for the use of the Justices.

 

  (6)          Omission to given such notice shall not diminish any powers of the Court but may in the discretion of the Court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.

 

15.     (1)          A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notices thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.

 

  (2)          No objection shall be taken to the hearing of an appeal on the ground that the amounts fixed by the Registrar of the court below under Rule 8 (1) of this Order were incorrectly assessed.

 

  (3)          If the respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondents or may make such other order as it thinks fit.

 

17.     (1)          The Court may in any case direct that the notice of appeal be served on any party to the proceedings in the court below on whom it has not been served, or on any person not party to those proceedings.

 

  (2)          In any case in which the Court directs that the notice of appeal shall be served on any party or person, the Court may also direct that any respondentís notice shall be served on 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 on 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.

 

18.     (1)          An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.

 

  (2)          If all parties to the appeal consent to the withdrawal of the appeal without order of the Court, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar. In such event any sum lodged in Court as security for the costs of the appeal shall be paid out to the appellant.

 

  (3)          The withdrawal of an appeal with the consent of the parties under paragraph (2) of this Rule shall be a bar to further proceedings on any application made by the respondent under Rule 14 of this Order.

 

   (4)         If all the parties do not consent to the withdrawn of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the respondent under Rule 14 of this Order, and for the making of an order as to the disposal of any sum lodged in Court as security for the cost of appeal.

 

  (5)          An appeal which has been withdrawn under this Rule, whether with or without an order of the Court, shall be deemed to have been dismissed.

 

19.           Where an appeal is withdrawn under the preceding rule any respondent who has not given a notice under Rule 14 of this Order may give notice of appeal and proceed therewith in the manner prescribed by the foregoing rules, and in such case the time limited for giving notice of appeal, for depositing the sum estimated to cover the cost of the record and for furnishing the security for costs may, on application to the Court, be extended so far as is reasonably necessary in all the circumstances of the case.

 

20.     (1)          If the appellant has complied with none of the requirements of Rules 10 and 11 of this Order, the Registrar of the court below shall certify such fact to the Court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of its order.

 

  (2)          Where an appeal has been dismissed under paragraph (1) of this Rule, a respondent who has given notice under Rule 14 of this Order may give notice of appeal and the provisions of Rule 19 of this Order shall apply as if the appeal were brought under that Rule.

 

 (3)            If the respondent alleges that the appellant has failed to comply with a part of the requirements of Rules 2, 10 or 11 of this Order, the Court, if satisfied that the appellant has so failed, may dismiss the appeal for want of due prosecution or make such other order as the justice of the case may require.

 

 (4)            An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored. Any such application may be made to the Court and the Court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.

 

21.     (1)          Subject as hereinafter provided, each party shall immediately after an appeal becomes pending before the Court, deliver to the court below all documents (being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were produced or put in by him at the trial.

 

 (2)            Subject as hereinafter provided, each party to an appeal shall be prepared to produce as the hearing of the appeal all exhibits, other than documents, which are in his custody or were produced or put in by him at the trial.

 

 (3)            In case any party finds it difficult to comply with the previous provisions of this rule owing to the nature of documents or other exhibits or owing to its being in possession of a third party or for any other reason ; he may apply to the Registrar of the Court for directions.

 

(4)             The Registrar of the court below may, either of his own motion or upon application, give any directions he sees fit, whether dispensing with the provisions of this rule or modifying its application in any way or for securing compliance with it.

 

(5)             All original documents delivered to the court below under this rule shall remain in the custody of the court below until the record of appeal has been prepared, 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 ;

 

Provided that 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 it or he may impose.

 

22.            No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seen just.

 

23.            The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reserved or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.

 

24.            At any time before hearing of the appeal any party to the appeal may file a declaration in writing that he does not wish to be present in person or by a legal representative on the hearing of the appeal. He shall serve a copy of such declaration upon every other party who has filed an address for service and thereupon the appeal shall be dealt with s if the party had appeared.

 

 

25.     (1)           If the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 24 of this Order, the appeal may be struck out or dismissed with or without costs.

 

  (2)          When an appeal has been struck out owing to the non-appearance of the appellant the Court may, if it thinks fit, and such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.

 

26.           If the respondent fails to appear when the appeal is called for on hearing and has not taken action under Rule 24 of this Order, the Court may proceed to hear the appeal ex parte.

 

27.     (1)         Where an appeal has been heard ex-parte under Rule 26 and any judgment has been given therein adverse to the respondent, he may apply to the court to set aside such judgment and to re-hear the appeal.

 

  (2)           No application to set aside and re-hear an appeal under this rule shall be made after the expiration of twenty-one days from the date of the judgment sought to be set aside :

 

Provided that a respondent who has failed within the period of twenty-one days to make application under this rule may nevertheless at any time within a further period of three months thereafter apply to the court on notice to the appellant to set aside such judgment, and the Court if satisfied that good and sufficient cause has been shown for the application being out of time, may grant the application and make such order in relation thereto or as to costs as it may deem fit in the circumstances.

 

  (3)           Any such application shall be by motion accompanied by an affidavit setting forth the reasons and grounds for the application and the Court may thereupon 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.

 

28.     (1)          Save as hereinafter provided, the fees prescribed in the Third Schedule hereto shall be charged in respect of the matters to which they are respectively assigned and shall be paid to the Registrar of the court below or of the Court as the case may be.

 

  (2)          No fee shall be payable in respect of an y matter where such fee would be payable by the Government of the Federal Republic of Nigeria or of a State, or any Government Department :

 

Provided that when any person is ordered to pay the costs of the Government of the Federal Republic of Nigeria or of a State or of any Government Department in any case, all fees which would have been payable but for the provisions of this paragraph shall be taken as having been paid and shall be recoverable from such person.

 

  (3)           The Court below or the Court may, on account of the want of means of any party (although such party may not have been formally permitted to proceed as a person without means under Rule 29 of this Order) or for other sufficient reason, dispense, if it seems fit, with payment of any fees it the circumstances of the case require :

 

29.     (1)          Any party may apply to the Court for leave to prosecute or defend an appeal as a person without means. Such application shall be by notice of motion, supported by affidavit, and shall be served on the other parties to the proceedings. No fee shall be payable on filing any such application.

 

  (2)           No party shall be permitted to proceed as a person without means unless he satisfies the Court that has reasonable probability of success.

 

  (3)          A person permitted to proceed as a person without means shall not be liable to pay any of the Court fees prescribed by these Rules not shall he be required to make deposit or to give the security prescribed by Rules 10 and 11 of this Order.

 

  (4)          The Court may for good cause shown review, rescind or vary an order permitting any person to proceed as a person without means.

 

30.     (1)           Leave to proceed as a person without means shall not exempt such person from liability to an order for costs in favour of his opponent.

 

  (2)           If a person without means is not awarded cost in the proceedings, no fees shall be taken from him by a legal representative assigned to him.

 

  (3)           If a person without means is awarded costs against his opponent he shall be entitled to include and receive in such costs the fees of any legal representative assigned to him and all other fees and costs remitted by his admission to proceed as a person without means.

 

31.     (1)          Where there is a further appeal to the Supreme Court, the Registrar shall as soon as possible after the compilation of the record of appeal serve upon every appellant who has duly given a notice of appeal and paid the fees fixed by the Registrar to cover the cost of record of appeal, a copy of the record.

 

  (2)          Such record of appeal may be served upon the appellant in any manner prescribed by these Rules for the service of notice or other documents relating to the appeal.

 

  (3)          The Registrar shall thereafter cause to be served upon every respondent in the appeal who has filed an address for service a notice that the record has been compiled. It shall be the duty of each respondent to pay for and collect a copy of the record.

 

32.     (1)          Within fourteen days after a record has been served upon an appellant, the Registrar shall certify under his hand that he has served the record of appeal upon every such appellant. The certificate of service shall be in Civil Form 19, or to like effect.

 

  (2)          In addition to the requirements of Order 7 rule 12 of the Supreme Court Rules, 1977, the Registrar shall as soon as the record and notice of compilation of the record for appeal to the Supreme Court have been served on the appellant and the respondent, as the case may be, transmit to the Supreme Court:

 

(a)             a certificate that a copy of the record for appeal to the Supreme Court has been served on the appellant(s) ; and

 

(b)             a certificate that notice of compilation of the record for appeal to the Supreme Court has been given to the respondent.

 

 

Order 4

Criminal Appeals

 

 

1.     This order shall apply to appeals to the Court from any court or tribunal acting either in its original or in its appellate jurisdiction in criminal cases, other than a court-marital, and to matters related thereto.

 

2.     Except where otherwise provided in these Rules any application to the Court may be made by the appellant or respondent or by a legal representative on his behalf orally or in writing, but in regard to such applications if the appellant in unrepresented and in custody and is not entitled or has not obtained leave to be present before the Court, he shall make any such application by forwarding the same in writing to the Registrar who shall take appropriate steps to obtain the decision of the Court thereon.

 

3.     (1)     A person desiring to appeal to the Court against any judgment, sentence or order of the court below, whether in the exercise of its original or of its appellant jurisdiction, shall commence his appeal by sending to the Registrar of the court below a notice of appeal or notice of application for leave to appeal or 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 shall be given, as the case may be, in the form of such notices representatively set forth as Forms 1,2,3,4,5 or 7 in the Second Schedule to these Rules.

 

(2)     A person sending any notice or notices under this Rule shall answer the questions and comply with requirements set forth therein.

 

(3)     The Court may of its own motion or on the application of the appellant amend the notice or grounds of appeal and may grant leave to the appellant to argue additional or amended grounds of appeal.

 

Provided that, if, in the opinion of the Court, due notice of such amended or additional grounds of appeal to the respondent in necessary but had not been given the Court may adjourn the appeal or make such order as it may deem fit in the circumstance.

 

4.     (1)    Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall signed by the appellant himself, except under the provision of paragraph (4) and (5) of this Rule.

 

(2)     Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative. All notices required or authorised to be given shall be addressed to the Registrar of the court below to be forwarded by him to the Registrar :

 

Provided that, notwithstanding that the provisions of Rules 3 (1) and (2) and 4 (1) of this Order have not been strictly complied with the Court may, in the interest of justice and for good and sufficient that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the lower court.

 

(3)     Any notice or other document which required or authorised to be given or sent shall be deemed to be duly given or sent if forwarded by registered post addressed to the person to whom such notice or other document is so required or authorised to be given or sent.

 

(4)     Where an appellant or any other person authorised or required to give or send any notice of appeal or notice of any application in 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.

 

(5)     Where on trial of a person entitled it has been contended that he was 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 made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative.

 

(6)     In the case of a body corporate where any notice or other document 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.

 

(7)     An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below.

 

5.     An application to the court for an extension of time within which notices may be given shall be in Form 7 in the Second Schedule to these Rules. Every person making an application for such extension of time shall send to the Registrar 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 leave to appeal, appropriate to the ground or grounds upon which he desires to question his conviction or sentence, as the case may be.

 

6.     (1)     Where the Court or the court below has on a notice of application for leave to appeal duly sent and in the form provided under these Rules, given an appellant leave to appeal, it shall not be necessary for such appellant to give any notice of appeal but the notice of application for leave to appeal shall in such a case be deemed to be a notice of appeal.

 

(2)     Where an application for leave to appeal has been made to the court below, the Registrar of that court shall send to the Registrar of the Court notification of the result of the application in Form 6 in the Second Schedule to these Rules together with the original of the application for leave to appeal and the case shall thereafter be dealt with by the Court.

 

7.     (1)     Where a single Justice deals with any preliminary application, the Registrar shall inform the application on Form 8 in the Second Schedule hereto of the result of his application. In the event of such Justice refusing the application, the Registrar, shall forward to him form p in the said Schedule, which Form the applicant shall complete forthwith and return to the Registrar. If the applicant does not desire to have his said application determined by the Court or does not within thirty days if being notified of such refusal Form 9 duly completed by him, the refusal of his application shall be final.

 

(2)     The answers to the question on Form 1,2,3, and 4 shall be deemed to be applications to the Court in such matters.

 

(3)     For the purpose of constituting the Court the Justice who has refused any such application may sit as a member of the Court and take part in determining such application.

