EVIDENCE ACT, 1975 (N.R.C.D. 323) SS 1-120

EVIDENCE ACT, 1975 (N.R.C.D. 323)

DATE OF ISSUE: 18th day of April, 1975

DATE OF GAZETTE NOTIFICATION: 22nd April, 1975

AN ACT to provide for the general rules of evidence and for other matters relating to the giving of evidence in Courts of competent jurisdiction.

PART ONE

General Rules

1. Questions of law

(1) A question of law including but not limited to the admissibility of evidence and the construction of this Act, shall be decided by the Court.

(2) The determination of the law of an organisation of states to the extent that the law is not part of the law of Ghana, or of the law of a foreign state or sub-division of a foreign State, is a question of fact which shall be determined by the Court.

(3) The determination whether a party has met the burden of producing evidence on a particular issue is a question of law which shall be determined by the Court.

(4) Where the Court determines that a party has not met the burden of producing evidence on a particular issue the Court shall, as a matter of law determine the issue against that party.

2. Questions of fact

(1) Except as otherwise provided in this or any other enactment in a jury trial a question of fact shall be decided by the jury.

(2) Subsection (1) does not preclude the Court from summing  up the evidence to the jury, or from commenting on the weight or credibility of the evidence but the Court shall make it clear to the jury that they are to determine the weight and credibility of the evidence themselves and are  not  bound  by  the Court’s summary or comments.

3. Preliminary facts

(1) For the purposes of this section and of section 4 a “preliminary fact” is a fact on which depends

(a) the admissibility of evidence,

(b) or the inadmissibility of evidence, the qualification or disqualification of a person to be a witness, or

(c) the existence or non-existence of a privilege.

(2) The Court shall determine the existence or non-existence of a preliminary fact.

(3) A ruling on the admissibility or the inadmissibility of evidence, the qualification or disqualification of a person to be a witness, or the existence or non-existence of a privilege implies a finding of fact which is prerequisite to it and unless otherwise provided by an enactment a separate formal finding of fact is not necessary.

(4) A party, and as regards a claim of privilege, the person claiming the privilege, may present evidence and arguments relevant to a determination under subsection (2).

(5) In making a determination under subsection (2), the Court

(a) may hear the evidence and arguments and announce its determination in the absence of the jury, and

(b) shall hear the evidence and arguments and announce its determination in the absence of the jury if the determination concerns a matter admissible only under section 120 relating to confession.

(6) Unless otherwise provided by this Act, the Court may admit evidence which requires proof of preliminary facts without prior proof of the preliminary facts on the condition that the preliminary facts will be proved later in the course of the trial, but the conditionally admitted evidence shall be disregarded if the Court determines that the preliminary facts were not proved.

4. Preliminary facts in issue

(1) Where a preliminary fact is a fact in issue in the action,

(a) the Court or jury, as the tribunal of fact shall not be bound by the Court’s determination of the existence or non-existence of the preliminary fact, and

(b) a determination by the tribunal of fact that differs from the Court’s determination of the existence or non-existence of the preliminary fact shall not affect a ruling admitting or excluding evidence or require the tribunal of fact to disregard an admitted evidence.

(2) Subsection (1) shall not be construed as precluding the introduction of evidence relevant to the weight or credibility of admitted evidence or to preclude the tribunal of fact from considering that evidence.

5. Erroneous admission or exclusion of evidence

(1) A finding, verdict, judgment or decision shall not be set aside, altered or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission of evidence resulted in a substantial miscarriage of justice.

(2) In determining whether an erroneous admission of evidence resulted in a substantial miscarriage of justice, the Court shall consider

(a) whether the trial court relied on that inadmissible evidence, and

(b) whether an objection to, or a motion to exclude or to strike out, the evidence could and should have been made at an earlier stage in the action, and

(c) whether the objection or motion could and should have been so stated as to make clear the ground or grounds of the objection or motion, and

(d) whether the admitted evidence should have been excluded on one of the grounds stated in connection with the objection or motion, and

(e) whether the decision would have been otherwise but for the erroneous admission of evidence.

(3) A finding verdict, judgment or decision shall not be set aside altered or reversed on appeal or review because of the erroneous exclusion of evidence unless,

(a) the substance of the excluded evidence was made known to the Court by the questions asked, by an offer of proof, or by any other means, and

(b) the Court which decides on the effect of the error also determines that the excluded evidence should have been admitted and that the erroneous exclusion of the evidence resulted in a substantial miscarriage of justice.

TORMEKPEY v. AHIABLE [1975] 2 GLR 432, Holding 1 @ 434, Per Annin J.A, CA.

6. Objections to evidence

(1) In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered.

(2) An objection to the admissibility of evidence shall be recorded and ruled upon by the Court as a matter of course.

(3) Where a document is produced and tendered in evidence and rejected by the Court, it shall be marked by the Court as having been tendered and rejected.

7. Corroboration

(1) Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.

(2) Evidence may, in proper circumstances, be corroborated by other independent evidence that requires corroboration.

MAJOLAGBE v. LARBI & ORS. [1959] GLR 190, Holding 4 @192, Per Ollennu J., HC.

(3) Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain a finding of fact or verdict.

(4) A finding, verdict, judgment or decision shall not be set aside, altered or reversed on appeal or review on the sole ground that the Court failed to caution itself or the jury as to the danger of acting on the uncorroborated evidence unless the Appellate Court is satisfied that the failure resulted in a substantial miscarriage of justice.

(5) This section does not preclude the Court or a party from commenting on the danger of acting on the uncorroborated evidence, or commenting on the weight and credibility of admitted evidence, or preclude the tribunal of fact from considering the weight and credibility of admitted evidence.

8. Exclusion of evidence

Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.

9. Judicial notice

(1) This section governs the taking of judicial notice of facts in issue or facts which are relevant to facts in issue.

(2) Judicial notice can be taken only of facts which are

(a) so generally known within the territorial jurisdiction of the Court, or

(b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the facts are not subject to reasonable dispute.

(3) Judicial notice may be taken whether requested or not.

(4) Judicial notice shall be taken if requested by a party and the requesting party

(a) gives each adverse party fair notice of the request through the pleadings or otherwise, and

(b) supplies the necessary sources and information to the Court.

(5) A party is entitled, on timely request, to an opportunity to present to the Court information relevant to the propriety of taking judicial notice and the meaning of the fact to be noticed.

(6) Judicial notice may be taken at any stage of the action.

(7) In an action tried by jury the Court may, and upon a timely request shall, instruct the jury to accept as conclusive the facts which have been judicially noticed.

MENSAH AND OTHERS v. THE REPUBLIC [1979] GLR 523, Holding 3 @ 538, Per Cecilia Koranteng-Addow J., HC.

PART TWO

Burden of Proof

10. Burden of persuasion defined

(1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.

(2) The burden of persuasion may require a party

(a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or

(b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.

