The original Appellant, James Abudu, died and was substituted by Jimoh Abudu up to Court of Appeal. By the time this Court was to hear the appeal, Jimoh Abudu died and was substituted by Iredia Abudu. The Appellant was 4th Defendant at the trial High Court. The Plaintiff at the trial Court is Johnson Eguakun, one of the children of late Mr. Eguakun who died in 1935. Mr. Eguakun left many children, male and female, and Johnson was the third son. The eldest son was Omorodion Eguakun, the father of Mary, Samson and Felix who were co-Defendants with James Abudu at the trial Court. Sometime in 1944, James Abudu bought a piece of land, now in dispute, from Omorodion Eguakun, the eldest son of Eguakun. The land belonged to late Eguakun and Omorodion as the eldest son, under Benin native law and custom, had certain rights which I shall explain later in this judgment. James Abudu erected a building on the land in 1952, about eight years later he acquired it from Omorodion in the presence of the present Respondent who was Plaintiff at trial Court. In 1960 Omorodion died but he left a problem. From 1935when Eguakun died to 1960 when Omorodion died, Omorodion never performed the final funeral rights (second burial they call it) of his father. He must perform this second burial to be entitled to his full right over Eguakun's estate as the eldest male child. This, Omorodion never did. The Respondent, Johnson Eguakun, in 1971, performed the second burial of his father, Eguakun as the eldest of the remaining male issues of Eguakun.

The Appellant as the 4th Defendant in the trial Court had pleaded sufficiently how he acquired the land in dispute in the presence of the Respondent in 1944.

The trial Court held that as a trustee Omorodion was perfectly entitled to sell the land in dispute in so far the sale was not tainted with fraud or illegality.

The Court of Appeal set aside the decision of the trial Court. The Appellant being dissatisfied with the decision appealed to the Supreme Court.