BOAKYEM AND OTHERS vs. ANSAH [1963]DLSC2015

Date	1963-07-02
Suit No.
Citation No.	[1963]DLSC2015

ADUMUA-BOSSMAN JSC

BLAY JSC

AKUFO-ADDO JSC.

DR. DE GRAFT-JOHNSON FOR THE APPELLANTS

K. OHENE-AMPOFO FOR THE RESPONDENT.

[1963]DLSC2015
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BOAKYEM AND OTHERS

[SUPREME COURT]

[1963] 2 GLR 223

<a name="_gjdgxs"></a>DATE: 2ND JULY, 1963.

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COUNSEL:&nbsp;&nbsp;

DR.
DE GRAFT-JOHNSON FOR THE APPELLANTS.

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ADUMUA-BOSSMAN, BLAY AND
AKUFO-ADDO JJ.S.C.

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&nbsp;

[His lordship stated the facts as summarised in the headnote and
continued:] Learned counsel for the defendant’s submission was that the learned
judge was wrong in his view that Opanin Kofi Dade was a disinterested witness
because as Osafohene of the Kotropei stool and, therefore, a principal elder of
that stool which claims the right of alienation of the land in dispute and the
only representative of the stool who gave evidence for the plaintiff he could
hardly be described as a “disinterested witness.” It is really difficult to
understand how the learned judge came to describe this witness as a
“disinterested witness” and indeed learned counsel for the plaintiff had to
concede that the description was inapt. But counsel for the plaintiff submitted
that the trial judge made a mistake in his reference to this witness, for he
actually intended to refer to John Agyakwa whose name appeared on the deed of
gift as the interpreter and who gave evidence for the plaintiff. Counsel then
referred to the evidence of the said Opanin Kofi Dade in substantiation of his
submission that the learned judge could not possibly have meant to refer to
that evidence. That evidence reads as follows:

“I am literate. The Kotropei stool granted land to C. B. Botchway;
his said land forms boundary with the land in dispute. I read and interpreted
the deed executed on it to Nana Bamforo, and to the first defendant, who
understood it and witnessed the execution of that deed, he touched pen and I
made his mark on it.”

Counsel submitted that the deed referred to by this witness was a
deed of conveyance executed in respect of the land granted to the said C.B.
Botchway and not the deed of gift on which the plaintiff’s claim was founded.

The answer to that is that that piece of evidence is equally
capable of reference to the plaintiff’s deed of gift, and since the plaintiff’s
counsel for reasons best known to himself did not tender in evidence the said
C.B. Botchway’s deed of conveyance (which he said he had in his possession at
the trial) the only reasonable inference that can be drawn is that that
evidence referred to the plaintiff’s deed which was the only deed before the
court. If the trial judge made a mistake, as counsel submitted, it is not easy
to understand why counsel did not take the necessary steps under the “slip”
rule to have the judgment corrected in this important matter. This court cannot
at this stage institute an enquiry into counsel’s allegation and I must
therefore accept the statement of the trial judge as being what it says on its
face. The learned judge’s view of the evidence of the execution of the deed of
gift is wrong for two obvious reasons. First, the foundation for that view is
that Opanin Kofi Dade was a credible witness because he was a “disinterested
witness.” It is not humanly possible, however charitable one may like to look
at things, to fit that description to a witness who represented the Kotropei
stool in its claim to ownership of the disputed land, and counsel’s submission
in this regard must be upheld. Secondly, the deed of gift does not bear out the
conclusion that Opanin Kofi Dade interpreted the deed.

It follows therefore that the trial judge’s conclusion that the
deed was interpreted to the first defendant and he understood the contents
thereof rests on a completely wrong assessment of the evidence on that point,
and that conclusion is therefore wrong. Even if I were to accept counsel’s
submission that the trial judge actually meant to refer to the evidence of John
Agyakwa as the evidence relied on by him for his conclusion aforesaid I would
still hold that that conclusion was wrong in that the evidence of John Agyakwa
does not come up to the standard required in law to affect an illiterate
Ghanaian person with the knowledge and full appreciation of the contents of a
document written in the English language to which he has appended his mark. The
learned judge held that on the view which he had taken of the facts the case of
Kwamin v. Kuffour1 did not apply. I do not agree.

It would be observed that in Kwamin v. Kuffour and in the more
recent case of Waya v. Byrouthy2 in which the principle in Kwamin v. Kuffour
was applied, the illiterate person affected in each case was actually a party
to the contract written in the English language. In this case the illiterate
persons concerned (that is the first defendant and his family-head) were not
parties to the deed; they were attesting witnesses only. The evidential
requirements necessary therefore to affect them with an intelligent knowledge of
the precise and relevant contents of the deed are far greater than those
enunciated in Kwamin v. Kuffour. In that case Lord Kinnear reading the advice
of the Privy Council said,3

“when a person of full age signs a contract in his own language
his own signature raises a presumption of liability so strong that it requires
very distinct and explicit averments indeed in order to subvert it. But there
is no presumption that a nativ</main>