ONNOGHEN, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Benin division in Appeal No. CA/B/28/97 delivered on 4/4/2001 in which it set aside the judgment of the trial court delivered on 22nd September, 1995 in suit No. S/102/91. When the appeal came up for hearing on 12/1/06 both counsel, though served were absent without explanation. The appeal was therefore taken as argued on the briefs already filed in accordance with the rules of this court.
By a writ of summons filed on 14/11/91 the appellant, as plaintiff claimed damages against the respondent for trespass in that the respondent, without appellant's authority or consent broke and entered the appellant's land along Benin/Warri Express Road, Amukpe town and excavated and carried away there from laterite. He claimed special damages amounting to N764,451.25 and N235,548.49 as general damages.
The case of the appellant is that in January 1978, the Amukpe Community who are the…