Derived from oral tradition or statements of deceased persons in respect of existence or non-existence of a fact relied on by virtue of no living witness to testify passed on from generation to generation per In Re Asere Stool; Nii Olai Amontia IV v Akotia Aworsia III.
Adjeibi-Kojo v Bonsie Lord Denning method of testing is examine in light of such more recent facts as can be established by evidence to establish which of the two conflicting statements of tradition is more probably correct. Adjei v Acquah Wiredu JSC said he doesn’t think guidelines in Dua III v Tandoh v Adjeibi-Kojo are to the effect that for P to succeed his traditional story must be accepted as proved, this isn’t sine qua non to succeeding, what is required is such stories must be weighed with recent facts and ownership to see one more probable.
At Common law,it’s is an exception to hearsay rule, and not based on impressive delivery and presentation. Per Brobbey evaluating it depends on weighing both conflicting versions alongside current facts of recent pedigree, inheritance, boundaries of land, ownership and possession and the like, as can be established by evidence, and must be consistent with it per Bruce v AG, that the baptismal certificate was consistent with traditional evidence given about place and date of birth and such was wrongly excluded.
Judges in evaluating it should be careful about attaching weight based on coherence or demeanour of witness but rather, which version is authenticated by acts of ownership or possession or events within living memory established by evidence Adjeibi-Kojo case applies where tribunal is in doubt as to which rival story to prefer but don’t apply where tribunal prefers one history to the other, per the presumption of ownership by possession in s48, it follows that party can succeed even if his traditional evidence is rejected per Acquah JSC in In Re Tahyen and Asaago stool. Kwesi v Kwaw judgement in Guare case not having been specifically pleaded can’t operate to estop P, further P sued in another capacity can’t bind him in present capacity.
Types of traditional evidence as exclusion to S 117 hearsay rule includes Family history S 128-witness must relate to deceased declarant or have intimacy with his family else hearsay and so inadmissible and statement was made before controversy arose, Boundaries and Community history S 129-personal knowledge reputation regarding custom or history of community and boundaries affecting land is admissible where reputation arose before controversy, Deeds and Ancient Writings S 130-evidence of hearsay of doc is admissible where more than 20 years old and recently relied upon.
Ownership S 48a person is presumed to be owner of object he excises acts of possession or ownership thereon. Hilodjie v George, per Wood JSC the courts should look out for undisputed overt acts of ownership or possession as satisfactory contemporary fact from the two-conflicting traditional evidence, each case on its peculiar facts and per S 48 and Adwubeng v Domfeh one can even succeed where his traditional evidence is rejected because the court takes into consideration not only the traditional evidence but also other evidences available to the court, thus prove of traditional story isn’t sine qua non for success.
Whenever the testimony of a party conflicts with that of his witnesses, judge can’t gloss over conflict and hold in favour of such party’s traditional evidence and where at the end of case it becomes unclear or difficult which conflicting side has proven its traditional evidence, plaintiff has lost perEffisah v Ansah.
In Re Kodie Stool Hayfron Benjamin JSC two steps, weighing against facts in recent memory and second, the established facts considered as taking precedence over traditional evidence, dictum of Wiredu JSC in Adjei v Acquah doesn’t mean rival traditional evidence may be resolved solely by recent acts of events without reference to the traditional evidence on record, whenever testimony of party on crucial issue conflicts with his witness’ testimony, it wasn’t open to court to gloss over such conflict.