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Chaudhry v Chief Registrar [2015] FJCA 29; ABU63.2012 (27 February 2015)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CIVIL APPEAL NO: ABU 63 of 2012
(On appeal from Independent Legal Commission, Application No. 004)

BETWEEN:

RAJENDRA CHAUDHRY
Appellant

AND:

CHIEF REGISTRAR
Respondent

Coram : Chandra JA
Almeida Guneratne JA
Amaratunga JA

Counsel : Mr. A. K. Singh for the Appellant
Ms. L. Vateitei and Mr. V. Sharma for the Respondent

Date of Hearing : 13 May 2014
Date of Judgment : 27 February 2015

JUDGMENT

1. This is an appeal against the orders made by the Independent Legal Service Commission dated 11th October 2012.
   
2. The Respondent had filed an Ex-Parte notice of motion (unsigned) dated 11th October 2012 supported by an affidavit dated 9th October 2012 seeking the following orders, the application being filed pursuant to Sections 42(2), 52(1) & 57(2) of the Legal Practitioners Decree 2009:
   
   1. That the Respondents and/or their servants and/or agents be restrained from operating/continuing to operate the law firm under the style of Gordon & Chaudhry Lawyers situated at 19 Rewa Street, Suva and any branches of the same until further and/or other orders of this Honourable Commission;
      
   2. The Respondents not being the holders of valid practicing certificates be ordered to submit a list of pending files of the law firm Gordon & Chaudhry Lawyers to the Legal Practitioners Unit together with a list for the contracts of the clients in the files, such be carried out in the presence of an Officer of the Applicant;
      
   3. Members of the Fiji Police to assist the Applicant in the execution and enforcement of this order.
      
   4. Any other orders that the Honourable Commission deems just and equitable in this case.
      
3. The Commission had on 11th October 2012, on reading the Ex-Parte Notice of Motion and Affidavit in Support sworn on the 9th of October 2012 and upon hearing Mr. Mohammed Saneem, the Acting Chief Registrar ordered as follows:
   

"1. That the Respondents and/or their servants and/or agents be restrained from operating/continuing to operate the law firm under the style of Gordon & Chaudhry Lawyers situated at 19 Rewa Street, Suva and any branches of the same until further and/or other orders of this Honourable Commission;

2. The Respondents not being the holders of valid practicing certificates be ordered to submit a list of pending files of the law firm Gordon & Chaudhry Lawyers to the Legal Practitioners Unit together with a list for the contacts of the clients in the files, such be carried out in the presence of an Officer of the Applicant;

3. Members of the Fiji Police to assist the Applicant in the execution and enforcement of this Order;

4. Any other orders that the Honourable Commission deems just and equitable in this case.

5. Costs in the cause.

6. Matter listed inter-partes on 12 October, 2012 at 2.30 p.m."

This order has been signed by the Commissioner and bears the seal of the ILSC and states Sealed this 9th day of October 2012.

4. The Ex-parte notice of motion and the affidavit supporting it refers to Mr. Ronald Rajesh Gordon and the Appellant as the Respondents having, no valid practicing certificates. There is no indication in the proceedings that Mr. Ronald Rajesh Gordon had been served with any notice. There is no also no indication as to whether he participated in the inquiry. At the hearing before this Court the Respondent at one stage sought to justify the seeking of orders from the Commission on the basis of Mr. Ronald Rajesh Gordon not having a valid practising certificate, but the proceedings do not show whether the Commission had dealt with Mr. Ronald Rajesh Gordon at all.
   
5. On 12th October 2012 the Appellant appeared before the Commissioner and both parties argued the matter regarding the said ex-parte order and filed written submissions, the hearing continuing even after the Appellant filed a notice of appeal on the 15th of October 2012 which stated that the ex-parte order had the effect of a final order. By this time orders made in the ex-parte order (given on the 11th October 2012 but bearing the date 9th October 2012) had been carried out and a Receiver had been appointed.
   
