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Court of Appeal Rules 1990

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Court of Appeal Rules 1990


GS 10 of 1990






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COURT OF APPEAL RULES 1990

Court of Appeal Rules 1990 Arrangement of Rules





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COURT OF APPEAL RULES 1990

Arrangement of Rules
Order

ORDER 1 : CITATION .......................................................................................5

ORDER 2 : APPLICATION ................................................................................5

ORDER 3 : INTERPRETATION.........................................................................6

ORDER 4 : TIME................................................................................................6

CIVIL AND LAND JURISDICTION 7

ORDER 5 : NOTICES ........................................................................................7

ORDER 6 : SERVICE OF DOCUMENTS ..........................................................8

ORDER 7 : APPLICATIONS............................................................................10

ORDER 8 : DETERMINATION OF APPEALS ................................................10

ORDER 9 : EFFECT OF APPEAL...................................................................14

CRIMINAL JURISDICTION 14

ORDER 10 : COMMENCEMENT OF APPEAL ...............................................14

ORDER 11 : DETERMINATION OF APPEALS ..............................................15

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FORMS 17

NOTICE OF APPEAL - CIVIL/LAND ................................................................17

NOTICE OF APPLICATION .............................................................................19

NOTICE OF ORDER OF TINGLE JUDGE.......................................................19

CONSENT TO DETERMINATION OF APPEAL ON
WRITTEN SUBMISSIONS ...............................................................................20

NOTICE OF APPEAL - CRIMINAL...................................................................20

NOTICE OF CHIEF JUSTICE'S DIRECTION ..................................................21

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COURT OF APPEAL RULES 1990

GS 10 of 1990

COURT OF APPEAL

[28th August 1990]

IN EXERCISE of the powers conferred by section 9 of the Court of Appeal Act, I
make these rules this 28th day of August 1990.

G.W. Martin
Chief Justice

ORDER 1 : CITATION
These rules may be cited as the Court of Appeal Rules 1990.

ORDER 2 : APPLICATION

Rule 1.
Subject to rule (2) of this order, these Rules shall apply to all proceedings before
the Court of Appeal.

Rule 2.
Where there is no provision in these Rules the rules of procedure for the time
being in England relating to appeals to the Court of Appeal shall apply.

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ORDER 3 : INTERPRETATION

Rule 1.
The Interpretation Act shall apply to these Rules.

Rule 2.
“The Act” means the Court of Appeal Act; (Cap 9)

“Court” means the Court of Appeal;

“Judge” means a Judge of Appeal appointed pursuant to clause 85 of the
Constitution;

“Lawyer” means a Law Practitioner enrolled and holding a valid
practising certificate under the Law Practitioners Act 1989;

“Registrar” means the Registrar of the Court of Appeal;

““Service Officer” means any police officer or an officer of the Supreme
Court authorised to effect service of documents;

“Supreme Court” means the Supreme Court of Tonga.

ORDER 4 : TIME

Rule 1. Extension or abridgment of time.
The Court or a single judge may, on such terms as he thinks just, order that the
time within which a person is required to or authorised to do any act be extended
or abridged.

Rule 2. Time when Court is closed.
Unless otherwise ordered by the Court, when the time for doing any act expires
on a day when the Registrar's office is closed, the act shall be done in time if
done on the next day when that office is open.

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CIVIL AND LAND JURISDICTION

ORDER 5 : NOTICES

Rule 1. Leave to appeal
(1) Where leave to appeal is required, application for such leave must be

made within 42 days after the date of the judgment or order appealed.

(2) If leave is granted, notice of appeal must be lodged within 14 days after
the date when such leave was granted.

Rule 2. Notice of appeal
(1) An appeal to the Court must be commenced within 42 days after the date

of the judgment or order appealed by lodging with the Registrar notice of
appeal, together with the prescribed fee.

(2) Notice of appeal may be given in respect of the whole or any part of the
judgment or order of the court below.

(3) Notice of appeal must be substantially in Form 1, and must
(i) identify the judgment or order appealed against, stating whether

appeal is made against the whole or part; if in part specifying which
part;

(ii) state the form of the order which the appellant seeks; and
(iii) state Separately and concisely each ground of appeal, with

particulars.

