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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

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.?

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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: