Even in those cases the summons that is referred to in the decisions is application by summons as distinguished from application by motion and it is not a reference to writ of summons. Having regard to the fact that our current High Court rules have done away with applications by summons that procedure prescribed in Lamptey v Hammond would be satisfied if a stranger filed a motion and served both the plaintiff and the defendant praying for leave to set aside a default judgment that affected him. In this case the appellant had his application to set aside served on the plaintiff and the defendant.
That appears to be the intendment of Order 19 Rules 1 and 2 of the High Court Rules, 2004 (C.I. 47). Being aggrieved, the appellant has appealed to this court as the final court. Having perused the whole record and examined closely the grounds of the appeal it is clear to us that both the High Court and the Court of Appeal did not give sufficient consideration to the issue of the legality of the proceedings conducted by B.
O. Tetteh J. Before both courts the appellant argued that that those proceedings were a nullity but his submissions on that ground were not answered. But in our view, it is only after the court has determined the status of the judgment that is sought to be set aside that it would be properly placed to decide on the issues of the procedure to be adopted in setting same aside and the requirement of locus standi. The procedure by which a non party may set aside a default judgment is different from the procedure to be adopted if the judgment is void or is a final judgment.
The reconstruction of Rule 60 has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered.
The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50, and including the provisions of Rule 60 as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6. If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations.
The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments 55 Yale L.J. At the hearing, the judge will probably allow both parties to make a statement describing their position. Because you filed the motion and made the request to set the default judgment aside, the judge might ask you to go first. Depending on your situation, you will explain to the judge that you were never served with the summons and complaint or, if you were served, why you failed to do anything to defend yourself.
If you have a defense in the case, you might also want to describe your defense. The judge will probably ask you and the other side questions. When she is satisfied she understands the facts and arguments, she may make a ruling on your motion or she may take the case "under advisement" and issue a decision later. To illustrate the operation of the amendment, it will be noted that under Rule 59 as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court.
It is proposed to amend Rule 59 by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60 as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment.
Such a motion under Rule 60 does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal. When promulgated, the rules contained a number of provisions, including those found in Rule 60, describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60 of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field. Since the rules have been in force, decisions have been rendered that the use of bills of review, coram nobis, or audita querela, to obtain relief from final judgments is still proper, and that various remedies of this kind still exist although they are not mentioned in the rules and the practice is not prescribed in the rules. It is obvious that the rules should be complete in this respect and define the practice with respect to any existing rights or remedies to obtain relief from final judgments.
Can A Judge Review His Own Order For extended discussion of the old common law writs and equitable remedies, the interpretation of Rule 60, and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments 55 Yale L.J. See also 3 Moore's Federal Practice et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment 4 Fed.Rules Serv. 942, 945; Wallace v. United States (C.C.A.2d, 1944) 142 F. In December 1960, the appellant applied to High Court by motion on notice asking that the writ of possession be set aside on the grounds that under Order 47 it was irregular because it was obtained ex parte and the High Court had no jurisdiction to order issue of the writ because the decree for possession was made by the native court. It appears not long after the judgment the respondent became dissatisfied with the terms of settlement so on 7th January, 2005 he caused a different lawyer, Kojo Anan Esq, to file a motion on notice seeking to set aside the consent judgment and the terms of settlement. In the affidavit in support of the said application the respondent deposed that though he signed the terms of settlement he did not agree with the contents.
After a hearing the court dismissed the application on 20th July, 2005. The respondent appealed against the dismissal of his application to set aside. The notice of appeal was filed on 4th August, 2005 and though there was settlement of records of appeal respondent did not pursue it. Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision . There is no sound reason for their exclusion.
The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a "reasonable time," which might be after the time stated in the rule had run. 841; see also inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.
On the other hand, it has been suggested that in view of the fact that fraud was omitted from original Rule 60 as a ground for relief, an independent action was the only proper remedy. Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment 4 Fed.Rules Serv. The amendment settles this problem by making fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a basis for relief by independent action insofar as established doctrine permits. 623, 653–659; 3 Moore's Federal Practice et seq. And the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. 322 U.S. 238.
If one takes a close look at the relieves that were placed by the respondent before the court in the writ of summons that commenced this case, and even those by the defendant in his counterclaim, it becomes clear that the consent judgment entered by Senyo Dzamefe J concluded the suit. It was a final judgment as it conclusively determined the rights of the parties in the subject matter land in contention between the parties. It is true that the court made an order for a valuation of a house to be carried out so that it could make further orders, but that did not detract from the finality of the judgment of Dzamefe J. The Respondent in his statement of case in this court has sought to argue otherwise and contended that the judgment was interlocutory.
However, as was held in Ababio v. Turkson 13 W.A.C.A. 35, a final judgment does not mean the last judgment, but the judgment determining rights finally, such as a judgment establishing the liability to account and directing accounts to be taken. It therefore appears to us that there was nothing for B. O. Tetteh J to sit over unless to make the consequential orders after the valuation. "In view of the above provisions of the Rules of this Court, can this Court assume jurisdiction to hear the Motion seeking clarification of our Judgment? The Motion is not seeking correction of any clerical mistake or some error arising from any accidental slip or omission.
