FIRST PRESENTATION

AREA OF LAW

The area of law is circumstantial evidence under means of proof.

ISSUES

The issues in the scenario presented are as follows;

i. Whether or not the circumstances relied upon from the witness statement
by the prosecution will constitute enough grounds for the conviction of
the accused.
ii. Whether or not the absence of Medical Expert’s opinion at the cross-
examination could cause a change in the courts decision about the case.

Relevant Cases

The relevant cases to the issues include R v Exall, RU Onufrejcyk, State V Ali
Kasena, State V Brobbey and Nipa, State V Anani Fiadzo, Gligah and
Another V Republic, Adjetey and Ano V Adjetey, and Tetteh V Hayford,

Circumstantial evidence is defined as any fact from the existence of which the
judge or jury may infer the existence of a fact in issue. According to Pullock C.B
om RV Exall, circumstantial evidence is like a chain and each piece of evidence
like a link in the chain, but it is not so, for then, if any one will break then the chain
would fall. It is more like the case of a rope comprised of several cords. One strand
of the cord might be insufficient to sustain the weight but three stranded together
may be quite of sufficient strength.

In the case Of R V Onufrejcyk it was clarified that there is circumstantial

evidence where there are issues with surrounding circumstances which by

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undersigned coincidence is capable of proving a proposition with the accuracy of
mathematics. It will therefore not be derogation of evidence to say it is
circumstantial.

Also, in State V Ali Kasena, it was emphasized that circumstantial evidence is not
a multitude of suspicions put together as such mere suspicions cannot constitute
proof.

Similarly on what a judge should do when attempting to distill circumstantial

evidence from mere suspicion, the Supreme Court in State V Brobbey and Nipa
explained that judges must draw attention to the necessity of some piece of
evidence that is more of mere suspicion which would lead to one conclusion and
one conclusion only, that is to the guilt of the prisoner. It was further stated for
such evidence to support conviction; it must be inconsistent with the innocence of
the accused and must lead to irresistible conclusion. It was also reiterated in the
case of State V Anani Fiadzo, where the accused killed one of the sons near his
farm and attempted to kill the second one who was able to escape while the
accused later attempted to commit suicide that, “a presumption from circumstantial
evidence should be drawn against the appellant only when the presumption follows
irresistibly from the circumstances proved in evidence, and in order to justify the
inference of guilt the inculpatory facts must be incompatible with the innocence of
the appellant and incapable of explanation upon any other reasonable hypothesis
than that of guilt”.

Furthermore in a popular case of adultery, it is difficult to prove cases by direct

evidence as the only evidence to rely upon would be circumstantial evidence. In
the case where the woman Nii Adjetey failed to accompany the husband to move
but was found staying with another man, the High Court per Sarkodie J stressed the
difficulty in obtaining direct evidence in adultery but considering the cords of
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evidence the court held that adultery has been proved as the nature of association
and the opportunities offered for misconduct has been such that acts amounting to
adultery must be inferred.

From the above therefore, one can infer that the evidence provided by the
prosecution witnesses is enough to lead to the conclusion that circumstantial
evidence has been proved against the accused. This is because among others the
detailed and correct description given by the complainant of the office of the
accused, identification of the complainant by PW3, colleague of the accused as
being seen on the corridors of the office that fateful morning, the presence of the
earring stopper on the mattress in the accused office as well as the medical experts
confirmation of sperm matching that of the accused as well as the action known by
an erect male organ all support circumstantial evidence against the accused.

Indeed, a case which is closely related to the above scenario Gligah and Ano. V
Republic. Dotse JSC emphasized the importance of relying on circumstantial
evidence in proving rape. The fact of the case similar to the scenario presented in
the question was a rape of a hawker by two police officers at the Central Police
Station in Accra. The witness visibly identified the accused and described his
office where the action took place. Her earring stopper was found on the mattress
in the office. A colleague Police Officer had also seen the victim in front of the
office of the accused. The court therefore arrived at a conclusion of clear
circumstantial evidence and convicted the accused.

In a similar vein, there is a clear proof of circumstantial evidence in issue where

one could be accused and may be convicted.

In the second issue raised, there would not be a change in my view and my answer
will not be different in the absence of the medical experts answers at the cross

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examination. This is because circumstantial evidence does not depend on one
string or cord as stated in R V Exall. The evidences of the prosecution witness are
irresistible for one to believe that the accused did not commit the crime. The
absence of the medical expert’s answers will therefore not cause any change.

In addition, the court is not bound by opinion of experts. The position was re-
echoed by Doste JSC in Tetteh and Hayford, where he stated, “… it is generally
understood that a court is not bound by the evidence relating to an expert opinion
given by an expert such as a surveyor in the instant case … But the law is equally
clear that a trial court must give good reasons why an expert evidence is to be
rejected…” Therefore, it is obvious to me that with the overwhelming evidence
against the accused the expert opinion of the Doctor in any way would not provide
any change.

Cc: Uncle Ralph

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SECOND PRESENTATION
QUESTION:
Mr Mensah died testate leaving behind, Rebecca, and two children, Papa and
Tranquility. Papa was so troublesome Mr Mensah decided not to provide for
him in his will. Not believing that his father would take him out of his will,
Papa accused his brother and mother of forgery. He sued the sole executor of
the will claiming a declaration that the signature on the will was a forgery. By
this he believed the properties would fall into intestacy. Believing that he
needed a copy of the will for use by his lawyer, he broke through his mother’s
window and took her copy of the will, the copy given to herby the deceased
husband. He tendered this in court. During the trial a handwriting expert was
called to testify as to the signature on the will and to verify whether it was that
of their deceased father. The expert concluded in his report that the signature
was not that of the deceased. At the end of the trial, the judge found that the
signature on the will was that of the deceased rejecting the opinion of the
handwriting expert. He found again that the plaintiff who challenged the will
had not convinced him, on a balance of probabilities, that the will was a
forgery. The trial judge concluded that the will was valid.
PICK OUT THE EVIDENTIAL VALUE AND DISCUSS WITHIN THE
CONTEXT OF THIS CASE.

AREAS OF LAW IN EVIDENCE

EXPERT EVIDENCE
PROOF OF CRIME IN CIVIL CASES

LEGAL ISSUES
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[Link] or not the evidence of the expert evidence on the signature on the will is
binding on the judge?
2. Whether or not the Judge misdirected himself on the standard of proof used in
determining the case?

APPLICABLE LAW (S)

The qualifications of an expert witness are provided for under section 67.
(1) A person is qualified to testify as an expert if he satisfies the court that he
is an expert on the subject to which his testimony relates by reason of his
special skill, experience or training
(2) Evidence to prove expertise may, but need not; consistent of the
testimony of the witness himself.”
Whether or not a person qualifies as an expert is to be determined by the court. In
Osei v The Republic [1976] 2 GLR 383, CA, per Francois JA (as he then was) “ a
handwriting expert was one who had adequate knowledge and skill as to
handwriting whether acquired in the way of his business or not.
The evidence of the expert is just prima facie evidence.
Section 115 which deals with ultimate issue states:

“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.”

The established rule is that experts give evidence and do not decide cases. The
evidence given by the expert is only a prima facie case and should not be
considered as deciding the issue for the court. That evidence is not binding on the
judge. It is to be considered as guides, which are to assist the judge in deciding on
the issues before him.

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The court is entitled to examine documents and reach its own conclusions upon
such examinations, as was held in State v Lawman [1961] GLR (Pt II) 6698, SC.

Also In Feneku v John Teye [2001-2002] SCGR 985 it was held (In holding 6)
that:

“The principle of law regarding expert evidence was that, the judge need not
accept any of the evidence offered. The judge was only to be assisted by
such expert evidence to arrive at a conclusion of his own after examining the
whole of the evidence before him. The expert evidence was only a guide to
arrive at the conclusions.”

Section 12 of the Evidence Decree provides the standard in civil cases as proof by
preponderance of probabilities.

In Ghana section 13(1) provides that in any civil or criminal action the burden of
persuasion as to the commission by a party of a crime, which is in issue, requires
proof beyond a reasonable doubt.

In SUSU BAMFO V SINTIM (2012) 1 SCGLR 136, the Supreme Court held that
the law regarding forgery, fraud or any allegation of criminal act in a civil trial was
governed by section 13(1) of NRCD 323; that section provided that the burden of
persuasion required was proof beyond reasonable doubt.

It must however be stated that the common law position on proof of crime in civil
cases is different from the Ghanaian one. The decided case of HORNAL V
NUEBERGER PRODUCT LIMITED seem to have resolved the issue as to which
standard is applicable in such a case which is the proof on the balance of
probability.
FENUKU V JOHN TEYE (2001-2002) SCGLR 985 was another civil case
involving the allegation of forgery of a document. The trial Judge examined the

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evidence and came to his conclusion on the allegation of forgery that the case had
not been proved beyond reasonable doubt.

ANALYSIS
In analyzing the first issue, it is worth noting that, as a general rule of
evidence, opinion evidence is inadmissible; as a witness is supposed to speak of
facts, which he personally perceived, not of inferences drawn from those facts.
However, to this general rule, there are two main exceptions namely, (a) an
appropriately qualified expert may state his opinion on a matter calling for the
expertise which he possesses and (b) a non-expert witness may state his opinion on
a matter not calling for any particular expertise as a way of conveying the facts
which he personally perceived. An expert witness is a person skilled in the subject
to which his testimony relates.
The qualifications of an expert are provided for under section 67.
(3) A person is qualified to testify as an expert if he satisfies the court that he
is an expert on the subject to which his testimony relates by reason of his
special skill, experience or training
(4) Evidence to prove expertise may, but need not; consistent of the
testimony of the witness himself.”
Whether or not a person qualifies as an expert is to be determined by the
court i.e. the judge. It is for the judge to determine whether the witness has
undergone such a course of special study or experience as would render him expert
in a particular subject and it is not necessary for the expertise to have been
acquired professionally.

in Osei v The Republic [1976] 2 GLR 383, CA, per Francois JA (as he then
was) “ a handwriting expert was one who had adequate knowledge and skill as to
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handwriting whether acquired in the way of his business or not. Consequently any
person whose business had been the detection of forgeries could be used to prove
attempts to dissemble handwriting. In this case a witness called by the prosecution,
having devoted a considerable number of years to the examination of and
undergone a course in disputed handwriting, eminently qualified as an expert.”
Again in the law of Evidence, the “ultimate issue” refers to the very question that
the court has to determine in the trial. It is the court that must determine the
ultimate or main issue and not the expert. The evidence of the expert is just prima
facie evidence. However, notwithstanding the fact that it is the duty of the court to
decide the ultimate issue, the court cannot reject the evidence of an expert because
it touches on the main issue. Section 115 which deals with ultimate issue states:

“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.”

Thus, unlike other common law jurisdictions where opinion evidence, which
determines an ultimate issue, may be considered inadmissible, in Ghana, it is not
sufficient to reject such evidence merely on that basis.

The established rule is that experts give evidence and do not decide cases. The
evidence given by the expert is only a prima facie case and should not be
considered as deciding the issue for the court. That evidence is not binding on the
judge. It is to be considered as guides, which are to assist the judge in deciding on
the issues before him. It is treated almost in the same way as the treatment of the
opinions of assessors in trials with the aid of assessors. It is also well settled law
that in handwriting issues, the court is entitled to examine documents and reach its
own conclusions upon such examinations, as was held in State v Lawman [1961]

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GLR (Pt II) 6698, SC. Also In Feneku v John Teye [2001-2002] SCGR 985 it was
held (In holding 6) that:

“The principle of law regarding expert evidence was that, the judge need not
accept any of the evidence offered. The judge was only to be assisted by
such expert evidence to arrive at a conclusion of his own after examining the
whole of the evidence before him. The expert evidence was only a guide to
arrive at the conclusions.”

Consequently, in the instant case, the trial judge did not err in the law of evidence
as the law rightly stipulates that such opinions are not binding on him.

With regards to the second issue, the burden of proof or persuasion refers to the
standard or level proof that will suffice for the court to believe in the case of the
party and to rule in his favor. In Ghana Law of evidence, there are basically two
standards of proof. One is proof on balance of probabilities and the other is proof
beyond reasonable doubt.
There is difference between standards of proof in criminal or civil
proceedings. Section 12 of the Evidence Act provides the standard in civil cases as
proof by preponderance of probabilities. On the other hand, section 13(1) of the
Act provides that in any 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
reasonable doubt. However, when the burden of persuasion is on the accused, he
shall discharge it by raising just a reasonable doubt (section 13(2) of the NRCD
323.
In Ghana section 13(1) of the Evidence Act provides that in any civil or
criminal action the burden of persuasion as to the commission by a party of a
crime, which is in issue, requires proof beyond a reasonable doubt. By this

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provision where in civil case it is alleged that a crime has been committed, that
allegation should be proved to the same standard or degree as the onus of proof is
on the prosecution in ordinary cases. The implication is that notwithstanding the
case will be a civil one, the allegation of crime in the trial should be proved beyond
reasonable doubt. To impute crime to a person is quite serious and therefore proof
of that imputation should not lightly be established.
For the section to apply, the allegation of crime should form one of the
issues for the determination in the given case. A mere reference to a crime, which
is not part of the facts in issue, will not justify the invocation of section 13(1).
A typical instance will be found in the trial of a divorce case in which one
party alleges bigamy. Bigamy is crime. He who alleges it should prove it beyond
reasonable doubt even though divorce is obviously part of civil proceedings.
More commonly, the issue arises in cases involving fraud or forgery. In
SUSU BAMFO V SINTIM (2012) 1 SCGLR 136, the Supreme Court held that the
law regarding forgery, fraud or any allegation of criminal act in a civil trial was
governed by section 13(1) of NRCD 323; that section provided that the burden of
persuasion required was proof beyond reasonable doubt. SUSU BAMFO V
SINTIM was a civil case in which it was alleged that some lands had been acquired
by the use of forged documents. On the facts of the case, the court ruled that the
forgery allegation was proved beyond reasonable doubt.
FENUKU V JOHN TEYE (2001-2002) SCGLR 985 was another civil case
involving the allegation of forgery of a document. The trial Judge examined the
evidence and came to his conclusion on the allegation of forgery. He did not
however advert his mind to the standard of proof required under section 13(1) of
NRCD 323 to prove forgery. The Supreme Court in looking at the evidence
adduced was not satisfied that forgery had been established beyond reasonable
doubt.
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It must however be stated that the common law position on proof of crime in civil
cases is different from the Ghanaian one. The decided case of HORNAL V
NUEBERGER PRODUCT LIMITED seem to have resolved the issue as to which
standard is applicable in such a case which is the proof on the balance of
probability.
Per the facts of the case, the trial judge found that the signature on the will
was not that of the deceased and that the plaintiff had failed to convince him on the
balance of probabilities, that the will was forged.
Looking at section 13(1) of NRCD 323, the case of FENUKU V JOHN TEYE and
SUSU BAMFO V SINTIM, one can conclusively say that the trial Judge erred in
law of Evidence. This is because; he failed to avert his mind to section 13(1) of
NRCD. Section 13(1) provides that in any civil or criminal action the burden of
persuasion as to the commission by a party of a crime, which is in issue, requires
proof beyond a reasonable doubt even though the matter before the trial Judge was
civil in nature; it had some criminal element in it.
The two case laws have also established that even if a matter is civil in nature but it
has some criminal element as part of statement of claim or defence, the standard of
proof of the criminal statement must be beyond reasonable doubt and not on the
balance or preponderance of probability.

ADVISE
As indicated by the facts of the case, the applicable statute such as section 13(1) of
NRCD and the relevant case laws such as FENUKU V JOHN TEYE, and SASU
BAMFO V SINTIM, I advise Papa that the Judge misdirected himself on the
standard of proof and he must accordingly appeal against the decision of the court.

Cc: Jennifer
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THIRD PRESENTATION

Question 4

Galamsey was employed by ABC Ltd., a company engaged in the manufacture of

meat pies. His hands got caught in the mincing machine for which he suffered
severe injuries. He sued ABC Ltd. for damages. .When the company leant of the
incident, it obtained a report from an

Independent safety expert in accordance with its usual practice when accidents
occur on its premises. Copies of this report were sent to the Board of Directors and
to the company's legal department. Galamsey wrote a letter to Krokrokoo, his
lawyer, setting out his account of the accident in which he admitted that he had not
complied with the safety regulations when operating the machine because he was
''chatting up the cleaning lady at the time. Jezebel, Krokrokoo's secretary,
photocopied this letter and gave it to Masima, her boyfriend, who is a

director of ABC Ltd. Galamsey wishes to obtain a copy of the safety expert's
report. He suspects that his employers may have obtained a copy of his letter to
Krokrokoo and is afraid they may use it at the trial.

(a) Advise Galamsey as to how he can obtain the report;

(b) State how Galamsey would prevent the use of his letter at the trial, pointing out
the likely obstacles in achieving this objective.

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ANSWER

Area of Law: Privilege

Privilege is said to mean a special right, exemption, or immunity granted to a

person or class of persons. A privilege grants a person the legal freedom to do or
not to do a given act.

In Ghana, privilege is provided under sections 87-110 of the Evidence Act, NRCD
323. By sec 87 of NRCD, the provisions on privileges apply to all proceedings

ISSUES

(a) How Galamsey can obtain a copy of the safety expert’s report

(b) How Galamsey will prevent the use of his letter at the trial

(c) Likely obstacles to be faced in preventing the use of his letter at the trial.

ANAYLSIS

ISSUE I

Galamsey can obtain a copy of the expert’s report by making an application for an
order for discovery of particular documents under Order 21 rule 5 of the High
Court (Civil Procedure) Rules C.I 47.
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However, whether this order will be granted or not depends on whether or not
ABC Ltd will claim privilege in relation to the experts report and whether the court
will also accept this claim or not.

In many instances, prior to seeking proper legal advice, it will be necessary for a
person to obtain statements from others, such as witnesses and experts. The
question is whether these statements from third parties would also be privileged.

In Waugh v British Railways Board, the plaintiff’s husband, an employee of the

defendant, was killed in a railway accident. In an action for compensation, the
plaintiff sought discovery of routine internal reports prepared by the defendant
regarding the accident. The defendants claimed that the reports were privileged.

The House of Lords held that, in order to attract privilege, the dominant purpose
of preparation of the reports must have been that of submission to a legal adviser
for use in relation to anticipated or pending litigation. In the view of the House,
while this was one of the purposes of the reports, it was not the dominant one, and
thus privilege could not be claimed.

The application of the dominant purpose test has never been easy and in many
accident investigations, the conclusion has always been that the dominant purpose
was the prevention of recurrence rather than for the purpose of litigation.

In the instant case, ABC Ltd upon learning of the incident obtained the report as
was its usual practice when accidents occurred and sent copies to the Board of
directors and to their lawyers. It could be argued since it was the practice of the
company to obtain reports after the occurrence of an accident the dominant
purpose of the report was to prevent recurrence of the accident and not for
litigation.

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On the other hand, it could also be argued that since copies of the report was sent
to both the Board of directors and the company’s legal department, it was done in
anticipation of litigation and thus the dominant purpose of the report was litigation.
The resolution of this issue will lie with the court to determine if ABC Ltd decides
to claim privilege in relation to the experts report.

ISSUE 2

The core of the lawyer client privilege is a communication passing between a

lawyer and client conveying legal advice relating to the conduct of on going
litigation which need not be disclosed to a third party or given in evidence without
the client’s consent. It enables a client maintain the confidentiality of
communication between him and his lawyer.

This privilege is captured under section 100(2) of the Evidence Act,1975 NRCD
323, which states that a client has a privilege to refuse to disclose and prevent any
other person from disclosing a confidential communication reasonably related to
professional legal services sought by the client.

This section is to the effect that the client has the privilege to prevent and other
person from disclosing confidential communication, thus if some other person
overhears a privileged conversation or obtains a privileged document or a copy of
it, he may be compelled to give evidence in that regard or to produce the document
or copy.

In the case of Lord Ashburton v Pape, Pape, a party to bankruptcy proceedings

obtained by a trick, copies of confidential and privilege correspondence between
Lord Ashburton and his solicitors. The court of appeal granted an injunction
preventing Pape from using the copies in the bankruptcy proceedings.

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The letter Galamsey wrote to his lawyer Krokrokoo is privileged since he wrote
that letter to his lawyer in order to obtain legal advice in the anticipation of the trial
and thus the letter attracts the lawyer-client privilege and thus he has the privilege
to prevent any other person from disclosing this confidential communication as
stated in section 100(2) of the Evidence Act,1975 NRCD 323.

Galamsey can therefore apply to the court for an order of injunction preventing
ABC Ltd from using a copy of the letter he wrote to his lawyer Krokrokoo at the
trial.

ISSUE 3

Lawyer –client privilege will be lost in a number of situations. These are outlined
in section 101 of the Evidence Act. The section provides that if the services of the
lawyer was sought or procured to commit a crime or intentional tort.

Also as to a communication relevant to an issue between the parties who claim an

interest in property through the same deceased client of the lawyer. 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 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 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.

None of these exceptions are present in the case of Galamsey so there are no likely
obstacles to Galamsey preventing the use of the letter at the trial.

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QUESTION 11 ON PAGE 91 OF THE EVIDENCE MANUAL

Area of law: Cross examination

Issues:

Whether or not the judge erred in ruling that in all cases during cross examination
the burden was on the judge to control the mode of interrogation.

Whether or not the judge was right in ruling that the question the defense counsel
asked the complainant was collateral and therefore final.

Applicable laws:

Section 69 of Evidence Act, NRCD 323

R v Rowwbotham

Mensah v Nimo

AG V Hitchcock

R v Kraus

Rv Riley

Analysis:

Issue one – Cross examination is the questioning of a witness after the evidence in
chief by the opponent of the party who called him as a witness.

Cross examination of witnesses is an essential feature of the adversary al procedure

practiced here in Ghana and has a number of importance. In discussing the
importance of cross examination, Borms C.C.J in R v Rowwbotham stated that

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the opportunity of cross examination is an essential safe guard of the accuracy and
completeness of testimony.

Another case which highlights the importance of cross examination is that of

Mensah v Nimo, in that case an appeal decision l from the New Juaben local court
showed there was no record that after the first defendant and the second co-
defendant had spoken in chief the local court invited the first co-defendant to cross
examine the,. The high court presided over by Adumoa-Bossman held that the
evidence of the first and second co-defendant not having been subjected to cross
examination were improper.

The set of facts given rise an issue about the mode of cross examination or
interrogation. Section 69 of the Evidence Act, NRCD 323 states that the court
shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to make the interrogation and presentation
as rapid , distinct and readily understandable as may be and also to protect
witnesses from being unduly intimidated, harassed or embarrassed.

This section gives statutory recognition to the court’s discretionary power to

control the trial. The issues of order and mode which the court is liable to have to
determine or resolve are numerous to list and too variable to commit to
predetermined rules. These issues are however best decided by the fairness and
common sense of the judge. Where therefore the exercise of the courts
discretionary power to control the trail departs from the standards of
reasonableness or fairness it may be subject to review by an appellate court.

The judge was therefore right in holding that in all cases the burden is on him to
control the mode of the interrogation. This is however subject to the principles of
reasonableness and fairness.

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Issue 2

The law on collateral questions state that answers given by a witness under cross
examination to questions concerning collateral matter, that is, matters which are
irrelevant to the issues in the proceeding must be treated as final. In saying that the
answers are final it does not in any way mean that the tribunal of fact is obliged to
accept the answers as true but simply that the cross examining party is not
permitted to call further evidence with a view to contradicting the witnesses. The
rationale of the rule is mainly the need to avoid indefinite multiplication of the
issues in cases and all accompanying disadvantages of length f increasing the
length and cost of the proceedings.

The issue whether a question id collateral is not easy to determine. However as

formulated by Pollock CB in AG v Hitchcock, if the witness’s answer is a matter
on which the cross examining party would be allowed to introduce evidence in
chief because of its connection with the issues in the case, then the matter is not
collateral. Therefore it can be said that questions which go merely to the credit of
the witness are clearly collateral.

The difficulty however lies where the issue is a sexual dispute between two
persons in private, determining the difference between questions going to the facts
in issue is reduced to vanishing point because most often sexual intercourse,
whether consensual or not takes place in private and leaves few visible traces of
having occurred so that the evidence is often limited to that of the parties involved.
In such cases, much is likely to depend upon the balance of credibility of the
parties.

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In R v Riley, it was held that evidence is admissible to contradict a complainant
who denies previous acts of sexual intercourse with the accused, the matter being
relevant to the issue of consent. Likewise in R v Kraus the accused alleged that a
woman whom he had met for the first time in a public house agreed to sleep with
him but after the intercourse, when

Based on the holding in R v Kraus, the judge erred in preventing the defense
counsel from calling the two other celebrities who had fallen prey to the antics of
the complainant, since the matter was relevant to the facts in issue and therefore it
wasn’t a collateral question which upon being answered by the complainant was
final.

