The matter subsequently leading to final appeal to this Court originated in Ekiti South Customary Court Grade

The value of the land is about £50 or N100. Dated at Ado-Ekiti this 19th day of June, 1971.

After a full trial an appeal was lodged in the High Court before Ogundare, J. (as he then was), who after listening to counsel on both sides in allowing the appeal on one issue concerning want of fair trial, ordered as follows:

"AND AFTER HEARING Mr. Adedeji, counsel for the defendant/appellant and Mr. A. O. Akanle, counsel for the plaintiffs/respondents, the court adjudged and gave judgment as follows:-

‘It is therefore my view that the exercise of the power to examine a witness or put questions to a witness was wrongly done by the trial court in this case. For that reason, therefore its judgment cannot be allowed to stand. This appeal therefore is hereby allowed. The judgment of Ekiti South Grade 'I' Customary Court given on 5/11/79 is hereby set aside. I do not, consider it necessary to deal with the other ground of appeal argued.

I shall now consider what consequential order to make. This case has had a chequered history as both counsel Informed the court I do not think that the ends of Justice will be met by my ordering a new trial before the Ekiti South Grade 'I' Customary Court. By virtue of section 45(a) of the Customary Court Edict, 19781 hereby order that this case be tried de novo before the High Court, Ado-Ekiti. The costs of this appeal and the costs of the trial below shall abide the result of the retrial."

The case therefore by virtue of the above order went before Adeloye, J (as he then was) at Ikere Ekiti for hearing de novo. Counsel appeared for both parties, and the case proceeded immediately to hearing. The Plaintiffs' claims concern¬ing declaration of title to land, injunction to restrain the defendant from trespas¬sing on the same land and the evidence led on both sides never at any stage of the hearing raised any doubt as to the identity of the disputed land and the issue at stake.. After a meticulous review of the whole evidence, the learned trial judge entered judgment for the plaintiffs as on the claim before the Court. i.e. the claim as originally filed in the Customary Court for trial de novo. There was no objec¬tion to the mode of trial In the High Court by the present appellant nor did any party request for pleadings.

Appellant appealed to the Court of Appeal, contending that the trial was held without the issue of writ of summons and without pleadings contrary to the provisions of Order 2 Rule 1 High Court (Civil Procedure) Rules of Ondo State, The appeal was dismissed and the appellants appealed to the Supreme Court.