MAJOLAGBE v. LARBI & ORS. [1959] GLR 190, Holding 4 @ 192, Per Ollennu J., HC;

ZABRAMA v. SEGBEDZI [1991] 2 GLR [email protected] 246, Per Kpegah J.A., CA.

11. Burden of producing evidence defined

(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

(2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

(3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.

MAJOLAGBE v. LARBI & ORS. [1959] GLR 190, Holding 4 @ 192, Per Ollennu J., HC;

ZABRAMA v. SEGBEDZI [1991] 2 GLR [email protected] 246, Per Kpegah J.A., CA.

12. Proof by a preponderance of the probabilities

(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.

SERWAH v. KESSE [1960] GLR 227, Holding 1 @ 228, Per Van Lare J.S.C., SC;

BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360, Holding 2 @ 371, Per Osei-Hwere J.A., SC.

13. Proof of crime

(1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.

(2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.

COMMISSIONER OF POLICE v. ISAAC ANTWI [1961]  GLR 408, Holding 1 @ 411, Per Korsah C.J., SC;

TSIKATA v THE REPUBLIC [2003-2005] 1 GLR 296 Holding 1 @ 311, Per Amonoo-Monney J.A., CA.

14. Allocation of burden of persuasion

Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.

15. Burden of persuasion in particular cases

Unless it is shifted,

(a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue;

(b) the party claiming that a person did not exercise a requisite degree of care has the burden of persuasion on that issue;

(c) the party claiming that a person including that party is or was insane or of unsound mind has the burden of persuasion on that issue.

16. Instructions on burden of persuasion

The Court shall, on a proper occasion, instruct the jury as to which party bears the burden of persuasion on each issue and as to whether that burden requires a party

(a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or

(b) to establish the existence or non-existence of a fact by a preponderance of the probabilities, or by proof beyond a reasonable doubt.

17. Allocation of burden of producing evidence

Except as otherwise provided by law,

(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;

(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.

PART THREE

Presumptions

18. Presumption and inference defined

(1) A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action.

(2) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.

(3) A presumption is either conclusive or rebuttable.

THE STATE v. ANANI FIADZO [1961] 1 GLR [email protected] 418, Per Sarkodee-Adoo J.S.C., S.C.

19. Prima facie evidence

An enactment providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption.

20. Effect of rebuttable presumptions

A rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact.

21. Applying rebuttable presumptions

In an action where proof by a preponderance of the probabilities is required,

(a) a rebuttable presumption requires the tribunal of fact to assume the existence of the presumed fact, unless the party against whom the presumption operates proves that the non-existence of the presumed fact is more probable than its existence;

(b) when evidence is not introduced contrary to the existence of the presumed fact, the question of the existence of the presumed fact depends upon the existence of the basic facts that give rise to the presumption and is determined as follows:

(i) if reasonable minds would necessarily agree that the evidence renders the existence of the basic facts more probable than not, the Court shall find, or direct the jury to find, in favour of the existence of the presumed fact; or

(ii) if reasonable minds would necessarily agree that the evidence does not render the existence of the basic facts more probable than not, the Court shall find, or direct the jury to find, against the existence of the presumed fact; or

(iii) if reasonable minds would not necessarily agree as to whether the evidence renders the existence of the basic facts more probable than not, the Court shall find, or submit the matter to the jury with an instruction that it shall find, in favour of the existence of the presumed fact if it finds from the evidence that the existence of the basic facts is more probable than not, but otherwise, it shall find against the existence of the presumed fact;

(c) where evidence is introduced contrary to the existence of the presumed fact, when reasonable minds would necessarily agree that the evidence renders the existence of the basic facts that give rise to the presumption more probable than not, the question of the existence of the presumed fact is determined as follows:

(i) if reasonable minds would necessarily agree that the evidence renders the non-existence of the presumed fact more probable than not, the Court shall find, or direct the jury to find, against the existence of the presumed fact; or

(ii) if reasonable minds would necessarily agree that the evidence does not render the non-existence of the presumed fact more probable than not, the Court shall find, or direct the jury to find, in favour of the presumed fact; or

(iii) if reasonable minds would not necessarily agree as to whether the evidence renders the non-existence of the presumed fact more probable than not, the Court shall find, or submit the matter to the jury with an instruction that it shall find, in favour of the existence of the presumed fact unless it finds from the evidence that the non-existence of the presumed fact is more probable than its existence, in which case it shall find against the existence of the presumed fact;

(d) where evidence as to the existence of the basic facts that give rise to the presumption is of a nature that reasonable minds would not necessarily agree whether their existence is more probable than not and evidence as to the non-existence of the presumed fact is such that they would not necessarily agree that its non-existence is more probable than not, the Court shall find, or submit the matter to the jury with an instruction that it shall find, in favour of the existence of the presumed fact if it finds from the evidence that the existence of the basic facts is more probable than not and it does not find the non-existence of the presumed fact more probable than not, but otherwise it shall find against the existence of the presumed fact.

22. Effect of certain presumptions in criminal actions

In a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.

23. Applying presumptions in jury trials

In a criminal action tried by jury,

(a) the Court shall not direct the jury to find a presumed fact against the accused if that fact is essential to guilt unless on the totality of the evidence a reasonable mind could not have a reasonable doubt as to the existence of the basic facts that give rise to the presumption, or as to the existence of the presumed fact;

(b) where the presumed fact is essential to guilt, the Court may submit the question of the existence of the presumed fact to the jury, if, on the totality of the evidence a reasonable mind could find both the existence of the basic facts that give rise to the presumption and the existence of the presumed fact beyond a reasonable doubt;

(c) where the presumed fact is not essential to guilt, the question of the existence of the presumed fact may be submitted to the jury if the basic facts that give rise to the presumption are established or otherwise supported by evidence sufficient to meet the burden of producing evidence;

(d) where the jury is asked to determine the existence of a presumed fact against the accused where that fact is essential to guilt, the Court shall instruct the jury to find against the existence of the presumed fact unless they find beyond a reasonable doubt

(i) the existence of the basic facts that give rise to the presumption, and

(ii) the existence of the presumed fact.

24. Conclusive presumptions

(1) Where the basic facts that give rise to a conclusive presumption are found or otherwise established in the action, evidence contrary to the conclusively presumed fact may not be considered by the tribunal of fact.

(2) Conclusive presumptions include, but are not limited to those provided in sections 25 to 29.

25. Facts recited in written instrument

(1) Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest.

(2) Subsection (1) does not apply to the recital of consideration.

26. Estoppel by own statement or conduct

Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between

(a) that party or the successors in interest of that party, and

(b) the relying person or successors in interest of that person.

27. Estoppel of tenant to deny title of landlord

Except as otherwise provided by law, including a rule of equity, against a claim by a tenant, the title of a landlord at the time of the commencement of their relation is conclusively presumed to be valid.

