RULING
This is a Motion on Notice praying this Honourable Court for an order setting aside the default judgment entered against the Applicantherein on the 23rd of September, 2016 and for leave to enter late appearance.
The Plaintiff/Respondent herein issued a Writ of Summons against the Defendant/Applicant on the 25th of August, 2016 and effected service on the Defendant on the same day. Subsequently, this Honourable Court entered default judgment in favour of the Plaintiff/Respondent on the 23rd of September,2016 after the Defendant/Applicant had failed to enter an appearance.
Naturally aggrieved by the said default judgment, the Applicant has filed the instant application and the grounds of the application are contained in the Affidavit in Support filed on the 28th of October, 2016. The gravamen of the applicant’s motion per the Affidavit is that it was not open for her to file an appearance as the Writ of Summons was filed during the vacation. And that the default judgment obtained during the vacation was in clear breach of the rules of court and procedure and therefore void.
The Respondent was opposed to the application and demonstrated the grounds in an Affidavit in Opposition filed on 2nd November, 2016. The import of the Respondent’s opposition was that the application is misconceived as the default judgment was entered “in accordance with the rules of practice and procedure and settled legal authorities”.
In moving the motion, Counsel for the Applicant prayed the Court to set aside the default judgment as the same offended the rules of court. Counsel argued that since the writ was filed during the vacation and the default judgment also obtained during the vacation, the default judgment is void as time does not run during the vacation so it was premature for the judgment in default of appearance to be entered against the Defendant.
Counsel referred to Order 79 rule 4(b) of the High Court Civil Procedure Rules, 2004, CI 47 which defined pleadings. He argued forcefully that the Writ of Summons and Entry of Appearance qualify as pleadings and as such the Entry of Appearance in particular ought not be filed during the vacation since time does not run during the vacation period. Counsel submitted that the default judgment obtained is void as Defendant was not in default of appearance.
Counsel also submitted that Plaintiff/Respondent ought to have put the Defendant/Applicant on notice when he moved the court for judgment in default of appearance. I