 

(4)     A Justice hearing a preliminary application may sit and act wherever convenient.

 

 

8.     (1)     When-

 

(a)     the Registrar of the court below has received a notice of appeal or a notice of application to the Court for leave to appeal or for extension of the time within which such notice shall be given, or

 

(b)    the court below has granted leave to appeal the Registrar of the below shall prepare the record of appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognisances entered into or any other documents filed in connection with the appeal or application.

 

(2)    Subject to the provisions of Rule 9 of this Order, the Registrar of the court below shall forward to the appellant and to the Director of Public Prosecutions of the State from which the appeal emanates a copy each of the record:

 

Provided that if the appellant is not in custody a copy of the record shall only be supplied to him on request.

 

(3)     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 it or he may impose.

 

9.     (1)     The fees set out in the Third Schedule shall be taken and paid upon every appeal under this Order.

 

(2)     The Court or the court below may waive in whole or in part the payment of any fees or the making of any deposit.

 

(3)     Fees shall not be payable in appeals in capital cases or where an appellant is granted legal aid.

 

10.     (1)          The Record of Appeal in appeal or applications relations to appeals from the court below acting in its original jurisdiction in criminal cases shall contain legible typed, stenciled and cyclostyled, or printed, copies of the following items arranged in this order:-

 

(a)             the index;

 

(b)            The Charge or information;

 

(c)            The judge's notes of the evidence and minutes of the proceedings provided that if a shorthand note of the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or in substitution of the judge's notes, as he may direct;

 

(d)            the judgment or any additional ground or explanation thereof;

 

(e)             the proceedings on or after sentence in so far as not included in the notes of hearing or minutes of proceedings;

 

(f)             all documentary exhibits put in at the trial including depositions read in consequences of the absence of a witness; 

Provided that in the case of books of accounts or other documents or great length, extracts of the relevant portions thereof only shall be included;

 

(g)            the notice of appeal or notice of application for leave to appeal, or notice of application for extension of time in which such notice shall be given.

 

  (2)           It shall not be necessary for the Record of Appeal to contain copies of any recognizances entered into or documents filed in connection with the appeal or application other than those set out in paragraph (1) of this rule unless the court or a Judge of the court below shall otherwise direct.

 

11.     (1)          The Record of Appeal in appeals or applications relating to appeals from the court below acting in its appellate jurisdiction in criminal matters shall contain legible typed, stenciled and cyclostyled, or printed copies of the following items arranged in this order:-

 

(a)             the index which shall include the particulars of the record of proceedings from the lower court;

 

(b)             the record of proceedings from the lower court as submitted to the court below;

 

(c)             the notice of appeal and all other relevant documents filed in connection with the appeal in the court below;

 

(d)             the notes of the judges on the hearing of the appeal and minutes of the proceedings;

 

(e)             the judgment of the court below;

 

(f)             the notice of appeal to the Court or notice of application for leave to appeal to the Court, or notice of application to the Court for extension of time in which such notice shall be given;

 

(g)             where leave to appeal has been granted by the court below, a copy of the other granting leave.

 

  (2)            It shall not be necessary for the record of appeal to contain copies of any recognizances entered into for the purposes of the appeal in the court below or of the appeal or application to the Court, unless the Court or a Judge of the Court below shall otherwise direct.

 

  (3)           In this rule "lower court" includes the court of trial and any court, other than the court below which may have heard the matter on appeal.

 

12.     (1)          The Registrar shall, if in relation to any appeal the Court directs him so to do, request the trial judge to furnish him with a report in writing giving his opinion upon the case generally or upon any point arising upon the case of the appellant, and the trial judge shall furnish the same to the Registrar.

 

  (2)           The report of the judge shall be made to the Court and, the Registrar shall on request, furnish a copy thereof to the appellant and respondent.

 

 

13.           When the Registrar request the trial judge to furnish a report under these Rules, he shall send to such judge a copy of the notice of appeal or notice of application for leave to appeal or any other document or information which he shall consider material, or which the Court at any time shall direct him to send or with which such judge may request to be furnished by the Registrar to enable such judge to deal in his report with the appellant's case generally or with any point arising thereon.

