The plaintiffs instituted the action in a representative capacity for themselves and on behalf of their family bale Ibapon (Aidindi) against the defendants in respect of the parcel of farmland situate at Ibapon Village in Ogbomosh shown and verged green in survey plan No. KESH/Y/9036 dated 11th November, 1980. The plaintiffs traced the traditional history of the land to their ancestor, one Saibu a great and noble Muslim priest who migrated from Sokoto to Largate. Saibu was of service to the Onpetu Asamu, as a result of which he was invited to Oje by the said Onpetu to settle permanently there near him, whereby he made an absolute grant of a vast tract of farmland, a virgin land now known as Ibapon to the said Saibu. Saibu founded a village later called ibapon on a portion of the land.

The Onpetu gave his only daughter Lanike in marriage to Saibu and they begat Ismaila whom the Onpetu ordered and the Saibu agreed that only his descendants should inherit the said farmland. On Saibu's death the farmland devolved by inheritance under native law and custom on Ismaila who exercised various acts of ownership over it without any disturbance, and after his death his descendant who included the 1 s t and 2nd plaintiffs inherited it.

The defendants' family Aborode vide the request of Faghohun the 1st defendant's father was granted the land in dispute for farming purposes by Lawani the then head of the plaintiffs' family on payment of annual customary tributes ishakole'. On the death of fagbohun the land in dispute devolved on his brothers who continued to pay the agreed Ishkole until garuba the defendant refused to do so during the reign of garuba Ajao, even though they continued to use the land after their father's death. Consequently the said Garuba Ajao instituted an action against the 1st defendant and his family in n1951 at the grade 'B' Division of the Ogbomosho Native Court vide Suit No. 2/51 Garuba Bale Ibapon v. Aborode and family and he succeeded. After the judgment the defendants revived the payment of ishakole until 1966 when they refused again, and yet another action was instituted by garuba Ajao on which he succeeded even on appeal to the High Court. There were further refusals of payment of the said Ishakole after the death of Garuba Ajao and some litigations. The plaintiffs have exercised rights of ownership by making absolute grant to various parties, and laid out building plots hut the defendants have stubbornly and illegally refused to vacate or quit the land in dispute, hence the present action. The 2nd and 3rd defendants even though agreed vide their joint statement of defence that there were litigations in respect of land instituted against them by the plaintiff's ancestor, the parties in the suits sued each other in their personal capacities, and the land in dispute were not the same as the one in dispute in the present case. If on the other hand the land in dispute is the same as the one being litigated upon in dispute in the present case the defendants traced the traditional history of the land in dispute to a grant to their ancestor lakoso many centuries a go by Onipetu Asamu under native law and custom on payment of Ishakole to the Onpetu chieftaincy family, and since the death of Lakoso the land has continued to devolve on his descendants amongst whom are the defendants, under native law and custom. The defendants have exercised various rights over the land, and have lived and farmed thereon. According to the defendants their family were immediately before the commencement of the Land use Act 1978 in occupation of the said land and therefore had exclusive rights to the land, and to grant the plaintiffs' claims will hav4 the consequence of infringing against the provisions of the said law. The defendants counter claimed in their statement of defence as follows:-

"And by way of counter-claim the defendants repeat paragraphs 1-29 of the defence and if contrary to their contention it should be found that the plaintiffs have a right to enforce the forfeiture they claimed to be relieved from the alleged forfeiture on such terms as the honourable Court shall think fit."

The leaned judge who heard the case after evaluating the evidence before him and considering the addresses of counsel gave judgment in favour of the plaintiffs.

The appellants were dissatisfied with the judgment and appealed to the Court of Appeal