The judgment on appeal before us is in respect of two Consolidated suits W/95/72 and W/110/72. In the first suit, the Plaintiffs, who are members of Ebite family claimed a declaration of title to a piece of land on Effurun/Ekpan Road, the plan of which was tendered in the case as Exhibit A, N600.00 damages for trespass and an order for perpetual injunction and any other reliefs. In the cross action filed by the defendants in the first suit, as members of Agbede family, against the plaintiffs, the claim is for a declaration of title to a piece of land on the same Road as stated in the Plaintiffs’ claim the plan of which was tendered as Exhibit B and an order of perpetual injunction. The learned trial Judge AKPATA J., at the Bendel State High Court, sitting at Warri, delivered judgment on the 5th of December 1974 in favour of the Defendants in respect of their cross action but to a smaller area of land which is the same area of land as in Exhibit A, which the Plaintiffs claimed in the first suit, and which claim was dismissed.

We may, as well, point out that the Plaintiffs' Surveyor, whilst in the witness box, superimposed the land shown in Exhibit A on the land shown on Plan Exhibit B, which is the Defendants’ plan, in pencil marks, and the Defendants’ Surveyor on the other hand produced a plan on which he had accurately superimposed the area of Exhibit A on Exhibit B. With the exception of a few discrepancies, the land on Exhibit A is definitely within the land in Exhibit B on all sides, and the whole land falls within the eastern side of the land claimed by the Defendants in Exhibit B. As a matter of fact, it forms only a small portion divided into two by a road.

The de¬fendants led evidence to show that the area of land in Exhibit A was part of the original large area of land shared to their ancestors.

The learned trial Judge held that he was quite satisfied that the area in Exhibit A which was edged yellow in Exhibit B originally belonged to the defendants family and further found that there was no pledge. He awarded a declaration of title to the defendants in respect of the area edged red in Exhibit A.

Appellant appealed to the Supreme Court.