6. The Appellant's notice of appeal dated 15th October 2012 set out the following grounds of appeal:
   
   1. That such orders were/are defective at law and ought to be set aside for the following reasons:
      

i. The ex parte notice of motion dated 9th October, 2012 (said motion) and the affidavit of Kelevi Veidovi as sworn on 9th October, 2012 was a miscellaneous application bearing the miscellaneous action number 4 of 2012 (said matter) and was not pursuant to a substantive cause of action or disciplinary proceedings and thus offends the rule in Section 121(2) and (3) of the Legal Practitioners Decree.

ii. The said orders were filed in the High Court by the Respondent in breach of Section 122(2) of the Legal Practitioners Decree 2009 (LPD) and as such have no force of law;

iii. The Appellant does have a valid practicing certificate as there has been no cancellation of the same by the Respondent as required under the LPD;

iv. The Appellant was being allowed to remain in practice for 21 days from 5th October 2012 by order of the Commission as filed on 5th October 2012;

v. The said motion was marked with white ink and alterations made which should not have been accepted in accordance with the rules of filing such documents;

vi. The said motion was not signed by the Applicant in that instance, being the Chief Registrar, who is the Respondent in this appeal, and as such did not meet the procedural requirements for the filing of such documents.

vii. The said motion was dated 11th October 2012 but the order/s by the Commissioner Mr Justice Paul Madigan was sealed 9th October 2012; and

viii. The Commissioner allowed persons who had direct conflict with the Appellant, namely the Chief Registrar (as receiver of the partnership firm of the Appellant) and a sitting magistrate namely Greg Bullard to appear for the Respondent and that such appearance has tainted the fairness of the proceedings in the Commission.

2. The said orders were in essence final orders and were made without the Appellant being given an opportunity to respond to the same before a decision was made by the Commission and by making such orders without hearing the Appellant, the Commission acted in breach of Section 114 of the LPD and such orders were made when there was an application for stay of the Commission's original orders of 5th October, 2012;
   
3. By making ex parte orders, against the Appellant, the Commission denied the Appellant natural justice and acted unfairly and in a biased manner;
   
4. The Commission erred in fact and in law making the said orders without there being any fresh disciplinary proceedings being on foot against the Appellant and hence acted in breach of Sections 121(3) and (4) of the LPD;
   
5. The Commission erred in fact and in law and exceeded his jurisdiction in making the said orders against the Appellant on 11th October 2012 when the Appellant was allowed to remain in practice for 21 days pursuant to a final order of the Commission as sealed and filed on 5th October 2012 and that such order was in conformity with Section 57(2) (a) of the LPD in that the suspension of the Appellant would come into force at 5 pm on 26th October 2012 as per the orders of the Commission as sealed and filed on 5th October 2012;
   
6. The Commission erred in fact and in law and exceeded his jurisdiction in hearing the said matter ex parte, when there was no urgency, there was no evidence before the Commission of any breach of its orders of 5th October 2012 and when there was no issue of the Appellant being served hence the Commission was in a violation of the rule on ex parte applications as stated in Roxy Motorparts Ltd v Habib Bank Ltd [2005] FJCA 49; ABU0060J.2004S (15 July 2005);
   
7. That the Respondent erred in appointing the Receiver when the Appellant's suspension had not come into force and that such suspension would come into force 21 days after the orders as sealed and filed by the Commission on or around 5th October 2012."
   
7. Written submissions were filed by both parties and oral submissions too were made by them. In the written submissions filed on behalf of the Appellant, emphasis was laid on the following grounds and it is proposed to deal with them as they encapsulate the grounds in the notice of appeal:
   

Ground 1. Breach of Section 121(2) and (3) of the Legal Practitioners Decree 2009.

Ground 2. Breach of Section 122(2) of the Legal Practitioners Decree 2009.

Ground 3. Breach of Section 114 of the Legal Practitioners Decree 2009.

Ground 4. Misapplication of the law and excess of jurisdiction on appointment of Receiver.

8. Since the grounds of appeal are based on the provisions of the Legal Practitioners' Decree, it would be relevant to consider the applicable provisions regarding the making of an application before the Commissioner of the ILSC.
   