(4) Except with the leave of the Court (which may be given by a single judge)
an appellant shall not be entitled on the hearing of an appeal to rely on any
grounds of appeal, or to apply for any relief, not specified in the notice
of appeal.

Rule 3. Respondent's notice
(1) A Respondent who is served with notice of appeal and who wishes

(a) to contend that the decision of the lower court should be varied,
whether in any event or in the event of the appeal being allowed in
whole or in part, or

(b) to contend that the decision of the lower court should be affirmed
on grounds other than those relied upon by that court, or

(c) to contend by way of cross appeal that the decision of the lower
court was wrong in whole or in part, —

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must respond within 42 days after service on him of notice of appeal, by
lodging with the Registrar a respondent's notice.

(2) A respondent's notice must
(a) where paragraph (l)(a)or (l)(c) applies, state the form of the order

sought, and
(b) state concisely the grounds of his contention.

(3) Except with the leave of the Court (which may be given by a single judge)
a respondent shall not be entitled on the hearing of an appeal to rely on
any ground of appeal, or to apply for any relief, not specified in the Notice
given under paragraph (1).

Rule 4. Supplementary notices.
(1) Notice of appeal or a respondent's notice may be amended without leave,

by lodging with the Registrar a supplementary notice setting out the
amendments desired.

(2) A supplementary notice may be lodged
(a) if the appeal is to be determined on written submissions under

Order 8, not later than the date upon which the documents are sent
to the members of the Court; and

(b) In any other case, not later than 28 days before the Court is due to
commence sitting.

ORDER 6 : SERVICE OF DOCUMENTS

Rule 1. Who must be served.
Every document lodged with the Registrar, unless lodged in connection with an
ex parte application, mast within 14 days after it was lodged be served by the
party lodging it on every party who is directly affected by the appeal, and on
such other person as the Court or a single judge may direct.

Rule 2. Documents to be served personally.
Subject to the provisions of this order, every document required to be served
must be served personally by delivering a sealed copy to the party to be served.

Rule 3. Service by or on Lawyer.
Where a lawyer has notified the Court that he represents any party:

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(a) service of any document by that party must be effected by that
lawyer or one of his employees, and

(b) service of any document on that party must be effected by
delivering a sealed copy to his lawyer.

Rule 4. Service by or on party in person,
Where a party acts in person, service of any document —

(a) by him, or
(b) on him,

must be effected by a service officer, on payment of such fee as may be
prescribed.

Rule 5. Substituted and dispensing with service
(1) If it appears to the Registrar that it is impracticable for any reason to serve

any document in accordance with rules 1 to 4, he may grant leave to
substitute some other form of service which it appears to him is likely to
bring that document to the notice of the person to be served.

(2) If it appears to a judge that it is impracticable to serve a party in
accordance with rules 1 to 4, or it is otherwise necessary or expedient to
dispense with service of any document on any party, he may make an
order dispensing with such service.

(3) Application for an order under paragraphs (1) or (2) must be made ex
parte supported by an affidavit showing what steps have already been
taken to effect service and stating the grounds of the application. The
applicant may be required to attend on the application.

Rule 6. Proof of service.
(1) The person serving any document must forthwith endorse the original

document with details of the time, date, place and mode of service, and
the server's means of knowledge of the identity of the person served.

(2) Such endorsement must be lodged promptly with the Registrar and shall
be evidence that the document was duly served as stated thereon.

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ORDER 7 : APPLICATIONS

Rule 1. Ex parte applications.
An application for leave to appeal or for leave to appeal out of time may be
made ex parte supported by an affidavit, and may be determined by a single
judge without a hearing.

Rule 2. Other applications.
(l) Any other application relating to an appeal must be made on notice

substantially in Form 2 supported by an affidavit.

(2) Any part served with notice of application may lodge affidavit evidence in
reply within 14 days after service of the notice on him.

(3) If the Court is then sitting, the Registrar will notify the parties of the time
and date when the application will be heard.

(4) If the Court is not then sitting —
(i) after 14 days from the date of service of the notice of application

the Registrar will send to a single judge
(a) the notice of application,
(b) the affidavit(s) filed in support, and
(c) any affidavits filed in reply.

