Proof of Title to Land by Traditional Evidence

To establish traditional history of land relied on as root of title, a plaintiff must plead the name of the founder and others after him upon whom the land devolved to the last successors and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the devolution i.e. naming them one by one and the evidence led in support must be reliable, credible or possible – otherwise the claim for title will fail; Eze v Atasie (2000) 6 SC (Pt 1) 214 at 220

The devolution above is to be done in such as way or manner as to disclose a continuous chain of devolution from one generation to another until the land finally devolves on the Claimant – Akinloye v Eyiyola (1968) NMLR 92 at 95, Total Nig Ltd v Nwako (1978) 5 SC 1 at 12. So a party relying on traditional history must plead his root of title. Not only that he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him.

In Ali v Alesinloye (2000) SCNJ 264 at 284 the Supreme Court again restated that a claimant who claims title to land via traditional history, especially through an act of first settlement, must plead and in evidence establish the following crucial facts –

  1. The founding of the land – how the land was founded
  2. The person who founded it
  3. The persons who exercised original acts of ownership over the land
  4. The persons who had held title or on whom title had devolved in respect of the land since its founding before the claimant acquired control of the land – See also Anyafulu v Meka (2014) 7 NWLR (Pt 1406) 393 at 419.

Where the crucial facts listed above are missing, the claimant has only laid the foundation for the failure of his claim.

More Cases In Point –

ARCHIBONG VS EDAK (2006) 7 NWLR PT 980 Pg. 485, DIKE Vs OKOLOEDO (1999) 10 NWLR Pt 623 Pg. 359. OTANMA Vs YOUDUBAGHA (2006) 2 NWLR Pt 964 Pg. 33,

The Rule in Kojo v Bonsie #

Where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership. – Nwokidu v Okanu (2010) SCNJ 167 at 196

In Matanmi v. Dada (2013) 2 SCNJ 816 at 832 where his Lordship Fabiyi, JSC., re-echoed the Apex Court’s position inter alia:

What then is the Rule in Kojo v. Bonsie?

The Rule which has stood the test of time for quite sometimes now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.

The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the claimant/plaintiff. Alli v.

Alesinloye (Supra); Odofin v. Ayoola (1984) 11 S.C. 72. However, where there is conflict in the traditional history evidence put forward by the parties, a trial judge by employing the principle in Kojo v. Bonsie (Supra) then resort to determining the probable traditional history between the two traditional histories projected by the parties, by reference to recent acts in recent years evidencing who has been in possession of the land”.

OKONKWO & ORS. vs. OKONKWO & ORS. (2010)LPELR-9357(SC);

“In the case Kojo v. Bonsie (1957) 1 WLR 1223 a Privy Council decision, Lord Denning outlined the principle which is that witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years or more ago. 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 of 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 the two competing histories is the more probable. 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.” Per ADEKEYE, JSC. (Pp.35-36,Paras.B-A).



“…Appellants have stated the 5 different ways of proving title to land and the fact that establishment of any one (or more) of the 5 ways, will entitle the Plaintiff to judgment. The five known and acceptable ways of proving title to land are:

(1) By traditional history/evidence;

(2) By production of title documents to the land;

(3) By acts of ownership numerous and positive extending over sufficient length of time to warrant the inference that the person is the true owner;

(4) By acts of long enjoyment of possession; and

(5) By proof of possession of adjacent lands in circumstances which make it probable that the owner of such adjacent land would in addition, be the owner of the disputed land.

See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR – 43811 CA; Idundun & Ors Vs Okumagba (1976) LPELR – 1431 (SC); Atanda Vs Ajani &Ors (1989) 3 NWLR (Pt.111) 511; (1989) LPELR – 589 (SC); Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 SC; Anagbado Vs Faruk (2018) LPELR – 44909 (SC).