 

 

14.     (1)           Where the court or the court below admits an appellant to bail pending the determination of his appeal on an application by him duly made, such Court shall specify the amounts in which the appellant and his surety or sureties (unless such Court directs that no surety is required) shall be bound by recognizances, and shall direct, if it thinks fit so to do, before whom the recognizances of the appellant and his surety or sureties (if any) may be taken.

 

  (2)         In the event of such court not making any special order or giving any special directions under this Rule, the recognizance's of the appellant and of his surety (or sureties) (if any) may be taken before the Registrar.

 

  (3)         The recognizances provided for in this Rule shall be in Forms 10 and 11 in this Second Schedule to these Rules.

 

  (4)         The Registrar of the court below shall forward the recognizances of the appellant and his surety or sureties to the Registrar.

 

  (5)         An appellant who has been admitted to bail shall be personally present at each and every hearing of his appeal and at the final determination thereof. The Court may in the event of such appellant not being present at any hearing of his appeal, if it thinks right so to do, decline to consider the appeal, and may proceed summarily to dismiss the same and may issue a warrant for the apprehension of the appellant in Form 12 in the Second Schedule.

 

Provided that the Court may consider the appeal in his absence, or make such other order as it thinks fit.

 

  (6)         When an appellant is present before the Court, the Court may, on an application made by any person or, if it thinks right so to do without any application, make an order admitting the appellant to bail, or revoke or vary any such order previously made, or enlarge from time to time the recognizances of the appellant or of his sureties or substitute any other surety previously bound as it thinks right.

 

  (7)         At any time after an appellant has been on bail, the Court or where the appellant was release on bail by the court below that court may, if satisfied that it is in the interest of justice so to do, revoke the order admitting to bail, and issue a warrant in Form 12 in the Second Schedule of these Rules.

 

15.     (1)          Where a person has, on his conviction, been sentenced to payment of a fine, and in default of payment to imprisonment, and such person remains in custody in default of payment of the fine, he shall be deemed, for purposes of appeal, to be a person sentenced to imprisonment.

 

  (2)         An appellant who has been sentenced to payment of a fine, and has paid the same or part thereof in accordance with such sentence, shall, in the event of his appeal being successful, be entitled, subject to any order of the Court, to the return of the sum or any part thereof so paid by him.

 

16.           Where, upon, the trial of a person entitled to appeal against his conviction, an order of restitution of any property to any person has been made by a Justice of the Court, the person in whose favour or against whom the order of restitution has been made, and, with the leave of the Court, any other person, shall, on the final hearing by the Court of an appeal against his conviction on which such order of restitution was made, be entitled to be heard by the Court before any order annulling or varying such order of restitution is made.

 

 

17.            Where the judge of the court below is of opinion that the title to any property the subject of an order of restitution made on a conviction of a person before him is not in dispute, he, if he shall be of opinion that such property or a sample or portion or facsimile representation thereof is reasonably necessary to be produced for use at the hearing of any appeal shall give such direction to or impose such terms upon the person in whose favour the order of restitution is made, as he shall think right in order to secure the production of such sample, portion or facsimile representation for use at the hearing of any such appeal.

 

18.            The Registrar of the court below shall not issue, under any law authorising him so to do, a certificate of conviction of any person convicted in the court below if notice of appeal or notice of application for leave to appeal is given, until the determination or abandonment thereof.

 

19.     (1)           An appellant at any time after he has duly served notice of appeal or of application for leave to appeal, or of application for extension of time within which such notice shall be given, may abandon his appeal by giving notice of abandonment thereof to the Registrar, upon such notice being given the appeal shall be deemed to have been dismissed by the Court. Notice of abandonment of an appeal shall be in Criminal Form 13 or 13A, as the case may be.

 

  (2)          Upon receipt of a notice of abandonment dully completed and signed or marked by the appellant or the party authorised to sign notice under Rule 4 of this Order, the Registrar shall give notices thereof in Form 14 in the Second Schedule to the respondent, the prison authority and the Registrar of the court below, and in the case of an appeal against a conviction involving a sentence of death, shall in like manner give notice to the Permanent Secretary to the appropriate Federal or State Ministry, for the information of the authority responsible for advising the President of the Federal Republic of Nigeria or Governor (as the case may be) on the exercise of the prerogative or mercy, and the Registrar shall also return to the Registrar of the court below any original documents and exhibits received from him.

