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[F.A.Q.]
Nauru Sessional Legislation |
REPUBLIC OF NAURU
APPEALS
ACT 1972
(No. 1 of
1972)
ARRANGEMENT OF SECTIONS
Section
PART
I
PRELIMINARY
1. Short title and
commencement.
2.
Interpretation.
PART
II
APPEALS FROM THE
DISTRICT COURT IN CRIMINAL CAUSES
3. Appeal to the Supreme
Court.
4. Limitation on appeal on plea
of guilty and in petty cases.
5.
Appeal to be by way of petition.
6.
Form and contents of petition.
7.
Petition to be forwarded to the Supreme
Court.
8. Summary dismissal of
appeal.
9. Notice of
hearing.
10. Admission to bail and
suspension of sentence pending
appeal.
11. Suspension of order for
restoration or payment of compensation, expenses,
etc.
12.
Costs.
13. Discontinuance of
appeal.
14. Determination of appeal by
the Supreme Court in ordinary
cases.
15. Powers of the Supreme Court
in special cases.
16.
Adjournment.
17. Further
evidence.
18. No appeal on point of
form or matter of variance unless raised in the District
Court.
19. Supreme Court order on
appeal to be certified to the District
Court.
20. Right of appellant to be
present.
21. Power of the Supreme
Court to call for records.
22. Power
of the Resident Magistrate to call for records of the District Court and to
report to the Supreme Court.
23.
Powers of the Supreme Court on
revision.
24. Discretion of the
Supreme Court as to hearing
parties.
25. Number of judges on
revision.
26. Supreme Court order on
revision to be certified to the District Court.
PART
III
APPEALS FROM
THE DISTRICT
COURT
IN CIVIL
CAUSES AND MATTERS
27. Appeal to the Supreme
Court in civil causes and matters.
26.
Appeal to be by way of petition.
29.
Time for appeal.
30. Security for
appeal.
31.
Cross-appeals.
32. Procedure where
appeal not prosecuted.
33. Powers of
the Supreme Court.
34. Supreme Court
order to be certified to the District Court.
PART
IV
PROCEDURE AND
RULES
35. Appeals to be by way
of rehearing.
36. Rules for
appeals.
-------------------------------------------------
AN ACT
To provide for appeals from the District Court.
(Certified: 26th January, 1972)
Enacted by the Parliament of Nauru as follows:
PART I - PRELIMINARY
SHORT
TITLE AND COMMENCEMENT
1. This Act
may be cited as the Appeals Act 1972 and shall come into force on a date to be
notified by the Minister in the
Gazette.
INTERPRETATION
2.
In this Act, unless the context otherwise requires -
"appeal" for the purpose of Part III of this Act includes a motion for a new trial or to set aside any decision;
"appellant" includes a person who has been convicted and desires to appeal under this Act and, where the Director of Public Prosecutions is, or is deemed to be, a party to any proceedings and desires to appeal under this Act, includes the Director of Public Prosecutions;
"Clerk" means the Clerk of the District Court appointed under section 15 of the Courts Act 1972;
"conviction" includes an acquittal on the ground of insanity;
"count" has the same meaning as in the Criminal Procedure Act 1972;
"decision" includes an order, judgment or decree;
"public prosecutor" has the same meaning as in the Criminal Procedure Act 1972;
"Registrar" means the Registrar of the Supreme Court appointed under section 6 of the Courts Act 1972;
"sentence" includes any order of the District Court made on conviction with reference to the person convicted; ,and any disqualification, penalty, punishment or recommendation made or imposed by the District Court, and an order made upon acquittal on the ground of insanity, and "sentenced" shall be construed accordingly.
PART
II - APPEALS FROM THE DISTRICT
COURT
IN CRIMINAL
CAUSES
APPEAL
TO THE SUPREME COURT
3. (1) Save
as hereinafter provided, a person convicted on the trial of a cause held before
the District Court may appeal under this
Part of this Act to the Supreme Court
against either his conviction or the sentence passed on his conviction or both
such conviction
and sentence.
