Subscribed on the Writ of Summons issued at the High Court of Justice of Kwara State, Ilorin Judicial Division on the 26th day of November, 1991 and reproduced as paragraph 34 of the Statement of Claim, are the Respondents' (then plaintiffs) claims against the appellants (then defendants):
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32
"WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:
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1
A declaration that the 1st defendant under the age long custom and tradition of Zambufu has no right whatsoever to ascend the throne as the Zhitsu of Zambufu.
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2
A declaration that under the native law and custom relating to the selection and appointment of Zhitsu of Zambufu, the 1st defendant's family is not a ruling house in Zambufu.
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3
A declaration that the appointment and/or turbaning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and of no effect whatsoever as same is against the age long custom and tradition Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.
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4
A declaration that the 1st plaintiff is the duly elected and appointed Zhitsu of Zambufu Traditional Councillors or Kingmakers in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.
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5
An order commanding and/or directing the 2nd defendant to turban or install the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu Traditional Councillors or Kingmakers.
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6
A perpetual injunction restraining the:
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i
1st defendant from parading or presenting himself as the Zhitsu of Zambufu;
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ii
2nd defendant, his servants, agents, privies or any person or persons however from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu."
In their Statement of Defence, the defendants (now appellants) denied the material averments in the Statement of Claim, concluding at paragraph 29 of the Statement of Defence thus:
At the conclusion of trial and after a review of the entire case, the learned trial Judge Adebara J., concluded thus:
"For the avoidance of doubt and sake of clarity, judgment is hereby entered for the plaintiffs as follows:
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1a
Under native law and custom of Zambufu the family of Mohammed Hussein the 1st defendant, do (sic) not belong to a ruling house in Zambufu.
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b
Therefore, that the 1st defendant has no right under Zambufu custom and tradition to ascend to the throne of Zhitsu of Zambufu.
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c
In consequence, the appointment and turbaning of the 1st defendant on 12/11/91 as the Zhitsu of Zambufu by the 2nd defendant, His Royal Highness the Emir of Lafiagi is illegal, null and void and of no effect.
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2
In consequence of the fore goings:
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a
Mohammed Hussein, the 1st defendant, is hereby restrained from parading or presenting himself as the Zhitsu of Zambufu, and
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b
His Royal Highness, Alhaji Saidu Kawu Haliru, the Emir of Lafiagi, the 2nd defendant is hereby restrained whether acting by himself or through his servants, agents, privies or any person or persons howsoever from recognising, dealing or relating with the said Mohammed Hussein, 1st defendant, as the Zhitsu of Zambufu.
CONSEQUENTIAL ORDER:
.... Having nullified the appointment of Mohammed Hussein as Zhitsu of Zambufu, I hereby make a consequential order that the Ndejiko of Zambufu (the 2nd plaintiff) should present the names of the remaining two contestants, i.e.
Mohammed N. Mohammed (the 1st plaintiff herein) and Ibrahim Ndakogi to the 2nd defendant His Royal Highness, the Emir of Lafiagi who will appoint the most suitable among the two as the Zhitsu of Zambufu."
Aggrieved by the judgment, the defendants, now appellants, appealed to the Court below on 9 grounds. Though the file contains "proposed additional grounds of appeal, numbered 10 to 15 and a motion for leave to file the additional grounds of appeal, the motion was withdrawn and struck out on 5th May, 1004. The operative grounds of appeal are as contained in the Notice of Appeal filed on 29th January, 2003 from which the appellants formulated five issues for the lower Court to resolve.
On their part, the respondents formulated four issues for determination.
In a split decision of 2 to 1 in favour of the respondents, the Court below dismissed the appeal in the following terms:
"On the whole, I see no merit in this appeal, which is accordingly dismissed. The decision of the trial Judge is affirmed. The appellants are to pay costs of N10,000.00 for the respondents."
Once more dissatisfied with the judgment against them, appellants complained to this Court
