The facts of this case are in the main not disputed. P.A. Igunbor died survived by five wives, fifteen children and a younger brother. On February 2nd, 1988, Mrs. Olabisi Afolabi (nee Igunbor), the oldest child and female and Mrs. May Oyeyemi Igunbor, the youngest wife of the late P.A. Igunbor without the knowledge of the Appellant applied for letters of Administration to the estate of the deceased. Appellant being aware of this application of the Respondents for letters of Administration filed a notice by caveat to prohibit the grant of the letters of Administration to the Respondents alone. Appellant eventually filed an application commenced by way of motion on notice, in which he prayed for the following orders: -

This is the suit No. M/75/88 John Ogunmola Igunbor & anor. vs. Mrs. Olabisi Afolabi & anor. filed on the 8th August,, 1988. The application was supported by an eighteen paragraph affidavit sworn to by Charles Dele Igunbor. It is pertinent to observe that this application is sequel to an existing application for the grant of letters of Administration. The Suit No. 1/653/88. In re The Estate of Mr. Philip Aifiemiamiuwa Igunbor (Deceased), Between Mrs. Olabisi Afolabi (nee Igunbor). Mrs. M Oyeyemi Igunbor Plaintiffs and Mr. Charles Dele Igunbor Defendant, filed on the 2nd August, 1988.

The application of the appellants was opposed in a counter-affidavit of six paragraphs sworn to by Mrs. Olabisi Afolabi. The application was opposed by Counsel for Respondents in an oral preliminary objection alleging that the procedure followed in bringing the application by motion was faulty and was not in compliance with the due process of law. It was contended that applicants should have initiated the action by writ of summons and not by notice of motion. The learned trial Judge overruled the objection and granted all the prayers in the motion. Respondents appealed to the Court of Appeal.

They filed and relied on five grounds of appeal. Out of these grounds three issues for determination were formulated in the Appellants' brief of argument. Respondent did not formulate any issues and was deemed to have adopted the formulation of the Appellant.

The Court of Appeal set aside the judgment of the trial court.

Appellant appealed to the Supreme Court.