(2)
Where the District Court has ordered the acquittal of any person in any cause,
the Director of Public Prosecutions or, with his
sanction in writing, any person
who prosecuted the case before the District Court, may appeal under this Part of
the Act to the Supreme
Court against the order of
acquittal.
(3) Where the District
Court has convicted any person in any cause, the Director of Public Prosecutions
may appeal
to the Supreme Court against the sentence
passed on such person's
conviction.
(4) Save as
hereinafter provided, a prosecutor ordered by the District Court to pay costs or
compensation may appeal to the Supreme
Court against that
order.
(5) Where a person
convicted on a trial by the District Court is not represented by a barrister and
solicitor or a pleader he shall
be informed by the magistrate having charge of
the proceedings of his right of appeal at the time when sentence is
passed.
(6) An appeal to the
Supreme Court may be on a matter of fact or of mixed law and fact, or on a
matter of law.
(7) For the purpose
of this Part of this Act the extent of a sentence shall be deemed to be a matter
of law.
(8) The Director of Public
Prosecutions shall be deemed to be a party to any criminal cause or matter in
which the proceedings were
instituted and carried on by a public
prosecutor.
LIMITATION
OF APPEAL ON PLEA OF GUILTY AND IN PETTY
CASES
4. (1) Save with the leave
of the Supreme Court, an appeal may not be brought by a person who has pleaded
guilty and has been convicted
on that plea by the District Court, except as to
the extent or legality of the
sentence.
(2) Save with the leave
of the Supreme Court, an appeal may not be brought against conviction or, except
by the Director of Public
Prosecutions, against sentence or order for payment of
the costs or compensation where in the District Court no sentence of
imprisonment
has been imposed, otherwise than in default of payment of a fine or
costs, and no fine exceeding ten dollars has been imposed and
no order of
disqualification has been
made.
(3) No conviction or
sentence which would not otherwise be liable to appeal shall be appealable
merely on the ground that the person
convicted is ordered to find security to
keep the peace.
(4) For the
purposes of this section "fine" includes costs and compensation ordered by the
District Court to be paid by a prosecutor
or by a person convicted on a trial
held before
it.
APPEAL TO
BE BY WAY OF PETITION
5. (1) Every
appeal shall be in the form of a petition in writing signed by the appellant or
by his barrister and solicitor or pleader
and shall be presented to the Clerk
within fourteen days of the date of the decision appealed
against:
Provided that a
magistrate of the District Court or a judge of the Supreme Court may, at any
time for good cause, enlarge the period
of limitation prescribed by this
section.
(2) For the purposes of
this section and without prejudice to its generality, "good cause'' shall be
deemed to include -
(a) a case where the barrister and solicitor or pleader engaged by the appellant was not present at the hearing before the District Court and for that reason requires further time for the preparation of the petition; and
(b) any case in which a question of law of unusual difficulty is involved.
FORM
AND CONTENTS OF PETITION
6. (1)
Every petition shall contain in a concise form the grounds upon which it is,
alleged that the District Court has
erred.
(2) If the appellant is not
represented by a barrister and solicitor or pleader the petition may be prepared
by the Clerk.
(3) If the appellant
is in prison custody and is not represented by a barrister and solicitor or
pleader, the petition may be prepared
by the officer in charge of the prison and
forwarded by him to the District
Court.
(4) Additional grounds of
appeal may be filed by leave of the Supreme Court at any time not later than
three days before the date
fixed for the hearing of the appeal in accordance
with section 9 of this Act.
(5)
Where two or more persons have been jointly tried and convicted and their
interests do not conflict, one petition of appeal maybe
presented on behalf of
all of them:
Provided that in such
a case the Supreme Court may hear the appeals separately or together as seems
just.
(6) Except by leave of the
Supreme Court it shall not be lawful for the appellant on the hearing of the
appeal to allege, or give
evidence on, any ground of appeal not included in the
petition or in the additional grounds, if any, filed under subsection (4) of
this section.
(7) If the case is
one which requires the leave of the Supreme Court under section 4 of this Act,
the application for leave to appeal
shall be endorsed on the
petition.
(8) For the purposes of
considering or preparing a petition of appeal a person entitled to appeal or his
barrister and solicitor or
pleader, the Clerk or an officer in charge of a
prison shall be entitled to peruse the original record of the proceedings at
such
time as the Registrar or the Resident Magistrate may
allow.
