The facts giving rise to the case include the following: it is the case of the appellants that the Ojobo Community located in Burutu Local Government Area of the present Delta State were the original owners in possession of the land verged green in exhibit J. and was founded by their ancestor known as Gbesa; that the respondents began to trespass on the pieces of land in or about the year 1912, which resulted in a series of court actions between the communities; that as a means of maintaining peace between the two communities, the then District Commissioner of Forcados District, Mr. J. Davidson suggested a boundary between the parties in 1912 by drawing a line from the junction of Krisei and Ayibou creeks to the water front of Buloutoru Creek which later became known as Davidson boundary; that following renewed acts of trespass by the respondents in 1967, the appellants instituted this action against the respondents.

On the other hand, it is the case of the respondents that the land in dispute shown in survey plan No. AA/Rv95/909 - LD which is exhibit "N", is part of a continuous and unbroken mass of land belonging to and in the peaceful possession of their Torugbene community of Tuomo clan; that it is the respondents who have tenants on the land in dispute and that they also have farms, fishing ponds, economic trees, cash crops and burial ground on the said disputed land; that the only fishing rights exercised by the appellants was over a small portion of the Ayegbon and Krisei creeks which were all within Tonugbene territory; that Mr. J. Davidson never fixed a land boundary between the appellants' Ojobo Community and the respondents Torugbene community but that what Mr. Davidson did was to mark a boundary at the junction of Kresei and Ayebou creeks to demarcate the fishing rights of the two communities.

It should be noted that the appellants pleaded and tendered some proceedings and judgments in previous cases between the communities as constituting estoppel.

At the conclusion of the trial, the learned trial judge found for the plaintiffs/appellants and granted all the reliefs claimed. The learned trial Judge also added a relief not claimed by either party into the bargain resulting in an appeal and a cross appeal against the said judgment which appeals were allowed by the lower court in the judgment delivered on the 15th day of July, 1998 thereby giving rise to the instant appeal.