28. Estoppel of licensee to deny title of licensor

Except as otherwise provided by law, including a rule of equity, against a claim by a licensee of immovable property, the licensor is conclusively presumed to have a valid right to possession of the immovable property.

29. Estoppel of bailee, agent or licensee

(1) Except as otherwise provided by law, including a rule of equity, against a claim by a bailee, agent or licensee to whom movable property has been entrusted, the bailor, principal or licensor is conclusively presumed to have been entitled to the movable property at the time it was entrusted.

(2) For the purposes of subsection (1), the bailee, agent or licensee may show

(a) that the bailee, agent or licensee was compelled to deliver up the movable property to another person who had a right to it as against the bailor, principal or licensor, or

(b) that the bailor, principal or licensor wrongfully and without notice to the bailee obtained the movable property from a third person who has claimed it from the licensee, bailor or licensor.

30. Rebuttable presumptions

Rebuttable presumptions include, but are not limited to, those provided in sections 31 to 49 and 151 to 162.

31. Marriage

(1) A marriage which has been celebrated before witnesses is presumed to be valid.

(2) Subsection (1) applies whether or not the witnesses to the marriage are called as witnesses in the action.

(3) This section applies both to monogamous and polygamous marriages.

32. Children of a marriage

(1) A child born during the marriage of the mother is presumed to be the child of the person who is the husband of the mother at the time of the birth.

(2) A child of a woman who has been married, born within three hundred days after the end of the marriage, is presumed to be a child of that marriage.

(3) This section applies both to monogamous and polygamous marriages.

33. Death after seven years absence

(1) Where a person has not been heard of for seven years despite diligent effort whether or not within that period, to find that person, that person is presumed to be dead.

(2) There is no presumption as to the particular time when that person died.

34. Simultaneous death

Subject to an enactment relating to succession to property, where two or more persons have died in circumstances in which it is uncertain which survived the other, the older is presumed to have predeceased the younger.

35. Owner of legal title is owner of beneficial title

The owner of the legal title to property is presumed to be the owner of the full beneficial title.

36. Transfer by trustee

A trustee or any other person whose duty it was to convey immovable property to a particular person, is presumed to have actually conveyed to that particular person when the presumption is necessary to perfect the title of the person or the successor in interest of that person.

37. Official duty regularly performed

(1) It is presumed that an official duty has been regularly performed.

(2) Subsection (1) does not apply to an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.

38. Ordinary consequences of voluntary act

(1) A person is presumed to intend the ordinary consequences of the voluntary act of that person.

(2) Subsection (1) is not applicable in a criminal action to establish specific intent where specific intent is an element of the crime charged.

39. Judicial jurisdiction

(1) A Court of Ghana, or a court of general jurisdiction in any other country or sub-division of a country, or a judge of that court, acting as a judge is presumed to have acted in the lawful exercise of its jurisdiction.

(2) Subsection (1) applies only where the jurisdiction of the court or the judge is not directly in issue.

40. Foreign law

The law of a foreign country is presumed to be the same as the law of Ghana.

41. Continuation

A thing or state of things which has been shown to be in existence within a period shorter than that within which that thing or state usually ceases to exist is presumed to be still in existence.

42. Full age and sound body

A person is presumed to be of full age and of sound body.

43. Thing delivered

(1) A thing delivered by a person to another person is presumed to have belonged to the person to whom it was delivered.

(2) In subsection (1), “thing” includes money.

44. Obligation delivered

An obligation delivered up to the debtor is presumed to have been paid.

45. Possession of order to pay or deliver

A person in possession of an order on that person for the payment of money, or the delivery of a thing, is presumed to have paid the money or delivered the thing accordingly.

46. Possession of obligation by creditor

An obligation possessed by the creditor is presumed not to have been paid.

47. Prior payment of rent

The payment of earlier rent or instalments is presumed from the receipt for the later rent or instalments.

48. Ownership

(1) The things which a person possesses are presumed to be owned by that person.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it.

49. Partners, landlord and tenant, principal and agent

Persons acting as partners, landlord and tenant, or principal and agent are presumed to stand in that relationship to one another.

50. Inconclusive judgments

A judgment, when not conclusive, is presumed to determine or set forth the rights of the parties correctly, but there is no presumption that the facts essential to the judgment have been correctly decided.

PART FOUR

Relevancy

51. Relevant evidence admissible

(1) Relevant evidence is admissible except as otherwise provided by an enactment.

(2) Evidence is not admissible except relevant evidence.

MENSAH AND OTHERS v. THE REPUBLIC [1979] GLR 523, Holding 1 @ 534, Per Cecilia Koranteng-Addow J., HC.

52. Exclusion of relevant evidence

The Court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by

(a) considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or

(b) the risk that the admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or

(c) the risk, in a civil action, where a stay is not possible or appropriate, that the admission of the evidence will unfairly surprise a party who has not had reasonable grounds to anticipate that the evidence would be offered.

BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360, Holding [email protected] 372, Per Osei-Hwere J.A., SC;

TORMEKPEY v. AHIABLE [1975] 2 GLR 432, Holding 1 @ 434, Per Annin J.A., CA.

53. Evidence of character not admissible to prove conduct

Evidence of a person’s character or a trait of the character of that person is not admissible to prove conduct in conformity with that character or trait of character on a specific occasion, except

(a) in a criminal action, evidence of the character or trait of the character of the accused when offered by the accused to prove the innocence of the accused, or by the prosecution to rebut the evidence previously introduced by the accused; or

(b) in a criminal action, evidence of the character or trait of the character of the victim of the alleged crime when offered by the accused to prove the conduct of the victim in connection with the alleged crime, or by the prosecution for the same purpose; or

(c) evidence of the character or a trait of the character of a witness or hearsay declarant when offered to support or attack the credibility of the witness or declarant;

(d) where character or a trait of character is an essential element of a charge, claim or defence.

MELFA v. THE REPUBLIC [1974] 1 GLR 174 @ 175, Per Sowah J.A., CA;

AVEGAVI AND OTHERS v. THE REPUBLIC [1971] 1 GLR 428, Holding 1 @ 432, Per Anin J.A., CA.

54. Methods of proving character

(1) Except as provided in sections 83 to 85 relating to the credibility of a witness, and in subsection (2) of this section, in the circumstances in which evidence of the character or trait of the character of a person is admissible, the evidence may only be in the form of an opinion or evidence or reputation.

(2) Evidence of the character or a trait of the character of a person may not be in the form of specific instances of the person’s conduct, except where the character or the trait of the character of that person is an essential element of a charge, claim or defence.

(3) Notwithstanding subsection (2), evidence of specific instances of the person’s conduct, including the commission of a crime or civil wrong, may be admissible to show the facts as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

55. Routine practice

(1) An otherwise admissible evidence of the routine practice of a person or of an organisation is admissible to prove conduct on a specified occasion in conformity with the routine practice.

