LEGAL PRINCIPLE: CUSTOMARY LAW – Proof of Traditional History – Conflict in Traditional Evidence – Resolution by Reference to Established Facts
PRINCIPLE STATEMENT
Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.
RATIO DECIDENDI (SOURCE)
Per Ejiwunmi, JSC, in Olatunde & Anor v. Abidogun & Anor (2001) NLC-1701996(SC) at pp. 10–11; Paras D–A.
"Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable."
EXPLANATION / SCOPE
Where traditional histories conflict, both parties may be honest but mistaken. Demeanour is little guide to truth because witnesses repeat what they were told. The best approach is to test each history against recent established facts to determine which is more probable. The principle from Kojo II v. Bonsie applies. The court uses contemporary evidence—documents, acts of ownership, possession patterns—as an anchor. The goal is to determine probability, not certainty. The court may reject a tradition that is inconsistent with proved recent facts. The principle recognises the limitations of oral tradition while providing objective criteria for resolution. The court must not arbitrarily prefer one tradition without testing against evidence.