(ii) The judge will determine the matter without a hearing and will
notify the Registrar in writing of his order.

(iii) Upon receipt of the judge's order the Registrar will give notice to
the parties in Form 3.

Rule 3. Renewal of applications.
If an application is refused by a single judge without a hearing, it may be
renewed with the leave of the Court at its next sitting.

ORDER 8 : DETERMINATION OF APPEALS

Rule 1. General powers of the Court
(1) Subject to paragraph (3), an appeal shall be by way of rehearing on the

documents.

(2) In relation to an appeal the Court shall have all the powers and duties of
the court from which the appeal is brought.

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(3) The Court shall not receive further evidence on questions of fact, (other
than as to matters which have occurred since the trial in the lower court)
without leave, which shall only be granted on special grounds.

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

(5) The Court may exercise the powers under the foregoing paragraphs in
respect of any part of the decision of the Court below even though that
matter has not been raised in the notice of appeal or respondent notice as
the case may be; and the Court may make any order, on such terms as it
thinks just, to ensure the determination on the merits of the real question
in issue between the parties.

(6) On the hearing of an appeal the Court may make any order which could be
made on application for a new trial or to set aside a verdict, finding or
judgment of the court below.

(7) The Court shall not be bound to order a new trial on the ground of
misdirection, or improper admission or rejection of evidence, unless in the
opinion of the Court some substantial wrong or miscarriage was caused
thereby.

(8) Where damages awarded by a judge are found to be excessive or
inadequate, or damages awarded by a jury are found to be perverse, the
Court may substitute such sum as appears to it to be proper.

Rule 2. Transcripts
(1) A transcript of proceedings in the lower court will not be prepared unless

requested by a party when lodging his notice of appeal or respondent's
notice, as the case maybe.

(2) A party may request that a specified part of .the transcript be prepared.

(3) The party requesting a transcript shall pay to the Registrar a charge for its
preparation of 30 seniti per page.

Rule 3. Determination of appeals on written submissions,
(1) This rule applies to appeals to be determined on written submissions in

accordance with section 15 of the Act.

(2) An appeal shall be determined in this manner if
(i) it is an appeal from any interlocutory order, judgment or decision;
(ii)

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(a) the appellant includes in his notice of appeal a notice that he
consents to his appeal being determined in this manner, and

(b) the respondent within 14 days after service of the notice of
appeal on him lodges with the Registrar his consent in
Form 4; or

(iii) at any time before the appeal is set down for an oral hearing, all
parries: lodge with the Registrar their consent in Form 4.

(3) The appellant must, within 28 days after service on him of the
respondent's consent, lodge with the Registrar written arguments in
support-of his appeal.

(4) Every respondent must, within 28 days after service on him of the
appellant's written arguments, lodge with the Registrar written arguments
in opposition to the appeal.

(5) The appellant may, within 14 days after service on him of the respondent's
written arguments, lodge with the Registrar further written arguments
in reply.

(6) Any party may, at any time before the time for lodging written arguments
in reply under paragraph (5), withdraw his consent to the appeal being
dealt with on written submissions and the appeal shall thereupon proceed
in accordance with Rule 4.

(7) On expiry of the time for lodging written arguments in reply under
paragraph (5) the Registrar will send to each member of the Court a
copy of
(a) the notice of appeal and any respondent's notice and supplementary

notice;
(b) every written submission;
(c) the pleadings and orders in the action;
(d) if requested, a transcript of the evidence in the lower court;
(e) all documentary exhibits relevant to the stated grounds of appeal;
(f) a list of all other exhibits relevant to the stated grounds of appeal;

and
(g) the judgment appealed;

and will notify the parties when this has been done,

(8) The members of the Court are not required to meet together but they may
communicate with each other as they deem fit.

(9) Each member of the Court will consider the documents and give his final
determination on the appeal in writing, either in the form of a judgment or

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by concurring with one or both of the judgments of the other members of
the Court.

(10) Each member of the Court will sign and date his judgment which shall
thereupon become his final judgment.

(11) The judgment of the majority of the members of the Court shall be the
judgment of the Court on that appeal.

