In 1967 the Ogbomosho Community sued by writ in the High Court of Western Nigeria sitting at Ibadan claiming against the Alafin of Oyo and the Oyo Community a declaration that the boundary between the lands of the Ogbomosho Community and those of the Oyo Community was a particular stream, and an injunction restraining the defendant from exercising any right of overlordship over the area in dispute, property of the Ogbomosho Community.

The action had not proceeded to trial before the Governor of Western Nigeria acting under powers vested in him under section 4 of the Local Government and Communities Boundaries Settlement Law of the Western Region, 1975 as amended by Edict No.5 of 1968 (The Law") referred the boundary dispute to the Boundary Settlement Commissions for Settlement.

The Commissioner, one Mr. Ogundare, was at the time of his appointment more than 10 years old at the bar and was thus qualified under the 1963 Constitution of the Federation of Nigeria for appointment as a High Court Judge. Upon assuming the duties of his office he subscribed to an oath prescribed for boundaries settlement commissioners identical in terms to that subscribed to by all Judges of superior courts of record in Nigeria upon assumption of office.

The Commissioner proceeded with the inquiry and in 1971 delivered his finding on the proper boundary and declared all the land east of it to belong to the Ogbomosho Community, and all land west of it to the Oyo Community. This latter finding was in essence a declaration of title to the land in dispute and the Commissioner appeared to have made such declaration in the belief that he had jurisdiction so to do under section 5 of 'The Law".

Being dissatisfied with the decision, the Oyo Community sought to nullify it by applying for an order of certiorari in the High Court but the trial Judge dismissed the application. The Oyos then went on appeal to the Appeal Tribunal constituted under 'The Law" to hear appeals from the decision of the settlement Commissioner and lost. It was after the termination of the preceding actions that the Oyo's filed the writ commencing the present action and claimed a declaration that the judgment given the defendants by the settlement Commissioner and confirmed by the Appeal Tribunal was illegal, unconstitutional and/or contrary to natural justice: an order setting aside the said decision; and an injunction restraining the defendants from giving effect to the said decision.

At the High Court, Ibadan, Agbaje, J. dealt with all the issues raised by the plaintiffs and came to the conclusion that (i) the Commissioner was right in holding that the enquiry was concerned with the determination of the boundary between the two communities; (ii) that having regard to the provision of section 5 of 'The Law", the law did give the Commissioner power to determine questions relating to the ownership of land or interest in land in any disputes between two communities as to their boundaries; but that the tribunal constituted by the Commissioner not being a court, the law in. so tar as it gave the Commissioner such power to determine the question as to such ownership or interest was unconstitutional and void to that extent on the grounds of the principle of separation of powers implied in the 1963 Constitution i.e. that matters regarding title to land were the exclusive preserve of the Judiciary through the Courts. The learned trial Judge accordingly granted the declaration sought, set aside the judgment of the Appeal Tribunal and the Commissioner and granted the injunction restraining the Attorney-General, his agents etc, as prayed.

The Attorney-General and the Ogbomosho Community were not satisfied with this decision and appealed against it to the Court of Appeal where by a majority decision of two to one the appeal was allowed, the judgment of Agbaje, J. set aside and the claims of the Oyo Community dismissed. Though the majority of the Court of Appeal allowed the appeal their reasons were at variance: while Akanbi, J.C.A. held that the Boundary Commissioner and the Appeal Tribunal under the Loca1 Government and Community Boundaries Settlement Law were not courts of law, Uche Omo, J.C.A, held that they were, and on whether a tribunal which is not a Court of law could try a justiciable issue such as land disputes. Akanbi, J.CA said It could but Uche Omo, J-C.a. held that it could not.

On appeal to the Supreme Court by the Oyo Community It was contended for the appellants that (i) the Court of Appeal erred in holding that the Boundary Commissioner was competent to try the boundary dispute between the communities because under the 1963 Constitution, judicial powers of the State were vested in Courts of law; (ii) that the boundary dispute was a matter for determination by the exercise of the judicial powers of the State; (iii) that section 5(1) of 'The Law" which purported to give The Commissioner powers to determine the rights or interest in or over land was invalid; (iv) that the Boundary Commissioner's Tribunal not being a court of law could not validly exercise the judicial powers of the state as it purported to do in this case; (v) that even if the Commissioner's Tribunal was a court of law, the invalidity of the appeal provisions of the law - i.e. sections 11 (5) and (l4) of the Local Government Boundaries etc. Law, which made the decision of the Appeal Tribunal final and from which no appeal could lie, even to the Supreme Court, and which ousted the jurisdiction of any court to question its determination and made the determination of the Commissioner superior to the judgment of a court of law including the Supreme Court, could not be severed from the part of the law which set up the Commission; that accordingly, that part of the law which set up the Commission was void; and (vi) that the Court of Appeal erred in considering that the provisions of section 22 of the 1963 Constitution were relevant to the issues before them and justified their conclusion that the Boundary Commissioner's Tribunal was a properly constituted tribunal though not a court of law; (vii) that the said section 22 of the 1963 Constitution did not confer judicial powers on a body which is not part of the courts of judicature but only lay down the standards to be observed by courts of law and other tribunals.

From the above contentions and reply thereto by counsel for the respondents, the issues for determination before the Supreme Court were as follows - (i) whether all justiciable issues would only be entertained in regard courts of law established under the judiciary as the third arm of government on the basis of the separation of powers implicit in the 1963 Constitution; and whether the appeal provisions which denied the appellants of their constitutional rights of appeal to the Supreme Court being invalid, invalidated the whole law, or (ii) for the respondent, whether although there was separation of powers in the 1963 Constitution, it was not so water-tight as to preclude the existence of other tribunals which were not courts of law as such, from being able to entertain and finally determine justiciable issues.