Moses Igbinoghodua Osayabamwen & Anor V. Dr. Godwin Iroro & Ors (2016)

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UGOCHUKWU ANTHONY OGAKWU, J.C.A. 

The provenance of this appeal has its genealogy in the action commenced by the Appellant at the Oredo Area Customary Court, Benin City where the Appellant claimed the following reliefs against the Respondents:
?(1) A declaration that the Plaintiff as the eldest surviving son of the late Pa Gabriel Iroro is entitled under Bini native law and custom to perform all the funeral rites and discharge all customary duties reposed on the first son (Omodion) during the burial ceremonies of the said late Gabriel E. Iroro and thereafter step into his shoes as the head of his immediate family and enjoy all the privileges attached thereto.
?(2) A perpetual injunction restraining the defendants by themselves, their agents, servant or privies from carrying out or performing the burial ceremonies of the late Pa Gabriel E. Iroro or share, distribute or encumber the properties that make up the estate of the said late Pa Gabriel E. Iroro, without the plaintiff being accorded his rightful place as the first son and recognizing the rights and privileges appertaining

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thereto.?

By way of counterclaim, the Respondents claimed the following reliefs against the Appellant:
?(a) A declaration that not having been able to establish that he is the son of late Pa Gabriel E. Iroro, the plaintiff is not entitled to participate in his final burial rites or in any other ceremony pertaining to the said Pa Gabriel Iroro.
(b) A declaration that plaintiff’s mother having failed and/or deliberately refused since 18th December, 1944 when plaintiff was born to take appropriate steps under Bini customary law to determine the paternity of the plaintiff during the lifetime of late Pa Gabriel E. Iroro, both the plaintiff and her mother are estopped from doing so now after his death.
(c) Perpetual injunction restraining the plaintiff by himself, his servants and or agents from parading himself as a child of late Gabriel E. Iroro or in any other was [sic] disturbing the interment and the performance by the counter claimants of his final burial rites.?
?
After an inter partes plenary trial, the trial Area Customary Court dismissed the Appellant’s claim and entered judgment for the Respondents on their

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counterclaim in the following terms:
?1. The plaintiff having not been able to establish that he is the son of late Pa Gabriel E. Iroro before the death of Gabriel E. Iroro, plaintiff, his agents, servants and privies are not entitled to participate in the final burial rites or in any other ceremony pertaining to the said Pa Gabriel Iroro.
2. The plaintiff’s mother, having failed and/or deliberately refused since 18th December, 1944, when plaintiff was born to take appropriate steps under Bini customary (law) to determine the paternity of the plaintiff during the life time of late Pa Gabriel Iroro, both the plaintiff and his mother are estopped from doing so now after his death.
3. The plaintiff, by himself, his servants and/or agents are restrained from parading himself as a child of late Gabriel Ehioze Iroro or in any other way disturbing the interment and the performance of his final or interments by the counter-claimant.
Cost of N2,000,000.00 (Two million Naira) awarded in favour of the defendants.?
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Miffed by the judgment of the trial Oredo Area Customary Court, the Appellant appealed to the Customary Court of Appeal,

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Edo State. After a full dressed hearing of the Appeal, the Customary Court of Appeal Edo State (the lower Court) dismissed the Appellant’s appeal, conclusively holding as follows on page 483 of the Records:
?We hold, therefore, that this appeal lacks merit, and it is hereby dismissed. Consequently, we affirm the judgment of the Oredo Area Customary Court, Benin City, in Suit No. OR/ACC/208/2001 delivered on 21stJuly 2003, together with the consequential orders.
We award N3,000.00 costs in favour of the respondents.?
?
Irked at having been made to bite the dust a second time, the Appellant appealed to this Court against the judgment of the lower Court. The scarified judgment of the lower Court is at pages 467-483 of the Records. The Records of Appeal having been compiled and transmitted the parties filed and exchanged briefs of argument. The extant briefs of argument on which the appeal was fought are:
1. Amended Appellant’s Brief of Argument filed on 7th June 2012 but deemed as properly filed and served on 21st February 2013.
2. 1st, 3rd-5th Respondents Amended Brief filed on 2nd July 2013.
3. Amended Appellant’s Reply

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Brief of Argument filed on 15th May 2014.

The Appellant distilled two issues for determination in his brief of argument as follows:
?1. Whether from an examination of the Judgment of the Customary Court of Appeal, it can be said that the Customary Court of Appeal sufficiently considered and pronounced on the failure of the trial Court to place the evidence adduced by both parties on an imaginary scale and arrive at an objectively fair decision based on the weighing of such evidence before it in resolving the issue of paternity of the Appellant especially in the light of the presumption of legitimacy of a child born during wedlock canvassed before it.
2. Whether it can be said from the Judgment of the Customary Court of Appeal that it averted its mind to the issue canvassed before the trial Court, which was also argued before it, whether a father who had, through several acts spanning many years, shown open acknowledgement of a Son as his, can resile from same subsequently?.
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In their brief of argument, the Respondents incorporated a preliminary objection wherein they contended that the three grounds of appeal filed by the

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Appellant were incompetent. The grounds upon which the preliminary objection is predicated are:
?1. Grounds 1 & 2 of the grounds of appeal are purely on matters of fact and/or question of procedure which have nothing to do with applicable customary law. They are therefore not valid grounds of appeal.
2. Ground 3 which is an omnibus ground of appeal also does not raise any issue with respect to customary law. It is therefore not a valid ground of appeal.?