In Ogiamien v. Ogiamien (1967) NMLR. 245, the plaintiff, the eighth son brought an action against the defendant, his eldest brother who was the 1st son and heir to Chief Ogiamien, the father of the parties.
The claim was for a declaration that the 1st defendant had no right under Benin Customary Law to sell the property of their father situate at Sakpoba Road, Benin City. An order to set aside the sale made to the 2nd defendant was also sought. Plaintiff sued on behalf of himself and other members of the family. Chief Ogiamien had died leaving three houses. It was common ground that according to Bini Custom the eldest son succeeds to all the property of the father to the exclusion of other children.
The learned Judge rejected the custom as repugnant to natural justice, equity and good conscience, and refused to be bound by it. There was a claim, which was not proved that the deceased during his lifetime made a gift inter vivos to other children of the property in dispute, as a family house for them. The 1st defendant denied the claim.
The trial judge found for the plaintiff and set aside the sale to 2nd defendant.
In the Supreme Court allowing the appeal, it was stated that there was nothing wrong in the custom regarded as repugnant to natural justice, etc. by the trial judge. The customary law was upheld.