Cc: Lizzy

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FOURTH PRESENTATION

QUESTION

Elija, the chief Accountant of Asuoso Assembly was charged with forgery,
falsification of accounts and stealing of an amount of GHC 2,000,000 belonging to
the Assembly. At the trial, the prosecution sought to tender a purported confession
statement in which the accused wrote as follows:
“I wish to mention that I am the Municipal Chief Accountant. Somewhere in
2012, my deputy and I engaged in a deal whereby cheques meant for the
Assembly were forged and falsified and paid into my personal account. The
period between 2012 and 2014 is a long time and because the amounts were
withdrawn at various times spaced between months, I cannot tell how much
the amount is and cannot either agree with the figure or not…”
Counsel for the accused objected to the admissibility of the purported confession
statement on grounds that sinned against section 120(3) of the Evidence Act in that
the statement was written in the presence of a police officer who is not qualified to
be an independent witness. At the voir dire, counsel relied copiously on the
Supreme Court decision of Frimpong alias Iboman vrs The Republic (2012) 1
SCGLR 297, which held among others that an independent witness must not be
someone who is so closely connected to the police as to make him more or less
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dependent on the police. The prosecution on its part urged the court to bear faith
with the said section 120(3) of the Evidence Act as amended which did not contain
the words” other than a police officer or member of the Armed Forces…”

As an intern of Sibo J, you have been asked to submit a reasoned legal opinion
indicating among others, the qualification of an independent witness and whether
the High Court can depart from the decision of the Supreme Court in Frimpong
alias Iboman vrs. The Republic, and if so why?

Section 120 of the Evidence Act provides that a confession statement is a hearsay
statement made by an accused person admitting matter which; constitutes the
commission of a crime for which he is being tried in the action; or forms an
essential part of a crime for which he is being tried in the action; or if taken
together with other information already disclosed by him is a basis for an inference
of the commission of a crime for which he is being tried.
When it comes to confession, “it matters how it is gotten” confession statements
are only admissible when certain conditions are met. One of such is that the
confession must be a voluntary statement. Again it must have been made in the
presence of an independent witness. Section 120 provides that if such a statement
is made voluntarily, it is admissible against the accused. If it is not made
voluntarily, it is not admissible. In the case of Duah v The Republic (1987-88) 1
GLR 343, the accused moved about five kilometers from Korle Bu in Accra to the
23
house of a relative at Osu and confessed to him that he had killed his wife. He was
under no arrest, restriction or detention and nobody held out any pressure or
promise to him. The conviction based on that confession was upheld on appeal for
the main reason that it was given voluntarily “in the sense that it was not obtained
from him by the influence of fear or hope of advantage, exercised or held out by a
person in authority. The court stated that: “The principle was that once the
prosecution had been able to establish that the statement was made voluntarily by
the accused, in the sense that it was not obtained from him by the influence of fear
or hope of advantage, exercised by or held out by a person in authority, it was
admissible in evidence against him.”
The rationale for the requirement of voluntariness is that such statements are likely
to be untrue if not made voluntarily. Therefore, in R v Baldry, Pollock CB said at
page 441-442 that: “The ground for not receiving such evidence is that it would
not be safe to receive a statement made under any influence or fear.”
As was stated by Williams J in R v Mansfield (1881) 14 COX CC 639 @ 640 “It
is not because the law is afraid of having truth elicited that these confessions are
excluded, but it is because the law is jealous of not having the truth.”
A significant addition to the conditions for the admissibility of confessions is the
requirement that the statement must be made by the declarant in the presence of an
independent witness. Subsection (2) of Section 120 of the Evidence Act provides
further that if the Declarant while “arrested, restricted or detained by the State”
made a Confession statement the statement will not be admissible unless the
statement was made in the presence of an independent witness.
Under the previous Evidence Act, NRCD 323 a Police Officer or a member of the
Armed Forces was prohibited from acting as an “independent witness”. All other
persons serving as independent witnesses were to be approved by the suspect. The
section ended with the phrase “other than a Police Officer or member of the Armed
24
Forces approved by the accused”. This was amended by the Evidence and Criminal
Procedure (Amendment) Decree, 1979 (SMCD 237) by the deletion of the words
“other than a Police Officer or member of the Armed Forces approved by the
accused” and revised.
So the section 120(2) has now become “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 can understand the language spoken by
the accused, and 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.”
By the amendment introduced by SMCD 237, the definition of independent
witness in section 120(3) has became so broad that it appears to admit of a certain
category of persons who can be independent witnesses. It has rightly resulted in the
view that any competent and qualified person who is literate or can read and write
and can understand the language spoken by the accused can be an independent
witness, including members of the Police Service or the Armed Forces. The
suspect does not have to approve or consent to the person acting as an independent
witness.
Under NRCD 323, the only conditions to be satisfied are that the independent
witness should be able to read and write so as to be able to interpret the statement
to the accused if he is illiterate or blind and to be able to write on the statement that
it was explained in his (the witness’s) presence to the accused who understood its
contents before signing or thumb printing it.
Notwithstanding the amendment, as recent as 2012, the Supreme Court in the case
of Frimpong alias Iboman v The Republic (2012) 1 SCGLR 287 per Dotse JSC
25
was of the view that “the rational for the independent witness provision was to
ensure that the rights of the Declarant, that is the accused, who is under restriction
is not trampled upon by the Police or Investigative Agencies”
That case decided (in holding 5) that:
“An independent person as used in section 120 of the Evidence Act, 1975
(NRCD 323), was referable to someone other than the person, institution or
body taking down the statement. Thus an independent person was a person
who was free from the authority, control or influence or was not dependent
or relying on anybody for directions and /or assistance. He must not be a
subordinate to or under the authority, control or influence of the person
investigating the crime and for which he was needed to authenticate the
statement that had been given by the declarant. In short an independent
person must not be someone who was closely connected to the police as to
make him more or less dependent on the police. Such a scenario would
defeat the purpose for which the law had been enacted.”
This decision has been criticized as being contrary to statute (NRCD 237). As
Justice Brobbey notes in his book Brobbey : Essentials of the Ghana Law of
Evidence 1,
“Quite clearly, the decision can be criticized as being per incuriam in so far that it
did not take into account the provisions of SMCD 237…. The decision is that of
the highest court of the land and is therefore binding on all other courts. On the
other hand, SMCD 237 still remains on the statute books of Ghana. Where the
decision of a court conflicts with the provisions in a statute of the land, the latter
prevail.”
In the unreported civil case appeal No. F22/40/2009 dated 15 th January 2014;
Awutu Ellies Kaati vs The Republic, The Court of Appeal, Cape Coast took the

1
26
view that the Supreme Court had erred on this point in the case of Frimpong Alias
Iboman. The Court of Appeal speaking through Sir Dennis Adjei at page 13 of the
judgment held: “The law is now settled that Police Officers and members of the
Armed Forces may act as Independent witness”
“Even though we are bound by the decision of the Supreme Court, we have no
doubt in our mind that where a decision is given contrary to statute, we are bound
by the statute. In respect of the holding that a Police Officer cannot act as an
independent witness we are bound by Section 120 of the Evidence Act NRCD
323 and not the holding in the case of Frimpong alias Iboman v The Republic
and we hold that Police and Military Officers can act as independent witnesses.”
In a recent Supreme Court decision in the case of G/L/CPL EKOW RUSSEL,
the court found it “an opportune occasion to clarify that the segment of their
decision in the Iboman case which gives the impression that police personnel per
se are excluded from being independent witnesses when it states to the effect that
‘an independent witness must not be someone who is so closely connected to the
police as to make him more or less dependent on the police’ as not properly
couched and as such not in consonance with the intendment of our s 120 of the
NRCD 323 and to that extent made per in-curiam. According to the court, In order
to attain the objectives of providing adequate safeguards for a suspect under
investigation an independent witness as used in s.120 of NRCD 323 may include
any person who qualifies to be a competent witness and has no direct personal
interest in the case in issue. Such an independent person must be a person who is
disinterested in the matter under investigation. At the official level, the
independent person should not be directly under the control and influence of the
person investigating the crime nor he part of the investigation team.
In brief, the High Court in determining its current case can depart from the
decision in Iboman as the current position of the law, per the decision in Ekow
27
Russel v The Republic, is to the effect that, any person - be it a policeman, a
soldier, a prison officer, other security investigating apparatus or civilian - who
qualifies in terms of being disinterested in the matter under investigation, and is
not under the direct control and influence of the person investigating the crime, or
is not himself part of the investigation team and qualifies to be a competent witness
may serve as an independent witness. The independent witness must additionally
meet the requirements provided under section 120 (3) of NRCD 323. By this
provision, the person must:
(a) Understand the language which the accused speaks
(b) Can read and understand the language in which the statement is made
(c) Must understand read and speak English.

Cc: Jennifer

28
FIFTH PRESENTATION

QUESTION
Hajia is charged with the manslaughter of Tomtom. The prosecution alleges
that Tomtom and Hajia, who were lovers, got into a heated argument
whereupon Hajia, in a fit of rage, fatally stabbed Tomtom. Hajia denied and
stated that the incident was an accident and that two of them were in such
conjugal bliss on the night of the incident.
Consider the admissibility of the following evidence:
(a) Koti, a passer-by, who administered first aid to Tom-tom when he
staggered out of his house covered in blood gasped, “it was Hajia who
did it, I have had it. Make sure that I have a Muslim burial”.
(b)Tom-tom’s mother to whom Tom-tom confided on the morning of the
stabbing that even though he has always been scared of Hajia, he was
going to confront her about her infidelity.

AREA OF LAW
DYING DECLARATION AS AN EXCEPTION TO THE HEARSAY RULE

LEGAL ISSUES
1. Whether or not the evidence of Koti, the passer-by will be admissible?
29
2. Whether or not Tom-tom’s mother’s evidence is admissible?

APLICABLE LAW
-Section 116 of the Evidence Act 1975(NRCD 323) – For the purpose of this Part
(c) "Hearsay evidence" is evidence of a statement, other than a statement made by
a witness while testifying in the action.
-Section 117 of the Evidence Act 1975(NRCD 323) — Hearsay evidence is not
admissible except as otherwise provided by this Decree or any other enactment or
by agreement of the parties
-RATIONALE FOR THE RULE
Teper v R (1952) AC 480 @ 486 “Hearsay is not the best evidence and it is not
delivered on oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross examination and the light
which his demeanor would throw on his testimony is lost.”
In R v Abbey (1982) 2 SCR 24, the Supreme Court of Canada justified the rule
against hearsay as follows:
The main concern of the hearsay rule is the veracity of the statements made.
The principal justification for the exclusion of hearsay evidence is the
abhorrence of the common law to proof which is unsworn and has not been
subjected to the trial by fire of cross examination. Testimony under oath, and
cross-examination has been considered to be the best assurances of the truth
of facts presented.
-Section 118(1) stipulates that hearsay evidence may be admissible provided
five conditions are satisfied. The first condition is that the statement from the
declarant should come from his personal knowledge. He should not have come
by that statement from or through another person or source.
30
 The second is that the declarant should not be available to be called as a
witness, or where he is available his position should not be such that he cannot
possibly or legally be cross-examined if he desires. If the declarant is likely, for
instance, to claim privilege and therefore may be compelled to come to court to
testify, that hearsay evidence from that declarant will not be admissible.
-Section 116(e), which defines “unavailable as a witness”, is extremely wide
and covers many conceivable situations including the position where the
unavailability of the witness has been induced or brought about by the self-
serving or fraudulent action or omission of the one using the hearsay evidence
at the trial. For example if the unavailability came about as a result of the
opponent or someone acting on his behalf sending, falsely, a message that the
mother of the witness is dead and that caused the witness not to appear in court
to testify but in reality the mother is not dead: In such an eventuality, hearsay
evidence may not be admissible.
The principle was applied in Pieterse v Amankrah [1982-83] 1 GLR 785. In
that civil case, the witness was not allowed to testify on the explanation that the
accused gave in a criminal trial regarding his charge of careless driving. The
reason given for disallowing the testimony was that the witness was a declarant
within the meaning of section 118 of NRCD 323 in that he was an official in a
foreign bank who could not be compelled to testify. Similar reasoning of
unavailability under section 116 was applied in Republic v Circuit Court; Ex
parte Appiah [1982-83] GLR 276

The third condition for admitting first hand hearsay evidence is in section 118(1)
(b)(iii) where the party offering the current statement has given reasonable notice
to the court that he intends to rely on hearsay evidence at the trial.

