Background
This appeal arises from a judgment delivered on 29 June 2007 by the Akoko Edo Area Customary Court at Igarra in Suit No. AEACCI/33/2000. The appellants, Festus Afeso and Andrew Afeso, suing on behalf of the Iyorogu family of Ososo, claimed a declaration of customary right of occupancy over a parcel of land at Ikpobaka, Ososo, damages for trespass (N7,000), and perpetual injunction. The respondents, Segun Smart, Musa Yusuf, Olorunfemi Yusuf and Oluwayemi Olatunde, counter-claimed for the same reliefs in respect of their family’s land, including N7,000 damages.
The appellants’ case was that their great-grandfather Iyorogu originally cleared and cultivated the land, planting cashew nuts, locust beans, mangoes and other crops, and that title passed through successive ancestors to the present head, Chief Buoro Afeso. They identified boundary stones marking the limits of their land. The respondents traced an independent chain of title from their ancestor Okhare, with natural stone and erosion gullies as boundary markers.
The trial court dismissed the appellants’ claim, upheld the respondents’ counter-claim, and awarded N5,000 damages against the appellants. Dissatisfied, the appellants appealed to the Customary Court of Appeal, Edo State, raising two original and three additional grounds of appeal, challenging the evaluation of traditional evidence, the application of the rule in Kojo II v Bonsie (1957) 1 W.L.R. 1223, and the reliance on the decision of customary law arbitrators.
Issues
The appellants formulated three issues for determination:
- Whether the trial court erred in dismissing the appellants’ claim and granting the respondents’ counter-claim notwithstanding the appellants’ clear and unchallenged traditional history evidence.
- Whether the trial court misapplied the rule in Kojo II v Bonsie by preferring one version of traditional history over the other without proper reliance on recent acts of ownership.
- Whether the trial court improperly relied on the customary law arbitration decision without evidence of findings or record of proceedings.
Ratio Decidendi
The court reaffirmed settled principles in customary land disputes:
- Title is established by traditional history, long-continued acts of possession and exclusive occupation.
- Where conflicting traditional histories exist, the rule in Kojo II v Bonsie applies: conflicting accounts are tested against recent positive acts of ownership and possession to determine which version is more probable.
- A decision of customary law arbitrators, voluntarily accepted by the parties, is binding unless the rejecting party proves it is wrong in principle by leading appropriate evidence.
Court Findings
On Issue One, the court held that the trial court correctly evaluated the evidence and found the respondents’ version of traditional history more credible. As the primary fact-finder, the trial court’s assessments were not perverse or contrary to any principle of law or procedure, and no justification existed to disturb them.
On Issue Two, the court found that the trial court applied the Kojo II rule properly by placing conflicting histories on an imaginary scale and testing them against recent acts of possession observed during the locus visit. The appellants’ complaint that the court should have relied solely on recent acts was misplaced: the standard in civil cases is preponderance of credible evidence.
On Issue Three, the court held that the appellants failed to lead any evidence to show that the customary law arbitrators’ decision was wrong in principle. The record showed that two members of the arbitration panel gave evidence at trial. The court was not obliged to call the record of arbitration proceedings sua motu, and documents unknown to native custom cannot be treated as essential.
Conclusion
All three issues were resolved against the appellants. The appeal was dismissed for lack of merit, and the judgment of the customary court of 29 June 2007 was affirmed. The appellants were ordered to pay N3,000 costs to the respondents.
Significance
This decision underscores the evidential requirements for establishing customary title, the proper application of Kojo II v Bonsie to resolve conflicting traditional histories, and the binding nature of customary arbitration unless successfully challenged in principle. It provides guidance on the evaluation of traditional evidence and the standard of proof in civil customary land disputes.