Traditional Evidence

Introduction:

This note will discuss the meaning of traditional evidence, why it is characterised as hearsay evidence, its admissibility despite being hearsay evidence, how conflicting traditional evidence should be evaluated, and what happens if a party is unable to prove his traditional history by traditional evidence.

Meaning of Traditional Evidence:

In the case of Nana Gyamfi Kumanin II v. Opanin Kwaku Anin [1998] DLSC6424 , the Supreme Court, speaking through Acquah JSC, defined traditional evidence as follows:

Now traditional evidence is evidence derived from tradition or reputation or statements of deceased persons with regard to questions of pedigree, ancient boundaries and the like, when no living witnesses are available to testify about such matter. Thus the person who is himself narrating such evidence has no personal knowledge about the matters he is testifying. The same usually applies to the person who also told the person testifying.

Similarly, in In Re Asere Stool: Nikoi Olai Amontia IV (Substituted by Tafo Amon II v Akotia Oworsika III) (Substituted by Laryea Ayiku II) [2005-2006] SCGLR 637 , traditional evidence was described as follows:

By its nature, traditional evidence is hearsay evidence. It is evidence of the history of events which happened some time past, concerning a person’s pedigree, origin, migration, land, family, stool etc. passed on generally from generation to generation.

This history often includes history of how a family acquired land and has made grants of land to others.

Why Traditional Evidence Qualifies as Hearsay Evidence:

Section 116 of the Evidence Act, 1975 (NRCD 323) defines hearsay evidence as:

Evidence of a statement, other than a statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated.

When a person gives evidence of past events, especially those that happened several years ago, he often repeats what he has been told occurred and has had no personal experience of same. Thus, if a person says that in 1800, his ancestors were the first to settle on a land, he is only saying so because he was told that in 1800, his ancestors were the first to settle on the land. This statement, by virtue of not being originally made by the person who saw the process of settlement and merely being repeated to the court by the person before the court, qualifies as hearsay evidence as defined in Section 116 (supra).

Admissibility of Traditional Evidence in Ghana:

Given that traditional evidence is hearsay evidence, the essential question is whether it is admissible. This question arises because Section 117 of NRCD 323 provides that:

Hearsay evidence is not admissible except as otherwise provided by this Decree or any other enactment or by agreement of the parties.

The question is, does NRCD 323 make traditional evidence, as an instance of hearsay evidence, admissible?

The courts have held that Sections 128 and 129 of NRCD 323 is what makes traditional evidence admissible. In Nana Gyamfi Kumanin II v. Opanin Kwaku Anin (supra) , the Supreme Court, speaking on the admissibility of traditional evidence, said:

Such evidence is therefore hearsay evidence, and had the common law and sections 128 and 129 of the Evidence Decree 1975 (NRCD 323) not made same admissible as an exception to the hearsay rule, such evidence would undoubtedly have been inadmissible.

In said Section 128(1), it is provided that:

Evidence of a hearsay statement by a declarant concerning his own birth, marriage, divorce, relationship by blood, marriage or adoption, ancestry or other similar fact of his family history is not made inadmissible by section 117 and will not be made inadmissible by the fact that the declarant had no means of acquiring personal knowledge of the matter declared if the statement was made before controversy arose over the fact of family history.

What is evident in this provision is that a person is unlikely to have had personal knowledge of the events mentioned in the provision and is likely to have knowledge of it from others. For instance, a person is unlikely to have personal knowledge of his birth because he lacked the ability to acquire such knowledge on the day of his birth. If a person were to make any statement concerning his birth as a witness in court, he would merely be repeating statements that were made to him by some other person, and for that matter, constitute hearsay statements. However, such statements will be admissible by virtue of Section 128.

Also, see In Re Adjancote Acquisition; Klu v. Agyemang II [1982-83] GLR 852-863, where it was said that

Oral evidence of tradition is admissible in the courts of West Africa and may be relied upon to discharge the onus of proof if it is supported by the evidence of living people of facts within their own knowledge: see Commissioner of Lands v. Adagun (1937) 3 W.A.C.A. 206.

Evaluation of Conflicting Traditional Evidence:

In several cases involving land, the parties often present conflicting accounts of how a piece of land was acquired. For instance, party X may say that the land was acquired by his ancestors some 200 years ago through conquest, and party Y may say the land was acquired some 150 years ago through first settlement. The question is, how does the court decide which traditional evidence to prefer? To answer this, two things may be said:

1. Traditional evidence is not evaluated using the demeanour of the persons presenting such evidence.

2. The best way of evaluating conflicting traditional evidence is by reference to recent acts of possession and ownership.

3. Undisputed facts and admissions of possession can also be used to evaluate conflicting traditional evidence.

These two points are now discussed in detail.

1. Traditional Evidence is not Evaluated Using the Demeanour of the Persons Presenting the Traditional Evidence:

In presenting traditional evidence to the court, the witnesses may do so with varying degrees of confidence and eloquence. The courts have severally held that it will be erroneous to rely on the manner in which the evidence is presented to decide the weight to be given to the evidence.

