MICHAEL EYO V. EMEKA COLLINS ONUORA & ANOR (2011)

MICHAEL EYO V. EMEKA COLLINS ONUORA & ANOR

(2011) LCN/3816(SC)

In the Supreme Court of Nigeria

Friday, March 25, 2011


Case Number: SC.251/2003

 

JUSTICES:

ALOMA MARIAM MUKHTAR, JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT

FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

OLUFUNLOLA OYELOLA ADEKEYE, JUSTICE, SUPREME COURT

 

APPELLANT:

MICHAEL EYO

 

RESPONDENTS:

1. EMEKA COLLINS ONUORA

2. IKENNA COLLINS ONUORA(For themselves and on the behalf of Estate of Late Collins Onuora Substituted by order of the Supreme Court)

 

RATIO:

CONCURRENT FINDINGS OF LOWER COURTS:

“An appellate Court would not disturb the findings of a trial court unless it is proved that the findings are not supported by the evidence on record and therefore perverse.” Per Fabiyi J.S.C

A. M. MUKHTAR, J.S.C. (Delivering the Judgment by the Court): In the High Court of Akwa Ibom State, sitting in Uyo, the plaintiff who is the appellant in this appeal instituted an action against the respondents seeking the follow reliefs:-

‘1. SPECIAL DAMAGE: (sic)

(a) Six orange trees destroyed

General damages N491,700.00

TOTAL N500,000.00

2 A declaration that the plaintiff is entitled to the certificate of occupancy in respect of the land being and situate beside the building at No.221 Or on Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in Survey Plan No: AS/K146/92LD dated 18th December, 1992.

3 Perpetual injunction to restrain the defendant his agents, servants and privies or otherwise from further trespassing or entering upon the land being and situate beside the building at No. 221 Oron Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in Survey Plan NO: AS/AK146/92LD dated 18th December 1992.’

The plaintiff traced the traditional history of the land to Udo Ekpo Ikpa of Nung Aduak family more than 200 years ago. As a result of the inability to refund a betrothal fees already paid by Udo Ekpo Ikpa to Udo Udo Akpaetim, who was the great grandfather of the plaintiff, Udo Ekpo Ikpa surrendered eight pieces of his land to Udo Udo Akpaetim, who exercised maximum acts of ownership. On his death, the plaintiff s father inherited the land and erected a house on a portion, and the land in dispute is part of the land, on which the plaintiff also erected his own building. The defendant sometime in April 1992 broke and entered the land without the consent of the plaintiff and started constructing a building thereon, and in the process destroyed some economic trees on the land.

The case of the defendant is that the land in dispute originally belonged to Obot Bassey Udoh of Aduak family, and Obot Bassey Udoh conveyed the piece of land to him by a conveyance dated 14th March 1978.

According to the defendant, the house purportedly built by the plaintiff was not built by him, but his brothers for their mother, and it is situated outside the land in dispute. The defendant denied that he ever entered into a land belonging to the plaintiff and did not destroy any economic crop or roof of the plaintiffs’ house.

After the exchange of pleadings parties adduced evidence, which was appraised by the learned trial judge who dismissed the plaintiffs’ claims thus:

“I find that the plaintiff has not discharged the burden of proof to make for a finding in his favour.’

Aggrieved by the decision the plaintiff appealed to the Court of Appeal. The Court of Appeal found no substance and merit in the appeal, so it dismissed the appea. Aggrieved again by the judgment the plaintiff has appealed to this court originally on two grounds of appeal, which were increased to seven grounds of appeal with the leave of this court. In compliance with the rules of the court both parties exchanged briefs of argument to wit a reply brief was also filed by the

learned counsel for the appellant. The briefs were adopted by the learned counsel for the parties at the hearing of the appeal. The following issues for determination were raised in the appellants brief of argument:

‘1. Whether the Court of Appeal was right in confirming the dismissal of the appellants case on the ground that the custom by which the land in dispute was acquired by Udo Udo Akpaetim from Udo Ekpo Ikpa, the man who first deforested the land, was not proved by the appellant in accordance with the law.

2. Whether the Court of Appeal was right in confirming the dismissal of the plaintiffs case as to who first deforested or settled on the land in dispute without the resolution of important issues in the case of the parties, by adoption of the principle distilled in MOGAJI VS. ODOFIN.

