LEGAL PRINCIPLE: CIVIL PROCEDURE — Undefended List — Setting Aside Judgment Obtained Under Undefended List Where Fundamental Defect Exists
PRINCIPLE STATEMENT
A judgment obtained on the undefended list is a judgment on the merit. A trial court has no power to set aside such a judgment under default judgment rules. However, if the judgment is a nullity, the court which made it can set it aside on motion or suo motu.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Mark & Anor v. Eke (2004) NLC-351997(SC) at pp. 12–13; Paras E–B.
"A judgment obtained on the undefended list is a judgment on the merit and the procedure adopted in setting it aside in the case of Bank of the North Ltd. v. Intra Bank (supra) by relying on the provisions of the old English rules under Order 14 rule 11 of the said old rules in dealing with default judgment was wrong and the Judge would have no power to set aside its judgment under these rules dealing with default proceedings in a matter where the judgment was entered under the undefended list. So long as the judgment was obtained by merit, a trial court will not have the jurisdiction to set aside its judgment even if there was a mistake. … But, however, if the judgment is a nullity the court which made it can set it aside on a motion suo motu or on an application by any party affected by it."
EXPLANATION / SCOPE
Undefended list judgment is a judgment on the merit. The principle applies to civil procedure. It cannot be set aside under default judgment rules. However, a nullity can be set aside. The rule distinguishes between merit judgments and nullities. The court retains power to set aside nullities. The principle is well-established.