The facts put very briefly is that the Plaintiffs took this action complaining that the Olugbo Chieftaincy Declaration tendered in the proceedings as Exhibit "A" was made on wrong recommendations by the Morgan panel, in that the evidence led before that panel on the customary law and the traditions of the Olugbo people concerning the Olugbo chieftaincy were disregarded by the panel. It is also alleged that the panel based its finding on extraneous matters. It was said to be common ground, that the late Olugbo, Oba Napoleon Mafimisebi III took a memorandum based on agreement by the entire members of the ruling house, all the descendants of the Ojadele to Morgan Commission.

The memorandum contained a number of recommendations including order of rotational succession to the Olugbo stool. While giving evidence before the panel, the Oba, the father of the 3rd Defendant, urged the panel to recognize two ruling houses viz Agbedun/Ojogo and Oyetayo/Atarioye. Because, according to him, their ancestor, Ojadele had two wives and each of the wives had two sons. The Plaintiffs in the main allege that chieftaincy declaration in Exhibit "A" does not correctly represent the customary law and traditions of the Ugbo people in relation to the sucession to the Olugbo stool. The Plaintiffs also averred that there were many irregularities in the nomination, selection and the purported appointment of the 3rd Defendant sufficient to vitiate the whole selection exercise, e.g the secretary to the local Government conspired with the kingmakers to conduct the nomination and the selection exercise behind the back of the members of the ruling house and especially behind the back of the other stool contestants and the wrong membership of the Caleb Kalejaiye (now substituted) to the council of kingmakers. It was averred that he was never appointed Asogba and was therefore not a kingmaker and he had no right to take part in the nomination or selection of an Olugbo.

The Defendants disagreed with the Plaintiffs in a number of points, but it is common ground that on each occasion a vacancy in the stool of Olugbo arose, there were always many contestants against the son of deceased Oba even though the 3rd Defendant and witnesses testified that the succession to the Olugbo stool is from father to son and that there was no rotation. This latter position of Defandants was disbelieved by trial Judge.

From the pleadings and the evidence adduced, it appears that both the Plaintiffs and the 3rd Defendant and his witnesses are agreed that Exhibit "A" did not truly represent the customary law and tradition of the Ugbo people in relation to the succession of the stool of Olugbo. The Plaintiffs pleaded and led evidence that succession to the Olugbo stool was by rotation see paragraphs 13, 14, 15, 16 of the Further Further Amended Statement of Claim. The 3rd Defendant by paragraph 7 of the Amended Statement of Defence pleaded in his evidence stated that the sucession to the Olugbo throne is from father to son and he is the only qualified candidate amongst the six contestants that vied for the Olugbo throne which was vacant then. While it is clear that Exhibit "A" limits the succession to the Olugbo to male descendants of Ojadele only.

Faced with this situation, the learned trial Judge found that there was no inconsistency between the viewpoint of the Plaintiffs and that of the 3rd Defendant, who averred succession from father to son, since Exhibit "A" merely attributed the right of succession to the male descendants of Ojadele. He also found that there was no corroborative evidence to support the Plaintiffs assertion that the chieftaincy had been in rotation among the four children of Ojadele since the death of Ojadele. On the other hand, he found overwhelming evidence to support the claim of the 3rd Defendant that the chieftaincy had been hereditary since the death of Ojadele. On this basis, he dismissed the Plaintiffs' claim in its entirety.

The Plaintiffs appealed to the Court of Appeal which therefore concluded that since the learned trial judge had failed to make any reference or pronouncement at all on Exhibit "J", justice demanded that the case be sent back to the High Court for a fresh trial before another Judge.

Some of the Defendants (Appellants herein) were dissatisfied with the decision, hence the appeal to the Supreme Court. The Plaintiffs also cross-appealed against the order of retrial and invited the Supreme Court to look into the evidence and decide the matter on the narrow issue identified by the Court of Appeal.