By reason of the death of the original parties to the case the present parties were substituted parties, but that has made no differences to the merits of the case. The plaintiffs’ case by their statement of claim, as finally amended, was that the land in dispute was the property of lkolaba Chieftancy. It was averred that the plaintiffs’ ancestor settled at a place called Ogunte Kekere and thereafter moved to another place called Ogunte Nla/Iju where the land now in dispute is situate. The pleading of the plaintiffs is remarkable for its lack of precision. It would appear that the title claimed by the plaintiffs was one by grant sometime in 1940.

Facts relating to that grant were pleaded in paragraphs 8 -11 of the statement of claim as finally amended. In summary, the facts pleaded were that sometime in 1940 Oba Ladigbolu, the Alafin of Oyo sent one Ilusinmi to lgbetti to “apportion” land to the chiefs, that as a result of this “assignment” the eleven chiefs in lgbetti including lkolaba got lands “allocated” to them, that the land allocated to Chief Ikolaba became the land of Ikolaba Chieftaincy family and is the land in dispute in this case. It was averred in paragraph 10 of the statement of claim that: only chiefs have land in Igbetti and holding among the chiefs are in accordance with the grant made by Ilusinmi.”

The defendant was sued in his personal capacity because, it was alleged, he trespassed on the land sometime in 1981. The defendant’s defence was that the land belonged to his family called Asunmode family. He averred that allocation of land to Igbetti Chiefs was merely for the purpose of enabling them to collect customary tributes from tenant farmers who were not indigenes of lgbetti without a transfer of interest to chief so allocated land.

From the plans which were put in evidence by the parties, it is clear that the area to which the plaintiffs laid claim was vast, covering 174.25 hectares (431 acres) of which the area trespassed on by the defendant was relatively microscopic. The area which the defendant alleged belonged to his family covered 163.416 hectares.

The learned trial judge approached the case on the footing that the claim was against the defendant in a representative capacity and that the plaintiffs’ case was based on traditional evidence. In the event, after rejecting the traditional evidence adduced by both parties he, relying on the principle in Kojo II v. Bonsie and ors (1957) 1 WLR 1223, 1226, proceeded to test the probability of that same traditional history, already rejected, by reference to recent acts as established by the evidence. He found that farms and buildings have been erected on the land by persons who obtained grants from the plaintiffs’ family, unchallenged by the defendant’s family, and concluded that the plaintiffs have established their right to the relief claimed.

On appeal to the Court of Appeal by the defendant several issues were taken. Three of these were (1) whether the learned trial judge was correct to have applied the principle in Kojo II v. Bonsie; (2) whether on pleadings and the evidence the plaintiffs could be said to have proved their case; and (3) whether the suit was properly constituted. The Court of Appeal held that the trial judge was correct in his application of the principle in Kojo II v. Bonsie: that the plaintiffs’ were “relying solely on the grant from Onigbetti Chieftaincy Family; that Oba Ladigbolu by his intervention did not grant a land to Ikolaba; that since the question of the constitution of the action was not raised at the trial it could not be raised in the appeal, and that if it could be so raised the defendant had held himself out as defending in representative capacity. In the event, the Court of Appeal dismissed the defendant’s appeal.

Dissatisfied the defendant appealed further to the Supreme Court.