PETITION
TO BE FORWARDED TO THE SUPREME
COURT
7. Upon receiving a petition
of appeal the Clerk shall forthwith forward the petition together with the
record of the proceedings
to the
Registrar.
SUMMARY
DISMISSAL OF APPEAL
8. (1) When
the Registrar has received the petition of appeal and the record of proceedings
a judge shall peruse it.
(2) Where
an appeal is brought on one or more matters of fact alone or on the ground that
the sentence is excessive and it appears
to the judge that the evidence is
sufficient to support the conviction and that there is no material in the
circumstances of the
case which could raise a reasonable doubt whether the
conviction was right or lead him to the opinion that the sentence ought to
be
reduced, the appeal may, without being set down for hearing, be summarily
dismissed by an order of the judge certifying that he
has perused the record and
is satisfied that the appeal has been lodged without any sufficient ground of
complaint.
(3) Whenever an appeal
is summarily dismissed notice of such dismissal shall forthwith be given by the
Registrar to the appellant
or his barrister and solicitor or
pleader.
NOTICE
OF HEARING
9. If the Supreme Court
does not dismiss the appeal summarily the Registrar shall-
(a) enter the appeal for hearing;
(b) serve on the parties a notice setting out the date and time of the hearing;
(c) supply the respondent with a copy of the petition and a copy of the judgement or order appealed against;
(d) except when the appeal is against sentence only, supply the respondent with a copy of the proceedings; and
(e) where additional grounds of appeal are filed by the appellant under the pro-visions of subsection (4) of section 6 of this Act, serve notice on the respondent of such filing and supply the respondent with a copy of the document containing such additional grounds of appeal.
ADMISSION
TO BAIL AND SUSPENSION OF SENTENCE PENDING
APPEAL
10. (1) Where a convicted
person presents or declares his intention of presenting a petition of appeal,
the Supreme Court or the District
Court may, if in the circumstances of the case
it thinks fit, order that he be released on bail, with or without securities, or
if
such person is not released on bail shall, at the request of such person,
order that the execution of the sentence or order against
which the appeal is
pending be suspended pending the determination of the appeal. If such order be
made before the petition of appeal
is presented and no petition is presented
within the time allowed, the order for bail or suspension shall forthwith
lapse.
(2) Where the appellant is
released on bail or the sentence is suspended, the time during which he is at
large after being so released
or during which the sentence has been suspended
shall be excluded in computing the term of any sentence to which he is for the
time
being subject.
(3) An
appellant whose sentence is suspended but who is not admitted to bail shall
during the period of such suspension be treated
in like manner as a prisoner
awaiting
trial.
SUSPENSION
OR ORDER FOR RESTORATION OR PAYMENT OF COMPENSATION, EXPENSES,
ETC.
11. (1) The operation of any
order made on conviction by the District Court for the payment of compensation
or of any of the expenses
of the prosecution or for the restoration of any
property to any person, and the operation of any provision of any law re-vesting
in the original owner or his personal representative the property in stolen
goods in case of any such conviction, shall, unless the
District Court directs
to the contrary in any case in which in its opinion the title to the property is
not in dispute, be suspended-
(a) in every case until the expiration of fourteen days after the date of the conviction and of any further time allowed for appealing; and
(b) in any case where notice of appeal or leave to appeal is given within fourteen days after the date of conviction or any further time allowed for appealing, until the determination of the appeal;
and
in a case where the operation of any such order or provision is suspended until
the determination of the appeal the order or provision
shall not take effect as
to the property in question if the conviction is quashed on
appeal.
(2) The Supreme Court may
by order annul or vary an order made in the trial for the payment of
compensation or of any of the expenses
of the prosecution or for the restitution
of any property to any person, even though the conviction is not quashed, and
the order,
if annulled, shall not take effect and, if varied, shall take effect
as so
varied.
COSTS
12.
(1) The Supreme Court may make such order as to the costs to be paid by either
party to an appeal as may seem
just.
(2) Such costs shall be
recoverable in the manner provided by section 47 of the Penal
Code.
