K.E & SONS LIMITED (PLAINTIFF/RESPONDENT) vs. NINS DEVELOPERS LTD. (DEFENDANT/ APPELLANT) [2011]DLCA7923

K.E & SONS LIMITED (PLAINTIFF/RESPONDENT) vs. NINS DEVELOPERS LTD. (DEFENDANT/ A... [2011]DLCA7923

Date	2011-01-26
Suit No.	SUIT NO: HI\29\2011
Citation No.	[2011]DLCA7923

APALOO J.A. (PRESIDING)

DUOSE J.A.

OFOE J.A

[2011]DLCA7923
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >K.E &amp; SONS
LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><span lang="EN-US" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>NINS
DEVELOPERS LTD.<o:p></o:p>(DEFENDANT/ APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO: HI\29\2011&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 26TH
JANUARY, 2011<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

APALOO
J.A. (PRESIDING), DUOSE J.A., OFOE J.A<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>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 &nbsp;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:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “ 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”<o:p></o:p>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<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “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.”<o:p></o:p>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. <o:p></o:p>Since
the matters of rectification alluded to by counsel for the appellant in his
submissions cannot be part of the record of appeal it became necessary to call
for the case file from the Appeal Court registry to verify counsel’s
submissions he made in respect of the two notices of appeal before us. &nbsp;The contents of the file we found as submitted
by counsel. No doubt the procedure counsel is urging we adopt, proceeding with
the notice filed on the 12th of May instead of that filed on the 13th
of April despite the errors may serve the purpose of expedition which is the
hall mark of every judicial system. But such objective should be sought for
within the circumstances of each case whether there would not be breach of any
law or rules of court and also whether no injustice would occasion any of the
parties. An incisive examination of the invitation extended by counsel to this
court raises a jurisdictional issue for this court presently empanelled. Why do
I talk about jurisdictional issue? In the first place the jurisdiction of this
court, as now commonly known, can be invoked by a notice of appeal. (Refer to
rule 8(1) of C.I.19 of the Court of Appeal Rules). Is there a proper notice of
</main>