The main issue that calls for determination in this appeal relates to the constitution of the High Court of Kwara State When sitting to determine an application by a losing party for leave to appeal to the Court of Appeal against a decision of the said High Court sitting in its appellate jurisdiction.

The plaintiff, Memudu Ajiboye had sued the original defendant. Alhaji Oloyede Ishola, Bale of Amoyo before the Area Court grade I, Ajase-Ipo claiming title to a piece or parcel of farm land situate at Oke-Maro in Amoyo village. The case had a chequered history. The Area Court Grade I Ajase-Ipo tried the case and came to a decision. An appeal against that decision went to the Upper Area Court No. I Ilorin from where a further appeal went to the High Court of Kwara State sitting at Ilorin. The High Court ordered a retrial before the Upper Area Court No.2 Ilorin. Following an application by one of the parties, the High Court varied the order of retrial and ordered that the retrial be before the Upper Area Court, Omu- Aran.

The Upper Area Court, Omu-Aran took evidence in support of each party's case and, after an inspection of the farmland in dispute, found for the defendant and dismissed plaintiff's claim. Being dissatisfied with this judgment, the plaintiff appealed to the High Court of Kwara State sitting at Omu-Aran. The appeal was heard by two Judges of that court namely J.F. Gbadeyan and B. Orilonise, JJ. At the conclusion of the hearing of the appeal and in a reserved judgment, the High Court allowed the appeal, set aside the judgment of the trial Upper Area Court and entered judgment for the plaintiff awarding title to the farmland in dispute to him.

The defendant was unhappy with the High Court's judgment and sought leave of the court to appeal to the Court of Appeal. His application for leave to appeal was heard by a single Judge- Orilonise, J.

At the hearing of the application learned counsel for the respondent raised an objection to the competence of one Judge sitting on the application, relying on the decision of the Supreme Court in the case of Akerele v. Alapata (1973) NNLR 138. The pith of the objection was that a single Judge had no power to consider the application. The learned Judge overruled the preliminary objection, and the application was then moved and subsequently granted as prayed.

At the Court of Appeal, Kaduna, to which the appeal was brought, learned counsel for the respondent raised a preliminary objection to the validity and competence of the appeal on the ground that no leave of the competent High Court was sought and obtained before the defendant's appeal and grounds of appeal were filed, since the High Court constituted by a single Judge had no jurisdiction to grant leave. Both the preliminary objection and the appeal were taken together, and in its judgment, the preliminary objection was overruled and the defendant's appeal was allowed in part by an order setting aside the judgment in favour of the respondent, and an order of non-suit being made.'

Both parties were dissatisfied with the judgment of the Court of Appeal and they appealed to the Supreme Court. The original defendant, with leave of the Supreme Court, appealed against the order of non-suit made, maintaining that the proper order to make was one of dismissal of the respondents' Claim. The respondent cross-appealed against the decision overruling his preliminary objection to the competence and validity of the appeal and the order of non-suit entered.

During the pendency of the appeal in the Supreme Court, the original defendant Alhaji Oloyede Ishola died and, by an order made by the Supreme Court on the 10th January 1994, the present appellant/cross-respondent, Mustapha Oyedokun, was substituted in his stead.'

In view of the constitutional importance of the issue of the proper compo¬sition of the High Court of Kwara State and by extension, most High Courts in Northern Nigeria in its appellate jurisdiction, the Supreme Court invited a number of leading and eminent learned counsel as amiCtcuriaeto address it an that issue.