Non-compliance with mandatory procedural requirements under the Rules of Court renders an appeal incompetent, necessitating strict adherence to filing and service timelines.

JUDGMENT

(Striking Out The Appeal)

Kenneth St James JC:

Prelusion

[1] The Appellant-Defendant (D) and the Respondent-Plaintiff (P) went to trial in the Sessions Court.

[2] The Sessions Court granted P's claim and entered Judgment in P's favour. D was ordered to give to P vacant possession of a portion of the subject property of the claim, and to pay P damages for trespass for the relevant period, with interest and costs.

[3] D appealed to the High Court.

[4] In the Appeal proceeding, P filed an Application to strike out the Appeal on the ground that the Appeal is null and void because D did not comply with four mandatory Rules under the Rules Of 2012 (ROC 2012) which govern post-trial Appeals from the Subordinate Courts to the High Court.

[5] P's Application to strike out the Appeal is encl 4 in this Appeal proceeding.

P's Assertions Of D's Non-Compliances

[6] D is represented by solicitors on record.

[7] In this Judgment, a reference to P and D is also a reference to their respective solicitors.

[8] P asserts that these are the D's non-compliances:

(1) D did not serve on P the Notice of Appeal (NOA);

(2) D did not serve on P the Record Of Appeal (ROA);

(3) D did not apply to the Sessions Court, in writing, for the Notes Of Proceedings (NOP) and the Grounds Of Judgment (GOJ) within the prescribed time limit under the ROC 2012;

(4) the names of both parties were incorrectly stated in the intitulement of the cause papers of this Appeal, including the NOA and ROA.

[9] P argues that these serious and formal non-compliances render D's Appeal incompetent and hence null and void.

The Prescribed Time Limits To File And Serve The NOA And ROA, And Apply For The NOP And GOJ

Time Limit To File And Serve The NOA

[10] Order 55 r 2, read together with O 55 r 3(4) of the ROC 2012, requires that D, as Appellant, must file and serve the NOA on P (or P's solicitors, since P has solicitors on record), within 14 days from the "date of decision" ie date of Judgment, which was 5 September 2022. Fourteen days from 5 September 2022 was 19 September 2022.

[11] D's deadline to file the NOA was on 19 September 2022. The records show that D filed the NOA on 9 September 2022, which was within time.

[12] I will address the issue of the service of the NOA below.

Time Limit To File And Serve The ROA

[13] Order 55 r 4(1), read together with O 55 r 4(8), makes it mandatory for D to file and serve the ROA on P within one month from the date that the NOA was filed. D filed the NOA on 9 September 2022. One month from 9 September 2022 was 9 October 2022.

[14] D's deadline to file the ROA was 9 October 2022. The records show that D filed the ROA on 11 October 2022, which was out of time. D failed to file the ROA on time.

[15] Additionally, O 55 r 4(1)(b) requires the ROA to contain the Notes Of Evidence. P represented to me at the hearing that D had completely failed to file and serve the Notes Of Evidence.

[16] I therefore find that D has failed to comply with the requirements of O 55 r 4(1) of the ROC 2012.

[17] I will similarly deal with the issue of the service of the ROA later below.

Time Limit To Apply For NOP And GOJ

[18] Order 55 r 3(5) compels D to apply, in writing, for the NOP and the GOJ "within the time limited for the filing of an appeal" ie also within 14 days from the date of the Judgment. As computed above-14 days from the date of Judgment (5 September 2022) was 19 September 2022. The deadline for D to apply for the NOP and GOJ was 19 September 2022.

[19] There is no affidavit evidence before me in this Appeal about the date that D applied for the NOP and GOJ. P, in his Affidavit In Support of Enclosure 4, averred that until the date of P's Affidavit In Support, which was affirmed on 9 November 2022, D had yet to apply in writing for the NOP and GOJ.

[20] Hence, the evidence is that even until 9 November 2022 (the date of P's Affidavit In Reply), which was much later than the prescribed 14 days from the date of Judgment- 19 September 2022 -D had not applied in writing for the NOP