9. Section 100(1) empowers the Registrar to investigate the conduct of a legal practitioner or a law firm if he has reason to believe the conduct may amount to professional misconduct or unsatisfactory professional conduct. The Registrar on commencing an investigation under section 100 must refer the substance of the investigation to the legal practitioner and in the case of a law firm to all the partners of the law firm. In terms of Section 105 the Registrar may require the legal practitioner or the law firm to furnish within the time specified in the notice a sufficient and satisfactory explanation in writing relating to the practitioners or the law firm's conduct or practice. Section 109(1) confers on the Registrar the authority to commence disciplinary proceedings before the Commission for determination by the Commission, in accordance with the provisions of the Decree. Section 111 deal with the commencement of disciplinary proceedings before the Commission and in terms of Section 111(5) must provide a copy of the application to the legal practitioner and in the case of a law firm to all partners of the law firm. Section 112 deals with the hearing of the Application and in terms of Section 112(2), the Commission shall give or cause to be given to every legal practitioner or partner of the law firm against whom the application is made, a reasonable notice of the time when and the place where the Commission is to conduct its inquiry, and such legal practitioner or partner of the law firm may appear and be heard in person or by counsel on those disciplinary proceedings. Section 121 deals with the powers of the Commission on hearing and empowers the Commission on completion of the hearing to make orders as set out in subsections (a) to (r) in Section 121(1). The Commission under Section 121(3) is also empowered to make any interlocutory or interim orders before making the final orders as it thinks fit. In terms of Section 122 the Commission must give a copy of the order to the practitioner against whom the application had been made, to the Registrar and to the Attorney General. In terms of Section 122(2) The Commission must within 14 days of the order file such order in the High Court, and in terms of Section 122(3) once such order is filed in the High Court, the order becomes an order of the High Court and may be enforced accordingly in accordance with the Rules of the High Court.
   
10. In Ground 1 the Appellant submits that there has been a breach of Section 121(2) and (3) of the Legal Practitioners Decree 2009 and also makes reference to Section121(1) and Section 112 to the effect that there was no receipt of any application to commence proceedings by the Commission and that the Appellant had not received notice of any such application.
    
11. The Respondent had filed an application captioned "EX-PARTE NOTICE OF MOTION" unsigned seeking the orders set out therein (referred to in paragraph 2 above) with a supporting affidavit dated 9th October 2012 and requiring the Commission to hear the Applicant on the said motion on 11th October 2012 at 8.15 a.m. This application had not been served on the Appellant.
    
12. The Application bears a distinct number (004/2012) and is an application seeking orders in respect of the Respondents named in the application, namely Ronald Rajesh Gordon and Rajendra Pal Chaudhry trading as Gordon and Chaudhry Lawyers, on the basis that the Respondents do not hold valid practicing certificates.
    
13. The application is an application which has no reference to any disciplinary proceedings to be held or held against the lawyers named as Respondents. It is a fresh proceeding which on perusing the proceedings before the Commission, revealed that the Commissioner acknowledged it as a completely separate proceeding. (Vol.5 p.802 )
    
14. The Application states that it is being made pursuant to Sections 42(2), 52(1) and 57(2) of the Decree.
    
15. Section 42(2) refers to a situation where a law firm is not entitled to operate in the practice of law, Section 52(1) refers to practising without a certificate and Section 57(2) refers to the appointment of a Receiver.
    
16. If the Registrar was seeking to bring before the Commissioner any matter relating to the Respondent Law Firm in relation to any disciplinary proceedings based on practising without a practising certificate, the provisions relating to the institution of such proceedings had to be followed after investigating into same as set out in the procedure set out in paragraph 8 above.
    
17. The procedure adopted by the Registrar in this instance is not in keeping with the relevant provisions of the Decree apart from the motion being unsigned. The procedure followed by the Registrar has been irregular which has been acted upon by the Commissioner in making the orders on 11th October 2012.
    
18. The Second ground of appeal is on the basis that there was a breach of Section 122(2) of the Legal Practitioners Decree 2009. According to this Section the Commission must within 14 days of an order being made, file the order in the High Court.
    