(2) Routine practice may be proved by evidence in the form of an opinion or by evidence of specific conduct on specified occasions sufficient in number to support a finding of fact that the practice was routine.

BONSU alias BENJILO AND OTHERS v THE REPUBLIC [1997-1998] 2 GLR 598, Holding 1 @633, Per Wood J.A., CA

56. Remedial and precautionary measures

(1) Where after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

(2) Subsection (1) does not require the exclusion of evidence of subsequent remedial or precautionary measures when offered for another purpose, in order to show ownership, control or feasibility of remedial or precautionary measures.

57. Offers to plead guilty, withdrawn pleas of guilty

Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or any other crime is not admissible in a civil or criminal action involving the person who made the plea or offer.

PART FIVE

Witnesses

58. Competent persons

Except as otherwise provided by this Act, a person is competent to be a witness and a person is not disqualified from testifying to a matter.

ABADOO v. AWOTWI [1973] 1 GLR 393, Holding 3 @ 416, Per Edward Wiredu J., HC.

59. Disqualification of witnesses

(1) A person is not qualified to be a witness if that person is

(a) incapable of coherent expression so as to be understood, directly or through interpretation by another person who can understand that person; or

(b) incapable of understanding the duty of a witness to tell the truth.

(2) A child or a person of unsound mind is competent to be a witness unless the child or that person is disqualified by subsection (1).

60. Personal knowledge required

(1) A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that the witness has personal knowledge of the matter.

(2) Evidence to prove personal knowledge may, but need not consist of the testimony of the witness personally.

(3) A witness may testify to a matter without proof of personal knowledge if an objection is not raised by a party.

(4) This section is subject to section 112 relating to opinion testimony by expert witnesses.

61. Oath or affirmation required

Subject to an enactment or a rule of law to the contrary, a witness before testifying shall take an oath or affirmation that the witness will testify truthfully and a statement made by a witness without the oath or affirmation shall not be considered as evidence.

62. Cross-examination

(1) At the trial of an action, a witness can testify only if the witness is subject to the examination of the parties to the action, if they choose to attend and examine.

(2) Where a witness who has testified is not available to be examined by the parties to the action who choose to attend and examine, and the unavailability of the witness has not been caused by a party who seeks to cross-examine the witness, the Court may exclude the entire testimony or a part of the testimony as fairness requires.

(3) This section is subject to section 63 relating to certain statements of an accused.

63. Statement of accused

(1) An accused in a criminal action may make a personal statement in defence of the charge without first taking an oath or affirmation that the accused will testify truthfully and without being subject to the examination of the parties to the action.

(2) The statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62.

(3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the Court, the prosecution or the defence.

64. Interpreters

(1) A person called to interpret statements of a witness incapable of coherent expression so as to be understood directly by the tribunal of fact is qualified for that purpose if the Court is satisfied that the proposed interpreter can understand and interpret the expressions of the witness.

(2) A person who serves as an interpreter in an action is subject to the provisions of the Act relating to witnesses, but that person may be impeached only as to the ability to interpret and the accuracy of the interpretation.

65. Presiding justice disqualified as a witness

A justice sitting at the trial may not testify as a witness in that trial.

66. Competency of jurors

(1) A juror may not testify as a witness in the trial of the action in which that juror is sitting as a juror.

(2) Upon an issue of the validity of a verdict, a juror who participated in rendering that verdict may testify as any other witness, but the juror may not testify concerning the effect of a matter upon the determination of the verdict or concerning the mental processes by which the verdict was reached.

(3) Upon an issue of the validity of a verdict, a statement or an affidavit made by a juror who participated in rendering that verdict is not admissible to the extent that it concerns the effect of a matter upon the determination of the verdict or concerns the mental processes by which the verdict was reached.

67. Qualification as an expert

(1) A person is qualified to testify as an expert if, to the satisfaction of the Court, that person is an expert on the subject to which the testimony relates by reason of the special skill, experience or training of that person.

(2) Evidence to prove expertise may, but need not consist of the personal testimony of the witness.

68. Examination of witnesses

(1) The Court may, on its own motion or at the request of a party, call or recall a witness.

(2) The parties may cross-examine a witness called by the Court.

(3) The Court may ask questions of a witness, whether the witness was called by a party or the Court.

(4) A party may object to questions asked by the Court and to evidence obtained by the Court’s questions at any time prior to the submission of the action to the tribunal of fact for determination.

(5) A juror or the jury may, through the Court, ask questions of a witness which the Court itself might ask and which the Court considers proper.

KOMBAT v. LAMBIM [1989-90] 1 GLR 324, Holding 3 @ at 332, Per Benin J., HC.

69. Mode and order of interrogation

The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to

(a) make the interrogation and presentation as rapid, as distinct, and as readily understandable as may be, and

(b) protect witnesses from being unduly intimidated, harassed or embarrassed.

70. Leading question

(1) A leading question is a question that suggests directly or indirectly the answer that the examining party expects or desires.

(2) The Court may, determine to what extent, and in what circumstances a party calling a witness shall be permitted, and a party not calling the witness shall be forbidden, to ask leading questions of the witness.

(3) Subject to the discretion of the Court,

(a) leading questions may not, if objected to by an adverse party, be asked in examination-in-chief, or in re-examination;

(b) leading questions may be asked as to matters which are introductory or undisputed, or which have, in the opinion of the Court, been already sufficiently proved;

(c) leading questions may be asked in cross-examination or examination by leave of the Court.

71. Cross-examination of non-adverse witness

The Court may treat the cross-examination of a witness by a party whose interest is not adverse to the party calling the witness as if it were an examination-in chief.

72. Adverse witness in a civil action

(1) Subject to the discretion of the Court, in a civil action a party, or a person whose relationship to a party makes the interest of that person substantially the same as a party, may be called by an adverse party and examined as if on cross-examination at any time during the presentation of evidence by the party calling the witness.

(2) Where the witness is cross-examined by the lawyer of that witness or by a party who is not adverse to the party with whom the witness is related, that examination shall be treated as if it were a re-examination.

73. Scope of re-examination

(1) Subject to the discretion of the Court, re-examination shall be directed to the explanation of matters referred to in cross-examination.

(2) A witness cannot be re-examined or otherwise further examined as to the same matter raised by the examining party on a previous examination without the leave of the Court, but the witness may be re-examined or otherwise further examined as to a new matter upon which the witness has been examined by another party to the action.

74. Examination as to writing

(1) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to the witness a part of the writing.

(2) Where the witness is not a party, the parties to the action shall be given an opportunity, if they choose, to inspect the writing before a question concerning it is asked of the witness.

75. Prior inconsistent statement or conduct

In examining a witness concerning a statement or other conduct by the witness which is inconsistent with a part of the testimony of the witness at the trial, it is not necessary to disclose to the witness an information concerning the statement or other conduct.