DISCONTINUANCE
OF APPEAL
13. (1) An appellant may
by giving notice in writing to the Registrar discontinue his appeal at any time
before the date of hearing
and, upon such discontinuance and without prejudice
to the power of the Supreme Court to make an order for costs, no further steps
shall be taken in the appeal and the District Court may proceed to enforce the
decision appealed from.
(2) The
Registrar shall send to the respondent a copy of the notice of
discontinuance.
DETERMINATION
OF APPEAL BY THE SUPREME COURT IN ORDINARY
CASES
14. (1) At the hearing of an
appeal the Supreme Court shall hear the appellant or pleader, if he appears, and
the respondent or his
barrister and solicitor or pleader, if he
appears.
(2) The Supreme Court on
any appeal against conviction shall allow the appeal if it thinks that the
verdict should be set aside on
the ground that-
(a) it is unreasonable or cannot be supported having regard to the evidence;
(b) any question of law has been wrongly decided; or
(c) there was a miscarriage of justice,
and
in any other case shall dismiss the
appeal:
Provided that the Supreme
Court may, notwithstanding that it is of the opinion that the point raised in
the appeal might be decided
in favour of the appellant, dismiss the appeal if it
considers that no substantial miscarriage of justice has
occurred.
(3) Subject to the
special provisions ins of this Act, the Supreme Court shall, if it allows an
appeal against conviction, either
quash the conviction and direct a judgment and
verdict of acquittal to be entered or, if the interests of justice so require,
order
a new trial.
(4) At the
hearing of an appeal the Supreme Court may, If it thinks that a different
sentence should have been passed, quash the sentence
passed by the District
Court and pass in substitution therefor such other sentence, whether more or
less severe, which the District
Court could lawfully have passed as it thinks
ought to have been passed; any such sentence passed by the Supreme Court shall,
for
the purposes of this Act, be deemed to have been passed by the District
Court, save that no further appeal shall lie thereon to the
Supreme
Court.
(5) The Supreme Court on an
appeal against acquittal shall allow the appeal, if it thinks that the verdict
should be set aside on
the ground that-
(a) the facts found by the District Court to have been proved establish the offence charged or any other offence of which the accused person could have been convicted on the trial of that charge;
(b) on the evidence before it the District Court could not properly have decided that the facts establishing any such offence had not been proved; or
(c) the District Court wrongly excluded evidence tendered by the prosecution which, if admitted and believed by the Court, must have resulted in the Court finding facts proved which would have established any such offence;
and
in any other case shall dismiss the appeal; and, where the appeal is allowed on
grounds (a) and (b), shall forthwith, unless it
is a proper case for the charge
to be dismissed under section 57 of the Penal Code, enter a conviction in
respect of such offence;
and, where the appeal is allowed on ground (c), shall
order a new trial before the District
Court.
(6) Where under the last
preceding subsection the Supreme Court has set aside a verdict of acquittal and
entered a conviction, it
shall proceed to pass sentence on the person so
convicted in respect of the offence of which it has convicted him and such
sentence
shall, for the purposes of this Act; be deemed to have been passed by
the District Court, save that no further appeal shall lie thereon
to the Supreme
Court.
POWERS
OF THE SUPREME COURT IN SPECIAL
CASES
15. (1) If it appears to the
Supreme Court that an appellant, though not properly convicted on any count has
been properly convicted
on any other count, the Court may, on the count on which
'it considers that the appellant has been properly convicted, affirm the
sentence passed by the District Court or pass in substitution therefore such
other sentence, whether more or less severe, which the
District Court could
lawfully have passed; as it thinks
proper.
(2) Where the appellant
has been convicted of an offence and the District Court could on the charge have
found him guilty of some
other offence, and on the findings of the District
Court it appears to the Supreme Court that the District Court must have been
satisfied
of facts which proved him guilty of that other offence, the Supreme
Court may, instead of allowing or dismissing the appeal, substitute
for the
verdict found by the District Court, a verdict of guilty of that offence and
pass in substitution for the sentence passed
by the District Court such
sentence, whether more or less severe, as the District Court could lawfully have
passed for that other
offence.