(12) Upon receipt of the judgments of all members of the Court the Registrar
shall notify the parties of the time and place where such judgments shall
be read.

(13) The judgments shall be read in open court by a judge or a judge of the
Supreme Court, or the Registrar.

Rule 4. Determination of appeals on oral hearing.
(1) This rule applies to appeals to be determined at an oral hearing.

(2) The Registrar may set down an appeal for hearing at any time after expiry
of the time for lodging a respondent's notice.

(3) The Registrar shall
(a) prepare the Court list and notify the parties of the date of hearing;
(b) prepare a bundle of documents for the Court comprising those

documents listed in Rule 2(7) and supply a copy to each party.

(4) Counsel should, not later than 7 days before the date of hearing, lodge
with the Registrar 4 copies of
(a) skeleton arguments, and
(b) where appropriate, a chronology of events.

(5) The Court may give directions as to the order in which the parties shall be
heard; but if no such direction is given
(i) the appellant shall present his case;
(ii) each respondent in turn shall present his case;
(iii) the appellant may reply.

(6)
(i) The judgment shall be the opinion of the whole or a majority of the

members of the Court; and
(ii) only one judgment shall be given; but any member of the Court

who dissents may briefly state his reasons for so doing.

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ORDER 9 : EFFECT OF APPEAL
Unless otherwise ordered by the Court or the Supreme Court, an appeal shall not
operate as a stay of execution or of proceedings in the court below.

CRIMINAL JURISDICTION

ORDER 10 : COMMENCEMENT OF APPEAL

Rule 1. Leave to appeal
(1) Where leave to appeal is required, application for such leave must be

made within 42 days of after the date of the decision appealed.

(2) Application for leave to appeal or for leave to appeal out of time must be
made ex parte supported by an affidavit.

(3) The Registrar shall refer any such application to a single judge who may
determine the matter without a hearing.

(4) If an application is refused by a single judge without a heating, it may be
renewed with the leave of the Court at its next sitting.

Rule 2. Notice of appeal
(1) An appeal to the Court in its criminal jurisdiction must be commenced by

lodging with the Registrar notice of appeal, together with the prescribed
fee.

(2)
(i) If leave to appeal is granted, notice of appeal must be lodged within

14 days after the date when such leave was granted.
(ii) If no leave is required, notice of appeal must be lodged within 42

days after the date of the decision appealed.

(3) Notice of appeal may be given in respect of conviction or sentence, or
both conviction and sentence.

(4) Notice of appeal must be substantially in Form 5, and must state
separately and concisely each ground of appeal, with particulars.

Rule 3. Action by Registrar
On receipt of notice of appeal the Registrar will

(i) cause a copy to be served on the respondent;

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(ii) prepare a transcript of any part of the proceedings in the lower court
relevant to the stated grounds of appeal;

(iii) obtain a report from the trial judge pursuant to section 21 of the
Act; and

(iv) prepare a bundle of documents for the Court comprising
(a) the indictment;
(b) the report of the trial judge;
(c) the transcript;
(d) all documentary exhibits relevant to the stated grounds of

appeal;
(e) a list of all other exhibits relevant to the stated grounds of

appeal; and
(f) if the appeal is against sentence, details of previous

convictions cited to the lower court.

ORDER 11 : DETERMINATION OF APPEALS

Rule : 1. General powers of the Court
The provisions of Order 8 Rules 1(1) to 1(7) inclusive shall apply.

Rule 2 : Determination of appeals without a hearing
(1) This rule applies to appeals to be determined without a hearing in

accordance with section 24 of the Act.

(2) An appeal shall be determined in accordance with this rule
(a) if the Chief Justice so directs; or
(b) if the appellant so requests in writing.

(3) If the Chief Justice so directs
(a) The Registrar shall notify all parties in Form 6, and
(b) The appellant must within 28 days after service of such notice lodge

written arguments in support of his appeal;

(4) If the appellant so requests
(a) he must do so in his notice of appeal; and
(b) he must within 28 days after lodging notice of appeal lodge written

arguments in support of his appeal;

(5)

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(i) The respondent may, within 28 days after service on him of the
appellant's arguments, lodge with the Registrar written arguments in
opposition to the appeal; and if he does

(ii) the appellant may, within 14 days after service on him of the
Respondent's arguments, lodge with the Registrar further written
arguments in reply.

