The central Issue, which the learned trial Judge resolved in favour of the plaintiffs, was whether the land was part of the land which, in 1939. Oba Dokun Latona 11 the Ataoja of Oshogbo granted to the father of the 1st plaintiff, one Joseph Folarin Adekunle (now deceased), or whether it formed part of the area, which the Ataoja of Oshogbo granted to the Oshogbo Hausa Community "from time immemorial".

The 1st plaintiff, who is the accepted head of the Adekunle family, sold and conveyed to the 2nd plaintiff the land in dispute in the exercise of the claimed pro¬prietary rights of the Adekunle family, while the 1st defendant purchased the same land from the 3rd defendant in purported exercise, by the 3rd defendant who was the Seriki of the Hausa Community of Oshogbo, of the claimed right of ownership of the land in dispute by the said Hausa Community. And so it was, that both par¬ties agreed that the original owner of the land in dispute was the Ataoja of Oshog¬bo.

Despite the fact, however, that the High Court found as a fact that the said land in dispute was part of the larger area of land granted the father of the 1st plain¬tiff, it non-the-less non-suited the plaintiffs by reason of the fact that the land was granted, and belonged, to the family of the 1st plaintiff, and that he failed to sue in a representative capacity for himself and on behalf of the Adekunle family made up of himself and the other children of Joseph Folarin Adekunle.

Plaintiff appealed to the Court of Appeal. The appeal court amended the writ of summons altering the capacity in which the plaintiffs' sued, and gave judgment for them, setting aside the order for non-suit.

Defendants appealed to the Supreme Court.