76. Extrinsic evidence of prior inconsistent statement

Unless the Court otherwise determines, extrinsic evidence of a statement made by a witness which is inconsistent with a part of the testimony of the witness at the trial shall be excluded unless,

(a) the witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement; or

(b)the witness has not been excused from giving further testimony.

77. Writing used to refresh memory

(1) Where a witness, while or before testifying, uses a writing to refresh the memory of the witness with respect to a matter about which the witness testifies, the testimony on that matter shall be excluded if the writing is not produced at the trial unless the Court allows the testimony to stand.

(2) Where the writing is produced at the trial, an adverse party may, if that party chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence those parts of it which relate to the testimony of the witness for the purpose of attacking the credibility of the witness or, if the writing is otherwise admissible, for any other purpose.

78. Exclusion of witnesses

(1) The Court, on its own motion or at the request of a party,

(a) may exclude from the courtroom a witness so that the witness cannot hear or see the testimony of other witnesses;

(b) may during a trial take the steps that it considers necessary and proper for preventing communication with or between witnesses who are within the court house or its precincts awaiting examination.

(2) Subsection (1) does not authorise the exclusion or sequestration of a party, a lawyer representing a party at the trial, or any other person shown by a party to be essential to the presentation of the case of that party.

79. Recall of witness

After a witness has been excused from giving further testimony in the action, the witness cannot be recalled without the leave of the Court.

80. Attacking or supporting credibility

(1) Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider a matter which is relevant to prove or disapprove the truthfulness of the testimony of the witness at the trial.

(2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to

(a) the demeanour of the witness;

(b) the substance of the testimony;

(c) the existence or non-existence of a fact testified to by the witness;

(d) the capacity and opportunity of the witness to perceive recollect or relate a matter about which the witness testifies;

(e) the existence or non-existence of bias, interest or any other motive;

(f) the character of the witness as to traits of honesty or truthfulness or their opposites;

(g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial;

(h) the statement of the witness admitting untruthfulness or asserting truthfulness.

ADWUBENG v DOMFEH [1997-98] 1 GLR 282, Holding 2 @ 293, Per Acquah J.S.C., SC.

81. A party may attack or support credibility

(1) The credibility of a witness or of a part of the testimony of a witness may be attacked or supported by the party calling the witness and any other party.

(2) Where, before a party calls the witness, that party has reasonable grounds to attack the credibility of the witness or of a part of the testimony of the witness, that party shall, out of the presence of the witness, notify the Court and every other party of the expectation, but, if the witness is a party the witness need not be notified.

82. Extrinsic evidence affecting credibility

Except as otherwise provided by this Act, to attack or support the credibility of a witness’ evidence other than the testimony of the witness is admissible if relevant to prove or disprove the truthfulness of the testimony of the witness.

83. Character traits affecting credibility

(1) Subject to subsection (2), evidence of good character to support the credibility of a witness is not admissible unless evidence which impugns the good character of the witness has been admitted for the purpose of attacking the credibility of the witness.

(2) An accused in a criminal action may introduce evidence of good character to support the credibility of the accused, and unless the accused first introduces that evidence, the prosecution may not attack the credibility of the accused by introducing evidence, including evidence of a previous conviction, to impugn the good character of the accused.

(3) A witness may give an opinion of the character of another witness and may state whether or not the first witness would believe the statement of the other witness in question.

(4) For the purposes of attacking or supporting the credibility of a witness, evidence of the reputation of the witness is not admissible to prove traits of the character of the witness.

84. Specific instances of conduct affecting credibility

(1) Subject to subsection (2) of this section and to section 85, evidence of specific instances of conduct of a witness relevant only as tending to prove or disprove traits of the character of the witness is not admissible to attack or support the credibility of the witness.

(2) Subject to section 52 relating to limitations on relevant evidence and to section 69 relating to limitations on interrogation, specific instances of the conduct of a witness relevant only as tending to prove or disprove traits of the character of the witness may, for the purpose of attacking or supporting the credibility of the witness, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to an opinion of the character of the witness in question.

85. Previous convictions affecting credibility

(1) For the purpose of attacking the credibility of a witness, a party may lead evidence by the examination of the witness or by record of the judgment that the witness has been convicted of a crime involving dishonesty or false statement, but shall not lead evidence as to a conviction for any other crime.

(2) Evidence as to a conviction shall not be led under subsection (1) if a period of more than ten years has elapsed since the date of conviction or the termination of the sentence imposed by the Court for that conviction, whichever last occurs for that conviction.

(3) The pendency of an appeal against a conviction does not prevent the leading of evidence as to the conviction.

(4) Where evidence of a conviction is led, the pendency of an appeal against that conviction may also be led.

86. Reasonable grounds for impeachment

In attacking or supporting the credibility of a witness, a person may not ask a question which conveys an adverse imputation concerning the character of that witness unless that person has reasonable grounds for believing the imputation to be true.

PART SIX

Privileges

87. Application of this Part

(1) This Part shall apply in all proceedings notwithstanding the provisions of an enactment or of a rule of law which make rules of evidence inapplicable or of limited application in particular proceedings.

(2) For the purposes of this Part,

 “proceeding” means any action, investigation, inquiry hearing, arbitration or fact-finding procedure, whether judicial, administrative, executive, legislative or not before a government body, formal or informal, public or private;

 “presiding officer” includes the Court or the person authorised in the proceedings to rule on a claim of privilege.

88. Privilege recognised only as provided

(1) Except as otherwise provided in this Part or in any other enactment, a person does not have a privilege

(a) to refuse when duly subpoenaed to be a witness; or

(b) to refuse as a witness to disclose a matter; or

(c) to refuse as a witness to produce an object or a writing.

(2) Except as otherwise provided in this Part or in any other enactment, a person may not prevent any other person from being a witness, from disclosing a matter, or from producing an object or a writing.

89. Waiver

(1) Except as otherwise provided in this section, a person who would otherwise have the privilege to refuse to disclose or to prevent any other person from disclosing a particular matter does not have a privilege, if that person or any other person while the holder of the privilege has voluntarily disclosed or consented to the disclosure of a significant part of that matter.

(2) A disclosure of a privileged matter where the disclosure itself is a privileged communication does not affect the right of a person to claim the privilege.

(3) A waiver of a joint privilege to refuse to disclose or to prevent any other person from disclosing a particular matter by a holder of the joint privilege does not affect the right of any other holder to claim the privilege.

90. Comment and inferences as to exercise of privilege

Where a privilege to refuse to disclose, or a privilege to prevent another from disclosing, a matter is claimed and allowed, the presiding officer, counsel or the parties may comment on the refusal or prevention, and the tribunal of fact may draw a reasonable inference from the refusal or prevention.

91. Determination and enforcement of privilege

(1) The presiding officer shall determine a claim of privilege in the manner provided in Part One of this Act.

