The plaintiffs/appellants case was that on the death of Konibaba Babayeju the Iyewo family by a deed of conveyance dated 23rd August, 1950 conveyed the legal interest in the said land to Thomas, David and Sadiku who were the only children of Konibaba Babayeju. That the plaintiffs and the 2nd defendant are the children of Thomas, David and Sadiku and only the sub families of Thomas, David and Sadiku constitute Babayeju family. It was the plaintiffs case that at no time did Babayeju family validly divest itself of their interest or title in the parcel of land and that the 2nd defendant in conjunction with other people who are not members of Babayeju family sold and conveyed the said family land to the 1st defendant without the approval of the 1st plaintiff who is the head of Babayeju family and without the consent of the 2nd plaintiff who is like the 2nd defendant a principal member of Babayeju family.

The 2nd defendant on his part contended that Konibaba had seven children and not three as claimed by the plaintiffs that the seven children comprised three males namely, Thomas, David and Sadiku and four females namely, Titilola, Folaranni, Omiyale and Ibilola and that the other vendors of the conveyance to the 1st defendant are the descendants of the female children of Babayeju.

The 1st defendant claimed that he duly purchased the said land from the family in 1975 and that he obtained the deed of conveyance from the family in 1976.

Pleadings were ordered, filed and exchanged and at the close of hearing the learned trial Judge found for the plaintiffs and ordered as follows:

The defendants were dissatisfied with the judgment of the trial court and appealed to the Court of Appeal, Lagos Division. Their appeal was successful. The decision of the trial court was set aside and in its place, an order striking out the suit was made. The plaintiffs who were aggrieved by the decision of the court below appealed to this court.