3. Whether the Court of Appeal was right in using evidence held as going to no issue, as evidence of contradiction of the evidence of P.W.2.

4. Whether the Court of Appeal was right in using evidence held as going to no issue, as evidence of contradiction of the evidence of P.W.2.

5. Whether the appellant has discharged the onus of proof on him, to be entitled to the declaration sought.

6. Whether the lower Court was right in confirming the dismissal of the appellants claims in its entirety.

7. Whether the Court of Appeal was right in holding, in spite of conflicting evidence of the parties on Traditional History of the land in dispute, that the principle in KODJO VS. BONSIE did not apply to the consideration of the case.’

The Respondents sole issue for determination is:

‘Whether From The Totality Of The Evidence Before The Trial Court, The Court Of Appeal Was Right In Affirming The Judgment Of The Trial Court Dismissing The Appellants Claim In Its Entirety’ .

The gravaman of this appeal revolves around the traditional history of the land in dispute and the appellants failure to prove it, having predicated his case on that particular mode of proving title to land. In his amended statement of claim the plaintiff/appellant made the following averments:

‘6. The land in dispute was deforested by Udo Ekpo Ikpa of Nung Aduak family in Itiam Ikot Ebia, more than 200 years ago. The said Udo Ekpo Ikpa had a daughter whom Udo Udo Akpaetim had wanted to marry. It was the custom in the plaintiffs village for would be suitors to pay betrothal fees to either of the parents of the would be bride. Udo Udo Akpaetim had paid the said fee of 8 bundles of manilas in respect of the daughter of Udo Ekpo Ikpa to the girls mother. Udo Ekpo Ikpa objected to the said marriage on the grounds that Uclo Udo Akpaetim was his close cousin as they all were from the same family of Nung Aduak.

7. Udo Udo Akpaetim thereafter demanded for a refund by his money. As Udo Ekpa Ikpa could not do so, he instead surrendered 8 pieces of his lands to Udo Udo Akpaetim.

The defendant denied the above averments in their amended statement of defence as follows:-

‘9. The defendant denies the averment in paragraphs 6, 7 and 8 of the statement of claim and adds that the plaintiff have by his I averments not only distorted his family history but have also exhibited his ignorance of the Traditional History of the origin of the land in dispute. The defendant states that the land in dispute was a portion of the five pieces of land deforested by i the plaintiffs great grandfather Akpaetim Udo Utuk.’

The evidence of the plaintiff in support of his supra averments read thus:

‘I got to be the owner of the land in dispute which situates besides a building known as number 221 Oron Road, Itiam Ikot Ebia, Uyo. It was deforested by Udo Ekpo Ikpa of Nung Aduak family in Itiam Ikot Ebia about 200 years ago. Udo Ekpa Ikpa had a daughter whom Udo Akpaetim wanted to marry. Udo Udo Akpaetim was my grandfather. It was the custom in my village that a would be suitor had to pay the betrothal fees to either of the parents of would be bride. Udo Akpaetim paid the said fee of 8 bundles of manilla to the girl’s mother. When the girl became of age, Udo Ekpo Ikpa and Udo Udo Ekpaetim were cousins from the same Nung Aduak family. Udo Udo Akpaetim then demanded for a refund of his eight bundles of manilla. As Udo Ekpo Ikpa could not refund the fee he transferred eight piece of his land to Udo Udo Akpaetim in place of his money. Udo Udo Akpaetim took posseSSIOn of the land and exercised maximum acts of ownership. When Udo Udo Akpaetim passed on his interest on the land devolved on Eyo Udo Udo. Eyo Udo Udo was my late father. During the lifetime of Eyo Udo Udo he also exercises maximum acts of ownership on the land.’

Under cross-examination the plaintiff testified interalia as follows:

‘I said in my evidence in chief Udo Ekpo Ikpa had a daughter whom Udo Udo Akpaetim wanted to marry. I do not know the name of the girl. Udo Ekpo Ikpa was a cousin to Udo Udo Akpaetim. The marriage was opposed on the grounds of that relationship. They were from the same Nung Aduak family. The relationship was discovered after the declaration (sic) intention to enter into the marriage. The relationship happened.