(2) A person shall not be punished for failure to disclose or produce a matter claimed to be privileged unless that person has failed to comply with an order of court to disclose or produce the matter, or unless the presiding officer, by law, has the power to punish for contempt.

92. Disclosure of privileged information

(1) Subject to subsection (2), the presiding officer may not require disclosure of information claimed to be privileged in order to rule on the claim of privilege.

(2) Where a Court has to rule on a claim of privilege under section 105, 106 or 107 relating to State secrets, informants, and trade secrets and cannot do so without requiring disclosure of the information claimed to be privileged, the Court may require the person from whom disclosure is sought or a person authorised to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of any other persons, except the person authorised to claim the privilege and a person who the persons, except the person authorised to claim the privilege and the person who the person authorised to claim the privilege is willing to have present.

(3) Where the justice determines that the information is privileged, neither the justice nor any other person shall ever disclose, without the consent of a person authorised to permit disclosure, what was disclosed in the course of the proceedings in chambers.

93. Communications presumed confidential

Where a privilege is claimed to refuse to disclose or to prevent any other person from disclosing a confidential communication protected from disclosure under this Part, the communication is presumed to have been made in confidence and the opponent of the claim has the burden of persuasion to establish that the communication was not confidential.

94. Error in allowing privilege

A party may, on appeal or review, allege an error on a ruling disallowing a claim of privilege only if that party is the holder of the privilege.

95. Effect of error in disallowing privilege

Evidence of a statement or other disclosure of a privileged matter which was compelled to be disclosed in a proceeding by an erroneous ruling disallowing a claim of privilege is inadmissible against a holder of the privilege in a later proceeding or in a re-hearing of the original proceeding.

96. Privilege of an accused

(1) The accused in a criminal action shall not be called as a witness and shall not be compelled to testify except on the application of the accused.

(2) Except as otherwise provided in this Act, an accused who testifies in a criminal action testifies on behalf of the accused, and is subject to examination in the same manner as any other witness.

(3) An accused in a criminal action does not have a privilege to refuse to submit to physical examination by the Court, or the tribunal of fact, or to refuse to do an act in the presence of the Court or tribunal for the purpose of identification other than to testify.

(4) Where an accused in a criminal action does not testify on behalf of the accused, the Court, the prosecution and the defence may comment upon the accused’s failure to testify, and the tribunal of fact may draw a reasonable inference from the failure to testify.

97. Privilege against self-incrimination

(1) In any proceedings a person has a privilege to refuse to disclose a matter or to produce an object or a writing which will incriminate that person.

(2) A person does not have a privilege under subsection (1) where the Court thinks that it is necessary to the determination of an issue, to refuse

(a) to submit to physical examination for the purpose of discovering or recording the corporal features and other identifying characteristics, or the physical or mental condition of that person, or

(b) to furnish or to permit the taking of samples of body fluids or substances for analysis, or

(c) to speak, write, assume a posture, make a gesture, or do any other act for the purpose of identification.

(3) An accused in a criminal action who voluntarily testifies on behalf of the accused in the action does not have a privilege under subsection (1) to refuse to disclose a matter or produce an object or a writing which is relevant to an issue in the criminal action.

(4) A matter, an object or a writing will incriminate a person within the meaning of this Act if it

(a) constitutes, or

(b) forms an essential part of, or

(c) taken in connection with other matters already disclosed is a basis for a reasonable inference of, a violation of the criminal laws of Ghana.

(5) Notwithstanding subsection (4), a matter, an object or a writing which would otherwise incriminate a person will not incriminate that person where that person has for a reason become permanently immune from punishment for a violation of the criminal laws of Ghana which may reasonably be inferred from that matter, object or writing.

98. Disclosure of things owned by another

A person does not have a privilege under section 97 to refuse to obey an order made by a Court to produce an object or writing under the control of that person constituting, containing or disclosing a matter which will incriminate that person, if by law any other person has a superior right to the object or writing ordered to be produced.

99. Required reports

(1) A person making a record, report or disclosure required by law does not have a privilege to refuse to disclose, or to prevent any other person from disclosing, the contents of the record, report or disclosure except as otherwise specifically provided by an enactment.

(2) A public officer or public entity to whom a record, report or disclosure is required by law to be made has a privilege to refuse to disclose the contents of the record, report or disclosure, if the law requiring it to be made prevents disclosure for the purpose in question.

100. Lawyer-client privilege

(1) For the purposes of this section and of sections 93, 101 and 102,

(a) a client is a person, including a public entity, an association or a body corporate, who or which directly or through an authorised representative seeks professional legal services from a lawyer;

(b) a representative of the client is a person having authority from the client to make to, or receive from, a lawyer confidential communications relating to professional legal services sought by the client;

(c) a representative of the lawyer is a person having authority from the lawyer to assist the lawyer in rendering professional legal services sought by the client;

(d) a communication is confidential if it is not intended to be disclosed, and is made in a manner reasonably calculated not to disclose its contents, to third persons other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services, or those reasonably necessary for the transmission of the communication.

(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication, reasonably related to professional legal services sought by the client, and made

(a) between the client or a representative of the client and the lawyer or a representative of the lawyer, or

(b) between the lawyer and a representative of the lawyer, or

(c) between the lawyer or a representative of the lawyer and a lawyer representing another person, in a matter of common interest with the client or a representative of the lawyer.

(3) A client’s privilege under subsection (2) may be claimed by

(a) the client; or

(b) the client’s guardian or committee; or

(c) the personal representative of a deceased client; or

(d) the successor in interest of a client who was an artificial person; or

(e) the person who was the client’s lawyer at the time of the communication, or the representative of the lawyer, but that person may not claim the privilege if there is no other person in existence who is authorised by paragraph (a), (b), (c) or (d) of this subsection to claim the privilege, or if that person is otherwise instructed to permit disclosure by a person so authorised.

101. Exceptions to lawyer-client privilege

A person does not have a privilege under section 100

(a) if, apart from the communication, sufficient evidence has been introduced to support a finding of fact that the services of the lawyer were sought or obtained to enable or aid a person to commit or plan to commit a crime or intentional tort; or

(b) as to a communication relevant to an issue between parties who claim an interest in property through the same deceased client of the lawyer; or

(c) as to a communication relevant to an issue of breach of duty by a lawyer to a client of the lawyer, or a client to the lawyer of the client; or

(d) as to a communication relevant to the formalities of the execution of a writing by a client, where the lawyer or a representative of the lawyer is an attesting witness to the execution of the writing; or

(e) as to a communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer sought by them in common, when offered in a proceeding between any of the clients.

102. Work produced by a lawyer for a client

(1) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, information obtained or work produced by the lawyer of that client or a representative of the lawyer in rendering professional legal services sought by the client.