31
The fourth condition is applicable in criminal trials. In such trials, hearsay
evidence will not be admissible if the accused objects to it. Further, where the
statement is offered by the accused, it will not be admissible unless the accused is
subject to cross-examination. For instance, hearsay evidence offered by an accused
person, who testifies from the dock and will therefore not be subject to cross-
examination, will be inadmissible.
DYING DECLARATIONS
These are statements or utterances made by the declarant while on the throes of
death but relevant and closely connected to the event under investigation.
The admissibility of dying declarations as an exception to the hearsay evidence
rule is not expressly provided for in the Evidence Act. However, prior to the
promulgation of the Evidence Act, a dying declaration was admissible in evidence
in criminal matters as provided under Section 270 of the Criminal Procedure
Code, 1960 (Act 30). This section, however, has been repealed by section 5 of the
Criminal Procedure Code (Amendment Decree No. 2) .NRCD 324. Paragraph
11 of the Memorandum to NRCD 324 providing the reason for the repeal of
section 270 of the Criminal Procedure Code provides:
“Lastly, section 270 of Act 30 is also repealed. This provided for the giving
in evidence of dying declarations will now be admissible under section
118(b)(1) of the Evidence Act, for the reason that the declarant is
unavailable as a witness”.
The test is not whether the declarant expected immediate death but whether he has
abandoned all hope of life so that to him death was impending or imminent.

The court pronounced in R v Wood Cock as follows: The principle on which this
species of evidence is admitted is that they are declarations made in the extremity
when the party is at the point of death and when every hope of this world is gone;
32
when every motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth; a situation so solemn and so awful is
considered by law as creating an obligation equal to that which is imposed by a
positive oath administered in a Court of Law.”

Subramaniam v Public Prosecutor on Appeal from the Supreme Court of the

Federation of Malaya (Court of Appeal)

Evidence of a statement made to a witness by a person who was not himself called
as a witness was not hearsay evidence and was admissible when it was proposed to
establish by the evidence, not the truth of the statement, but the fact that it was
made

ANALYSIS

In answering the first issue raised, it is imperative to state that looking at the
definition of hearsay as provided for in the Evidence Act, specifically section 116,
the evidence of Koti is undoubtedly a hearsay statement as it is a statement made
by a him as a person testifying to prove the truth of the matter as a result of the
unavailability of Tom-tom. Section 117 provides that hearsay evidence is generally
inadmissible as evidence but subject to some exceptions. A dying declaration is
one of such exceptions. The admissibility of dying declarations as an exception to
the hearsay evidence rule is not expressly provided for in the Evidence Act.
However, prior to the promulgation of the Evidence Act, a dying declaration was
admissible in evidence in criminal matters as provided under Section 270 of the
Criminal Procedure Code, 1960 (Act 30). This section, however, has been

33
repealed by section 5 of the Criminal Procedure Code (Amendment Decree No.
2) .NRCD 324. Evidence of dying declarations will now be admissible under
section 118(b)(1) of the Evidence Act. The test is not whether the declarant
expected immediate death but whether he has abandoned all hope of life so that to
him death was impending or imminent. Thus the court pronounced in R v Wood
Cock as follows: The principle on which this species of evidence is admitted is that
they are declarations made in the extremity when the party is at the point of death
and when every hope of this world is gone; when every motive to falsehood is
silenced, and the mind is induced by the most powerful considerations to speak the
truth; a situation so solemn and so awful is considered by law as creating an
obligation equal to that which is imposed by a positive oath administered in a
Court of Law.”

Looking at Tomtom’s statement, it is evident that there was no possibility for him
to have concocted such a statement at that point in time, looking at the stress of the
moment. Again it was a spontaneous statement and was contemporaneous with the
stabbing. These are all characteristics of res gestae. It must however be noted that,
If you make a statement in contemplation of death, it is not res gestae. It is in
hopelessness of life, in anticipation of death and so qualifies as a dying declaration.
Since Tom tom per the facts had abandoned all hope of life, looking at his dying
demand that he be buried in a muslim way indicative of the fact that “every motive
to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth”, Koti’s evidence will be admissible as evidence
because it qualifies as a dying declaration, an exception to the hear say rule.

Looking at the second issue, the evidence of Tomtom’s mother is a hearsay

statement, which per section 116 is generally inadmissible. Again it fails to fall

34
under any of the exceptions to the hearsay rule. Her evidence is not a fact in issue,
and it is also not going to be used to prove any operative word although the person
who made the statement is unavailable. Judging from this, her statement is one of
hearsay and it will not be admissible as evidence. However in the decided case of
Subramaniam v Public Prosecutor on Appeal from the Supreme Court of the
Federation of Malaya (Court of Appeal) the court held inter alia that, evidence
of a statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to establish by the evidence, not the
truth of the statement, but the fact that it was made. The fact that the statement was
made, quite apart from its truth, is frequently relevant in considering the mental
state and conduct thereafter of the witness or of some other person in whose
presence the statement was made. It can therefore be said that Tomtom’s mother’s
statement may be admissible provided it is used to establish the mental state and
conduct of the deceased before he met his death and not the truth in the statement.

Cc: Jennifer

35
SIXTH PRESENTATION

QUESTION
At the hearing of the Presidential Election Petition, the Petitioners submitted
a number of statements of polls (pink sheets), which did not have the
signatures of presiding election officers. It was the contention of the
Petitioners that the said Statement of polls (pink sheet) was not authentic and
a clear proof of election malpractice. The respondents did not join issue with
the petitioners on the matter except to disagree on the effect of the absence of
signatures. In dismissing the contention of the petitioners, Adiemra JSC, had
this to say:
It is trite learning that presidential petition is a civil matter. As a civil
matter, both the evidential and the legal burden are always on the
petitioners to prove the matter to the satisfaction of this court. That,
notwithstanding the known standard of proof in civil cases, in my
respectful view, this is a case in which the court can impose a higher
burden of proof as it strives to maintain the fundamental right to vote.
In my view therefore, the Petitioners must prove its case beyond the
preponderance of probabilities to successfully discharge the burden.

36
With reference to relevant statutory and decided cases, critically analyze this
statement.

AREA OF LAW
Burden of Proof

LEGAL ISSUE
Whether or not Adiemra JSC was right in making the statement that the Petitioners
must prove their case beyond the preponderance of probabilities to successfully
discharge the burden on them?

APPLICABLE LAWS
In litigation, the burden lies on the prosecution, the plaintiff or the petitioner to
prove the existence or non-existence of any fact he is relying on, in establishing his
or her case. Proof is thus the obligation, which lies on a party to establish facts,
which go in his favor.
In the decided case of Majolagbe vrs Larbi & Ors. (1959) GLR, 190, proof in law
was defined as the establishment of facts by the proper legal means. The burden of
proof under the Evidence Act of 1975 8NRCD 323) connotes: the burden of
producing evidence and the burden of persuasion.

In litigation, it is not enough for the party desirous of winning his case to lead any
evidence. The evidence led should be such as will convince the court or trier of
fact that the existence of a fact is more probable than its non-existence. That is, he
will be required to lead evidence that will convince the court that his case has more
37
merits than that of his opponent. It is when he so convinces the court that he will
have a ruling in his favor. This is referred to in NRCD 323, section 10 as the
“burden of persuasion.”
Thus, under the Act where a person bears the Burden of Persuasion, that person
has the obligation to establish a requisite degree of belief concerning a fact in the
mind of the tribunal of fact or the Court.
This may be done by:
1. Raising a reasonable doubt concerning the existence or non-existence of a
fact (accused n criminal case)
2. By proof beyond reasonable doubt (prosecution or in a civil case on the
person who alleges a crime)
3. By establishing the existence or non-existence of a fact by a preponderance
of the probabilities (civil cases)
Some decided cases and textbook writers describe the burden of persuasion as the
legal burden, the persuasive burden or the risk of non-persuasion. The Supreme
Court referred to the burden of persuasion as the “legal burden” in Sumaila
Bielbiel (No 3) v Adamu Dramani & AG [2012] SCGLR 370.
The burden of persuasion does not require proof by eliminating all possible doubts.
The standard of proof necessary to discharge the burden of proof relates to the
legal, not evidential burden. Brobbey suggests that one test which may be adopted
is the American test, which is described as the reasonable person test. By this is
meant that sufficient admissible evidence must be submitted to the court to allow a
reasonable person to find that a fact exists or that the burden has been met.
Section 12(1) then states that except otherwise provided by law, the Burden of
Persuasion requires proof by preponderance of the probabilities for a Civil Case.
Section 12(2) explains “Preponderance by the Probabilities” to mean that
degree of certainty of belief in the mind of the tribunal of fact or the Court by
38
which it is convinced that the existence of a fact is more probable than its non-
existence.
This implies that one must get the mind of the tribunal of fact or the Court to a
position where it is convinced that the existence of a fact is more probable than its
non-existence (50% + 1 rule).
The evidential burden on the other hand is the obligation of a party to show
sufficient evidence to raise an issue as to the existence or non-existence of a fact in
issue, with due consideration of the standard of proof demanded of the party under
the obligation. Thus, whenever a party relies upon a fact or an issue, there arises
the obligation on that party to produce sufficient evidence on that fact or issue so
that the court would be justified thereby to find that, the fact has been proved by
him.
Evidently as has already been stated there exists some difference between the
evidential burden and the burden of persuasion.
Additionally, in the decided case of Sumaila Bielbiel v Adamu Dramani and AG
(NO 3) , the Supreme Court per Date-Bah JSC @ 371 in discussing the rationale
for the distinction between ‘the burden of persuasion’ and the ‘burden of producing
evidence’,; that is the difference between sections 10 and 11 of the Evidence Act
had this to say:
“The distinction between the two burdens of proof namely, ‘the burden of
persuasion’ as defined in section 10(1) and ‘the burden of producing
evidence’ as defined in section 11(1) of the same Act, is important because
the incidence of the burden of producing evidence can lead to a defendant
acquiring the right to begin leading evidence in a trial, even though the
burden of persuasion remains on the plaintiff. Ordinarily, the burden of
persuasion lies on the same party as bears the burden of producing
evidence…”
39
On his part, Brobbey distinguishes the two burdens in a more practical way in the
following words in his book:
“The duty to produce evidence is the duty that lies on a party to adduce
sufficient evidence to support his case regarding the issue at stake in order to
avoid ruling of the court being given against him…That (burden of
persuasion) refers to the level of proof which will suffice to convince the
trier of fact to believe in the case put forward by the evidence. It certainly
refers to the quality of weight that the evidence conveys and which will
induce the tribunal of fact to accept the merits of the case of a party in
preference to the merits of his opponent’s case…Ordinarily, the evidence
must be led before it can be weighed. Unlike the burden to produce
evidence, all the evidence must be before the court before there can be
consideration of the burden of persuasion. In effect, the burden of persuasion
is determined at the end of the trial after all the evidence has been adduced
in the court…”
Section 11 of the Evidence Act provides for the meanings of the burden to produce
evidence.
11 (1) For the purpose of this Decree, the burden of producing evidence means the
obligation of a party to introduce sufficient evidence to avoid a ruling against him
on the issue
Section 11 (2) then provides that in a criminal action, when the Burden of
Producing evidence is on the prosecution as to any fact essential to guilt, the
prosecution must provide sufficient evidence so that on all the evidence, a
reasonable mind could find the existence of the fact beyond reasonable doubt.
“Beyond reasonable doubt” has been defined in Miller v Minister of Pensions as
follows:

