Compulaw - 1st Indigenous Digital Law Library

Brief

Customary Law /strong
Succession rights
Restriction

Facts

The plaintiff/respondent is a half brother of the defendant/appellant, and eldest surviving son of one Daniel Igbinoba Ikhure late of No. 139 Lagos Street, Benin City, Late Daniel Igbinoba Ikhure was the father of both the appellant and the respondent. He died intestate on 24 February, 1972 and left an estate comprising, among other property, a house known as No.139 Lagos Street, Benin City. and an undeveloped piece or parcel of land adjacent to No. 139 Lagos Street, Benin City. In the distribution of the estate by family elders the plaintiff/respondent was given the main house (Igbinoba), that is to say No. 139 Lagos Street, Benin City, and the defendant/appellant was given the undeveloped parcel of land also situate at Lagos Street, Benin City, which was resisted by the defendant/appellant. Consequently the plaintiff/respondent filed this action which is now on appeal claiming not only for possession of No. 139 Lagos Street, Benin City, but also ownership of the undeveloped parcel of land at Lagos Street, Benin City, which the family elders allocated to the defendant/appellant from the estate of their late father. At the hearing of the case in the court below both the plaintiff (now respondent) and the defendant (now Appellant) adduced evidence of Bini Customary Law of inheritance and contradicted each other on material aspects of the suit, that is to say:

i.
On whether or not younger children of a deceased Bini have right of resident in the main house (Igiegbe) which is inherited by the eldest surviving son of the deceased man;
ii.
On whether or not undeveloped parcel of land adjacent to the main house (Igiogbe) of a deceased Bini man formed part of the main house.

The learned trial Judge found for the plaintiff/respondent, opined and made the orders herein:

In the circumstances therefore, it is my firm conviction that the plaintiff is entitled to have defendant ejected from the house which automatically became his upon the death intestate of their father. Accordingly, plaintiff’s action has succeeded in terms of his claim and I therefore make the following declaration/order in his favour that.

(a)
as the eldest son of the late Pa Daniel Igbinoba Ikhure, he is the owner of the house and property situate at No. 139 Lagos Street, Benin City under Bini Customary Law of inheritance together with the entire premises there including vacant areas of the compound to the exclusion of other person.
(b)
the defendant should within 4 weeks from the date of this judgment give up possession of the said house and property to make room for plaintiff to assume his rightful position as owner of it.

I also make an order of perpetual injunction restraining the defendant at the expiration of fourth week from today, by himself, his servants or agents from continuing occupation of the said house without the express permission in writing of the plaintiff.

The defendant shall also pay costs of the action assessed at N200.00.

An appeal was lodged with the Court of Appeal.

Igbinoba V. Igbinoba (1995) CLR 1(N) (CA)

Brief

Facts

Issues