Mohammed Ndejiko Mohammed & Ors V. Mohammed Husseini & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The plaintiffs, after obtaining leave of the court to prosecute their case in a representative capacity, filed their writ of summons in the High Court of Kwara State holden at Ilorin claiming the following reliefs against the defendants:-

(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.

(2) A declaration that under the native law the 1st defendant’s family is not a ruling house in Zambufu.

(3) A declaration that the appointment and/or turbanning 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 or no effect whatsoever as same is against the age long custom and tradition or Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.

(4) A declaration that the 1st plaintiff is the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors 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.

(5) An order commanding and/or directing the 2nd defendant to turban or instal the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or kingmakers.

(6) A perpetual injunction restraining the:-

i. 1st defendant from parading or presenting himself as the Zhitsu of Zamburu;

ii. 2nd defendant, his servants, agents, privies or any person or persons howsoever from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.”

The 1st and 2nd defendants entered a conditional appearance on 29th November, 1991 and on 7th January, 1992 filed a motion on notice in which the following preliminary objection was raised:-

“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…”

In a considered ruling delivered by Olagunju J., on 18th March, 1992, he overruled the preliminary objection when he stated thus:

“for the purpose of satisfying the requirement of rule 7 or Order 5 or the Kwara State High Court [Civil Procedure] Rules, 1989 which provides that ‘writs’ of summons shall be printed on opaque foolscap – size paper of good quality it will be sufficient if the writ is produced legibly by a typewriter or any other uniform mechanical process on a thick foolscap size paper a condition which I am satisfied that the present writ of summons amply satisfied.”