40
 “That degree is well settled. It need not to reach certainty but must carry a
high degree of probability. Proof beyond reasonable doubt does not mean
proof beyond a shadow of doubt”.
Section 11(3) provides that in a criminal action when the Burden of Producing
evidence is on the accused as to any fact the converse of which is essential to guilt,
he is only required to produce sufficient evidence such that on all the evidence a
reasonable mind could have a reasonable doubt as to guilt.
Section 11(4) provides that in Civil cases the party when he bears the Burden of
Producing Evidence has to produce sufficient evidence so that on all the evidence,
a reasonable mind could conclude that the existence of the fact was more
probable than not.
In civil cases the general rule is that the party who makes an assertion must prove
the truth of that assertion. This means that a party bears the Burden of Proof of
every matter that is an essential part of the party’s cause of action.
In the Ghanaian law of evidence, there are two standards of proof. One is proof on
a balance of probabilities or proof by preponderance of probabilities. The
second is proof beyond reasonable doubt. The second standard applies to the
burden of proof on the prosecution in criminal cases whereas the first applies to
civil cases.
The standard applied by the court will depend on the nature or type of the legal
action before the court, that is, whether it is a civil or criminal action. Each type of
legal action has its own standard of proof that must be reached before it can be said
that a particular case has been proved up to the required standard. The standard
required by “proof beyond reasonable doubt” is the higher of the two standards.
In Ghana the law on the proof of crimes in civil cases is aptly captured in the
section 13(1) of the Evidence Act. Section 13(1) of the Evidence Act provides that
“ in any Civil or Criminal action the Burden of Persuasion as to the commission
41
by a party of a crime which is directly in issue requires proof beyond reasonable
doubt”.
This clearly shows that in Ghana, where a party is accused of committing an
offence, the standard of proof will not be the preponderance of probabilities but
beyond all reasonable doubt, notwithstanding the fact that the substantive matter is
a civil one.
The Commentary on the Evidence Act provides the rationale for the rule as follows:
To impute crime to a person is quite serious and therefore proof of that imputation
should not lightly be established. It should rather carry a high degree of proof to
portray the seriousness of the imputation.
For the section to apply, the allegation of crime should form one of the issues for
determination in the given case. A mere reference to a crime, which is not part of
the facts in issue, will not justify the invocation of section 13(1).
ANALYSIS
Per the facts of the case, Adiemra JSC’s statement is that; “It is trite learning that
presidential petition is a civil matter. As a civil matter, both the evidential and the
legal burden are always on the petitioners to prove the matter to the satisfaction of
this court. That, notwithstanding the known standard of proof in civil cases, in my
respectful view, this is a case in which the court can impose a higher burden of
proof as it strives to maintain the fundamental right to vote. In my view therefore,
the Petitioners must prove its case beyond the preponderance of probabilities to
successfully discharge the burden.”
In civil cases, the general rule is that the party who makes an assertion must prove
the truth of that assertion. This means that a party bears the Burden of Proof of
every matter that is an essential part of the party’s cause of action. Section 12(1)
then states that except otherwise provided by law, the Burden of Persuasion
requires proof by preponderance of the probabilities for a Civil Case. Section 11(4)
42
provides that in Civil cases the party when he bears the Burden of Producing
Evidence has to produce sufficient evidence so that on all the evidence, a
reasonable mind could conclude that the existence of the fact was more
probable than not
Section 13(1) of the Evidence Act provides that “ in any 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 reasonable doubt”.
This clearly shows that in Ghana, where a party is accused of committing an
offence, the standard of proof will not be the preponderance of probabilities but
beyond all reasonable doubt, notwithstanding the fact that the substantive matter is
a civil one. For the section to apply, the allegation of crime should form one of the
issues for determination in the given case. A mere reference to a crime, which is
not part of the facts in issue, will not justify the invocation of section 13(1). Per the
facts of the case, the case is a civil one and election malpractice is not a crime to
invoke a higher burden as Adiemra JSC suggests.
Although it is true that the petitioners bear the legal and evidential burden to prove
the matter to the satisfaction of this court in proving their case, the required
standard here, is proof by the preponderance of probabilities and not a higher
standard since it is a civil case.

In brief, the Evidence Act of Ghana and some case law discussed above, legally
oppose the statement of Adiemra JSC. The Petitioners must therefore prove their
case by the preponderance of probabilities to successfully discharge their burden,
as their case is a civil one.

43
Cc: Jennifer

SEVENTH PRESENTATION

QUESTION

Torto and Lansana are jointly charged with the murder of Lovia. Both pleaded not
guilty to the charge. Their explanation is that Lovia had tried to rape Torto and in
the course of protecting her they both obliged to push Lovia and he fell down some
stairs. Both has fled the scene but later gave themselves up to the police.
Lansana had been a Bible School teacher and sang in the church choir for decades.
Her counsel also suggests in cross-examination a prosecution witness, Gasper, that
he had been high on marijuana on the night of the alleged murder and that his
account of events was therefore not reliable. Lansana has two previous convictions
for stealing. Torto elects to testify and in the course of her testimony denied
forcefully a purported statement in which she admitted an attempt to kill Lovia.
She implored the court, as she puts it, “to ignore the lies of the police investigator”.
44
Torto has several drug-related convictions and is awaiting trial on a charge of
violent disorder.

ANSWER

Area of law
Relevance and admissibility of evidence of character

Issues
1. Whether or not evidence given by the local preacher describing Lansana as
of good character is admissible
2. Whether or not evidence of previous convictions of Lansana and Torto are
admissible
3. Whether or not Defence counsel´s cross examination of Gasper suggesting
that he had been high on marijuana on the night of the alleged murder is
relevant
4. Whether or not Torto´s statement that the court should ignore the lies of the
police investigation amounts to an attack on the character of the prosecution
witness

Applicable law
Section 178 of the Evidence Act 1975 (NRCD323) defines character as a person´s
generalized disposition made up of the aggregate of the traits including trait of
honesty, peacefulness, temperance, skill or care of that person and their opposites.
Evidence is also defined in section 178 of NRCD 323 as testimony, writings,
material objects or any other things presented to the senses that are offered to
prove the existence or non-existence of a fact.
45
Relevant evidence means evidence including evidence of the credibility of a
witness or hearsay declarant which makes the existence of a fact which is of
consequence to the determination of the action more or less probable than it would
be without the evidence.
Section 51(1) of NRCD 323 states that relevant evidence is admissible except
provided by an enactment. The relevant evidence which will be included or
excluded is stated in section 52 of NRCD 323, it states that the court may exclude
relevant evidence if the probative value of the evidence is substantially outweighed
by undue delay, will create substantial danger of unfair prejudice and when in a
civil matter that admission of the evidence will unfairly surprise a party who has
not had reasonable grounds to anticipate that the evidence would be offered.
Section 53 of NRCD 323 states that evidence of character is not admissible to
prove conduct, but in certain circumstance evidence of character can be admissible
when the accused introduces in issue to proof his own character in making his
defence, where the accused introduces the character of evidence of the victim to
proof the conduct of the complainant and where character evidence is offered to
attack the credibility of absentee hearsay declarant.
Section 80 of NRCD 323 the court or jury may in determining the credibility of the
witness consider any matter including the capacity and opportunity of the witness
to perceive, recollect or relate any matter about which he testifies that is relevant to
prove or disprove the truthfulness of his testimony. Section 81 of NRCD 323
provides that the credibility of a witness or any part of his testimony may be
attacked by any party and section 82 allows evidence to be used to attack the
credibility of a party or witness if his credibility is relevant to issue for trial before
the court. Section 83 provides the circumstances when evidence of character may
be introduced to support or attack the credibility of a party or witness. Section
85(1) states that a party may lead evidence by record of the judgment that the
46
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. Section 85(2) also
provides that a conviction may not be shown under this section 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.

In the case of Amoah v The Republic it was held that for a previous conviction to
be considered it must be in relation to a similar offence unless the enactment states
otherwise. Also in Abdulai Mohammed v The Republic it was held that in order
not to prejudice the mind of the tribunal the previous conviction of an accused
should never be admitted prior to conviction. However, according to section 300 of
Act 30, a previous conviction of an accused could be considered in imposing
sentence on the accused after conviction
In Avegavi & others v Republic it was held that a statement that a prosecutor is
telling lies did not mean that the character of the police prosecutor was been
attacked or impugned.

Application of law to facts

Issue 1
From the facts the evidence of the local preacher in respect of Lansana being a
bible school teacher and part of the church choir for decades is suggestive of
evidence that Lansana is of good character. The effect of the preacher´s evidence is
that the accused wants to prove his innocence and suggests that it is impossible for
Lansana to have caused the intentional death of the deceased.
Since Lansana has introduced evidence of good character to support his credibility,
the prosecutor under section 83(2) of NRCD 323 may also attack the credibility of
47
Lansana by introducing evidence of his previous conviction to impugn his good
character since Lasana has a previous conviction for stealing which is an offence
involving dishonesty.

Issue 2
In the facts Lansana has two previous convictions for stealing and Torto has
several drug related convictions. In section 85(1) it is only a conviction of a crime
involving dishonesty or false statement that a previous conviction of an accused
will be considered. In Amoah v The Republic it was held that a previous
conviction must be in relation to an similar offence [Link] Lasana’s
previous conviction involves dishonesty that is stealing evidence of that conviction
is admissible. Since none Torto´s previous conviction involve dishonesty or false
statement Torto’s previous conviction is not admissible as evidence against him
because the crime previously committed are dissimilar to the instant charge of
murder.

Issue 3
From the fact Lansana´s counsel suggested in cross examination the prosecution
eye witness, Gasper, had been high on marijuana on the night of the alleged
murder and that his account of events was therefore not reliable. Sections 81 and
82 of NRCD 323 states that such evidence is admissible because it is an attack on
Gasper´s credibility regarding his capacity to recollect events and to disprove the
truthfulness of his testimony. The evidence on Gasper´s credibility is of probative
value and relevant to disapprove his testimony and the court may consider the
evidence to determine the credibility of Gasper and the reliability of his evidence.

Issue 4
48
Torto implored the court to ignore the lies of the police prosecution and this did not
mean the character of the police prosecution was impugned rather it was an
emphatic mode of denial which was consistent with the plea of not guilty (Avegavi
v The Republic). The statement does not impugn the character of the police
prosecution and does not avail Torto for cross -examination on his character.

In conclusion, evidence of character is generally not admissible in a trial unless

such evidence is necessary and it´s probative value is not outweighed by
substantial prejudice and delay.

Cc: Nana Ama

EIGTH PRESENTATION

QUESTION
Uncle Sam, 50 a wealthy Fante businessman was married to Araba, 60 and the
Paramount Queen-mother of Esuakyir in the central region of Ghana. The couples,
as part of their usual annual vacation were on board the Malaysian Airliner MH
370 which crashed into the Indian Ocean killing all passengers and crew members.
In the last will and testament of Uncle Sam, he devised all his properties to Araba,
his beloved wife if he predeceased her. In an application for a probate by Mimi, a
‘daughter’ of the deceased couple, Uncle Ebo, a nephew of Uncle Sam caveated on
the grounds that on the true application of the commorientes rule, the devises so
made has fallen into intestacy. At the hearing, Uncle Ebo also produced an old
photograph showing the deceased couple and Mimi, the applicant with the caption
“From left to right, Uncle Sam, Araba and Mimi, my late brother’s daughter”.
49
Identify and discuss the evidential issues

Area of law
Presumption with reference to simultaneous death and Documentary evidence

Issues

1. Whether or not the commorientes rule will be applied to the will of Uncle
Sam?
2. Whether or not the old photograph showing the deceased couple and Mimi
will be admitted as an original document?
Relevant law

A rebuttable presumption is an inference drawn from certain facts that establish a

prima facie case which may be overcome by the introduction of contrary evidence
(Section 20 Evidence Act). A rebuttable presumption is one that the court must
make unless evidence is adduced to the contrary. GPHA v Nova Complex ltd
describes rebuttable presumption as conditional inconclusive and disputable
presumptions. The court ruled further that the presumption has prima facie effect
only and the presumed facts may therefore be replaced by evidence. Section 20 of
NRCD 323 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.

50
Section 21 of NRCD 323 provides that in an action where proof by a
preponderance of probabilities, the question of the existence of basic facts that give
rise to presumption is determined by considering whether or not reasonable minds
would necessarily agree that the evidence renders the existence of the basic facts
more probable than not. 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 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 fact is more probable than not but otherwise it shall find
against the existence of the presumed fact. Asante- Koranteng v Tamakloe &
Derban it was held that the Evidence Act in its relevant section 21(a) and (b)
specifies the procedure for applying the rebuttable presumption is proof by
preponderance of probability is required.
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 (section 24 of the NRCD323)

Section 34 of Evidence Act state that where two or more persons have died in
circumstances in which it is uncertain which it is uncertain survived the other, the
older is presumed to have predeceased the younger.

A document is any written thing capable of being evidence and it is immaterial on

what the writing may be inscribed. Section 163(2) of NRCD 323 states that an
original of a writing which is a photograph includes the photographic film a
positive, negative or photographic plate of the film or print made from the

51
 photographic film. Section 163(1) defines original writing as the writing itself or
has a copy intended to have the same effect by the person executing or issuing it.

Application

In applying section 34 of NRCD 323 Araba will be presumed to have survived

Uncle Sam because Araba is 10 years older than Uncle Sam. The properties he
devised to Araba his wife will fall into intestacy. Uncle Ebo, uncle Sam´s nephew
´s caveat on the grounds that the commorientes will apply, and the devise will
lapse.