(2) A client’s privilege under subsection (1) may be claimed by

(a) the client; or

(b) the client’s guardian or committee; or

(c) the personal representative of a deceased client; or

(d) the successor in interest of a client who was an artificial person; or

(e) the lawyer who personally or through a representative obtained the information, or produced work, or the representative of the lawyer, but that lawyer or the representative of that lawyer may not claim the privilege if there is no other person in existence who is authorised by paragraph (a), (b), (c) or (d) of this subsection to claim the privilege, or if that lawyer or the representative is otherwise directed to permit disclosure by a person so authorised.

(3) A Court may disallow a claim of privilege under subsection (1) where the information sought is not reasonably available from another source and the value of the information substantially outweighs the disadvantages caused by its disclosure.

103. Mental treatment

(1) A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between that person and a physician or psychologist or any other persons who are participating in the diagnosis or treatment under the direction of the physician or psychologist where the communication was made for the purpose of diagnosis or treatment of a mental or an emotional condition.

(2) For the purposes of subsection (1), a communication is confidential if it is not intended to be disclosed to third persons other than those reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis or treatment under the direction of a physician or psychologist.

(3) A privilege under subsection (1) may be claimed by

(a) that person personally; or

(b) that person’s guardian or committee; or

(c) that person’s personal representative if that person is deceased; or

(d) the person who was the physician or psychologist or any other person who participated in the diagnosis or treatment under the direction of the physician or psychologist, unless that person is otherwise instructed to permit disclosure by a person authorised to claim the privilege by paragraph (a), (b), (c) or (d) of this subsection.

(4) A Court may disallow a claim of privilege under subsection (1) where

(a) in a proceeding to commit the person who was the patient the information sought is relevant to the determination of whether that person should be committed, or

(b) in a criminal or civil proceeding, the person claiming the privilege raises a matter relating to a mental or emotional condition, or

(c) a Court has ordered the person who was the patient to submit to an examination of the mental or emotional condition of that person by a physician or psychologist.

104. Religious advice

(1) A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication by that person to a professional minister of religion who is prevented from disclosing the communication by the code of the religion of that minister and has been consulted in a professional role as a spiritual adviser.

(2) For the purposes of subsection (1), a communication is confidential if made privately and not intended for further disclosure.

(3) A privilege under subsection (1) may be claimed by

(a) that person personally; or

(b) that person’s guardian or committee; or

(c) that person’s personal representative if that person is deceased; or

(d) the professional minister of religion to whom subsection (1) applies.

105. Compromise

(1) A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, to the tribunal of fact, information concerning the furnishing, offering or accepting by that person or the authorised representative of that person, of a valuable consideration in compromising a claim which was disputed as to validity or amount, and information concerning conduct or statements made as an integral part of the compromise negotiations.

(2) A person does not have a privilege under subsection (1) if that person or the conduct or statements of the authorised representative relating to the compromise were made with the intention that they would not be privileged from disclosure to a tribunal of fact.

106. State secrets

(1) Except as otherwise provided by section 107 or by any other enactment, the Government has a privilege to refuse to disclose, and to prevent a person from disclosing, a State secret unless the need to preserve the confidentiality of the information is outweighed by the need for disclosure in the interests of justice.

(2) A State secret is information considered confidential by the Government, which has not been officially disclosed to the public, and which it would be prejudicial to the security of the State or injurious to the public interest to disclose.

(3) The Government’s privilege under subsection (1) may be claimed only by a Minister of the Government responsible for administering the subject matter to which the State secret relates, or by a person authorised in writing by the Minister to claim the privilege.

(4) In an action in a Court where the Government’s privilege under subsection (1) is claimed, other than for an official document, the Court shall act in accordance with article 135 of the Constitution.

107. Informants

(1) The Government has a privilege to refuse to disclose and to prevent any other person from disclosing, the identity of a person who has supplied the Government with information purporting to reveal the commission of a crime or a plan to commit a crime.

(2) The Government does not, under subsection (1), have a privilege to refuse to disclose a communication from a person except to the extent necessary to protect the identity of the person from disclosure.

(3) The Government’s privilege under subsection (1) may be claimed by a person authorised by the Government to claim the privilege.

(4) The Government does not have a privilege under subsection (1) where the identity of the informant has been disclosed to the public by the Government, or the informant, or if the informant appears as a witness in Court in an action to which the communication of the informant relates.

(5) Where the Government claims its privilege under this section and the circumstances indicate a reasonable probability that the informant can give testimony necessary to a fair determination of guilt or innocence, in a criminal action the Court may on its own motion and shall on the motion of the accused dismiss the action.

108. Trade secrets

(1) The owner of a trade secret or a person authorised by the owner of a trade secret has a privilege to refuse to disclose, and to prevent any other person from disclosing, the trade secret unless the value of the disclosure of the trade secret substantially outweighs the disadvantages caused by its disclosure.

(2) In making a determination as to the existence or otherwise of the privilege the presiding officer shall consider

(a) whether the trade secret is adequately protected by patent, trade-mark, copyright or any other law, and

(b) whether adequate protection can be provided by disclosure of the trade secret in chambers or in any other appropriate manner.

(3) Where disclosure of a trade secret is required, a Court on its own motion or at the request of a party, may take an appropriate action to protect the trade secret from further disclosure or unauthorised usage.

109. Political vote

A person has a privilege to refuse to disclose how that person cast a vote at a public election or referendum conducted by secret ballot unless sufficient evidence has been introduced to support a finding of fact that the vote was cast illegally.

110. Marital communications

(1) A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made between that person and the spouse of that person during their marriage.

(2) A communication is confidential if it is not intended to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to a third person.

(3) This section applies to both monogamous and polygamous marriages.

PART SEVEN

Opinion

111. Lay opinion

(1) A witness who is not testifying as an expert may give testimony in the form of an opinion or inference only if

(a) the opinion or the inference concerns matters perceived by the witness, and

(b) the testimony in the form of an opinion or inference is helpful to the witness in giving a clear statement, or is helpful to the Court or tribunal of fact in determining an issue.

(2) The matter on which the witness bases the opinion or inference need not be disclosed before the witness states the opinion or inference, unless the Court otherwise determines, but the witness may be examined by a party concerning the basis for the opinion or inference and the witness shall then disclose that basis.

112. Expert opinion

Where the subject of the testimony is sufficiently beyond common experience that the opinion or inference of an expert will assist the Court or tribunal of fact in understanding evidence in the action or in determining an issue, a witness may give testimony in the form of an opinion or inference concerning a subject on which the witness is qualified to give expert testimony.

113. Basis of expert opinion

(1) A witness who is testifying as an expert may base an opinion or an inference on matters perceived by or known to the witness because of the expertise or on matters assumed by the witness to be true for the purpose of giving the opinion or inference.

(2) The matters on which a witness who is testifying as an expert bases an opinion or an inference need not be admissible in evidence.

(3) The matters on which a witness who is testifying as an expert bases an opinion or an inference need not be disclosed before the witness states the opinion or inference unless the Court otherwise determines, but the witness may be examined by a party concerning the basis for the opinion or inference and the witness shall then disclose that basis.