The 2nd plaintiff witness in his evidence in chief gave the following evidence in support of the plaintiff’s pleadings:

‘I know how the plaintiff got the land. One of our family members called Udo Ekpo Ikpa married a wife called Kufre Umana Akpabio. He had a daughter. When the daughter was young, the custom permitted that someone could declare an intention to marry the girl. A symbolic raffia would be tied on the girl to signify that she has been betrothed. Since Udo Ekpo Ikpa had no money. Udo Udo Akpaetim gave the wife of Udo Ekpo Ikpa eight bundles of manilla without the knowledge of the husband, Udo Ekpo Ikpa. The money was given to Kufre to signify that he would marry the daughter. It was betrothal fees. When the girl grew up Udo Udo Akpaetim went for marriage. Udo Ekpo Ikpa the father of this girl was surprised and told him that a member of a family should not marry from the same family. He said it was unusual. He objected to the marriage. Udo Udo Akpaetim asked Udo Ekpo Ikpa to return his money Udo Ekpo Ikpa was an old man and had no money. Udo Ekpo Ikpa then gave eight parcels of land to Udo Udo Akpaetim in place of this money. Since then the land belonged to Udo Udo Akpaetim. Udo Udo Akpaetim has full relationship with the plaintiff. Eyo Udo Udo Akpaetim is the father of the plaintiff who built on that land. This Eyo Udo Udo was the first son ofUdo Udo Akpaetim.’

In the course of cross-examination PW2 testified as follows on the evidence of the custom he had earlier given:

‘I am versed with the custom and practices of 1bibio land. Everything concerning marriage is done in the presence of the families of the would be bride. It is also the practice concerning betrothal. The betrothal of Kefre was not done in accordance with the normal practice. Since it was wrong for someone from the same family to marry from the same family that was why it was done in secret. Kefre knew about the relationship but it was because of her greed that she 1 collected the money. The betrothal took place but there was no marriage. The raffia was not tied on Kefres daughter. It was merely pronounced. ‘

The learned counsel for the appellant has submitted that the trial court and the Court of Appeal erred in law in holding that the appellant had not proved the custom propounded with more than one witness in accordance with the law, as there is uncontroversial evidence before the courts that the appellant proved the custom by calling more than one witness. Reliance was placed on the case of Elynjya v. Ozuoule 11 1962 1 SCNLR 423. The learned counsel for the respondents has submitted that both the trial court and the Court of Appeal were right in their rejection of the evidence of the appellant and PW2, as the evidence of custom must be cogent and reliable, the veracity of the testimony must not be in dispute, the credibility of the witness must be accepted by the court and there must be no other evidence to the contrary. He referred to the case of Adigun v. Attorney General of Oyo State 1987 1 NWLR part 53, page 687.

The pertinent question I will ask at this juncture is, was the evidence adduced by the plaintiff/appellant cogent and reliable, and does it fall within I the principle enunciated in the Prince Yahaya Adigun case supra

I will here below re-echo the words of Obaseki JSC in the said Adiguns case supra, which is encapsulated thus:

‘If there is a registered declaration of the customary law regulating the appointment, the evidence is straight forward and would consist in the production of the Registered Declaration in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses in which case prudence demands that more than one witness be called.’

Applying the above, I will now consider the evidence I have I reproduced above on the custom pleaded by the plaintiff/appellant. In the first place, the evidence of the plaintiff that their custom was that a suitor would pay a betrothal fees to either of the parents, and that the father of the would be bride in this case became aware of the plaintiff s grandfathers intention at the time the would be bride became of age, is inconceivable. More inconceivable is the fact that the plaintiffs grandfather discovered that they were related and cousins after he had declared his intention to marry Udo Ekpo Ikpas daughter and payment of manila bundles. Is it possible for the marriage proposal to be without the fathers knowledge, and is it possible for the suitor to be ignorant of this biological relationship with the would be bride? I think not. As a matter of fact if one gleans this evidence against that of his witness (PW 2) that the betrothal in the case at hand was not in accordance with the normal practice of the Ibibio land to which they all  belong one would see that that custom was not proved. PW2 also contradicted the evidence of the plaintiff that the mother of the would be bride knew of the biological relationship between them. So if she did how come she proceeded to accept the declaration of intention, without her husband’s knowledge. That she was greedy is not convincing. On the evidence of the refund of the betrothal fees, is it possible for the father of the would be bride to be compelled to refund fees that he did not receive and was not a party to the act that culminated into the betrothal fees, to the extent that he would divest himself of his land? I doubt it. Towards this I fail to see that the evidence adduced by the appellant on the custom he has pleaded in paragraphs (6) and (7) of the statement of claim, are cogent and credible. I do not subscribe to the submissions and contentions of the learned counsel for the appellant. For an evidence to be accepted as cogent and credible it must be strong and uncontroverted by the opponent who may in the process of cross examination attack and debunk it. This may be done by the witness reneging from the testimony he had given or contradicting himself by falsifying his earlier evidence. On the other hand, this evidence of one witness being contradicted by the evidence of another witness from the same divide may weaken the overa1l effect of the evidence.