The photograph showing the deceased couple and Mimi their daughter will be
admissible as an original made from a photographic film (section 163 of NRCD
323)

Cc: Nana Ama

TENTH PRESENTATION

Identify and discuss the evidential issues

i) Under the private tutorial act 2014, it is an offence for a lecturer to provide private
tutorials lessons in his private residence for more than eight hours a week
without authorization from the General Legal Council. It is a defense for the
accused to prove that the tutorials were given to people over 18 years old.
Kwakye is charged with and offence under this Act. In a statement to the police
she claims the people were 21 years old. At the counsel for kwakye insisted
ferociously that his client bears not burden and that it was the duty of the
52
 prosecutor to prove all the elements of the trial including the ages of the people
involved.

AREA OF LAW

The area of law is the burden of proof

ISSUE;

(i) Whether or not Kwakye bears the burden of proofing ages of the students.

(i)Under what circumstances will the burden shift to the defense

APPLICABLE LAWS

Definition of evidence
Burden of proof

Sections 11, 10, 13, 12 of the evidence Act, (Act 323),

Cases

COP v Isaac Antwi

Alhaji Yusif Issah V the Republic

Woolmington v. The Director of Public Prosecutions (1935)
Miller v. Ministry of Pensions

Evidence is any matter of fact given to a legal tribunal upon which an inference or
judgment may be made. Evidence may be oral or tangible. In every action before
the court, one of the parties at every stage of the proceedings bears a burden to
either persuade the court that the alleged fact is true or false or produce evidence

53
which is satisfactory enough to the judge on a particular issue. This burden is
known as the burden of proof.

Proof is simply material or oral evidence adduced at trial. The burden of proof
contains two elements.

In the case of Alhaji Yusif Issah V the Republic, Sophia Akuffo JSC (as she then
was) defined the burden of proof as connoting two burdens, namely the burden of
persuasion and the burden of producing evidence.

Burden of Proof is the obligation of a party to prove the existence or non-existence

of a fact in issue. In COP v Isaac Antwi, Korsah CJ stated thus,

“Burden of proof…….is used in two senses. It may mean the burden of

establishing a case or it may mean the burden of introducing evidence.”

The distinction was again emphasized in the case of Sumaila Beibiel (no3) v
Adamu Dramani & Attorney General (2012) The two meanings of burden of proof
is codified in the Evidence Decree 1975 (NRCD 323) in sections 11 and 10
respectively. Therefore the burden of proof is neither section 10 nor 11 but the two
put together.

According to the section 11 of NRCD 323, burden of producing evidence means

the obligation of a party to introduce sufficient evidence to avoid a ruling against
him on the issue. This affirms the classical legal maxim that, necessity of proof
always lies with the person who lays charges. Thus a person who makes positive
assertions needs to adduce sufficient evidence to avoid ruling against him. Where
the prosecutor has dutifully discharged this burden, the accused may be called
upon to put his defence across, that is, the burden of proof of introducing evidence
rests on the prosecution in the first instance but may subsequently shift to the
54
defence, especially where the subject-matter is peculiarly within the accused's
knowledge and the circumstances are such as to call for some explanation. A
failure on the prosecutor’s part may be fatal to his case. This was illustrated in the
case of National Democratic Congress v Electoral Commission (2001-2002),
where the Supreme Court of Ghana unanimously dismissed the plaintiff’s case
because they were unable to lead sufficient, cogent and clear evidence in support of
their allegations.

The burden of persuasion, which is also known as the Legal burden is governed by
section 10 of NRCD 323. This leg of the principle requires that the party
establishes a requisite degree of belief concerning a fact in the mind of the tribunal
of fact or the court. It is worthy of note that, the standard required in this aspect of
burden of proof differs in Civil and Criminal matters. In the former, the burden of
persuasion requires proof by a preponderance of probabilities as stated in section
12 of NRCD 323 while in the latter, the prosecutor requires proof beyond a
reasonable doubt, also stated in section 13 of NRCD 323. Account should also be
taken of the fact that it unless and until it is shifted, a party has the burden of
persuasion as to each fact the existence and non-existence of which is essential to
the claim or defence he is asserting (section 14). This was affirmed in the leading
case of Woolmington v. The Director of Public Prosecutions (1935), Lord Sankey
said:

"No matter what the charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained.”

In both instances, it should be noted that it is not the case that shifts but rather it is
the fact in issue that shifts and not the entire duty of proving the case.

55
 ANALYSIS OF THE FACTS

In the instant case, kwakye has been charged for providing private tutorials lessons
in his private residence without authorization. He has mounted a defense that the
students were overs 18 years which makes him not liable. If so, he will not be
guilty as charged. From the facts laid down in Sumaila Beibiel (no3) v Adamu
Dramani & Attorney General (2012) the burden of proof is on the prosecution to
prove beyond reasonable doubt that the students were below 18 years. He who
alleges must prove. Under no account should the burden be shifted to the accused.
“The law is well settled that there is no burden on the accused. If there is any
burden at all on the accused, it is not to prove anything, but to raise a reasonable
doubt. If the accused can raise only such a reasonable doubt he must be acquitted”
the burden is therefore not on Kwakye but on the prosecution to proof its case.

Comment on the following judicial summing up

ii). ‘’Ladies and gentleman of the jury, you have heard the defense acknowledge
that the accused struck the blow which felled kwapee but that he had no
recollection of this at all. If he does not convince you that it is more likely than not
that she did suffer a black out you must find for the prosecution’’

Requirements of a Standard Summing Up as Used in a Trial with Judge and

Jury

1. In a criminal case, trial commences after committal. Before the trial comes to an
end, the judge is required to sum up the summary of evidence to the jurors to
assist them in determining the facts of the case and the outcome of the trial. As
provided in the practice direction in the State V Kwame Amo, ‘’the duty of the
56
trial judge to sum up the law and the evidence is not less imperative by reference
to the exercise of a discretion and that the duty to sum up.

Section 277 of Act 30 provides that “when, in a trial before a jury, the case on
both sides is closed, the Justice shall, if necessary, sum up the law and evidence in
the case.” In practice, the Judge records the time he commences the summing up
in his Records book. The exact time that the judge finishes with the summing up is
also recorded.

It is the duty of the judge to explain to the jury his duty as a judge as provided by
section 278(1). It is the duty of the Judge to decide all questions of law arising
during the course of trial, and especially the questions as to relevance of facts
which it is proposed to prove the admissibility of evidence or the propriety of
questions asked by or on behalf of the parties. According to Section 1(1) of the
Evidence Act, all questions of law are to be decided by the judge. The judge also
decides on meaning, construction of exhibits as well as matters of fact which it
may be necessary to prove to establish an essential element of the offence. The
judge, in the course of the summing up, is permitted to express his opinion on a
question of fact or on a mixed law and fact relevant to the proceedings. However,
the jury are not bound to accept his opinion on the said matters of fact as espoused
under section 2(2) of the Evidence Act (NRCD 323) of 1975.

At the commencement of the summing up, it is the duty of the Judge to inform the
jury that the duty of the jury is to decide which view of the facts is true and then
return the verdict. Also, the judge is required to also tell the jury that they are to
determine the meaning of technical terms other than terms of law and finally to
determine the questions which according to law, are to be deemed questions of
fact. See section 2 (1) of the Evidence Act, which provides as follows: except as

57
otherwise provided in this enactment or any other enactment in a jury trial, all
questions of fact are to be determined by the jury’.

The failure of the judge to properly direct the jury on some mandatory areas where
the law enjoins him to do so will amount to misdirection by non-direction. Non-
direction means that the judge failed to direct the jury as required by law on the
particular issue and as such, the failure to do so is interpreted as being
misdirection. It is a ground to attack the summing up on appeal as in the case of
Regina V Ojojo. Authorities are clear that a judge must leave the facts for the jury
to decide, and it should not impose, nor request a jury to return a verdict
unfavourable to the prisoner.

In the instant case therefore, the judge has failed to direct the jury adequately on
the defence. He rather misdirected himself both by actual misdirection and by non-
direction as to the requirements of the law in regard to the defence

Cc: Mr Ameyaw

58
ELEVENTH PRESENTATION

TO THE LAWYER-CLIENT PRIVILEGE SCENARIO

AREA of Law is Privileges; specifically, lawyer-client privileges

ISSUES:

1. Whether or not the accident report submitted by the Board was privileged
2. Whether or not transmission of the report to an external legal counsel for
legal advice is clothed with privilege
APPLICABLE STATUTORY PROVISIONS: Sections 87, 93, 100, 101, of The
Evidence Act (NRCD 323) of 1975

INTRODUCTION

A ‘Privilege’ is a special legal right, immunity, or exemption granted to a person or

class of persons by which that person may refuse to give evidence or disclose a fact
or prevent or prevent others from doing so in court. A privilege may permit a party
to decline to answer interrogatories or disclose a document, prior to trial. A
privilege only entitles witnesses to refuse to give evidence on specific matters.
Privilege therefore allows exclusion of evidence not because it is irrelevant but due
to considerations such as public policy, the sustenance of the inviolability of the
individual’s human rights, the protection of the sanctity of certain socially valued
confidential communication and the maintenance of justice in society (Essentials
of the Ghana Law of Evidence by Justice S.A. Brobbey -2014 p. 397).

Besides privileges provided in the 1992 constitution of Ghana and other statutes,
privileges covered by NRCD 323 includes but is not limited to; the privilege
against self-incrimination, Lawyer-Client privilege, Mental treatment privilege,
religious advice privilege, privilege on Government informants, privilege on
compromise/settlement negotiations, marital communications privilege and
privilege on trade secrets.

The main object of the Lawyer-client privilege is to protect communication

between a client and his lawyer. The Communication between the Lawyer and his
client must be confidential. In In of Section 100(1)d it is noted that a

59
communication is “confidential” if it is not intended to be disclosed, and 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
communication. The primary rationale for this was stated in R v Derby
Magistrates Court, ex parte B [1996] AC 487 at page 507 as follows: ‘the
principle which runs through this case is that a man must be able to consult his
lawyers in confidence, since otherwise he might hold back half the truth. The
House of Lords in allowing the appeal held that since the client must be sure that
what he tells his lawyer in confidence will never be revealed without his consent.

Legal professional privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case. It is a fundamental
condition on which the administration of justice as a whole rests’.
In order for the communication to attract the privilege, it must be proved to have
been given in confidence. The privilege in effect is for the client and not the
lawyer. It protects the communication between a lawyer and his client in the course
of rendering a professional service.

A lawyer's client is "a person, including a public entity, association or body

corporate, who directly or through an authorized representative seeks professional
legal services from a lawyer" (Section 100 (1) (a) of NRCD 323), whilst a
representative of a client is "a person having authority from the client to make, or
receive from, a lawyer, confidential communications relating to professional legal
services sought by the client" (section 100 (1) (b) of NRCD 323), e.g. witnesses.

Section 100 (1) (c) NRCD 323 provides that a lawyer’s representative is “a person
having authority from the lawyer to assist the lawyer in rendering legal services
sought by the client" For example, a partner of the lawyer or an assisting lawyer, or
clerks, or interpreters or, stenographers, etc.

Section 87(1) provides that, the provisions on privileges under the Evidence Act
shall apply in all proceedings. Section 87(2) ‘Proceedings’ in the Act means ‘any
action, investigation, inquiry, hearing, arbitration, or fact-finding procedure,
whether judicial, administrative, executive, legislative or not before a government

60
body, formal or informal, public or private’. This reiterates the fact that
proceedings are not limited to matters before a court only.

It must also be noted that, section 101 of NRCD 323 provides exceptions to the
lawyer-client privilege. These include: the situation where there is evidence that
the consultation with the lawyer was to facilitate the planning or commission of a
crime, where two or more parties claim interest in the property through the same
deceased client of the lawyer, where there is allegation of breach of duty by a
lawyer to his client and where there was communication relevant to a matter of
common interest between two or more clients if the communication was alleged to
have been made between the two clients.

The Lawyer-Client Privilege under the common law is divided into two; Legal
advice privilege; Litigation privilege. The Evidence Act simply classifies it as
‘professional legal services’, which encompasses both.

ANALYSIS

1. Whether or not the accident report submitted by the Board was privileged
ab initio
According to the facts of the current case, Joan the wido w of Jango had requested
a copy of the Board’s accident report which external counsel for the company had
declined to give out claiming it was privileged information from his clients. From
the plaintiff’s view, Counsel’s argument will not be tenable. The question is
whether a report, brought into existence for several purposes one of which is to
obtain professional legal advice in litigation that is pending or anticipated, is
protected by legal professional privilege? According to the court in Waugh v
British Railways Board [1980] AC 521; the appellant’s husband was an employee
of the respondent. A locomotive which he was driving collided with another so that
he was he was crushed against a tanker wagon. He received injuries from which he
died. When an accident occurs on the respondent railways, there are three reports
which are made. On the day of the accident a brief report of the accident is made to
the inspectorate; 2. Soon afterwards a joint internal report is prepared incorporating
statements of witnesses; 3. In due course a report is made by the railway
inspectorate for the department of environment. The appellant applied for a

61
discovery by the respondent of the second report. The application was resisted by
the respondent on the ground of legal professional privilege.

