A respondent can win a trial and still be dissatisfied with parts of the reasoning. If the appellant later attacks the ground the Judge decided in the respondent’s favour, the respondent may want to fall back on the ground the Judge rejected. Rule 29 is how that is done.
Order 7 Rule 29
It is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of a part of the judgment actually pronounced — but the respondent shall in that event —
(a) give notice of the contention to the appellant;
(b) give notice to the appellant of the record of evidence or documents before the National Court relevant to the contention, for inclusion in the appellant’s draft index to be prepared in accordance with Rule 40;
(c) request the Registrar to include such record of evidence or documents in the appeal book.
The question to ask
If the answer is no — you are content with the judgment as pronounced and merely say it should stand on a different footing — a contention is enough.
If the answer is yes — you want a sum increased, a claim reinstated, a costs order reversed — you need a cross-appeal, filed within the section 17 period.
| Situation | Contention or cross-appeal |
|---|---|
| Claim dismissed on the merits; you also pleaded limitation, which the Judge rejected | Contention — the dismissal stands either way |
| Claim dismissed for want of notice under the Claims By and Against the State Act; you also say the claim disclosed no cause of action | Contention |
| Judgment for K200,000; you say it should have been K350,000 | Cross-appeal |
| Injunction granted on one ground; you say a second ground also supported it | Contention |
| Injunction granted but narrower than you asked | Cross-appeal |
| You succeeded but were ordered to bear your own costs | Cross-appeal (and s 14(3)(c) leave) |
The logic of the rule
An appeal lies from a judgment, not from a passage of reasoning. A respondent who has the order they want has nothing to appeal against, however wrong they think part of the reasons.
Rule 29 solves the practical problem this creates: the Supreme Court can affirm a judgment on a ground the primary Judge rejected, but it needs notice that the ground is in play, and it needs the material on which to decide it.
Section 16 of the Act allows the Court to affirm the judgment — and affirming on different reasoning is still affirming.
What the notice looks like
Rule 29 requires notice to be given to the appellant. It does not prescribe a form, and there is no Form for a contention in the Schedule.
Draft it as a document in the proceeding: entitled in the appeal, headed “Notice of Contention”, stating the matters said to have been erroneously decided and the basis on which the respondent contends the judgment should nevertheless be affirmed. File it as well as serving it, so that it is on the Court file.
Order 1 Rule 8 provides that where no form is prescribed, it is sufficient compliance if a document is substantially in accordance with the requirement.
Rule 29 does not set a deadline. But paragraph (b) ties the notice to the appellant’s draft index under Rule 40, and paragraph (c) to inclusion in the appeal book.
So the practical deadline is the appointment to settle. A contention notified after the appeal book is settled will not have its material in the book, and the respondent will be arguing a point without the evidence to support it.
Serve it as soon as the position is clear, and in any event before the draft index is finalised.
Paragraphs (b) and (c) are the substance
Notice to the appellant of the evidence and documents relevant to the contention, so that they go into the appellant’s draft index. The appellant prepares the index and cannot be expected to guess what a contention will rely on.
A request to the Registrar that those documents be included in the appeal book. This is a direct request, independent of the appellant’s cooperation, and it is worth making in writing.
Where the appellant disputes inclusion, the point is resolved at the appointment to settle, and ultimately by the Registrar under Order 7 Division 12.
Two things that go wrong
A respondent who files a contention when the point actually required a cross-appeal will find, at the hearing, that the Court cannot give the relief sought — and by then the 40 days will long since have expired.
Where there is doubt, and you are still within the section 17 period, file the cross-appeal. It costs a filing fee; the alternative costs the point.
A respondent who simply argues the rejected ground at the hearing, without notice, is raising a matter the appellant has not prepared for and the appeal book may not support. The Court can accommodate that, but it need not.
Rule 29 uses the word shall for all three obligations.
Sources
- Supreme Court Rules 2012 — O 1 r 8; O 7 rr 27–29, 40, 42
- Supreme Court Act (Chapter 37) — ss 14, 16, 17
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.