The learned trial judge in his judgment, on the question of custom posited thus:

‘It was of crucial essence to prove the custom therefore which vested the land in dispute in the

lands (sic) of Udo Udo Akpaetim the man who deforested the land having regard to the competing history set up by the defendant. Such a custom was to be proved by evidence to show that persons in the plaintiffs village regard the alleged custom as binding on them, and that the land in dispute or any portion thereof was acquired in consonance with the said custom as stated in Section I 14(3) of Evidence Act. See Prince Yahaya Adigun v. v. Attorney- General of Oyo (1987) 3 SCNLR 118, 01ugbemiro v. Ajagunbade III (1990) 3 NWLR part 136) 37. In this wise the custom relied upon must be established by evidence as a question of fact.

The absence of this proof thus makes the traditional history of the land given by the defendants through D.W.1 and DW3 more probable. In endorsing the above excerpt of the learned trial judges judgment, Edozie JSC (as he then was) in the lead judgment of the Court of Appeal found thus:

‘The position of the law therefore is that though customary law may be established by evidence of a lone witness, it is unsafe to rely on such evidence and desirable that there should be evidence and desirable that there should be evidence of more than one witness. I am therefore in agreement with learned trial judge on his observation with respect to proof of customary law.’

In the light of the above treatment of this issue I answer the issue in the affirmative and consequently dismiss the ground of appeal to which it is married.

Issues 2, 3, 4 and 5 were dealt with together in the appellants brief of argument. I will commence the treatment of this issue by reproducing the pertinent averments in the statement of claim here below. They are:

‘8.  Udo Udo Akpaetim took possession ofthese parcels of land and exercised maximum acts of ownership thereon. On his demise, the land transmitted to his son Eyo Udo Udo, who was the father of the plaintiff. Eyo Udo Udo, in his life time exercised maximum acts of ownership over same. He erected his permanent house on a portion of the said parcels of land. The plaintiff s father had in his life time shown the plaintiff the remaining parts or parcels of the land, now the land in dispute, for him to build his permanent house in the village and to farm thereon; but on the warning that on no account must the said land be alienated to non-members of his family.

  1. The plaintiff had erected a small concrete building on a corner of the land in dispute. The said building was erected while the plaintiffs father was still alive. It was the intention of the plaintiff to erect a bigger and a more permanent family house on the portion of the land in dispute now trespassed unto by the defendant.
  2. The plaintiff had been in undisturbed and exclusive possession of the land in dispute since 1970. The plaintiff has been most of the time in Lagos, only visiting his village occasionally.

The plaintiffs evidence in support of the above averments read inter alia as follows:

‘When Udo Udo Akpaetim passed on his interest on the land devolved on Eyo Udo Udo. Eyo Udo Udo was my late father. During the life time of Eyo Udo Udo he also exercised maximum acts of ownership on the land. During the life time of Eyo Udo he built his I permanent house on a portion of this land. He also showed me the remaining portion of this land so that I could build my own house to live in I have a building in a comer of the land in dispute. I intend building a permanent house for myself and members of my household in the said land.’ Under cross-examination, the plaintiff testified thus:-