In that case of Ezerioha & Ors Vs Mgbeajulu & Ors (supra), it was held:

“This case is founded on claims of title by means of traditional evidence and by plea of acts of long possession and exercise of acts of ownership. By law, any proof of one of the five modes of proof of ownership suffices, but sometimes one mode of proof of ownership may overlap or collapse into another. See Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR – 2082 (SC) and Oyerinde Vs Bamigbegbin & Anor (2017) LPELR – 42378 CA.” In this case (at hand), Appellants asserted multiple methods of proof of title to the land in dispute, including traditional history, production of title documents, numerous and positive acts of ownership and possession over a long period to warrant the inference that they are the owners of the land in dispute. They also asserted possession of the adjacent lands! See paragraph 3.4 of the Appellants’ Brief.

I should, however, observe that while one may prove his title to land by use of one or more methods of proving title to land, there are situations that resort to more than one method of proving title amounts to desperation and or speculation, and becomes counterproductive, as one method asserted may rather operate to cancel the other! For instance, I find it difficult to understand why a person who pleads and leads evidence of traditional history to prove his title to land would also plead and place reliance on title documents, if the land devolved on him; or where he leads a clear evidence of traditional history and also relies on acts of positive ownership and possession, upon failure to establish the traditional history (Evidence). Of course, the law is that, one who fails in his evidence of traditional history, cannot resort to evidence of positive acts of ownership or possession as that would mean that his acts of ownership and long possession would rather establish trespass on the land, if the adverse party proves better title to the land in dispute. See Oyadare Vs Keji (2005) 1 SC (Pt.1) 19 at 25; Enyinnaya Vs Otikpo (2015) LPELR – 25529.

The law is stated in Ezerioha & Ors Vs Mgbeajulu & Ors (supra), that:

…. A Plaintiff who relies on a particular mode of or source of proof of title, but fails to prove that mode or source cannot rely on long possession or acts of ownership to prove/establish title: where a part’s root of title is pleaded, as for example a grant, a sale, or conquest etc, that root of title has to be established first, any consequential acts, following thereon can then properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass. See Registered Trustees of Diocess of Aba Vs Nkwme (sic) (2002) FWLR (Pt.90) 1270; also Accelerated Educational Services Ltd & Anor Vs Ekpo & Anor (2012) LPELR – 19693 CA; Balogun Vs Akanji (1988) 1 NWLR (Pt.79) 301 and Fasoro Vs Beyioku (1988) 2 NWLR (Pt.76) 263.” Per MBABA, J.C.A. (Pp. 32-36, Paras. D-A)” Nruamah V. Ebuzoeme

Eze & 7 Ors Vs Atasie & Ors (2000) LPELR – 1190 SC

“Where a Plaintiff by his pleading and evidence relies on traditional history for his root of title to land, he fails or succeeds on that history. If the history succeeds, having been accepted by the Court on its merits, either as standing alone without any competing story, or where any other story is seen to be unreliable and completely rejected, there is no need to show recent acts of ownership. The traditional history is then accepted on its strength and cogency. This is what the authorities have established, that where evidence of traditional history is not contradicted, or is not in conflict with another that was set up, and is found by the Court to be cogent, it can support a claim for declaration of title, without further requirement. See Olujebu of Ijebu Vs Oso, the Eleda of Eda (1972) 5 SC 143 at 151; Aikhionbare Vs Omoregie (1976) 12 SC 11; Iriri Vs Erhurhobara (1991) 2 NWLR (Pt.173) 252.

Conversely, if the history fails, the Plaintiff cannot abandon his pleading and rely on acts of ownership over a long period of time, numerous and positive, which is only available to support title based on immemorality – i.e. time beyond human memory, which is one of the ways of proving title, but it is separately and distinctly alleged, nor can he be permitted to rely on any recent acts of possession and ownership to back his claim for title. See Mogaji Vs Cadbury Nig. Ltd (Supra) at page 341; Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301. Ayorinde Vs Kuforiji (2007) 4 NWLR (Pt.1024) 341 at 366.


