The plaintiff (now 1st respondent) took out a writ at the High Court, Ondo, on 14 October, 1991 against the 1st – 4th defendants (now appellants) as well as the Attorney General of Ondo State (now 2nd respondent) claiming three reliefs. An amended writ and amended statement of claim were later filed on 3rd March, 1992. The relief as finally claimed were stated as follows: -

After pleadings had been exchanged, the appellants brought an application to have the suit struck out on two grounds, namely (a) that the 1st respondent failed to give security for the sum of N25, 000.00 prior to instituting the suit as required by section 2(1)(a) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No. 2 of 1992 (Edict No. 2 of 1992); (b) that the 1st respondent did not institute the suit within seven days of the date of the appointment of the 1st appellant.

The said Edict No. 2 of 1992 under which the 1st appellant was appointed the Osemawe of Ondo was originally given a commencement date of 23 December, 1991 by the Ondo State Supplementary Official Gazette No. 2 published on 16 January, 1992. But sometime later, Ondo State Oil of Gazette No 6 vol. 19 dated 10 February, 1994 published as Ondo State Notice No 10 corrected the date of commencement of Edict No 2 of 1992 to read 3 January, 1984 instead of 16 January, 1992. The learned trial judge (Babalola J) held that retrospective operation must be given to the said Edict with effect from the back dated date of 3 January, 1984. He further held that the giving of security for the sum of N25, 000.00 and the requirement to institute a suit within seven days of the appointment of the 1st appellant to challenge his appointment as the Osemawe of Ondo were procedural conditions precedent to the competence of the suit filed by the 1st respondent on 14 October, 1991. The learned trial judge seemed to have found support in the case of Attorney General v Vernazza (1960) A. C. 965 to which I shall have to return in the course of this judgment. He therefore struck out the suit in a ruling he gave on 24 May, 1994. It ought to be made clear that the suit was struck out only on the ground that the 1st respondent failed to fulfill the condition precedent for giving security at the same time the suit was filed when the learned trial judge held:

“The failure of the plaintiff/respondent to deposit the sum of twenty five thousand Naira in the High Court Registry Ondo State at the same time the necessary court processes were filed (even up till now) precludes the court from examining the merit of the case being put forward. The case is therefore struck out”

In the appeal which came before the Court of Appeal against the said ruling several issues (altogether 18, although some of them were considered to have overlapped and some others to be irrelevant or incompetent) were raised by three sets of parties to the appeal in their respective briefs of argument. On 8 December, 1997, the lower court in a carefully considered judgment, reported as Adewole v Adesanoye & Ors. (1998) 3 NWLR (pt 541) 175, allowed the appeal upon only one issue regarded as arising for determination against the ruling of the trial court striking out the suit. The said issue was stated by per Mahmud Mohammed JCA at page 190 s follows:

“Whether the learned trial judge was right in striking out the suit of the appellant on the ground that the appellant as plaintiff had failed to comply with the condition precedent of paying the deposit of N25, 000 in the High Court Registry at Ondo at the same time the necessary court processes were filed as prescribed by section 1 and 2 of Edict No. 2 of 2 1992 of Ondo State, (which failure) had precluded the trial court from exercising jurisdiction to hear the case.

The lower court ordered that the suit be heard by another judge of the Ondo State High Court.

Aggrieved by the decision of the Court of Appeal, the appellants appealed to the Supreme Court.