THE COURT OF APPEAL RULES, 2016: WHAT HAS CHANGED? (PART 1)

The new Court of Appeal Rules, 2016 has come with some modifications. While discussing with a colleague, who feels that only cosmetic changes have been made to the Rules, I felt it wise to have a look and share some of my own findings in this post. It is hoped that opinions and ideas from your own end will help shape this post. I intend to amend appropriately once your input is acknowledged. Kindly feel free to drop your comments below. I will make it a working series.
For the purpose of this post, and the upcoming ones on the innovations or changes made to the Court of Appeal Rules, the Court of Appeal Rules, 2011 will be referred to as "Old Rules" while the 2016 Rules will be referred to as the "New Rules". This current post will be limited to the definition provisions under Order 1 Rule 5. I will attempt to make comparisons with the Rules to bring out the changes.

ORDER 1 RULE 5
The definition of an Appeal has been modified. Under the Old Rules, An appeal means the filing of Notice of Appeal alone, while under the New Rules, the scope of the definition has been expanded to cover not only the filing of a notice of appeal, but also "an application for leave to appeal". Closely related to this issue under the interpretation part in Order 1 Rule 5 is the meaning of the term "Cause". The definition given to the term under the Old Rules seems restrictive to Criminal proceedings. Under the New Rules, a cause is any action, suit or proceedings between an Appellant and a Respondent or any Applicant and a Respondent. The definition of  "Court below" now has a new twist to it. First, it is defined alongside "lower court" to mean any Court, General Court Martial or Tribunal from which appeal is brought. This new definition seems to be more comprehensive in relation to what a court below may mean, as opposed to the definition under the Old Rules. It is however more like the difference between six and half a dozen.

The New Rules clearly omitted the definition of "High Court" from Order 1 Rule 5. The drafters of the Rule might have thought it wise to omit the definition owing to the age long arguments on the definition of High Court, whether comprising a Federal High Court. For whatever reason that the Court of Appeal would have to refer to a High Court, it is hoped that the age long argument on what a High Court connotes will not resurface. A new introduction to Order 1 Rule 5 under the New Rules however is the  definition of "Electronic devices" which is defined to include: flash drives, compact disks, media card or such similar devices used in the typing, or production of the record of Appeal. At the risk of not preempting the subsequent posts on the innovations brought by the New Rules, the definition of "electronic devices" will be treated under subsequent posts. It is in keeping with the introduction of use of electronic filing that this definition becomes important. There have been criticisms on the electronic filing and this will be dealt with in subsequent posts.

The definition of "Non-Contentious Motion" is retained under the New Rules as it used to be under the Old Rules. But here is the snag. It should be recalled that under the provisions of Order 7 Rule 8 of the Old Rules, provision is made for the filing of Form 6 by any Respondent who wishes not to contest an application, after which the motion will be heard in chambers by the Court. However, it is very apparent from the New Rules that the filing of any form for Non contentious motions is not envisaged under the New Rules. There is absolutely no provision for filing of Notice of intention  not to contest an application under the New Rules as the new Form 6 is now Summons to Settle Records, one then wonders why the need to define "Non-Contentious Motion under the New Rules. Will it even be right to file any Notice of intention not to contest any application? Alternatively, perhaps the drafters of the Rules still wish to retain the procedure, but not with a particular form. Perhaps, just perhaps.

The definition of "Record" has been retained as it exists under the Old Rules. One would have however thought that the drafters of the New Rules take the issue of "electronic devices" into cognizance while defining the term "Record". A careful perusal of the provisions of Order 8 Rule 10 (1) (b) makes mention of two copies of the electronic devices used in the production of the Record. The definition of Record as "aggregate of papers relating to an appeal" ought to be all encompassing as a Record now entails electronic devices. As stated earlier, the issue of electronic devices will be appropriately dealt with in subsequent posts. One other twist in the definitions provisions under the New Rules is the introduction of the term "registrar" beginning with a lower case is defined to mean the registrar of the court below or an administrative staff of the court below, while the term "Registrar" with an uppercase retains the definition of the "Registrar" of the Court of Appeal as contained under the Old Rules. One important distinction made under the Supreme Court Rules is to clearly spell out a definition for "Registrar of the Court below". This approach might have been more appropriate for the New Rules.

Lastly, a wider definition of a "Respondent" has been given under the New Rules to include a legal practitioner representing the traditional Respondent. This definition of a Respondent is closely related to what obtains under the Supreme Court Rules. The definition of an "appellant" has been omitted, deliberately? One may ask. It would therefore amount to tautology to refer to a legal practitioner representing the Respondent as "Respondent's counsel" or Counsel to the Respondent, as both the legal practitioner and the main Respondent now have the same name tag. Interesting? Well, I will be making new posts on these issues subsequently. Kindly share and drop comments below.