 

20.           An appellant who has abandoned his appeal may, in special cases, with the leave of the Court, withdraw his notice of abandonment by duly completing form 15 or 15A, as the case may be, in the Second Schedule together with form 7 (Notice of Application for extension of time within which to appeal) and sending them to the Registrar.

 

21.           Where an appellant who has given notice in form 1, 2, 3, or 4 that he does not desire to be present at the final hearing of his appeal, or having given notice of his desire to be present at the hearing, is absent after being duly served with the notice of hearing thereof and has given no satisfactory explanation for his absence and no legal practitioner representing him is present, the Court may proceed to consider the appeal on the merits and enter whatever judgment it deems reasonable from the record.

 

22.     (1)          Where a respondent who has been given due notice of hearing of an appeal is absent and has given no satisfactory explanation for his absence and no legal practitioner representing him is present the court may proceed to hear the appeal ex parte and enter whatever judgment is deems reasonable from the record.

 

  (2)           The Court may, if such appellant or respondent, as the case may be, shall satisfactorily explain his absence and satisfy the Court that the justice of the case requires that the appeal be heard de novo, set aside any judgment given under Rule 21 or sub-rule (1) of this Rule and set the appeal down for hearing de novo.

 

23.     (1)         Where the Court has ordered any witness to attend and be examined before the Court an order in Form 16 in the Second Schedule hereto shall be served upon such witness specifying the time and place at which to attend for such purpose.

 

  (2)          Such order may be made on the application at any time of the appellant or respondent, but if the appellant is in custody and not legally represented the application shall be made by him in Form 17 in the Second Schedule.

 

  (3)          Where the Court orders the examination of any witness to be conducted otherwise than before the Court itself, such order shall specify the person appointed as examiner to take and the place of taking such examination and the witness or witnesses to be examined thereat.

 

  (4)          The Registrar shall furnish to the person appointed to take such examination any documents or exhibits and any other material relating to the said appeal as and when requested to do so. Such documents and exhibits and other materials shall after examination has been concluded be returned by the examiner, together with any deposition taken by him under this Rule to the Registrar.

 

  (5)          When the examiner has appointed the day and time for the examination he shall request the Registrar to give notice thereof to the appellant and respondent and their legal representatives, if any, and when the appellant is in prison, to the prison authority. The Registrar shall cause to be served on every witness to be examined a notice in Form 18 in the Second Schedule.

 

  (6)          Every witness examined before an examiner under this Rule shall give his evidence upon oath or affirmation to be administered by such examiner, except where any such witness if giving evidence as a witness at a trial on information need not be sworn.

 

  (7)          The examination of every such witness shall be taken in the form of a deposition and unless otherwise ordered shall be taken in private. The Caption in Form 19 in the Second Schedule shall be attached to any such deposition.

 

  (8)          Where any witness shall receive an order or notice to attend before the Court or an examiner, the Registrar may, if it appears to him necessary so to do pay to such witness a reasonable sum for his expenses.

 

  (9)          The appellant and respondent, or their legal representatives shall, unless the Court otherwise directs, be entitle to be present at and take part in any examination of an witness to which this Rule relates.

 

24.           When an order of reference is made by the Court to a special commissioner, the question to be referred, and the person to whom as special commissioner the same shall be referred, shall be specified in such order. The Court may in such order or by giving directions as and when they from time to time shall think right, specify whether the appellant or respondent or any person on their behalf may be present at any examination or investigation or at any stage thereof as may be ordered, and specify any and what powers of the Court may be delegated to such special commissioner, and may require him from time to time to made interim report to the Court upon the question referred to him, and may if the appellant is in custody, give leave to him to be present at any stage of such examination or investigation and give the necessary directions to the Prison authority accordingly and may give directions to the Registrar that copies of any report made by such special commissioner shall be furnished to the appellant and respondent.