The court held that in order to attract privilege, the dominant purpose for
preparation of the report must have been that of submission to a legal advisor for
use in relation to anticipated or pending litigation. It was clear that the report was
prepared for a dual purpose: for what may be called railway y operation and safety
purposes and for obtaining legal advice in anticipation of litigation, the first being
more immediate than the second, but both being described as of equal importance.
So, the question arose whether the former was enough to support a claim of
privilege, or whether, in order to do so, the latter purpose must be the sole purpose,
or the dominant or main purpose. If the former is correct, the claim of privilege in
this case must fail. The house held that the aforementioned purpose of anticipated
litigation was not the dominant one as there was another equally important purpose
that was to inform the Board about the cause of the accident in order that steps
could be taken to avoid recurrence. In effect therefore, the report was mainly for
safety purposes and not for litigation.
In the instant case, the company pursuant to and in accordance with the provisions
of the Railway Safety Procedure Act (2014) set up a Board of Administrative
Enquiry to determine among others the cause of the accident; negligence of
employees if any, and to submit a recommendation to prevent future occurrence.
Moreover, the company admitted that the main purpose for initiating the Board of
Administrative Enquiry’s report was not for litigation. Thus, going by this fact, and
per the holding of Waugh supra, the Board’s Report is not privileged as such.

Similarly, in Nielson v Laugharne [1981] QB 736, though the Police claimed they
initiated their complaints procedure for the purposes of litigation, it was held that
the statutory complaints procedure was not privileged because it was primarily a
statutory or regulatory requirement and not for litigation. As such it did not
constitute privileged documentation. The company’s dominant purpose for
commissioning the report was primarily not litigation and as such it should be
shared with the plaintiff and her solicitors. Also, in Secretary of State for Trade
and Industry v Baker and Others (1998), 1 All ER 673, it was held that, since
the document in question was produced under a statutory duty and did not threaten
the inviolability of communication between a party and his lawyer, that party could
62
not claim privilege by asserting that the document’s purpose was for use in
litigation.

Whether or not transmission of the report to an external legal counsel for

legal advice clothed it with privilege
The company contends that, the report is privileged. Legal professional privilege
denotes the protection afforded to communications between lawyer and client,
whether or not such communications are for the purpose of giving or obtaining
legal advice, or in contemplation of legal proceedings. As Lord Brougham stated in
Greenough v Gaskeli (1833) 1 My & K 98, ‘if the privilege was confined to
communications connected with suits began, or intended or expected or
apprehended, no one could safely adopt such precautions as might eventually
render any proceedings successful, or all proceedings superflous’. Upon careful
consideration of the nature of the communication from the company to external
counsel vis-à-vis relevant statutory provisions and case law, his argument that it
was privileged is reasonable.

Section 93 of NRCD 323 states that ‘whenever 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’.
This section is emphasized by the definition of “a communication as ‘confidential’
if not intended to be disclosed, and 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 service or those
reasonably necessary for the transmission of the communication” (section 100(1)
(d) of NRCD 323). In effect, the burden is on plaintiff’s lawyers to establish that
the Board’s report sent to their external lawyer did not assume privilege despite its
confidential nature.

It could be argued that the decision by the company to furnish an external solicitor
with the report in anticipation of potential litigation or for legal advice clothes the
document with privilege. Section 100(2) of NRCD 323 strengthens Counsel’s
position as it distinctly states the client’s privilege as follows ‘a client has a
63
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, made between the client or a representative of the client and
the Lawyer, or between the lawyer and a representative of the Lawyer….’. Whilst
section 101 of NRCD 323 provides exceptions to the Lawyer-client privilege, the
facts of the current matter do not fall within any of them to avail Joan and her team
of its benefit.

In Balabel v Air India [1988] 2 All ER 246, “The plaintiffs sought discovery of
three documents from the defendant company. The court held that “…the purpose
of legal professional privilege was to enable legal advice to be sought and given in
confidence; that a document was covered by privilege if it had been made
confidentially for the purposes of legal advice…Privilege will attach where
information is passed between Lawyer-client as part of a continuum, the aim being
to keep both informed so that advice may be sought and given as required”. Per the
holding in Balabel, external counsel duly considered the report privileged as it
formed part of the ‘continuum’ of information which the company sent him for
advice or in anticipation of litigation. He was therefore within his rights to protect
the confidentiality of his client’s information.

Also, in the case of Dubai Bank Ltd v Galadari (No 7) [1992] 1 All ER 658, the
court held that legal professional privilege attaches to a selection of documents
whether obtained from the client or a third party, which are not in themselves
privileged, but which have been copied or assembled by a solicitor and betray the
trend of the advice which he is giving the client. The report therefore becomes
privileged once it was sent to the external solicitors for advice.

In ascertaining the “dominant purpose test” provided by the Waugh case supra the
court must strike a balance between the competing principles of full disclosure as
against maintenance of legal professional privilege. Applying this to the instant
case, the Board’s report which Counsel considers a protected document is, to the
Plaintiff, not privileged. As provided by section 93 of NRCD 323, the burden of
persuasion lies on the plaintiff to prove that the report is not privileged.

Conclusion

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It is hereby submitted that documented work prepared by the company for
commercial or administrative use does not constitute privileged material but only
upon its transmission for professional legal services that the document becomes
clothed with privilege. This privilege cannot be waived except with the consent of
the client.
Cc: AUGUSTINA TWUM

TWELFTH PRESENTATION
Question five(5)----- 2017
In a claim for a declaration of title to land, the plaintiff is being led in chief by
his counsel:
Q. How old are you?
A. I will be 70 by June 2016.
Q. You said you have a document evidencing the sale to your great
grandfather.
A. Yes my Lord.
Q. What is the date of the document?
A. 1944.
Q what do you want to do with this document?
A. I want to tender it.
Counsel for the defendant: my Lord I object. It is a photocopy.
By court: objection upheld. It is only an original of a document that is
admissible in court.
Q. Look at this map, where did you get this from?
A. From the survey department.
Q. When was that?
A.l had it long ago when I was in the university.
Q. What is the importance of this to the case before us?
A. The area in dispute is within this map.
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Q. What do you want to do with the map?
A. I want to tender it.
Counsel for defendant: I object on grounds that it is not authentic and
irrelevant.
Court: objection upheld. That it is coming from the survey department does
not make it authentic or relevant. Mind you, i have the power to exclude any
evidence i don't like.
Examine the decisions of the trial judge within the context of the rules of
evidence.

Area of Law: Documentary Evidence

Issues:
[Link] or not a photocopy is admissible in court as an evidence.
[Link] or not a document from an official department is admissible in judicial
process.
Applicable principle: Osbourne dictionary defines document as something on
which things are written, printed or inscribed and which gives information.
In R V Days where documents were defined to cover a sealed pocket, the Judge
defined document as “any written thing capable of being evidence. The recorded
video cassette was satisfied as authentic copy of the original and admitted in the
case of Kajara V Noble.
Adducing the primary evidence is known as the best evidence rule. Section 165,
NRCD 323 say – Except as otherwise provided by This Act or any other
enactment, evidence other than an original writing is not admissible to prove the
content of writing.
Lord Hardworke in Omychund V Barker stated the Best evidence rule as
common law principle as this: “The judges and sages of the law have laid it down
that there is but one general rule of evidence, the best that nature of the case will
show.
Barton v Hunter states that the Best evidence must be produced as the nature of the
case will allow and that any less good evidence is to be excluded. Denning LJ in R
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V Governor of Pentonville Prison Exparte Osman said ‘although the little- loved
best evidence rule has been dying for some time now but it is still not quite dead.
There is an exception to the Best evidence rule. Section 166 of evidence Act,
NRCD 323 makes duplicate of a writing admissible, unless a genuine question is
raised as to its authenticity. In this a sense a photocopy is an example of a
duplicate.
Section 167 of NRCD 323, says where the original is lost or destroyed and not
found after an adequate search has been made, a duplicate is admissible. Relevant
case is Brewster V Sewell. The principle in Owusu V Republic further support
the admissibility of secondary evidence upon diligent search has been in vain
Per section 168 of NRCD 323 states that where the original is not produced
after service of Judicial process, a duplicate or a photocopy of the original would
be admitted. Where the document is under the control of the opponent, a secondary
evidence would be admitted.
Section 171 of NRCD 323 states that secondary evidence will be admissible
in place of numerous or several accounts available in an office. In Mortimer V
McCallan it was stated that books kept by The Bank of England were not
produced in courts as evidence but the secondary evidence of their concocts were
admitted. The copy of a document properly described as official document is
admissible in lieu of the original, if the document must have been filled or kept in
an office were document of that nature are kept per section 175 of NRCD 323.
Sturla V Frecca stated the principle that there are two types of official
information, the first is the information about matters affecting the public which
has been compiled by someone acting under a public duty to record that
information.
The second type of official document is initially private but by statute acquires the
status of being a public document such as a will. After it has been deposited in the
High Court under the Wills Act,1971 (Act 360).
Section 175 of NRCD 323 allows court to admit a copy of a writing that are
recorded in an office of a public entity where items of that nature are regularly
kept.
Section 52 offers the judge the discretion to exclude relevant evidence and section
8 both of NRCD gives the court the power to reject evidence suo motu. Currently

67
Order 38 rule 3A gives courts the power for a witness to give evidence through a
video link or by any other means.
Analysis:
Addressing the first issue the common law position is that where the original of a
document is available it has to be produced unless there is a reason acceptable to
the court for the absence of the original. This principle is what is known as the Best
evidence rule-Omychund V Barker.
With the prevailing advancement in technology, Order 38 r3 A allow witness to
give evidence through a video link and this is impair material with the principles in
Kajara v Noble. Therefore, photocopy which section 179 of NRCD includes in
definition as a writing is admissible as an evidence like any other electronic
[Link] it was an error on the side of the judge not to admit the photocopy
in evidence.
On the second issue section 153 of NRCD 323 say maps or charts made under the
authority of a public entity and not made for the purpose of a litigated question, are
presumed to be authentic and correct.
Furthermore, a copy of a writing which is authorised by law to be filed or recorded
in an office of a public entity where items of that nature are kept are admissible per
section 175 of NRCD 323.
Also in Mortimer v McCallan, books kept by the Bank of England were recorded
as an official and authentic document. So it was an error on the part of the judge to
respect an official document in a form of a map coming from the survey
department which is a statutory establishment and established by Survey Act
1962, Act 127. LI 1444.
My conclusion is that both rulings were decided wrongly and therefore subject to
an appeal.