‘1 am the third son. Our senior brother died. I know Ene Evo Udo Udo. He is my elder brother. (my immediate senior) The said Ene is not in the good book of me (sic) father My father had eight male sons. Not all of them were alive at my fathers death. My most senior brother died in Europe in 1979. Seven male sons survived my father. My father died October, 1990. My fathers properties have not been shared but I have been given a place to build a house. My father inherited 8 pieces of land from his father. At the time my father came to build the whole place was put into one and the whole land became one portion. Other pieces of evidence adduced in support of his pleadings vide PW2 are as follows:

‘Since then the land belonged to Udo Udo Akpaetim. Udo Udo Akpaetim was full relationship with the plaintiff. Eyo Udo Udo Apkaetim (sic) is the father of the plaintiff who built on that land. This Eyo Udo Udo was the first son of Udo Udo Akpaetim. When Eyo Udo Udo was alive he gave his son, Michael the plaintiff this land to build on. Eyo Udo Udo was the owner of the whole land, including the p0l1ion given to the plaintiff. He had built on part of the land.’

The 53 years old witness in the course of cross-examination testified thus:

‘The property of Udo Udo Akpaetim had not been shared. It is only his first son who received something from him when he was alive, and that was his place of building. The first son was Eyo Udo Udo. Udo Udo Akpaetim had eight sons. They were Ibanga (first son), Udo Akpaetim, Udoidiong Akpaaetim, Udo Udo Akpaetim (plaintiff’s father) was the fourth son, Udofia Akpaetim, the sixth was Abasiekong Apkaetim, and Ikpoto Akpaetim was the 7th and the last was Ndiyo Akpaetim. There is none of the sons that is alive. Eyo nUdo Udo, was the father of the plaintiff. The grandfather of the 1st plaintiff was Udo Udo Akpaetim and not the father. Akpaetim did not have only one son called Udo Udo Akpaetim. He had eight sons. Akpaetim did not have one son. Udo Udo Apkaetim had four sons that I know. I now say that they were five sons. Those were the ones I said alive. I do not know whether they were more than that. They were Eyo Udo Udo, John Udo Udo, Bassey Udo Udo, Ikpisang Udo Udo, Akan Udo Udo.’

It is the contention of the leanled counsel for the appellant that apart from the evidence of PW2 on the eight sons of Udo Udo Akpaetim, the appellant proved his case in accordance with the pleadings. According to learned counsel that piece of evidence was not pleaded, and therefore went to no issue, but it was the evidence the High Court and the court below accepted and used as evidence to decide that the evidence of PW2 was contradictory. It is learned counsels argument that the said evidence should have been discountenanced, and he referred to the cases of Emegokwe v. Okadigbo 1973 4 SC 113, National Investment Production Co. Ltd v. Thompson Organisation 1969 NMLR 99, and George v. U.B.A. Ltd 1972 8 9 SC. 264.

The learned counsel for the respondents has in his reply contented that there was conflict in the evidence of PW1 and PW2 in that PW2 testified that the property of Udo Udo Akpaetim had not been shared as against the evidence of Plaintiff that it had been shared. On the evidence ofPW2 on the names of children of Udo Udo Akpaetim that was not pleaded, the learned counsel submitted that the evidence of contradiction went beyond the names of the eight sons of Udo Udo Akpaetim, as it was not used as evidence of contradiction not having been pleaded. Perharps I should reproduce hereunder the pertinent excerpt of the judgment of the learned trial judge on this aspect of the evidence. This excerpt of the judgment reads as follows:

‘To a greater extent it is easier to believe the DWI and DW3 when they said the land originatinally belonged to Akpaetim Udo Etuk, whom the plaintiff also acknowledge as his great grandfather, and who he said had eight sons including Udo Udo Akpaetim. The other sons named by him included Ibanga, Udo Udoidiong, Udofia, Abasiekong, Ikpeto and Ndiyo. These also happened to be the names given by the PW2 as the names of the children of the children of Udo Udo Akpaetim. The PW2 also said the property of Udo Akpaetim had not been shared save for the portion showed by him to the father of the plaintiff for building. This was against the evidence of the plaintiff himself which was to the effect that after Udo Akpaetim had taken possession of the land he exercised maximum acts of ownership, and when Udo Udo Akpaetion passed on this interest on the land devolved on Eyo Udo Udo. Eyo Udo Udo was the plaintiff’s father. There was this conflict in the traditional history evidence of the land as adduced by the plaintiff and his witness. I am inclined to hold that the story of the devolution of the land as given by the defendant’s witnesses, particularly DWI and DW3 is more probable.’