In the locus classicus case of Adjeibi-Kojo v. Bonsie and Another 3 WALR 257-261 , the defendant claimed that his ancestors were given a piece of land as a reward for his contributions in the Abrimoro war. The plaintiff also claimed that the land was given to his ancestors some 200 years ago also as a reward for his services in the Abrimoro war. The court recognised that the evidence of both the parties was traditional evidence. It proceeded to explain why demeanour and the manner of presentation of traditional evidence are little guides to the truth of whose ancestor actually acquired the land:

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.

Thus, each side may confidently present his traditional evidence, believing it to be the truth. It then becomes difficult to determine the side whose traditional evidence reflects the history.

Furthermore, in In Re Adjancote Acquisition; Klu v. Agyemang II (supra) , the Supreme Court stated that:

Where the whole evidence in a case is based on oral tradition not within living memory, it is unsafe to rely on the demeanour of the witnesses to resolve conflicts in the case: see Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257, P.C.

Similarly, in Nana Gyamfi Kumanin II v. Opanin Kwaku Anin (supra) , the Supreme Court said:

In most instances, the coherence of a party's traditional evidence, depends on the level of intelligence of the witness narrating. For a story told to two persons would be differently recounted by each of them. Yet both heard the same story.

Accordingly in assessing rival traditional evidence the coherence of a party's version or his demeanour should not be the sole criterion for its preference over the other version:…

By not relying on demeanour and coherence, the court is avoiding a situation where a party with more eloquent, intelligent, and coherent witnesses will always win over his opponents with less intelligent and eloquent witnesses.

2. The Best way of Evaluating Conflicting Traditional Evidence is by Reference to recent acts of Possession and Ownership:

The courts have consistently held that in evaluating conflicting traditional evidence to make decisions on which traditional history or story to prefer, the court should make reference to acts within living memory and prioritise the traditional history or story that seems more probable in light of the acts within living memory.

The acts within living memory include acts of possession and ownership. For instance, if party X claims title to land because his ancestors acquired the land via conquest some 200 years ago, and party Y claims title to land because his ancestors also acquired the land via conquest some 210 years ago, acts within living memory consist of acts such as grants of the land in recent times, the party to whom compensation is paid when the land is acquired, the party who has been building on the land in recent times, among others. Thus, if Party X is able to show that he has, for the past 50 years, made grants of the land without objection from Party Y, and Party Y has made no such grants, the courts are likely to hold that the traditional history presented by Party X is more credible and should be preferred over that of Party Y, because Party X’s version is supported by recent acts of ownership and possession within living memory.

The above position is supported by Section 48 of NRCD 323 , which read:

(1) The things which a person possesses are presumed to be owned by him.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it.

Further, the position has been severally upheld. For instance, in the locus classicus case of Adjeibi-Kojo v. Bonsie and Another (supra), the Privy Council, having explained why demeanour is little guide to the truth, said:

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.

Similarly, in Adjei v. Acquah and Others [1991] 1 GLR 13-31 , the Supreme Court, in speaking about how to decide which rival traditional story to prioritise, said:

What the authorities require is that such stories must be weighed along with recent facts as acts of exercise of rights of ownership to see which of the two rival stories appears more probable. Facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession, must take precedence over mere traditional evidence.

Similarly, in Hilodjie & Another v George [2005-2005] SCGLR 974 , the Supreme Court, after reviewing several cases on the evaluation of traditional evidence, said:

The clearly discernible principle is that in cases of this nature, the most satisfactory contemporary facts that a court should look out for are undisturbed overt acts of ownership or possession exercised over the disputed subject-matter. That is not to say that other concrete acts do not or may not qualify as acts in living or recent memory. Indeed, what may constitute a fact or an event in recent memory in one case, may not pass the test in another.

Also, in In Re Taahyen & Asaago Stools; Kumanini II (Substituted) Opon vrs. Anin (1998-99) SCGLR 399 , the Supreme Court extensively delivered itself as follows:

In assessing rival traditional evidence, the coherence of a party’s version or his demeanour should not be the sole criteria for its preference over the other version; what is important is to find which of the rival versions is authenticated by acts and events within living memory, especially where such acts and events are acts of possession and ownership by a party claiming ownership and title to the subject matter of the claim. For what raises a presumption of ownership in favour of a party is not his impressive demeanour nor the coherence of his traditional evidence but acts of possession and ownership he exercises over the subject-matter of the action…To sum up, in assessing rival traditional evidence, the court must not allow itself to be carried away solely by the impressive manner in which one party narrated his version and how coherent that version is; it must rather examine the events and acts within living memory established by the evidence paying particular attention to undisputed act of ownership and possession on record; and then, to see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events ; and finally, the party whose traditional evidence such established acts and events support or render more probable must succeed unless there exists on the record of proceedings, a very cogent reason to the contrary.

Finally, in In Re Adjancote Acquisition; Klu v. Agyemang II (supra) , the Supreme Court, upon reviewing several authorities on the evaluation of conflicting traditional evidence, said:

Where there is a conflict of traditional history, the best way to find out which side is probably right is by reference to recent acts in relation to the land: see Yaw v. Atta [1961] G.L.R. 513.