(3)
If on any appeal it appears to the Supreme Court that, although the appellant
committed the act or made the omission charged against
him he was not of sound
mind at the time when the act or omission alleged to constitute the offence
occurred, so as not to be responsible
therefor according to law, the Court may
quash the conviction and set aside the sentence passed at the trial and order
the appellant
to be kept in custody in such place and in such manner as the
Court shall direct until the President's pleasure be known and the
President may
thereupon and from time to time give such order for the safe custody of the
appellant during such pleasure in such
place and in such manner as to the
President may seem fit.
(4) Any
sentence passed or order made by the Supreme Court under the provisions of this
section shall, for the purposes of this Act,
be deemed to have been passed by
the District Court, save that no further appeal shall lie thereon to the Supreme
Court.
ADJOURNMENT
16.
(1) The Supreme Court may at any stage adjourn the hearing of an
appeal.
(2) An appeal may be heard
and any judgment or order thereon made by one
judge:
Provided that, where the
Court is constituted by more than one judge and the Court is equally divided in
opinion, the appeal shall
be heard de novo by the Court constituted by three
judges.
FURTHER
EVIDENCE
17. (1) In dealing with
an appeal from the District Court the Supreme Court, if it thinks additional
evidence is necessary, may either
take such evidence itself or direct it to be
taken by the District Court.
(2)
Where the additional evidence is taken by the District Court, that Court shall
certify such evidence to the Supreme Court, which
shall thereupon proceed to
dispose of the appeal.
(3)
Evidence taken in pursuance of this section shall be taken as if it were
evidence taken at a trial before the District
Court.
NO
APPEAL ON POINT OF FORM OR MATTER OF VARIANCE UNLESS RAISED IN THE DISTRICT
COURT
18. Save where the appellant
was not represented at the hearing before the District Court by a barrister and
solicitor or a pleader,
no finding, sentence or order passed by the District
Court shall be reversed or altered on appeal, or revision under the provisions
of section 23 of this Act, on account of any objection to any information,
complaint, charge, summons or warrant for any alleged
defect therein in matter
of substance or form or for any variance between such information, complaint,
charge, summons or warrant
and the evidence adduced in support thereof, unless
it be found that such objection was raised before the District Court and that,
notwithstanding that it was shown to the District Court that by such variance
the appellant had been deceived or misled, the District
Court refused to adjourn
the hearing of the case to a future
day.
SUPREME
COURT ORDER ON APPEAL TO BE CERTIFIED TO THE DISTRICT
COURT
19. When a case is decided
on appeal by the Supreme Court, the Registrar shall certify its judgment or
order to the District Court
which shall thereupon make such orders as are
conformable to the decision of the Supreme Court and shall take such steps as
may be
necessary to enforce such
decision.
RIGHT
OF APPELLANT TO BE PRESENT
20. An
appellant, notwithstanding that he is in custody, shall be entitled to be
present, if he desires it, at the hearing of his
appeal under the provisions of
this Part of this
Act.
POWER OF
THE SUPREME COURT TO CALL FOR
RECORDS
21. The Supreme Court may
call for and examine the record of any criminal cause or matter of the District
Court for the purpose of
satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order recorded or passed, and as to the
regularity of any proceedings of the District
Court.
POWER OF
THE RESIDENT MAGISTRATE TO CALL FOR RECORDS OF THE DISTRICT COURT AND TO REPORT
TO THE SUPREME COURT
22. (1) The
Resident Magistrate may call for and examine the record of any criminal cause or
matter of the District Court constituted
by three lay magistrates for the
purpose of satisfying himself as to the correctness, legality or propriety of
any finding, sentence
or order recorded or passed, and as to the regularity of
any proceedings of the Court.
(2)
If the Resident Magistrate acting under the last preceding subsection considers
that any finding, sentence or order of the District
Court is illegal or
improper, or that any such proceedings are irregular, he shall forward the
record, with such remarks thereon
as he thinks fit, to the Supreme
Court.
