Adjeibi-Kojo v. Bonsie and Another 3 WALR 257-261

Material Facts:

Bonsie is the caretaker of a piece of land at Bonkwaso in the Ashanti Region. Prior to Bonsie being caretaker, his ancestors were also caretakers of the land. Like his ancestors, he collects all profits from the land and hands them over to the Odikro of Nerebehi. He did this because they believed that the land was given to the Odikro as a reward at the end of the Abrimoro war.

At some point, the Atwimahene laid claim to the land. According to him, the land was given to his ancestor some 200 years ago as a reward for his services in the Abrimoro war. That when his ancestor needed money about some 80 years ago, he borrowed it from one Kwabena Tenteng and that the land in dispute was pledged as security for the repayment of the loan. That when Kwabena Tenteng died, nothing was said about the pledge, and his successors continued to be caretakers of the land until it came into the hands of Kwadjo Bonsie as caretaker.

Per the Atwimahene, he tried to recover the land by paying the loan amount. However, Kwadjo Bonsie denied the existence of such a pledge. The Atwimahene instituted an action in the Asantehene’s “B” court for a declaration of title to the land.

Procedural History:

At the Asantehene’s “B” court, judgement was given in favour of the defendants. On appeal by the plaintiff to the Asantehene’s “A” court, the appeal was allowed by a majority decision. On appeal by the defendants to the Supreme Court (Land Court), the appeal was allowed and the decision of the Asantehene’s “B” court was restored. On further appeal by the plaintiff to the West African Court of Appeal, the appeal was dismissed. The plaintiff appealed to the Privy Council.

Issue:

1. Whether the demeanour of the witnesses could be used in resolving rival traditional evidence.

2. If not, what is the best way to resolve rival traditional evidence?

Holding:

1. The demeanour of witnesses could not be used in resolving rival traditional evidence.

2. The best way to resolve rival traditional evidence was by reference to the facts in recent years.

Ratio Decidendi:

The parties claim title to the land because they all believed the land was awarded to their ancestors at the end of the Abrimoro war. For their lordships, the main issue was who was right about the history of the matter. Their lordships noticed that some of the courts below preferred the account of the defendant by relying on the demeanour of the witnesses. In the opinion of their lordships, this is not a correct approach. They explained why as follows:

The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. In such a case demeanour is little guide to the truth.

After pointing out the problem with relying on demeanour to resolve conflicting traditional evidence, their lordships immediately added that:

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 most probable.

In the present case, the facts reveal that the defendants have enjoyed the profits of the land without interruption for eighty years. About three or four generations have passed without any suggestion that the land was a subject of a pledge. Further, if there was such a pledge, it is required that on the death of the pledgee, a reminder be given to his successors. In the present case, none was given. In the opinion of their lordships, the failure of the plaintiff and his predecessors to do this goes far to negate his claim.

Principles in Case:

1. It is incorrect to rely on the demeanour of a witness to resolve conflicting accounts of traditional history.

The best way of resolving conflicting accounts of traditional history is by reference to the facts in recent years to determine which of the two competing histories is most probable.