EVIDENCE LAW — Traditional History — Kojo v. Bonsie Principle — When Applicable
Ratio Decidendi
Per Adekeye, JSC, in Okonkwo & Ors v. Okonkwo & Ors (2010) NLC-123-296-2003(SC) at p. 17, paras. C–E:
"The principle in Kojo v. Bonsie (1957) 1 WLR 1223 relates to facts which the court should advert to in coming to a conclusion on the probability of evidence of tradition. Whereas in this case the plaintiffs/respondents rely on acquisition of title by inheritance, proof of such grant by traditional history arises only where the fact of inheritance was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act."
Explanation / Scope
This principle establishes that the Kojo v. Bonsie principle applies to facts the court should consider in assessing the probability of traditional evidence. However, where title is claimed by inheritance and the fact of inheritance is within living memory, it must be proved by living witnesses, not by traditional history under Section 45 of the Evidence Act. The principle applies in land title claims based on inheritance. It ensures that traditional evidence is only used where facts are beyond living memory. The court must determine the appropriate mode of proof. The principle provides guidance on when traditional history is applicable.