3. Undisputed and Admitted Facts May also be Used to Evaluate Conflicting Traditional Evidence:

In In Re Adjancote Acquisition; Klu v. Agyemang II, the Court of Appeal advanced that:

Where claims of parties to an action are based upon traditional history which conflict with each other, the best way of resolving the conflict is by paying due regard to the accepted facts in the case which are not in dispute, and the traditional evidence supported by the accepted facts is the most probable: see Beng v. Poku [1965] G.L.R. 167.

In that case, the Government of Ghana acquired land described as Adjancote. Disputes arose as to whom compensation should be paid to, as the Berekusu Stool, Nuumo Nmashi family, and Nii Dowuona family all claimed ownership of the land and relied on traditional evidence to prove their claim. At the Land Tribunal, the claim of the Berekusu Stool was upheld, and the other claimants appealed. The Court of Appeal noted that it was not disputed that subjects of the other claimants occupy or possess all the villages very close to the acquired area (Adjancote). Second, the Berekusu stool admitted that one Ojo Ablorh, a member of the appellant’s followers, is farming in the acquired area. In light of this, their lordships of the Court of Appeal held that:

The admission by the respondent of possession and occupation by a member of the appellant's followers of a portion of the acquired area and the founding of the villages established by them within its vicinity throw a very heavy burden on the respondent who claims to have granted and permitted these possessions and occupation to show that such possession and occupation are not in their own right. This is especially so in view of the stand taken by the appellant who deny his control over areas occupied by his followers including the acquired area.

This burden the respondent was unable to discharge. He was unable to show either that any of the appellant's followers paid tribute or do homage to his stool. The evidence is to the contrary. It shows that the appellant's followers hold the villages they have established around the hill in their own right and have since time immemorial been in undisturbed possession and control.

It may be said that admissions of possession simply make it easy for the party with such possession to prove recent acts of possession and ownership as required in Adjeibi Kojo and all cases that affirmed its principle. This analysis goes to affirm that the most important way of evaluating conflicting traditional evidence is by reference to recent acts of possession and ownership.

What Happens If a Party Is Unable to Prove his Traditional History by his Traditional Evidence?

It is important to note that a party can still succeed in an action even if:

1. He fails to tender any traditional evidence.

2. His traditional evidence is unable to prove that his version of the history is most probable.

On point one, it should be noted that traditional evidence is only one of the means of proving a fact in issue, and there are several other means of proof, such as documentary evidence, testimonial evidence, among others, that could be offered to prove a fact in issue. Consequently, a party does not have to provide traditional evidence to succeed in an action.

Second, even if the party presents traditional evidence and fails to prove his traditional story by such evidence, such failure does not necessarily mean that he will lose the action.

The above two explanations is supported by the cases of Adwubeng v. Domfeh [1997-98] 1 GLR 282 and Adjei v. Acquah and Others [1991] 1 GLR 13-31 . In Adwubeng v. Domfeh (supra), the Supreme Court held that:

Indeed, it is firmly established that a party can still succeed in an action for declaration of title even if his traditional evidence is rejected. Thus the Privy Council in Ebu v Ababio (1956) 2 WALR 55 at 57 said:

“Traditional evidence has a part to play in actions for declaration of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.”

Also, in Adjei v. Acquah and Others [1991] 1 GLR 13-31 , the court said:

The law is that although traditional evidence has a part to play in actions for declaration of title, a favourable finding on its evidence is not necessarily essential to the case of the party seeking the declaration : see Ebu v. Ababio (supra). . . In this case the action was fought between two stools for a declaration of title to an area of land. The traditional evidence relied upon by both parties was inconclusive, but the plaintiff satisfactorily proved long occupation and the exercise of rights over the land in dispute, and on this evidence a declaration of title was made in his favour. The trial court rejected the point raised that the plaintiff’s stool should not succeed without first finding in its favour on the traditional evidence of first occupation and title. [emphasis is ours]

…

I do not think the guidelines laid down in Dua III v. Tandoh (supra) and Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257 are to the effect that for a plaintiff to succeed his traditional story must be accepted as proved. This is not a sine qua non to succeeding: [p.30] see Ebu v. Ababio (1956) 2 W.A.L.R. 55.

However, it must be noted that if there is no other evidence other than traditional evidence, a party who fails to prove his traditional history by the traditional evidence is likely to lose. This was advanced in In Re Adjancote Acquisition; Klu v. Agyemang II (supra) as follows:

Where it appears that the evidence as to title is mainly traditional in character on each side and there is little to choose between the rival conflicting stories the person on whom the onus of proof rests must fail in the decree he seeks: see Kodilinye v. Odu (1935) 2 W.A.C.A. 336 and Abakam Effiana Family v. Mbibado Effiana family [1959] G.L.R. 362.

Thus, if a plaintiff who seeks a declaration to title has only traditional evidence to prove his traditional story, he will lose if:

i. The defendant also has a conflicting traditional story presented to the court through traditional evidence. And

ii. Upon such presentation, the court has no way of choosing between the rival traditional stories.

By “no way of choosing,” it means neither party has been able to show recent acts of possession or ownership as required by Adjeibi Kojo and subsequent cases.