FESTUS AFESO & ANOR V. SEGUN SMART & ORS (2010)

Background

This appeal concerned competing claims to customary ownership of a parcel of land at Ikpobaka, Ososo, in Akoko-Edo Local Government Area of Edo State. The appellants, Festus Afeso and Andrew Afeso, sued on behalf of the Iyorogu family before the Akoko Edo Area Customary Court, Igarra. They sought a declaration that their family was entitled to a customary right of occupancy, N7,000.00 in damages for trespass, and a perpetual injunction restraining the respondents from further interference with the land.

The respondents, who represented the Okhare family, denied the appellants’ claim and filed a counter-claim seeking a declaration of their own customary right of occupancy, a perpetual injunction, and N7,000.00 damages for alleged trespass. Both sides relied principally on traditional history, acts of possession, cultivation and boundary features to establish their respective roots of title.

The appellants claimed that their ancestor, Iyorogu, first deforested the land and planted various economic trees, including cashew, locust bean, mango and pear trees. They asserted that title descended through Afeso and Chief Buoro Afeso, the head of the Iyorogu family. The respondents gave a different account, maintaining that their ancestor, Okhare, originally cleared the land and that ownership descended through Uhuoma, Ashefor, Egbriefor, Smart and ultimately the first respondent. They also relied on boundary features, including an open erosion gutter and natural stones.

The trial court preferred the respondents’ traditional history, dismissed the appellants’ claim, upheld the respondents’ counter-claim and awarded N5,000.00 damages against the appellants. The appellants appealed on the weight of evidence, alleged errors in law and fact, the application of the principle in Kojo II v Bonsie, and reliance on an earlier customary arbitration conducted by the Council of Elders of Ikpena Quarters.

Issues

1. Whether the trial court was right to dismiss the appellants’ claim and grant the respondents’ counter-claim despite the appellants’ evidence of traditional history and possession.
2. Whether the trial court properly applied the principle in Kojo II v Bonsie to resolve the competing traditional histories.
3. Whether the trial court was entitled to rely on the decision of the customary arbitrators without the production of formal arbitration records or testimony from every member of the panel.

Ratio Decidendi

The Customary Court of Appeal held that traditional history may establish title to land where it is cogent, credible and accepted by the court. However, where both parties present conflicting traditional histories, the trial court must evaluate the evidence and determine which account is more probable. The evaluation of testimony and the assignment of probative value are primarily functions of the trial court, which saw and heard the witnesses. An appellate court will not interfere with such findings unless they are perverse or shown to have resulted from a breach of legal principle or procedure.

The court further held that Kojo II v Bonsie requires conflicting traditional evidence to be tested against recent acts of ownership and possession. The rule does not prevent a court from weighing the competing versions on the civil standard of proof, namely the preponderance of credible evidence. The trial court was therefore entitled to consider the evidence at the locus in quo, including whether the alleged boundary features were artificial or natural, and to prefer the respondents’ account.

On customary arbitration, the court reaffirmed that where parties voluntarily submit a dispute to customary arbitrators and a decision is reached, a dissatisfied party cannot simply withdraw from that decision. The party challenging it bears the burden of proving that the decision was wrong in principle. The appellants could have called members of the arbitration panel or otherwise presented evidence demonstrating such error. The record showed that the arbitration was supported by the testimony of the council secretary and another council member. The court also rejected the contention that it was obliged to call for the arbitration record on its own initiative, emphasising that a court must remain neutral and cannot make a party’s case.

Court Findings

The appellate court found that the trial court had carefully evaluated the traditional evidence and had given reasons for preferring the respondents’ version. The appellants failed to establish that the findings were perverse, unsupported by the evidence, or tainted by a violation of law or procedure. The court accepted that the respondents had shown a better title to the disputed land on the preponderance of evidence.

It also found that the trial court correctly applied Kojo II v Bonsie by examining recent acts of possession and ownership, together with the physical features observed during the visit to the locus. The objection that the trial court improperly used an “imaginary scale” was rejected because that approach is appropriate in civil cases, where competing evidence is assessed according to the preponderance of credible evidence.

Regarding the customary arbitration, the appellate court held that the appellants had not discharged the burden of proving that the elders’ decision was wrong in principle. The trial court was therefore entitled to take the arbitration evidence into account. The argument that formal documentary records were indispensable was also rejected in the context of proceedings before a customary court.

Conclusion

The appeal was dismissed for want of merit. The judgment of the Akoko Edo Area Customary Court, Igarra, delivered on 2007-06-29, including the dismissal of the appellants’ claim, the grant of the respondents’ counter-claim and the consequential orders, was affirmed. The appellants were ordered to pay costs of N3,000.00 to the respondents.

Significance

The decision illustrates the evidential demands in customary land disputes. A party relying on traditional history must present a credible root of title, but an opposing and equally detailed history requires the court to compare both accounts with recent acts of possession, ownership and physical evidence. It also confirms the limited scope of appellate review of factual findings and reinforces the binding character of voluntary customary arbitration unless the dissatisfied party proves a fundamental error in principle.