114. Court experts

(1) In an action the Court may, at any time, on its own motion or at the request of a party, appoint a court expert to inquire into and report upon a matter on which an expert opinion or inference would be admissible under section 112.

(2) Unless otherwise ordered by the Court, the report of the Court expert shall be made to the Court in writing together with the number of copies that the Court may require and the Court shall make one copy of the report available to each party.

(3) The report of the Court expert is admissible to the same extent as the testimony of any other expert witness and shall to that extent be deemed to be in evidence without formal introduction by the Court or a party.

(4) Whether called as a witness by the Court or a party, the Court expert may be cross-examined by the party calling the Court expert and by any other party.

(5) The Court expert shall if possible be a person agreed between the parties, and failing agreement shall be nominated by the Court.

(6) The matters to be submitted to the Court expert shall if possible be agreed between the parties and the Court, and failing agreement shall be settled by the Court.

(7) The Court expert may conduct the experiments and test that the Court expert considers appropriate and may communicate with the parties to arrange for the attendance of a person or the provision of samples or information or any similar matter, and failing agreement between the parties and Court expert as to any of these matters, they shall be determined by the Court.

(8) The Court expert appointed under this section is entitled to reasonable remuneration as determined by the Court.

(9) The remuneration of the Court expert shall be taxed as costs to the parties.

(10) Where it is necessary or appropriate to pay the Court expert any or all of the remuneration to which the Court expert is entitled before costs are taxed without prejudice to the ultimate taxation of costs, and unless otherwise ordered by the Court,

(a) in a civil action, each party shall contribute a proportionate share of that remuneration and are jointly and severally liable for the whole remuneration, and

(b) in a criminal action, the prosecution shall contribute the whole remuneration.

115. Opinion on ultimate issue

Testimony in the form of an opinion or inference admissible under section 111 or 112 shall not be inadmissible because the opinion or inference concerns an ultimate issue to be decided by the tribunal of fact.

PART EIGHT

Hearsay

116. Hearsay defined

For the purposes of this Part,

(a) a statement is an oral or written expression or conduct of a person intended by that person as a substitute for oral or written expression;

(b) a declarant is a person who makes a statement;

(c) hearsay evidence is evidence of a statement other than a statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated;

(d) a hearsay statement is a statement, evidence of which is hearsay evidence;

(e) unavailable as a witness means that the declarant is

(i) exempted or precluded on the ground of privilege from testifying concerning the matter to which the statement of the witness is relevant; or

(ii) disqualified as a witness from testifying to the matter; or

(iii) dead or unable to attend or to testify at the trial because of a then existing physical or mental condition; or

(iv) absent from the trial, and the Court is unable to compel the attendance of the declarant by its process; or

(v) absent from the trial and the proponent of the statement of the declarant has exercised reasonable diligence but has been unable to procure the attendance of the declarant by the court’s process; or

(vi) in a position that the declarant cannot reasonably be expected in the circumstances (including the lapse of time since the statement was made) to have a recollection of matters relevant to determining the accuracy of the statement in question;

(f) “available as a witness” means that the declarant is available as a witness.

117. Hearsay not admissible

Hearsay evidence is not admissible except as otherwise provided by this Act or any other enactment or by the agreement of the parties.

118. First-hand hearsay

(1) For the purposes of section 117, evidence of a hearsay statement is admissible if

(a) the statement made by the declarant would be admissible had it been made while testifying in the action and would not itself be hearsay evidence, and

(b) the declarant is

(i) unavailable as a witness, or

(ii) a witness or will be a witness, subject to cross-examination concerning the hearsay statement, or

(iii) available as a witness and the party offering the evidence has given reasonable notice to the Court and to every other party of the intention to offer the hearsay statement at the trial and that notice gave sufficient particulars (including the contents of the statement to whom it was made and if known when and where) to afford a reasonable opportunity to estimate the value of the statement in the action.

(2) In a criminal action where the prosecution offers evidence under paragraph (b) (iii) of subsection (1), the evidence shall not be admissible if an accused has given reasonable notice to the Court and to the prosecution that the accused objects to its admission.

(3) This section does not preclude the prosecution from offering the evidence under any other paragraph of subsection (1) or under any other provision of this Act.

(4) In a criminal action, evidence of a hearsay statement made by an accused is not admissible under subsection (1) when offered by the accused unless the accused is, or will be, a witness subject to cross-examination concerning the hearsay statement.

(5) Evidence of a hearsay statement offered under paragraph (b) (i) of subsection (1) is not admissible if the declarant is unavailable as a witness because the exemption, preclusion, disqualification, death, inability absence or failure of recollection of the declarant was brought about by the wrongdoing of the proponent of the statement for the purpose of preventing the declarant from attending or testifying.

119. Admissions

Evidence of a hearsay statement is not made inadmissible by section 117 if the statement is offered against a party, and

(a) the declarant is a party to the action either as an individual or in a representative capacity, or

(b) the party against whom it is offered has manifested the adoption of, or the belief in the truth of, the statement, or

(c) the party against whom it is offered had authorised the declarant to make a statement concerning the subject matter of the statement, or

(d) the declarant was an agent or employee of the party against whom it is offered and the statement concerns a matter within the scope of the declarant’s agency or employment and was made before the termination of the agency or employment, or

(d) the declarant made the statement while participating in a conspiracy to commit a crime or civil wrong and in furtherance of that conspiracy.

FORI v. AYIREBI AND OTHERS [1966] GLR 627, Holding 6 @ 647, PerOllennu J.S.C., SC;

ATTA AND ANOTHER v. AMOASI AND OTHERS [1976] 2 GLR 201, Holding 2 @ 206, Per Francois J.A., CA.

120. Confessions

(1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which

(a) constitutes, or

(b) forms an essential part of, or

(c) taken together with other information already disclosed by the accused is a basis for an inference of, the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily.

(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who [As Amended by the Evidence and Criminal Procedure (Amendment) Decree, 1979 (S.M.C.D. 237)].

(a) can understand the language spoken by the accused,

(b) can read and understand the language in which the statement is made, and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused.

 (3) Where the accused is blind or illiterate, the independent witness

(a) shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and

(b) shall certify in writing on the statement that the independent witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.

(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if

(a) the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or

(b) the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or

(c) the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person.

(5) In a criminal action tried by a jury a party may not, in the presence of the jury, offer to prove a hearsay statement under this section.

(6) Where a party offers to prove a hearsay statement under this section the Court shall in the absence of the jury, determine the admissibility of the statement as provided in section 3.

(7) A determination by the Court under subsection (7), that a statement is admissible shall not preclude the jury from determining that the statement is not to be believed.

DUAH v. THE REPUBLIC [1987-88] 1 GLR 343, Holding 2 @ 351, Per Abban J.A., CA.

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button
Close
Close