This suit arose out of the contest for the Chieftaincy Stool of the Oloja of Igbogbo in the Ikorodu area of Lagos State. On the 29th November 1977, the last holder of the Oloja of Igbogbo Stool, Oba J.O.O Odugbose died. The Stool thus became vacant. The present Appellant and the 3rd Respondent were the main contestants for the vacant Stool, By Legal notice No. 6 of 1979 dated 26 July, 1979, tendered in these proceedings as Ext.D 814, the Military Government of Lagos state approved the appointment of Johnson Olatunji Fotola, the 3rd respondent, as the new Oloja of Igbogbo. An instrument of appointment made under the Hand and seal of Military Administrator of Lagos state dated 29th August, 1979 and published in the Lagos State Official Gazette No. 35 Vol.12 of 30/6/79 was given to the said 3rd Respondent. This instrument was tendered in these proceedings as Exhibit D/3B. Following these developments, the Plaintiff, contended that the 3rd Respondent was not a member of the Rademo Ruling House whose turn it was to produce the next Oloja; that the 3rd Respondent was never presented to the Kingmakers; and that his appointment was not only contrary to the Registered declaration on the Igbogbo Chieftaincy title but was ultra vires some sections of the Chiefs Law of Lagos State, in October, 1982 commenced a suit in the Lagos Stale High Court.

In his Judgment, llori, J., extensively reviewed the evidence led before him and considered the plea of the Respondents herein for an ouster of Jurisdiction. The learned trial Judge posed two questions the first of which he answered by agreeing that-

"any action of the Executive, taken under and in accordance with the provisions of the-Chiefs Law, before 1st October, 1979, is protected by the ouster provision in Section 25(6), and 52 of the Chiefs Law; and Section 16(3) of the 1963 Constitution. The law must be applied in this respect as at the time the cause of action arose, not the time the Court's Jurisdiction was invoked."

As regard the second question -

“where immunity from suit protects the Executive's action taken under a particular statute will that immunity hold good where the Executive knowingly acts in violation of the contrary to the provisions of the enabling statute?

The learned trial Judge held as follows -

“It is settled law that where a statute empowers an authority to perform an act upon existence of prescribed conditions, the donee of the power has no Jurisdiction to exercise the statutory power until the conditions prescribed in the State exist. Any acts done without existence of the condition precedent is a nullity and the Court will aside despite any provision in the statute excluding the Court's jurisdiction. The ouster provisions relied upon by the 3rd Defendant not protect an action extrinsic to the Chiefs Law: a void action which does not exist at all in law. The provisions will however operate to debar the court from exercising jurisdiction in all cases where the Executive Council acts within it powers and jurisdiction under the Chiefs Law, even where the Executive Council arrived at an erroneous conclusion."

The learned trial judge accordingly gave judgment in favour of the Appellant.

The 3rd defendant appealed to the Court of Appeal which allowed the appeal. It also held that the judgment of the learned trial Judge contravened s.258(1) of the Constitution having been delivered outside the pres¬cribed after months limit.

Plaintiff appealed to the Supreme Court.