POWERS
OF THE SUPREME COURT ON
REVISION
23. (1) In the case of
any proceedings in the District Court the record of which has been forwarded by
the Resident Magistrate under
the provisions of section 22 of this Act, or which
otherwise comes to its knowledge, the Supreme Court may -
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 14, 15 and 17 of this Act and may increase the sentence; and
(b) in the case of any other order, other than an order of acquittal, alter or reverse such order.
(2)
No order under this section shall be made to the prejudice of an accused person
unless he has had an opportunity of being heard
either personally or by a
barrister and solicitor or a pleader in his own
defence.
(3) Where the Supreme
Court quashes the sentence passed by the District Court and passes sentence
under the provisions of this section,
such sentence shall, for the purposes of
this Act, be deemed to be a sentence passed by the District Court, save that no
further
appeal shall lie thereon to the Supreme
Court.
(4) Nothing in this section
shall be deemed to authorise the Supreme Court to convert a finding of acquittal
into one of conviction.
(5) No
proceedings by way of revision shall be entertained at the instance of any party
to the
proceedings.
DISCRETION
OF THE SUPREME COURT AS TO HEARING
PARTIES
24. No party shall have
any right to be heard either personally or by a barrister and solicitor or a
pleader before the Supreme Court
when it is exercising its powers of
revision:
Provided that the. Court
may, if it thinks fit, where exercising such powers, hear any party personally
or by a barrister and solicitor
or a pleader and that nothing, in this section
shall be deemed to affect subsection (2) of the last preceding
section.
NUMBER
OF JUDGES ON REVISION
25. All
proceedings before the Supreme Court in the exercise of its revisional
jurisdiction may be heard and any judgment or order
thereon may be made or
passed by one judge sitting in
Chambers:
Provided that where the
Court is constituted by more than one judge and the Court is equally divided in
opinion, the appeal shall
be heard de novo by the Court constituted by three
judges;
And provided further that,
where the Court decides to hear any party, the hearing shall be in open
court.
SUPREME
COURT ORDER ON REVISION TO BE CERTIFIED TO THE DISTRICT
COURT
26. Where a case is revised
by the Supreme Court the Registrar shall certify its decision or order to the
District Court which shall
thereupon make such orders as are conformable to the
decision so certified and shall take such steps as may be necessary to enforce
such decision or order.
PART III - APPEALS PROM THE DISTRICT COURT IN CIVIL CAUSES AND MATTERS
APPEAL
TO THE SUPREME COURT IN CIVIL CAUSES AND
MATTERS
27. An appeal shall lie
under this Part of this Act in any cause or matter, not being a criminal
proceeding, to the Supreme Court
against any final decision of the District
Court.
APPEAL
TO BE BY WAY OF PETITION
28. (1)
Every appeal shall be in the form of a petition in writing signed by the
appellant or by his barrister and solicitor or pleader
and shall be lodged with
the Clerk.
(2) The petition shall
state whether the whole or only part of the decision is complained of and in the
latter case shall specify
which
part.
(3) A copy of the petition
shall be served by or on behalf of the appellant on all parties directly
affected by the appeal either
before or immediately after the petition is lodged
in the Supreme Court, and it shall not be necessary to serve parties not so
affected.
(4) The Supreme Court
may direct notice of the appeal to be served on all or any parties to the
proceedings or upon any person not
a party, and may adjourn the hearing of the
appeal on such terms as may seem just, and may give such judgment and make such
order
as might have been given or made if the persons served with the notice had
originally been
parties.
TIME
FOR APPEAL
29. No appeal shall be
brought, after the expiration of twenty-one days from the day on which the
decision of the District Court was
given or made or after the expiration of such
further time as may be allowed by the Supreme Court or a judge on application
made
within four months after the expiration of the said twenty-one
days.
SECURITY
FOR APPEAL
30. (1) Except where
the Resident Magistrate orders otherwise on the ground of the appellant's
poverty, the appellant shall give security
to the satisfaction, of the Resident
Magistrate to abide the event of the appeal. The security shall be for such
amount, not exceeding
one hundred dollars, as may be estimated by the Resident
Magistrate to be the amount of the costs likely to be awarded in respect
of the
appeal in the event of its being
dismissed.
(2) If no such security
as is required under the last proceeding subsection is given within seven days
of the lodging of the petition
of appeal, or within such further time as the
Resident Magistrate may permit, the petition of appeal shall be deemed to be
abandoned.