19. In the proceedings before the Commission the Registrar admitted (Vol. 4 page 651) that he had prepared and sealed the order and thereafter filed them. The proceedings also reveal that, during the course of the hearing on the 12th of October, the Registrar acknowledged this position and was prepared to have them resealed and perfected (p.935). The procedure adopted by the Registrar in having the order filed was irregular and contrary to the provisions in section 122(2).
    
20. The third ground of appeal is that there has been a breach of Section 114 of the Decree. According to section 114, the Practitioner against whom the proceedings are taken must be given an opportunity to be heard.
    
21. In the present instance, the application by the Registrar was an ex parte application and the Commissioner had without hearing the Appellant proceeded to make order. The Appellant was to be heard only on the 12th of October after making the order as stated in the order of 11th October 2012. There was thus non compliance by the Commission of the provisions of section 114 of the Decree and thus there was a violation of the principles of natural justice.
    
22. The Respondent sought to argue that, the Appellant had been given a hearing on the 12th of October 2012 and accordingly there was no violation of the principles of natural justice. This is an argument without any substance. The hearing was clearly after the order.
    
23. The orders made on the 11th of October 2012 cannot be considered as interlocutory orders in terms of section 121(3) of the Decree as there had been no substantive application for disciplinary proceedings by the Registrar, the ex parte motion not being an application of such a nature.
    
24. Ground 4 was on the appointment of the Receiver. The appointment of a
    Receiver is dealt with in Section 57(2) of the Decree according to which the Registrar may appoint a receiver in relation to a person where that person has been refused a practicing certificate, or the practicing certificate held by that person has been cancelled or suspended and the refusal, cancellation or suspension, as the case may be, remains of force and effect.
    
25. The appointment of a Receiver therefore would come into effect only where the practitioner has no valid practicing certificate. The affidavit filed in support of the motion seeking the impugned orders was on the basis that the Appellant had no valid practicing certificate.
    
26. In terms of the order made on the 5th of October 2012 by the Commissioner in respect of the Appellant in the Disciplinary Proceedings held in terms of application No.002/2012, the Appellant was to remain in practice for 21 days till 5 p.m. on October 26th 2012. When the affidavit supporting the application of the orders against the Appellant was signed on the 9th of October 2012 the Appellant had not completed the 21 days period allowed by the order of 5th October 2012 made by the Commissioner in Application No. 002/2012.
    
27. The Registrar had appointed himself as the Provisional Receiver on the 11th of October 2012 and thereafter appointed Mr. Shailend R. Krishna as the Receiver by letter dated 12th October 2012.
    
28. The basis of the appointment is the order of the Commission of 11th October 2012, which in turn is based on the premise that the Appellant had no valid practising certificate. This premise is invalid and goes against the very order of the Commissioner of the 5th October 2012 in Application No.002/2012 which allowed the Appellant to remain in practice for 21 days. Thus the appointment of the receiver by the Registrar was invalid.
    
29. The procedure followed in respect of application No.004 of 2012 was irregular and the orders made on the basis of that procedure have been made without any legal basis and are invalid.
    
30. The orders made on 11th of October 2012 have been carried out and therefore the Respondent put forth the argument that the issues arising in this case are only academic and/or moot.
    
31. The Respondent has submitted that it is established law in Fiji that proceedings involving questions of public law which are academic or moot in nature are only to be heard if there is a good reason in the public interest for doing so. Public Service Association v. Kotobalavu (2004) FJCA 51; ABU0031.2004S (11 November 2004).
    
32. A useful precedent in this regard is the Sri Lankan Supreme Court decision in Centre for Policy Alternatives v. Dayananda Dissanaike, Commissioner of Elections and Others [2002] LKSC 31; (2003) 1 Sri LR 277, where the question arose as to whether it would be futile to proceed with the matter before Court as the holder of the office whose appointment had been canvassed had ceased to hold office. It was decided to consider the merits of the matter as the process involved in the app0ointment of such office, was of great public importance and having an impact on future appointments of the kind that had been put in issue.
    
