K.E & SONS LIMITED v. NINS DEVELOPERS LTD.

J U D G M E N T

OFOE, J.A.

This appeal has arisen because the trial judge ruled that since an earlier application before her to set aside a default judgment was struck out for want of prosecution, to reinstate the motion the applicant can only come by way of an application to relist and not to repeat the application by filing another motion to set aside the judgment. The said ruling can be found at page 43 of the record of appeal. The trial judge said:

“ This is the ruling of the court: this application was struck out for want of prosecution. The defendant can only apply for relistment of the application. This application is struck out”

Thus applicant’s motion to set aside the default judgment was struck out. The defendant, by his counsel disagrees with this view of the trial judge, hence this appeal. He has only one ground of appeal. That is

“The trial judge was wrong in striking out the motion to set aside the judgment which was entered in default of defence because, according to her, the motion should have been one to relist the earlier motion to set aside the same judgment which was struck out for want of prosecution.”

No submissions were filed for or on behalf of the respondent. Indeed counsel for the respondent was in court and express no opposition to the appeal filed. It would appear from her comments in court that she thinks the appeal should succeed. Before considering the propriety of this appeal counsel has raised an issue concerning the grounds of appeal he has filed which would need some examination by this court. Simply put counsel submitted that the notice of appeal before this court which was filed on the 12th of May 2010 is not the appropriate notice that should be before the court. The appropriate notice should be that filed on the 13th of April 2010. According to counsel when he realized the error he got an order from this court for the case to be remitted to the trial court for the error to be rectified. Unfortunately the error has not been rectified. So as not to occasion further delay he has decided to use the notice of appeal filed on the 12th of May 2010 because, according to him’ the two notices of appeal are “identical except in respect of the date of filing and other particulars” . True to his decision to use the notice filed on the 12th May his submissions filed in this court are based on this 12th May notice of appeal.

Since the matters of rectification alluded to by counsel for the appellant in his submissions cannot b