(6) On expiry of the time for lodging written arguments in reply under
paragraph (5)(ii) the Registrar will send to each member of the Court a
copy of
(a) the documents listed in Order 10 Rule 3(iv), and
(b) all written submissions

and will notify the parties when this has been done. Thereafter the
provisions of Order 8 Rule 3(8) to (13) shall apply.

Rule 3. Determination of appeals on oral hearing
The provisions of Order 8 Rule 3 shall apply, save that the documents for the
Court shall be those listed in Order 10 Rule 3(iv).



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FORMS

FORM 1 - 0.5 r.2(3)

NOTICE OF APPEAL - CIVIL/LAND

IN THE COURT OF APPEAL OF TONGA Appeal No

On appeal from the Supreme/Land Court of Tonga

BETWEEN

A.B. Appellant

and

C.D. Respondent

NOTICE OF APPEAL
TAKE NOTICE that the Court of Appeal will be moved as soon as Counsel can be
heard on behalf of the above named Appellant on appeal from the judgment/order of
Mr Justice given/made at the trial of

this action on 19 whereby it was adjudged/ordered that

[set out terms of judgment of order]

FOR AN ORDER that

[set out terms of the order sought]

ON THE GROUNDS that

[set out grounds of appeal]

* AND FURTHER TAKE NOTICE that the appellant consents to the appeal being
determined on written submissions in accordance with section 15 of the Court of
Appeal Act.

Dated 19

(Signed)

Lawyer for the Appellant

of [address]

To: [the respondent or his lawyer]

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of [address]

* (delete as appropriate)

FILED the [date]
Registrar.

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Form 2 - 0.7 r.2(1)

NOTICE OF APPLICATION

[Heading as in Form 1]

To: [name]

of : [address]

TAKE NOTICE THAT

1. The [party] has applied to a single judge for an order that

[set out terms of order sought]

in support of which he has lodged an affidavit a copy of which is attached.

2. If you object to the order sought you must lodge an affidavit in reply within 14
days from the date of service of this application on you.

3. After the said period of 14 days has elapsed the application will be determined
by the judge without a hearing.

Dated 19

SEAL

Form 3. - 0.7. r.2(4)

NOTICE OF ORDER OF TINGLE JUDGE

[Heading as in Form 1]

TAKE NOTICE THAT the application of the [party]

made on [date]

has been referred to a single judge who has ordered that:

[set out terms of judge's order]

Dated 19
Registrar

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Form 4. - 0.8 r.3(2)

CONSENT TO DETERMINATION OF APPEAL ON
WRITTEN SUBMISSIONS

[Heading as in Form 1]

TAKE NOTICE THAT the Respondent consents to this appeal
being determined on written submissions in accordance with section 15 of the Court of
Appeal Act.

Dated 19

(Lawyer for) Respondent

FILED the [date]
Registrar

Form 5 - 0.10 r.2(4)

NOTICE OF APPEAL - CRIMINAL

On appeal from the Supreme/Land Court of Tonga

BETWEEN

A.B. Appellant

and

Rex Respondent

NOTICE OF APPEAL
TAKE NOTICE that I wish to appeal to the Court of Appeal against my
conviction/sentence/conviction and sentence before the Supreme Court

on

for the offence(s) of

for which I was sentenced to

ON THE GROUNDS that

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* AND FURTHER TAKE NOTICE that I request that this appeal be determined
without a hearing ,m open court in accordance with section 24 of the Court of
Appeal Act.

Dated 19

(Signed)

Lawyer for the Appellant

* (delete as appropriate)

FILED the [date]
Registrar.





Form 6 - 0. 11 r.2(3)

NOTICE OF CHIEF JUSTICE'S DIRECTION

[Heading as in Form 5]

To The Appellant and the Respondent

TAKE NOTICE that the Chief Justice has directed that this appeal be determined in
the manner provided for in section 24 of the Court of Appeal Act.

Dated
Registrar