LEGAL PRINCIPLE: CIVIL PROCEDURE — Inherent Jurisdiction — Setting Aside Judgment — Distinction Between Cross-Appeal and Non-Determination of Issue

"I think one should draw a distinction between failure of the court to determine a cross-appeal and failure to determine one out of several issues in an appeal determined by the Supreme Court. A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called a cross-appeal in relation to that of the other. Each appeal is an independent and separate complaint by the parties even though both appeals are heard together. If the appellant withdraws or discontinues his appeal, a respondent/cross-appellant may proceed with his cross-appeal just as a counter-claimant in a civil suit may prove his counter-claim where the plaintiff discontinues his own action. In other words, an issue in an appeal cannot be equated with a cross-appeal, moreso, where the non-determination of an issue in the appeal is by the Supreme Court and not by an intermediate appellate court. Even in the latter case, the substantiality of the ground of appeal or issue which was not considered must have had a decisive effect on the judgment and a miscarriage of justice must have resulted. Therefore, applications to set aside the judgment of this Court should not be taken very lightly by litigants and should not be turned into an avenue of re-arguing an appeal which was dismissed."