The plaintiff/appellant before this Court originally filed an action in the Ondo Divisional Grade ‘A’ Customary court, sitting at Akure, claiming against the Defendant/respondent:

The Customary Court granted the plaintiff the declaration of title claimed, awarded general damages of £50 for trespass against the defendant and granted the injunction sought. The defendant appealed to the High Court of the former Western State, sitting at Akure, against the judgment of the Customary Court. The High Court allowed the appeal, set aside the judgment of the Customary court and ordered that the case be sent back for retrial by the lower Court. The plaintiff, being dissatisfied with the Decision of the High court, appealed to the Court of Appeal of the former Western State seeking to set aside the judgment of the Cus-tomary Court. The Court of Appeal dismissed the appeal and affirmed the order of the Customary Court and requiring a retrial, but ordered that the retrial should not be before the Customary Court President who originally tried the case.

The plaintiff, being dissatisfied with the Decision of the Court of Appeal of the former Western State appealed to this Court seeking to set aside the judgment of the Court of Appeal of the former Western State and to restore the judgment of the Customary Court. Before the hearing of the appeal, the defendant/respond-ent filed a notice of intention to rely upon a preliminary objection pursuant to Order 7, Rule 14 of the Supreme Court Rules arguing that the appeal was not properly before the Court. Both the application for leave to appeal and the grant of leave were within the period of three months prescribed by section 31 of the Supreme Court Act 1960, but notice of Appeal, which was in respect of a final de-cision of the Court of Appeal of the former Western State, was filed after the peri-od had expired.