“The radical root of title pleaded in the statement of claim contained in pages 3 – 5 of the record (supra) did not therefore aver the source or type of title or how the progenitor of the appellants acquired the land, not necessarily when, as such could be from time immemorial – whether by conquest or deforestation of virgin land and settlement thereon as first settler, for example. The genealogy tree was also not properly pleaded and proved to show the names of the genealogical rungs from the progenitor to the present claimants. The proof need not necessarily be with mathematical accuracy, but it should be enough to show or disclose the names of the members of the family tree that inherited the land up to the present claimants. Both were not expressly pleaded and proved. For emphasis see paragraphs 5 – 10 of the statement of claim (supra) on genealogy contained in page 3 of the record which is lacking on how the land was found by the progenitor and the names of the descendants before the era of the Baales that took over the land vide Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) 194 to the effect that how the land was found and by whom must be pleaded and proved first for the genealogy to have base. The cases of Odi v. Osafile (1987) 2 NWLR (pt.57) 510 and Akpan and Ors. v. Odoetuk and Ors. (1993) 3 NWLR (pt.279) 94 at 101 – 102, for example, maintain that traditional history must disclose the names and/or histories of the ancestors right from the founder of the land and how he found it (source of his title) to the last person who inherited the land (genealogical tree of the land or all the names of the intervening owners from the founder for progenitor to the present person) must be pleaded and proved in evidence. See also Mogaji and Ors. v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt.7) 393. In as much as there are five acceptable methods of proving title to land as laid down by the case of Idundun and Ors. v. Okumagba and Anor. (supra), a party may adopt more than one method of proving title to land and expressing it as such in the pleadings and evidence that he is relying on more than one method of proving title to land which is usually pleaded in the alternative vide Mkpinang v. Ndem (2013) 4 NWLR (pt.1344) 302. Here the statement of claim contained in pages 3 – 5 of the record indicated only one method of claim of title to land based on inheritance or traditional history upon which root of title the alleged long possession and acts of ownership plus perpetual injunction derived their sustenance from the substantive relief of a declaration of customary ownership to the land claimed in the action. The alleged acts of ownership and long possession therefore built on the radical root of title of inheritance and would stand or fall with it as inseparable/intertwined or Siamese twins vide Fasoro v. Beyioku (1988) 2 NWLR (pt.76) 263 at 273 – 274 per the lead judgment prepared by Oputa, J.S.C., (now of blessed memory) thus – “I am in complete and total agreement that once radical title has been pleaded and proved, acts of ownership or possession resulting from such title, need no longer be considered for they are then non issues. Conversely, where, as in this case … the title pleaded had not been proved, there, also it will be unnecessary to consider acts of possession and the dictum in Ekpo v. Ita (supra) for the acts there become no longer acts of possession but acts of trespass: Da Costa v. Ikomi Supra”. (My emphasis). See also Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 616, Ukaegbu v. Nwokolo (2009) 3 NWLR (pt.1127) 194 to the effect that the pleaded root of title must be established or acts of possession alleged to derive from it would be futile. The contention of the appellants that the survey plan, Exhibit CEA1, strengthened their case of title to land is untenable as survey plan is not one of the ways of proving title to land. It is only useful on the issue of identity of the disputed parcel of land. The parties did not make the identity of the land in dispute on issue in their pleadings and evidence as the land was well known to them based on the evidence in the record vide Ezeudu and Anor. v. Obiagwu (1986) 2 NWLR (pt.21) 208, Ogun v. Akinyelu (2005) All FWLR (pt.234) 601 at 622. The case of Motunwase v. Sorungbe (1988) 4 NWLR (pt.92) 90 is to the effect that declaratory reliefs are not granted on admission but on convincing evidence tendered by the claimant(s) so any admissions made by respondents will not relieve the appellants of the onus of proving their case to the hilt. The Court below was accordingly, right in holding in part of its judgment in page 301 of the record that the radical root of title pleaded was not proved therefore it was futile to rely on acts of possession based on the traditional history that was not established.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 12 – 16 Paras A – B)

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