(3) As soon as security
is given as provided in the foregoing provisions of this section, the Clerk
shall forward to the Registrar
-
(a) a copy of the pleadings;
(b) a copy, signed by the magistrate, of the record of the proceedings made by the magistrate; and
(c) all affidavits and exhibits remaining in his custody.
CROSS-APPEALS
31.
(1) It shall not be necessary for a respondent to lodge a petition by way of
cross-appeal, but if a respondent intends upon the
hearing of the appeal to
contend that the decision of the District Court should be varied, he shall give
notice of his intention
to any parties who may be affected by such contention
and to the Registrar.
(2) The
omission to give such notice within a reasonable time shall not diminish the
powers conferred on the Supreme Court but may,
at the discretion of that Court,
be a ground for an adjournment of the appeal or for a special order as to
costs.
PROCEDURE
WHERE APPEAL NOT PROSECUTED
32.
(1) If the appellant does not appear at the time appointed for hearing the
appeal and is not represented by a barrister and solicitor
or a pleader, his
appeal shall, unless the Supreme Court for good reason orders otherwise, stand
dismissed.
(2) If the appellant
does not prosecute his appeal with due diligence, the respondent may by summons
apply to the Supreme Court to
dismiss the petition of appeal and the Supreme
Court may dismiss the petition
accordingly.
(3) In any cause to
which this section applies the Supreme Court may order the payment by the
appellant to the respondent of such
amount for costs as it thinks
proper.
POWERS
OF THE SUPREME COURT
33. (1) On the hearing of an appeal under this Part of this Act the Supreme Court may-
(a) order a rehearing of the case in the District Court upon such terms as it thinks fit;
(b) order that the case be referred back to the District Court for amendment;
(c) order judgment to be entered in the District Court for either party; or
(d) make a final or other order on such terms as it thinks proper to ensure the determination on the merits of the real questions in dispute between the parties; and it may make such order as to costs as it thinks proper.
(2)
The powers conferred by this section may be exercised by the Supreme Court
notwithstanding that by the petition of appeal the
appellant sought that part
only of the decision be reversed or varied, and such powers may be exercised in
favour of all or any of
the respondents or parties, although those respondents
or parties may not have appealed from or complained of the
decision.
SUPREME
COURT ORDER TO BE CERTIFIED TO THE DISTRICT
COURT
34. When a case is decided
on appeal by the Supreme Court, the Registrar shall certify its decision to the
District Court which shall
thereafter be deemed to have entered such judgment,
or made such order, as accords with that decision, save that no further appeal
shall lie thereon to the Supreme Court.
PART IV - PROCEDURE AND RULES
APPEALS
TO BE BY WAY OF REHEARING
35. (1)
All appeals shall be by way of
rehearing.
(2) Where any question
of fact is involved in any appeal, the evidence taken in the District Court
bearing on the question shall,
subject to the provisions of section 17 of this
Act, be brought before the Supreme Court as follows:
(a) as to any evidence given orally, by the production of a copy of the written record made by the magistrate or such other materials as the Supreme Court may deem expedient;
(b) as to any evidence received by written statements or by affidavits and as to any exhibits, by the production of the written statements and affidavits and such of the exhibits as may have been forwarded by the Clerk and by the production by the parties to the appeal of such exhibits as are in their custody.
(3)
Where the language used by the District Court at the hearing of the cause or
matter to which any appeal relates was Nauruan, the
record made by the
magistrate and any affidavits and exhibits in the Nauruan language shall be
translated into the English language
by the Clerk before the record is
transmitted to the Registrar and shall be certified by the Clerk to be a correct
translation; and
any party to the appeal may, on payment of the prescribed fee,
obtain from the Registrar a copy of that
translation.
RULES
FOR APPEALS
36. The Chief Justice
may make rules of court for carrying this Act into effect, for regulating
generally the practice and procedure
under this Act and for prescribing fees and
costs which may be demanded and received by the Clerk and the Registrar in
connection
with such practice and procedure.
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URL: http://www.paclii.org/nr/legis/num_act/aa197284