What a Certificate of Occupancy actually proves — and what it does not
A C of O is strong evidence of title. It is not conclusive proof of it, and the difference decides cases.
When a stool falls vacant and the selection is disputed, the first instinct is usually to go to court. It is frequently the wrong first step, and the cost of taking it is not merely the wasted filing fee. A claim commenced before the proper route has been exhausted may be struck out, by which time positions have hardened and the community has taken sides.
The sequence matters. It is worth setting out.
Three sources of law, at once
A chieftaincy dispute is governed by three things simultaneously, and confusion about which is doing the work explains a good deal of the difficulty.
The customary law of the particular community determines who is eligible, how a selection is made, and who makes it. This is the substance of the dispute in almost every case.
State chieftaincy legislation provides the machinery. It typically provides for the registration of a chieftaincy declaration recording the applicable custom, prescribes who the kingmakers are, and provides for recognition or approval by the appropriate authority.
The Constitution sets the limits. A custom that is repugnant to natural justice, equity and good conscience is not enforced, and constitutional protections — particularly the right to a fair hearing — apply to chieftaincy processes as they apply elsewhere.
The internal route first
Where state chieftaincy legislation provides an internal procedure for complaints, that procedure ordinarily has to be followed before a court will entertain the matter.
In outline, this usually means the dispute goes first to the traditional council or the body the legislation designates, and from there to the appropriate authority — commonly a state commissioner or the Governor — which may confirm, set aside or direct a fresh selection. The precise machinery varies from state to state, and the applicable state law has to be read rather than assumed.
The reason courts insist on this is not procedural fussiness. The bodies in the internal route are the ones with knowledge of the custom, and the legislature has designated them to deal with the matter first.
The chieftaincy declaration
Where a registered chieftaincy declaration exists, it is ordinarily the governing instrument. It records the ruling houses, the order of rotation where there is one, and the persons entitled to select.
Its importance is that it converts a question of oral tradition into a documentary one. Where a declaration exists and a selection was made contrary to it, the challenge is comparatively straightforward. Where no declaration exists, or where the declaration is itself said to have been wrongly made, the dispute reverts to proof of the custom by evidence.
Getting to court, and which court
When the matter does reach the courts, the first question is jurisdiction, and it depends on how the claim is characterised.
The High Court of the State hears claims founded on the state chieftaincy legislation, on breach of the right to fair hearing, and on the validity of administrative decisions taken in the recognition process.
The Customary Court of Appeal has a narrower jurisdiction, confined to questions of customary law. Where an appeal comes from a Customary Court, the ground of appeal must genuinely raise a question of customary law; an appeal dressed up as one but which in substance raises something else may not be entertained.
Characterising the claim correctly at the outset therefore determines which court can hear it at all. This is not a matter that can be corrected later without cost.
What the evidence looks like
The evidence in a chieftaincy matter is substantially traditional. It is given by elders and members of the ruling houses, and it addresses lineage, the order of rotation, and — critically — what the community has actually done on previous occasions when the stool fell vacant.
Because so much of it is oral, contemporaneous documents carry disproportionate weight. Minutes of past selection meetings, letters of recognition, gazette entries and correspondence with the appropriate authority are often decisive, precisely because they record what was done at a time when nobody was in dispute about it.
Customary law is proved as a question of fact by evidence, unless it has become so notorious through repeated judicial decision that a court may take judicial notice of it.
Before the vacancy
The most useful work in this area is done before a stool falls vacant. Where a community establishes what its custom is, records it, and ensures that any registered declaration reflects it accurately, the dispute that follows a vacancy is narrower and shorter — or does not arise at all.
That is unglamorous work and it is almost never done, which is why these matters take the years that they do.
