NZEAKO JCA (Delivering the Lead Judgment): This appeal arose from the ruling delivered on 5th November, 2002 by Magomya J., sitting at the High Court of Justice, Gombe State, Nigeria. In the ruling, the application of the applicant who is the appellant in this appeal by which he sought to set aside a judgment of the court below in a suit filed on the “undefended list”, was refused. The court below had held that a judgment obtained under the undefended list procedure is a judgment on the merit which can only be challenged on appeal or by another action, and cannot be set aside by motion. Dissatisfied, the applicant in the court below has appealed to this court on four grounds.
The appellant had filed and duly served on the respondent his brief of argument as required by the rules of this court. By the order of this court made on 4th May, 2004 it was deemed filed and served within time on the said date. The respondent failed to file any brief of argument and on 21/10/ 2004, this court …