 

25.     (1)          On the final determination of any appeal or any application to the Court, the Registrar shall give to the appellant, if he be in custody and has not been present at such final determination, and to the respondent and that Prison authority, notice of such determination in Forms 20, 21, 22, or 23 in the Second Schedule, as the case may be

 

  (2)          In any case of an appeal in relation to a conviction invoking sentence of death, the Registrar shall on receiving notice of appeal, send copies thereof to the Permanent Secretary to the appropriate Federal or State Ministry, for the information of the authority responsible for advising the President or the Governor (as the case may be) on the exercise of the prerogative of mercy, to the respondent and to the Prison authority.

 

26    (1)          The Registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the Registrar of the court below the decision of the Court in relation thereto, and also any orders or direction made or given by the Court in relation to such appeal on any matter connected therewith.

 

  (2)          The Registrar of the court shall on receiving the notification referred to in this Rule, enter the particulars thereof on the records of such court.

 

27.            Upon the final determination of an appeal for the purposes of which the Registrar has obtained from the Registrar of the court below any original depositions, exhibits, information, inquisition, plea or other documents usually kept by the said Registrar, or forming part of the record of the court below, the Registrar shall, where practicable, cause the same to be returned to the Registrar of the court below.

 

28.            Any order given or made by the Court may be enforced by the Court or by the Court or by the court below as may be most expedient.

 

29.     (1)          Where there is a further appeal to the Supreme Court, the Registrar shall as soon as possible after the compilation of the record of appeal serve upon every appellant who has duly given a notice of appeal and paid the fees fixed by the Registrar to cover the cost of record of the appeal, a copy of the record.

 

  (2)          Such record of appeal may be served upon the appellant in any manner prescribed by these Rules for the service of notice or other documents relating to an appeal.

 

  (3)          The Registrar shall thereafter cause to be served upon every respondent in the appeal who has filed an address for service a notice that the record has been compiled.

 

30.     (1)          Within fourteen days after a record has been served upon an appellant, the Registrar shall certify under his hand that he has served the record of appeal upon every such appellant. The certificate of service shall be in Criminal Form 24, or to like effect.

 

  (2)          In addition to the requirements of Order 7 rule 12 of the Supreme Court Rules, 1977, the Registrar shall as soon as the record and notice of compilation of the record for appeal to the Supreme Court have been served on the appellant and the respondent, as the case may be, transmit to the Supreme Court :

 

(a)             a certificate that a copy of the record for appeal to the Supreme Court has been served on the appellant(s);

 

(b)             a certificate that notice of compilation of the record for appeal to the Supreme Court has been given to the respondent.

 

 

Order 5

Judgment

 

 

1.     (1)     The judgment of the Court shall be pronounced in open court, either on the hearing of the appeal or at any subsequent time of which notice shall be given by the Registrar to the parties appeal.

 

(2)     Whenever a reserved judgment is to be given and the counsel concerned are duly notified in that behalf the presence of such counsel or of their juniors is required in Court when judgment is being delivered. Failure to observe this will be regarded as an act of disrespect to the Court.

 

2.     (1)     Every judgment of the Court shall be sent by the Registrar to the court below.

 

(2)     A sealed or certified copy of the order shall be sent by the Registrar to the court below.

 

(3)     Interlocutory orders shall be prepared in like manner.

 

3.     The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represent and substantive part of it be varied and a different form substituted.

 

4.     Any judgment given by the Court may be enforced by the Court or by the court below or by any other court which has been seized of the matter, as the Court may direct.

 

5.     When the Court directs any judgment to be enforced by another court, a certificate under the seal of the Court and the hand of the presiding Justice setting forth the judgment shall be transmitted by the Registrar to such other court, and the latter shall enforce such judgment in terms of the certificate.

 

6.     Where the costs of an appeal are allowed they may either be fixed by the court at the time when the judgment is given or may be ordered to be taxed.

 

7.     (1)     The Registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the Registrar of the court below the decision of the Court in relation thereto, and also any orders or directions made or given by the Court in relation to such appeal or any matter connected therewith.

 

(2)    The Registrar of the court below shall on receiving the notification referred to in this Rules, enter the particulars thereof on the records of such court.

 

8.     Upon the final determination of an appeal for the purposes of which the Registrar has obtained from the Registrar of the court below any original depositions, exhibits, information, inquisition, plea or other documents usually kept by the said Registrar, shall, where practicable, cause the same to be returned to the Registrar of the court below.