33. In Public Trustee v. Bibi [1977] FJCA 27, the court had stated that it does not have the power to give advisory opinions or proceed to determine a matter where the subject matter of the proceedings had ceased to exist or that no issue between the parties remained. To the same effect is the case of Fowler Roderique Ltd v. Attorney General [1987] NZCA 92; [1987] 2 NZLR 56,
    
34. In Maddever v. Umawera School Board of Trustees (1933) 2 NZLR 478, the Court had said that, the Court will not give a remedy if it would be useless to do so, Similar thinking is reflected in Naidu v. Attorney General [1999] FJCA 55.
    
35. Considerations such as absence of any point of public importance, or one of general public interest that required the Court's guidance; lack of any practical value to a party seeking relief, the need for a matter in actual controversy as a living issue for the Court to determine; absence of a dispute to be resolved such as settling a debt which was to be the issue in appeal (vide: Praveen's BP Service Station Ltd v. Fiji Gas Ltd; [2008] FJCA 74), are factors that have surfaced in the numerous New Zealand, Australian and Fijian decision referred to us on behalf of the Respondent.
    
36. On the contrary, decisions such as The Birmingham City Juvenile Court, ex parte Birmingham City Council [1988] 1WLR 337, where a particular problem in respect of a child was no longer outstanding, the Court "in the interest of clarifying the law" had heard the matter.
    
37. That approach the Court had adapted is an application for judicial review which is a discretionary remedy. In the instant case we are dealing with a litigant's right to appeal which we are not inclined to deny on doctrines such as futility and mootness.
    
38. Again in R v. Leicester Crown Court, ex parte Director of Public Prosecutions [1981] 1 WLR 1371; by the time the case had come up for hearing, the accused had been convicted which rendered a ruling made by the lower court of no relevance – But, because of the concern of the Police and the Crown Prosecutor that, if an application of a similar kind were made to the same Judge, he would adhere to that view, the Court made a declaration as to proper construction of the relevant provision.
    
39. The general principle that could be extracted from the Leicester Crown Court case (supra) is that, even though the actual issue between the parties may no longer be outstanding, the Court will nevertheless make a decision where there is a practical advantage in doing so, or where the issue is one of general public interest.
    
40. As observed earlier, the instant case concerns an appeal filed by a legal practitioner as a matter of right warranting the application of that general principle with greater force.
    
41. Citing the cases of Reg v. Board of Visitors of Dartmoor Prison [1987] QB106 and Reg v. Secretary of State for the Home Department [1966] 1WLR 298, where the Court of Appeal in England and the House of Lords respectively had held it appropriate to hear the proceedings by reference to the criterion of general public interest in those cases, it was said in Reg. v Secretary of State for the Home Department, ex parte Salem [1999] UKHL 8; [1999] 1 AC 450 that;
    

"... in a cause where there is an issue involving a public authority as to a question of public law, your Lordship have a discretion to hear the appeal ...even if by the time the appeal reaches the House there is no longer a list to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordship's House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

42. To a similar effect have been the decisions in Williams v. Home Office (1981) 1 All ER 1211; Gardner v. Dairy Industry Authority of New South Wales (1977) 52 ALJR 180; Madever v. Umawara School Board Trustees (1993) 2 NZLR 478; Richard Krishan Naidu v Attorney General of Fiji; FCA 39 of 1998 and Rev. Akuila Yabaki v. Attorney General of Fiji; FCA 61 of 2001.
    
43. In the instant case the Appellant has appealed to have the order for the closure set aside in appeal alleging that it was based on an irregular procedure and has sought to have all consequential orders emanating there from be declared as illegal.
    
44. This is a matter that is important to the legal profession in general that, in the future proper procedures would be followed when action is taken against members of the legal profession. Thus the element of public interest or importance is satisfied in dealing with this appeal.
    
45. For those reasons we are of the view that, it is not futile and that, the doctrine of mootness has no application in allowing this appeal for the reasons set out in our judgment.
    
46. We are also not faced with a situation as in Hutchinson v. Popdog Ltd [2012] 2 All ER 711.
    

46. There the Court of Appeal in England held that:

"Save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties may be allowed to proceed, the three requirements being: (i) the court is satisfied hat the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

47. It will be noted that, the three requirements mentioned there are subject to qualification. Viz: the existence of exceptional circumstances and a pre-supposition viz: that the issue is academic.

