Plaintiffs (now appellants) instituted an action in a representative capacity against the 1st and 2nd respondents challenging the appointment of the 1st respondent as Zhitsu of Zambufu and his turbanning as such by the 2nd respondent as being contrary to the customary law of Zambufu.

Following service of processes, 1st and 2nd respondents entered a conditional appearance on 29/11/91 and on 7/1/92, they filed an application praying for “….an order striking out the writ of summons for non-compliance with the provisions of Order 5 rule 7 of the High Court (Civil Procedure) Rules, 1989 which provides ‘writ of summons shall be printed on opaque foolscap size paper of good quality’…” This was overruled on 18/3/92. They were granted extension of time to file their statement of claim on 15/5/92. On that date the trial court reminded the respondents that they had 30 days within which to file a statement of defence. The case was then adjourned sine die.

They then filed an application requiring the respondents to produce for their inspection and tendering certain documents. The case came up on 19/11/92 for the application. On that date the respondents were absent and unrepresented while R. I. Otaru appeared for the plaintiffs, that is, appellants herein. The respondents who were not present were served with hearing notices for that date. Consequently, R. I. Otaru applied orally under Order 39 rule 7 of the Kwara State High Court Civil Procedure) Rules, 1989 for leave to prove his case since the respondents had failed to file a statement of defence. The application was granted and the appellants there and then opened their case, called two witnesses and closed same and at the end addressed the court. Judgment was then reserved for 20/11/92. On 20/11/92 when judgment was delivered in favour of the appellants, R. I. Otaru appeared for the appellants while Wande Obatusin, Esq. Appeared for the respondents.

However, on 26/11/92, the respondents through a new firm of solicitors Saraa Chambers, brought an application for

The application was heard and granted with the trial court setting aside its judgment of 20/11/92.

Aggrieved by the decision, appellants appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and upheld the decision of the trial court. The appellants appealed to the Supreme Court.