OLATAWURA, J.S.C. (Delivering the Leading Judgment): It will be necessary to refer briefly to the history of this case in order to appreciate the issue involved. The appeal is not on the merit of the issues decided by the High Court of Justice in the former Mid-Western State of Nigeria, (now Edo State) of the Benin Judicial Division.
The respondent issued a writ of summons against 3 defendants: (1) Chief Ajayi (2) Mr. D.M. Ajayi and (3) Madam Rali Kadiri on 6th April, 1974. The latter has since died. The reliefs claimed are as follows:
"(a) A declaration of title in accordance with Bini Customary Law to the land in dispute as shown coloured pink on Plan No.ER 2238 filed with this Amended Statement of Claim.
(b) N200.00 being damages for trespass.
(c) An injunction restraining the defendants, their servants and or agents from further acts of trespass upon the said land.
The matter proceeded to trial after several amendments to the pleadings. On 3rd May, 1980, Omosun, J. (as he then wa…