Cc: Mr Ponte-Kwofie

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THIRTENTH PRESENTATION

Manual question nine

AREA OF LAW
Expert Opinion as an exception to the general rule on admissibility of opinion
evidence.
ISSUE
Whether or not the evidence of the expert on the ground that the test for
admissibility of expert evidence has been satisfied?
DISCUSSION OF THE LAW
The Evidence Act, 1975 (N.R.C.D 323) governs the law of opinion evidence in
Ghana. In accordance section 111 of N.R.C.D. 323 states that “A witness not
testifying as an expert may give testimony in the form of an opinion or inference
only if the opinion or inference concerns matters perceived by the witness, and
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 any
issue”.
As a general rule of evidence, opinion evidence is inadmissible; as a witness is
supposed to speak of facts which he personally perceived, not of inferences drawn
from those facts. In the English common law, it is considered that the drawing of
inference from facts is the task of a judge or jury while the business of a witness is
to state those facts. This means that a person who appears before a court is entitled
to tell the court only the facts of which he has personal knowledge and not his
opinion about the facts. As was stated by Sopinka J in the Supreme Court of
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Canada’s case R V Mohan [1994] 2SCR 9 at 21 , “there is a danger that expert
evidence will be misused and will distort the fact-finding process. Dressed up in
scientific language which the jury does not easily understand and submitted
through a witness of impressive antecedents, this evidence is apt to be accepted by
the jury as being virtually infallible and as having more weight than it deserves”.
There are two main exceptions namely, to the general rule on admissibility of
opinion evidence, namely:
a. an appropriately qualified expert may state his opinion on a matter calling for the
expertise which he possesses and
b. a non-expert witness may state his opinion on a matter not calling for any
particular expertise as a way of conveying the facts which personally perceived.
For the purpose of our discussion, our focus is on expert opinion. Section 67 of
N.R.C.D. 323 states that, “a person is qualified to testify as an expert if he satisfies
the court that he is an expert on the subject to which his testimony relates by
reason of his special skill, experience or training”.
Thus the test for admissibility as per section 112 of N.R.C.D 323 is only if the
subject of the testimony is sufficiently beyond common experience that the opinion
or inference will assist the court or tribunal of fact in understanding evidence in the
action or in determining any issue, a witness may give testimony in the form of
opinion or inference concerning any subject on which the witness is qualified to
give expert testimony. In other words, the basic ground for admissibility of expert
opinion or inference is that the matter is beyond common experience and will assist
the court.
However, in each case of expert evidence, it is always prudent to differentiate
between the legitimate expression of opinion, and its application to an assumed
facts. This distinction was drawn in the case of HG v R [1999] 197 CLR 414 where
the court was of the opinion that while it would have been permissible for a
psychiatrist to express an opinion as to whether a child’s behaviour indicated that
she had been sexually abused, it was inappropriate for him to express an opinion
that the abuse had been perpetrated by a particular person at a particular time.
Finally, the evidence must be given by a witness who is shown to have acquired
special or peculiar knowledge through study or experience in respect of the matters
70
on which he undertakes to testify. Hence in the Canadian case of R v D.D [2000] 2
SCR 275 which is very similar to the facts in this case scenario, the issue raised
was when expert evidence may be admitted regarding a child’s delay in making an
allegation of sexual abuse. The trial judge called a voir dire on the admissibility of
the expert’s evidence on this point. During voir dire, the expert discussed delayed
disclosure of child abuse, based on his knowledge of scientific literature in the
area. At the conclusion of the voir dire, the trial judge ruled that the expert’s
evidence was admissible by holding that the evidence was relevant to the delay in
disclosure. On further to the Court of Appeal and Supreme Court, the Supreme
Court by a 4-3 majority decision held that the psychologist’s evidence was not
necessary requirement and should not have been admitted. In the opinion of the
majority, mere helpfulness or a finding that the evidence might reasonably assist
the jury is not enough to admit expert’s opinion and the need for expert evidence
must be assessed in light of its potential to distort the fact-finding process. In his
dissenting opinion, MCLachlin CJ was of the view that the psychologist’s evidence
was necessary and relevant and therefore admissible.
In Ghana it was decided Feneku v John Teye [2001-2002] SCGLR 985, the
principle of law regarding expert evidence was that the judge need not accept any
of the evidence offered. The judge was only to be assisted by such expert evidence
to arrive at a conclusion of his own after examining the whole of the evidence
before him. The expert evidence was only a guide to arrive at the conclusions.
In resolving the above issue, it can be reasonably inferred that first and foremost
the person being called to give expert opinion qualified as an expert since he was
skilled and based his evidence on his knowledge of the scientific literature on what
he termed as: Abused Child Delayed Behaviour Syndrome. Secondly, the expert
opinion being given was an opinion or inference which is beyond common
experience and knowledge or understanding which will assist the court in resolving
the issue at hand.
In conclusion, in my humble opinion as a Presiding Judge, the expert evidence was
outside the knowledge and expertise of the jury and that its admission would be
necessary for the jury to reach a just verdict. Hence I rule in favour of its
admissibility.

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Cc: Posh

THIRTEENTH PRESENTATION

Question 3

In an action for declaration of title to land both the Plaintiff and the Defendant
largely supported their respective claims with traditional evidence. At the end of
the trial the learned trial judge delivered a judgment as follows:

‘From the evidence on record, both the Plaintiff and the Defendant relied on
traditional evidence in proof of their cases. Whilst the Plaintiff insisted that
his ancestors were granted the land as a result of their exploits in a war of
conquest, the defendant insisted that the land was discovered by their
ancestor who was a renowned hunter on one of his hunting expeditions. I am
left in a conundrum as to which of the rival version of traditional evidence to
prefer. I must say that I am most impressed with the manner with which
the Plaintiff’s and their witnesses related their version and how
coherent they were.

The Plaintiff representatives and their witnesses were very eloquent.

Their testimonies were clear and concise. Contrasted with this the
Defendant’s representative testimony which was full of inconsistencies,
contradictions and weaknesses. He himself admitted that his grand Uncle
and his uncle in rending the traditional story to him years before this
litigation could not agree whether the hunter discovered the land was called
Kojo Tenten or Kojo Ware. Based on the above I have no choice but to
prefer the traditional evidence of the Plaintiff and to reject the version of the

72
 Defendants. I am unable to grant their counter- claim for a declaration of
title to the land. This is inspite of the clear evidence of ownership and
acts of possession in favour of the defendants. A party whose traditional
evidence is rejected is not entitled to declaration of title. I must hasten to
add that the only documentary evidence which was a pamphlet
published by an unknown author but titled, “A recording of the
folktales of the people of the lower Dankyira” contains stories which
support the Plaintiff’s case. Judgment is therefore given in favour of the
Plaintiff.”

Comment on this judgment in the light of the principles for evaluation of

conflicting traditional evidence.

ANSWER

1. Area of Law
Traditional Evidence as a means of proof

2. Issue (s)
- Whether or not, a concise and coherent presentation of facts of
traditional evidence is a determining factor of the proofing the
truth of traditional evidence as against inconsistencies and
contradictions in the same matter
- Whether or not acts of ownership and possession goes a long way
to prove traditional evidence
- Whether or not documentary evidence and folktales is a
determining factor of traditional evidence

3. Applicable Principles of Law

(a) Evidence Act 1975 (NRCD 323)

Section 129

(b) Adjeibi-Kojo v Bonsie (1957) 3 WALR 25

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 (c) Adjei v Acquah and Others [1991] 1 GLR 13

(d) In Re Kodie Stool; Adowaa v Osei

(e) Re Taahyen and Asaago Stools: Kumanin II V Anin [1998-1999]

(f) Achoro and Another v Akanfela and Another [1996-1997] SCGLR 209

(g) Hilodjie and Another v George [2005-2006] SCGLR 974

Introduction and the Statement of the Principles of the Law

Traditional evidence as a means of proof may be very crucial in cases such

as ownership of stool lands. In such cases, proof may be through conflicting
traditional stories, myths folklore by rival families. Traditional evidence is
derived from tradition or reputation or statements of deceased persons with
regard to questions of pedigree, ancient boundaries and the like, when no
living witnesses are available to testify about such matters.

Traditional evidence can therefore be said to be strictly hearsay but for the
provisions of section 128 and 129 of the Evidence Act which made it an
exception to the hearsay rule.

Ascertaining the truth of such conflicting traditional stories may prove very
difficult for a fact finding tribunal or an adjudicating body. However, the
statute as stated; Evidence Act, Act 323 and the following case laws gives
the ways by means the court have formulated the principles to arrive at
solutions to such thorny conflicting traditional history.

(1) Evidence Act, Act 323 1975 NRCD, Section 129:

Evidence of reputation in a community given by a person with personal knowledge
of the reputation is not made inadmissible by section 177 if:

74
 (a) The reputation concerns boundaries of, or custom affecting land in the
community and the reputation, if any, arose before controversy
concerning the boundary or custom; or
(b) The reputation concerns an event of the general history of the community
and the event was of importance to the community.
The following case laws expunged the principles by which traditional evidence
prove the authencity of traditional history and especially ownership of not only
stool lands but legitimacy to chieftaincy.

(2) Adjeibi – Kojo v Bonsie

“It was held that “the most satisfactory method of testing traditional history
is by examining it in the light of such more recent facts as can be established
by evidence in order to establish which two conflicting statements of
traditions is more probably correct. That witnesses of the utmost veracity
may speak honestly but erroneously as to what took place a hundred or more
years ago.”

(3) Adjei v Acquah and Others

“It was held that, “the law was that although traditional evidence had a part
to play in actions for declaration of title, a favourable finding on its evidence
was not necessarily essential to the case of the party seeking the declaration.
What the authorities required was that traditional evidence had to be
weighed along with recent facts to see which of the two rival stories
appeared more probable. The Court was of the view that the facts established
by matters and events within living memory, especially evidence of acts of
exercise of ownership and possession must take precedence over mere
traditional evidence”

(4)In Re Kodie Stool; Adowaa v Osei

“It was held that the principles under Adjeibi-Kojo v Bonsie does not mean
that rival traditional evidence may be resolved solely by recent acts of events
without reference to the traditional evidence on record. But rather a two-step
approach must be employed as propounded by Edward Wiredu JSC. First
the rival stories must be weighed along the recent facts to ascertain which
75
 story appears the more probable; and second, facts established by matters
and events within living memory must necessarily take precedence over
mere traditional evidence”.

(4) Re Taahyen and Asaago Stools; Kumanin II v Anin

“It was held by the Supreme Court that, in assessing rival traditional
evidence, the coherence of a party’s version or his demeanor should not be
the sole criterion for its preference over the other version; what is important
is to find out which of the rival versions is authenticated by acts and events
within living memory, especially where such acts and events are acts of
possession and ownership by a party claiming ownership and title to the
subject matter of the claim. Thus the courts must rather examine the events
and acts within living memory established by the evidence, paying particular
attention to undisputed act of ownership and possession on record”

(5) Achoro and Another v Akanfela and Another

“It was held that the best way of evaluating traditional evidence is to test the
authencity of the rival versions against the background of positive and recent
acts.”

(6) Hilodjie and Another v George

“Georgina Wood JSC (as she then was), stated when using scripts,
textbooks and cases of this nature, historical accounts from other sources,
textbook accounts included, which are nothing more than a repeat of the
disputed or inconclusive traditional evidence already adduced at the trial,
ought to attract very minimal weight. She do not think such matters ought to
be preferred to proven acts of effective ownership.”

(4) Analysis of the Laws to the Facts of the Case

The judge made a statement to the effect that he was really impressed with the
coherent and the concise manner in which the plaintiff presented their case of the
traditional history and evidence. In Re Taahyen and Asaago Stools; Kumanin II
76
v Anin, supra “It was held by the Supreme Court that, in assessing rival
traditional evidence, the coherence of a party’s version or his demeanor should not
be the sole criterion for its preference over the other version; what is important is
to find out which of the rival versions is authenticated by acts and events within
living memory, especially where such acts and events are acts of possession and
ownership by a party claiming ownership and title to the subject matter of the
claim. It means therefore that the judge by saying that should not be the criterion
by which to conclusively say or held judgment in favour of the defendant.

From the facts of the case the defendants version though has few inconsistencies
could not be in itself be used against them. The facts speaks clearly that it is rather
the defendants that in recent times has clear evidence of ownership and acts of
possession demonstrating “Animus Possesendi”. In the case of Achoro and
others v Akanfela and Others ““It was held that the best way of evaluating
traditional evidence is to test the authencity of the rival versions against the
background of positive and recent acts.” The case of Adjeibi – Kojo v Bonsie
established this principle by holding that “the most satisfactory method of testing
traditional history is by examining it in the light of such more recent facts as can be
established by evidence in order to establish which two conflicting statements of
traditions is more probably correct. Though in In Re Kodie Stool; Adowaa v
Osei, “It was held that the principles under Adjeibi-Kojo v Bonsie does not mean
that rival traditional evidence may be resolved solely by recent acts of events
without reference to the traditional evidence on record. However, the judge cannot
discount the fact that the most recent events rather goes to the favour of the
defendants irrespective of their non-coherent nature by which they presented their
case.

The judge held in favour of the plaintiffs on the reason that there is documentary
and written evidence and folklore which goes to favour the position of the plaintiff.
He made this statement that, “he must hasten to add that the only documentary
evidence which was a pamphlet published by an unknown author but titled, “A
recording of the folktales of the people of the lower Dankyira” contains stories
which support the Plaintiff’s case. In the case of Hilodjie and Another v George
supra “Georgina Wood JSC (as she then was), stated when using scripts,
textbooks and cases of this nature, historical accounts from other sources,
textbook accounts included, which are nothing more than a repeat of the disputed
77
or inconclusive traditional evidence already adduced at the trial, ought to attract
very minimal weight.

Thus the judge cannot use such an information since the law rather says to the
contrary that such evidence must be given a minimal weight.

CONCLUSION

In conclusion, and by considering the various case laws enunciated, the judge has
erred in his judgement and his judgement should be set aside permanently and the
trial held de novo.

Cc: Isaac

78