48. In the instant case, for the reasons stated in our judgment, the circumstances are not only exceptional but also not merely academic.

49. The stated requirements (i) and (iii) are satisfied.

50. In so far as requirement (ii) is concerned, the peculiar circumstances of that case must be looked at.

51. That case involved two orders. In the first order A had obtained an interim injunction against B but later had reached a compromise whereby they agreed, in effect that the interim injunction would continue for the foreseeable future, and A's main claim against B would not otherwise proceed. Sometime later C (a third party) applied to the Court to have the interim injunction set aside. The original court held that, since A and B had reached a compromise the interim injunction had in practice ceased to be interim in nature and had therefore ceased to bind third parties such as 'C'. As a result of that decision A instituted fresh proceedings against 'C' and sough an interim injunction which was refused by Court. That was the 2nd order. A, sought permission to appeal against both orders. He obtained permission to appeal against the 2nd order but subsequently the appeal was dismissed. Permission to appeal against the 1st order was then refused upon 'C' resisting 'A's application for permission to appeal on the primary ground that, the outcome of the appeal would academic as between the parties. The basis of that resistance had been that, even if the Court of Appeal were to conclude that, the original Court ought not to have concluded that 'C' was not bound by the interim injunction (being a third party) despite the existence of it, 'C' would still be free to publish the information (which 'A' had sought to restrain B from communicating on the allegation that, it offended his right to privacy) because of the 2nd order referred to above which was upheld by the Court of Appeal.

52. Thus it becomes clear as to why in refusing permission to appeal the Court of Appeal in that case held there was no subsisting live dispute between 'A' and 'C' (a third party).
53. The instant case stands on a different footing. There was no question of the Respondent in this appeal agreeing to it proceeding in as much as the dispute in this case is the Appellant's right to pursue his appeal as a subsisting live dispute. There is also no question of the Respondent being otherwise inappropriately prejudiced either.

54. In fact in the instant case, the seeking of the orders against the Appellant was according to the Respondent, urgent and was stated to be on the basis that the public would be affected if the law firm of the Practitioners was allowed to continue. If that was the basis, matters relating to the closure of the practice of a Practitioner or a Law Firm surely must be matters of public interest in relation to decisions regarding such practice which are handed down by the Commission. Therefore this court considered it necessary to deal with the issues raised by the Appellant which were based on the procedure to be followed in matters relating to disciplinary procedures against legal practitioners, and the manner in which such matters should be dealt with by the Commission as set out in the Legal Practitioners Decree 2009.
    
55. This case also brings about a matter which is of public importance regarding the seeking of interlocutory orders in the first instance from the Commission regarding the practice of a Practitioner or a law firm. As stated above, the procedure adopted by the Respondent in this case has been irregular and the Commission in condoning that procedure and handing down orders in consequence thereof are contrary to the provisions of the Legal Practitioners Decree of 2009 and for that reason alone are tainted and rendered invalid proprio vigore.
    
56. In the above circumstances the appeal must be allowed. The orders which were the subject matter of this application had been given on the 10th of October 2012 and executed on the same date and a Receiver was appointed with the result that the matter of closing up the law firm of the Appellant had been completed. Indeed, that cannot be disturbed and it would certainly be illogical to undo what has already been accomplished.
    
57. The appeal is allowed to the extent that it is declared that the manner in which all the impugned orders had been made are invalid subject to the observations made in paragraph 56 of this judgment.
    
58. Before parting with this judgment, we also note that, the objection being based on futility and mootness, being in the nature of a preliminary objection, it ought to have been taken at an earlier if not the earliest opportunity. It was taken only in some supplementary submission tended by the Respondent.
    
59. For all these we conclude that the Appellant is entitled to have his appeal allowed subject to the observations in paragraph 56.
    

Order of Court:
The appeal is allowed to the extent that it is declared that the manner in which the impugned orders were made are invalid. However, this declaration is subject to the observations made in paragraph 56 of this judgment.

Hon. Mr Justice Chandra
JUSTICE OF APPEAL

Hon. Mr Justice Almeida Guneratne
JUSTICE OF APPEAL

Hon. Mr Justice Amaratunga
JUSTICE OF APPEAL