It may well be that this point on the names and number of Udo Akpaetims children was relied upon by the learned trial judge to support the respondents case. I however dont think it was uppermost in the learned judges mind in determining the probability of the traditional history of the appellant. It is instructive to note that the conflict in the evidence of the plaintiff and PW2 which the learned trial judge based his finding on the traditional history on was more importantly on how the land devolved on the plaintiff/appellant. I believe that aspect of the evidence gave the finding a teeth, and it is manifestly clear there was indeed a contradiction in the evidence adduced by the appellant on this. Edozien JCA (as he then was) gave thorough consideration to the argument and complaint on the evidence of the sons of Udo Udo Akpaetim in his judgment. The learned JCA after reviewing the evidence ofPW2 observed thus:

‘Parties are bound by their pleadings and evidence of facts not pleaded goes to no issue. See Emegokwe v. Okadigbo (1973) 4 SC.1l3, 117; George and others v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117……… African Continental Bank Ltd v. Nigerian Dredging Roads General Works Ltd. (1977) 5 SC 235; N.I.P.C. Ltd v. Thompson Organisation (1969) N.M.L.R. 99. Apart from the fact that the names of the eight sons of Udo Udo Akpaetim given in i evidence above were not pleaded and therefore the evidence goes to no issue, the evidence testified to cannot be reconciled. In one breath 1 the witness stated that the first son of Udo Udo Akpaetim was Eyo Udo Udo. In another breath the witness testified that the 1st son was Ibanga and yet that the plaintiff s father was the forth son. It is settled law that traditional evidence which is not contradictory or in conflict and found by the court to be cogent, can support a claim for declaration of title’

So, succinctly put, even after the lower court had discountenanced that evidence that had not been pleaded, it still found some material contradictions in the evidence adduced by the appellant.

In this vein I endorse the lower courts finding, for I am satisfied that indeed the appellant did not prove his case which was predicated on I j traditional history with cogent evidence, adduced. See Aikhionbare v. Omoregie 1976 12 SC. 11, Obiaso v. Okoye 1989 5 NWLR part 119 page 80, and Eho v. Ahi 2004 3 NWLR part 861 page 610.

It is trite that civil cases are determined on preponderance of evidence, I and the balance of probability. See Odunsi v. Pereira 1972 1 SC 52, Elias v. Omo-Bare 19825 SC. 25, and Odulaja v. Haddad 1973 11 SC.357.

It is also trite that he who asserts must prove, for without the cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour. See Section 135 of the Evidence Act Cap 112 Laws of the Federation of Nigerian 1990, Imana v. Robinson 19793 4 SC. Archibong v. Ita and 2004 2 NWLR part 858 page 590.

The law is well settled that a party must first prove his case with credible evidence before the burden placed on him by the law can shift to his opponent. See Elias v. Disu 1962 1 All N.L.R. 214, and Ihenacho v. Chigere 2004 17 NWLR part 901 page 130. The position of the law is that a plaintiff cannot rely on the weakness of the case put up in defence by the defendant. See Akinola v. Oluwo 1962 1 A.N.L.R. 224, Ihekoronye v. Hart 2000 15 NWLR part 692, page 840.

Here, it seems the appellant is relying and taking advantage of the weakness of the respondents case, if at all there is any. Moreover, the learned trial judge believed the evidence adduced by the respondents in defence of the case put up by the appellant and he was at liberty to do so.

For the foregoing reasonings, I resolve all the above issues dealt with above in favour of the respondents and dismiss all the grounds of appeal to which they are related.

In canvassing argument under issue (6) supra, the learned counsel for the appellant has hammered on the applicability of the principle of Kojo v. Bonsie 1957 1 WLR 1223 which the learned trial judge failed to apply. It is the argument of the learned counsel for the respondents that the learned trial judge was not bound to apply the principle in Kojo v. Bonsie supra, having found the evidence of traditional history of the plaintiff/appellant and his witness not to be cogent and plausible. In the Kojo and Bonsies case supra, the court in dealing with conflict of traditional history had the following to say:

‘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 demeanor 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 by seeing which of two competing histories is the more probable.’

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