 

 

 

Order 6

Filing of Briefs of Argument

 

 

1.     This Order shall apply to all appeals coming from any court or tribunal from which an appeal lies to this Court.

 

2.     The appellant shall within sixty days of the receipt of the Record of Appeal from the court below file in the Court a written brief, being a succinct statement of his argument in appeal.

 

3.     (1)     The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant's view, the issues arising in the appeal as well as any points taken in the court below which the appeal wishes to abandon and any point not taken in the which intents to seek leave of the Court to argue at the hearing of the appeal.

 

(2)     Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.

 

(3)     The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.

 

(4)     All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.

 

(5)     Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarise judgments of the lower courts, nor set out statutory provisions, or contain an account of the proceedings below or of the facts of the case.

 

4.     (1)     The respondent shall also within forty-five days of the service of the brief for the appellant on him file the respondent's brief which shall be duly endorsed with an address or addresses for service.

 

(2)     The respondent's shall answer all material points of substance contained in the appellant's brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform with rule 3(1), (2), (3), (4) and (5) of this Order.

 

5.     The appellant may also, if necessary, within fourteen days of the service on him of the respondent's brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent's brief.

 

6.     All parties, whose interests are identical or joint shall file joint briefs, and separate briefs may be filed only by those parties whose interests are separate or in conflict.

 

7.     A respondent may, without leave, include arguments in respect of a cross-appeal or a respondent's notice in his brief for the original appeal and the cross-appeal or respondent's notice.

 

8.     Twenty copies of all briefs in respect of the appeal shall be filed in Court. All such copies shall be duly endorsed for service on the other side which shall also be duly paid for by the party filing the same.

 

9.     (1)    Oral argument will be allowed at the hearing of appeal to emphasise and clarify the written argument appearing in the briefs already filed in Court.

 

(2)     The appellant shall be entitled to open and conclude thee argument. Where there is a cross-appeal or a respondent's notice, the appeal and such cross-appeal or respondent's notice shall be argued together with the appeal as one case and within the time allotted for on case, and the Court may, having regard to the nature of the appeal, inform the parties which one is to open and close the argument.

 

(3)     Unless otherwise directed, one hour on each side will be allowed for argument.

 

(4)     Save with the leave of the Court, no oral argument will be heard on behalf of any party for whom no brief has been filed, or in respect of a point not covered by the briefs.

 

(5)     When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appeal to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.

 

10.            Where an appellant fails to file his brief within the time provided for in rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court. Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent's brief.

 

11.            The Court may, where it considers the circumstances of an appeal to be exceptional, or where the hearing of an appeal ought to be accelerated in the interest of justice, waive compliance with the provisions of this Order in so far as they either wholly or in part or reduce the time limits specified in this Order, to such extent as the Court may deem reasonable in the circumstances of the case.

 

 

Order 7

Miscellaneous

 

 

1.     (1)    Records of Appeal from the Sharia Court of Appeal or Customary Court of Appeal intended for use in the Court shall be compiled in the English language as well as the language used in the proceedings before the Court.

 

(2)     Seven certified true copies in English and two only in the other language shall be forwarded to the Court.

 

2.     The Court may direct a departure from these Rules in any way when this is required in the interest of justice.

 

3.     Non-compliance on the part of an appellant or a respondent with these Rules or with any Rule or practice for the time being in force shall not prevent the further prosecution of the appeal if the Court considers that such non-compliance was not wilful, and that it is in the interests of justice that such non-compliance be waived. The Court may in such manner as it thinks fit, direct the appellant or the respondent as the case may be to remedy such non-compliance, and thereupon the appeal shall proceed. The Registrar shall forthwith notify the appellant or the respondent as the case may be of any directions given by the Court under this rule where the appellant or the respondent was not present at the time when such directions were given.

 

4.     As early as possible before the date set down for hearing of any appeal before the Court and in any event not later than two clear days before such date, all the parties or the legal practitioners representing them shall forward to the Registrar a list of the law reports, text books, and other authorities which counsel intend to cite at the hearing of the appeal.