BOAKYEM AND OTHERS v. ANSAH

JUDGMENT OF AKUFO-ADDO J.S.C.

[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. [p.225] 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 co