- - Generally this Court has powers to correct its own technical errors or slips of pen. - - From the issues before us, nothing has been shown to the Court, which is not clear in the Judgment. It is wrong for any party to import into the Judgment issues, which were not ventilated and decided.
For instance, the Applicant is seeking clarification whether to issue certificate of return to persons in the list of Ejike Oguebego-led executive committee. Also, I NEC is seeking clarification whether to conduct fresh election into the National Assembly in respect of both Senate and House of Representatives' seats affecting Anambra State. This again, was not part of the Judgment These are matters, where were properly ventilated at the Election Tribunal and Court of Appeal.
I am not aware that those matters are on appeal here. Issues relating to seats in the National Assembly were fought, won and lost at the Election Tribunal and lower Court. It cannot be revived here through the back door as this Court has no jurisdiction to hear and determine such matters". These directions portray a proceeding whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. In a new trial, by the very nature of its purpose and what is to be done, both parties intervene.
On the other hand, section 7 of Rule 116 contemplates no new hearing or proceeding of any kind or change in the record or evidence. To modify a judgment, the court alone, of its own motion and without any notice to either party, may and does generally act. This so because a simple modification of a judgement is accomplished on the basis of what is already in the record.
No irregularities or omissions are involved and absolutely nothing is added to or taken from what is before the court. Only wrong conclusions from or wrong appreciation of the proofs already at hand are corrected in the decision. Relaxed this test slightly for applications to adduce fresh evidence before a final order is perfected.
After Summons for Direction were filed the parties submitted themselves to an amicable out of court arbitration and arrived at a settlement. They filed the minutes of the arbitration in the High Court and prayed the court to adopt it as judgment in the suit. The trial judge, Senyo Dzamefe J directed them to file proper terms of settlement which could be adopted by the court. They complied and drew up terms of settlement based on the out of court arbitration, had it signed by the parties and their lawyers and filed in the court. It was agreed in the terms of settlement that the consent judgment shall be binding on the parties and their families; being the Gyandodey Anona Family and Chochoe Botwey family and that the families are separate and distinct. In the terms the Gyandodey Anona family was declared the allodial owner of the disputed land.
C. Failure to notify party or counsel of final order. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect. If these various amendments, including principally those to Rule 60, accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery.
See Wallace v. United States (C.C.A.2d, 1944) 142 F. 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F. 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D.Mass. 1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel.
Versluis v. Oliver (W.D.Okla. 1945) 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil Judgments 55 Yale L.J. 623, 631–653; 3 Moore's Federal Practice et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. 1; Reed v. South Atlantic Steamship Co. of Delaware (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8 Fed.Rules Serv.
The record does not show that at the hearing of the application to set aside the trial judge challenged the capacity of the appellant and requested him to provide evidence to prove same and he failed to offer proof. It is clear from the above that the capacity of the appellant was admitted by the respondent and accepted by the trial court. It was therefore not competent for the Court of Appeal to raise that issue in their judgment when the appellant was no longer in a position to lead evidence to prove his capacity. Before the court is an appeal against the judgment of the Court of Appeal dated 27th June, 2016.
The facts relevant for the determination of this appeal are not in dispute. By a writ of summons filed in the High Court, Agona Swedru on 31st December, 2002 the plaintiff/respondent/respondent, to be called the respondent, sued Opanyin Kwadwo Ababio of Awutu claiming that a parcel of land at Aboansa in the Central Region is the property of Anona Chochoe family of Awutu and for perpetual injunction. The Defendant filed a defence and counterclaimed for a declaration that the land was the property of Gyandodey Anona family of Awutu. Though the two families have a common origin, they each claimed exclusive ownership of the disputed land.
"The test - - is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence, which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances, which may be deposed to in an Affidavit. It, therefore, means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach". The court considered an application in a matter that dealt with a judgment that omitted counsel's name. The court was asked to review and/or vary and/or annulling part of the Judgment to reflect the change.
The court had the inherent power to correct a slip in its judgment. However, the slip rule can never be used by a party to seek clarity over a judgment but only correct minor errors. The deadline is sooner if the court files show that you were served with a written notice of entry of that default judgment. In this case, you must file the request to set aside within 180 days from the date you were served that notice. — An appeal must be taken within fifteen days from the rendition of the judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial is filed until notice of the order overruling the motion shall have been served upon the defendant or his attorney.
From the above statement of the law the procedure of applying by motion on notice adopted by the appellant in this case was proper. Beyond that, where the order is void as in this case, no matter how the court comes by the knowledge of its existence the court on its own motion is required to set same aside. The policy of the law is to deny void orders the coercive authority of the court or accord them legality as that would turn the court into an instrument of injustice. On the procedure to be adopted to apply to set aside the judgment the Court of Appeal endorsed the holding of the High Court that on the authority of Lamptey v Hammond [ ] 1 GLR 327 the Gyandodey family was not party to the case and being a stranger it ought to have issued a writ of summons to set aside the judgment. On the issue whether the appellant had the capacity of Head of Gyandodey family in which capacity he applied to the court the Court of Appeal said that issue cannot be determined on affidavits alone but through evidence in an appropriate forum.
Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court. When you filed your motion, the court clerk inserted a date and time for a hearing on your Notice of Motion. Be prepared to attend the hearing and make your argument to the judge about why the default judgment should be set aside.
