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 me 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/Warn Express Road, Amukpe town and excavated and carried away from therefrom laterite. He claimed special damages amounting to N764,451.25 and N235,548.49 as general damages.

After hearing evidence and addresses of counsel, the learned trial Judge, (Desalu, J.) dismissed all the three arms of the claim in their entirety.The case of the Appellant is that in January 1978, the Amukpe Community who are the original owners of a large piece or parcel of land, gave a portion thereof to the Appellant in return for which Appellant gave customary items including drinks and some money following an application for the grant. Appellant said he was consequentialy put in possession of the said piece or parcel of land. He utilised the land for farming purposes. In Amukpe Town land is, by the customs and traditions of the people, communally owned. Appellant stated that sometime in November 1991, the Defendant, without any lawful excuse broke and entered the Appellant's said piece or parcel of land and dug and removed laterite therefrom and refused to stop despite his protests. The Respondent is said to have removed from that piece of land a total of over 79706.784 cubic meters of laterite for which Appellant claimed the special damages.

The facts in brief, are as follows: the land in dispute formerly formed part of the land owned by one Aige, a Yoruba man and native of or an indigene of Ikorodu, Lagos State under customary law or native law and custom. On his death intestate, the property devolved on his children as family property. At some time later, the family On the other hand, the case of the Respondent is that it dug two burrow pits on a piece of land which forms part of a large piece of land that was compulsorily acquired by the Bendel State Government, the portion of which the government released to it upon application for the purpose; that before the government's approval was received the Respondent entered into a lease agreement with Amukpe Community in respect of the land and paid the sum of N10,000-00 apart from compensation for crops on the said land. The agreement with the community was entered into in November, 1990. The Respondent therefore denied the claim of the Appellant.decided to partition the family property at Aige family and allotted the land in dispute to one of the descendants of Aige by name Chief T.K. Dada. After his death, the family conveyed by deed of grant the said parcel of land to: