EVIDENCE DECREE, 1975 (NRCD 323)
ARRANGEMENT OF SECTIONS
Section
PART I—GENERAL RULES
1. Questions of law
2. Questions of fact
3. Preliminary facts
4. Preliminary facts in issue
5. Erroneous admission or
exclusion of evidence
6. Objections to evidence
7. Corroboration
8. Power of court to exclude
evidence
9. Judicial notice
PART II—BURDEN OF PROOF
10. Burden of persuasion defined
11. Burden of producing evidence
defined
12. Proof by a preponderance of
the probabilities
13. Proof of crime
14. Allocation of burden of
persuasion
15. Burden of persuasion in
particular cases
16. Instruction on burden of
persuasion
17. Allocation of burden of
producing evidence
PART III—PRESUMPTIONS
18. Presumption and inference
defined
19. Prima facie evidence
20. Effect of rebuttable
presumptions
21. Procedure in applying
rebuttable presumptions where
proof by a preponderance of the
probabilities is required.
22. Effect of certain presumptions
in criminal actions
23. Procedure in applying
presumptions in criminal actions
tried by jury.
24. Conclusive presumptions
25. Facts recited in written
instrument
26. Estoppel by own statement or
conduct
27. Estoppel of tenant to deny
title of landlord
28. Estoppel of licensee to deny
title of licensor
29. Estoppel of bailee, agent or
licensee
30. Rebuttable presumptions
31. Marriage
32. Children of a marriage
33. Death after seven years'
absence
34. Simultaneous death
35. Owner of legal title is owner
of beneficial title
36. Transfer by trustee
37. Official duty regularly
performed
38. Ordinary consequences of
voluntary act
39. Judicial jurisdiction
40. Foreign law
41. Continuation
42. Full age and sound body
43. Thing delivered
44. Obligation delivered
45. Possession of order to pay or
deliver
46. Possession of obligation by
creditor
47. Prior payment of rent
48. Ownership
49. Partners, landlord and tenant,
principal and agent
50. Judgments when not conclusive
PART IV—RELEVANCY
51. Relevant evidence admissible
52. Discretion to exclude relevant
evidence
53. Evidence of character not
admissible to prove conduct
54. Methods of proving character
55. Routine practice
56. Remedial and precautionary
measures
57. Offers to plead guilty,
withdrawn pleas of guilty
PART V—WITNESSES
58. Every person competent
59. Disqualification of witnesses
60. Personal knowledge required
61. Oath or affirmation required
62. Cross-examination
63. Statement of accused
64. Interpreters
65. Presiding judge disqualified
as witness
66. Competency of jurors
67. Qualification as an expert
68. Court may call and examine
witnesses
69. Court controls mode and order
of interrogation
70. Leading questions
71. Cross-examination of
non-adverse witness
72. Adverse witness in civil
action
73. Scope of re-examination
74. Examination as to writings
75. Prior inconsistent statement
or conduct
76. Extrinsic evidence of prior
inconsistent statement
77. Writing used to refresh memory
78. Exclusion of witnesses
79 Recall of witness
80. Attacking or supporting
credibility
81. Any party may attack or
support credibility
82. Extrinsic evidence affecting
credibility
83. Character traits affecting
credibility
84. Specific instances of conduct
affecting credibility
85. Previous convictions affecting
credibility
86. Reasonable grounds for
impeachment
PART VI—PRIVILEGES
87. Application of this Part
88. Privilege recognised only as
provided
89. Waiver
90. Comment and inferences as to
exercise of privilege
91. Determination and enforcement
of privilege
92. Disclosure of privileged
information in ruling on claim of
privilege.
93. Communications presumed
confidential
94. Error in allowing privilege
95. Effect of error in disallowing
privilege
96. Privilege of an accused
97. Privilege against
self-incrimination
98. Disclosure of things owned by
another
99. Required reports
100. Lawyer-client privilege
101. Exceptions to lawyer-client
privilege
102. Work produced by a lawyer for
a client
103. Mental treatment
104. Religious advice
105. Compromise
106. State secrets
107. Informants
108. Trade secrets
109. Political vote
110. Marital communications
PART VII—OPINION
111. Lay opinion
112. Expert opinion
113. Basis of expert opinion
114. Court experts
115. Opinion on ultimate issue
PART VIII—HEARSAY
116. Hearsay defined
117. Hearsay not admissible
118. First hand hearsay
119. Admissions
120. Confessions
121. Former testimony
122. Past recollection recorded
123. State of mind
124. Res gestae
125. Business records
126. Official records
127. Judgments
128. Family history
129. Boundaries and community
history
130. Deeds and ancient writings
131. Reputation concerning
character
132. Reference works
133. Credibility of declarant
134. Examination of declarant
135. Discretionary exclusion if
declarant available
PART IX—AUTHENTICATION AND
IDENTIFICATION
136. Authentication
137. Authentication by admission
138. Authentication by statute
139. Authentication by testimony
of witness with knowledge
140. Authentication by non-expert
opinion on handwriting
141. Authentication by comparison
by court or witness
142. Voice identification
143. Identification by telephone
144. Authentication by distinctive
characteristics
145. Authentication by reply
146. Ancient documents
147. Authentication by process or
system
148. Authentication of public
reports and records
149. Business records
150. Attested writings
151. Public publications
152. Law reports and treatises
153. Maps and charts
154. Ghana Gazette
155. Reference books
156. Newspapers and periodicals
157. Signs and labels
158. Acknowledged writings
159. Seals
160. Domestic official signatures
161. Foreign official signatures
162. Copies of writings in
official custody
PART X—WRITINGS
163. Original writings
164. Duplicates
165. Evidence of content of a
writing
166. Duplicate sometimes treated
as original
167. Originals lost
168. Originals unavailable by
judicial means
169. Originals under control of an
opponent
170. Collateral writings
171. Voluminous writings
172. Immovable writings
173. Admitted writings
174. Copy sometimes treated as
original.
175. Copies of official writings
176. Bankers' books
177. Extrinsic evidence affecting
the contents of a writing
PART XI—MISCELLANEOUS
178. Application
179. Interpretation
180. Repeals and amendments
181. Commencement.
SCHEDULE
Schedule
IN pursuance of the National
Redemption Council (Establishment)
Proclamation, 1972 this Decree is
hereby made:
PART I—GENERAL RULES
Section 1—Questions of Law.
(1) All questions of law,
including but not limited to the
admissibility of evidence and the
construction of this Decree, are
to be decided by the court.
(2) The determination of the law
of an organisation of states to
the extent that such law is not
part of the law of Ghana, or of
the law of a foreign state or
sub-division of a foreign state,
is a question of fact, but it
shall be determined by the court.
(3) The determination whether a
party has met the burden of
producing evidence on a particular
issue is a question of law to be
determined by the court.
(4) Where the court determines
that a party has not met the
burden of producing evidence on a
particular issue the court shall
as a matter of law determine that
issue against that party.
Section 2—Questions of Fact.
(1) Except as otherwise provided
in this or any other enactment in
a jury trial all questions of fact
are to be decided by the jury.
(2) Nothing in this section shall
preclude the court from summing up
the evidence to the jury or from
commenting on the weight or
credibility of the evidence so
long as the court makes it clear
to the jury that they are to
determine the weight and
credibility of the evidence
themselves and are not bound by
the court's summary or comments.
(3) Where there is no jury, all
questions of fact shall be decided
by the court.
Section 3—Preliminary Facts.
(1) For the purposes of this
section and section 4, a
"preliminary fact" is any fact
upon which depends the
admissibility or inadmissibility
of evidence, the qualification or
disqualification of a person to be
a witness, or the existence or
non-existence of a privilege.
(2) The court shall determine the
existence or non-existence of all
preliminary facts.
(3) A ruling on the admissibility
or inadmissibility of evidence,
the qualification or
disqualification of a person to be
a witness, or the existence or
non-existence of a privilege
implies whatever finding of fact
is prerequisite to it, and unless
otherwise provided by any
enactment no separate formal
finding of fact is necessary.
(4) Any party, and as to a claim
of privilege the person claiming
the privilege, is entitled to
present evidence and arguments
relevant to a determination under
subsection (2).
(5) In making a determination
under subsection (2), the court
may hear the evidence and
arguments and announce its
determination in the absence of
the jury, and shall hear the
evidence and arguments and
announce its determination in the
absence of the jury if the
determination concerns any matter
admissible only under section 120
relating to confessions.
(6) Unless otherwise provided by
this Decree, the court may admit
evidence which requires proof of
preliminary facts without prior
proof of the preliminary facts on
the condition that the preliminary
facts will be proved later in the
course of the trial; but such
conditionally admitted evidence
shall be disregarded if the court
determines that the preliminary
facts were not proved.
Section 4—Preliminary Facts in
Issue.
(1) When a preliminary fact is
also a fact in issue in the
action:
(a) the court or jury, as the
tribunal of fact, shall not be
bound by the court's determination
of the existence or non-existence
of the preliminary fact, and
(b) a determination by the
tribunal of fact that differs from
the court's determination of the
existence or non-existence of the
preliminary fact shall not require
the tribunal of fact to disregard
any admitted evidence or affect
any ruling admitting or excluding
evidence.
(2) Nothing in this section shall
be construed to preclude the
introduction of evidence relevant
to the weight or credibility of
admitted evidence or to preclude
the tribunal of fact from
considering such evidence.
Section 5—Erroneous Admission or
Exclusion of Evidence.
(1) No finding, verdict, judgment
or decision shall be set aside,
altered or reversed on appeal or
review because of the erroneous
admission of evidence unless the
erroneous admission of evidence
resulted in a substantial
miscarriage of justice.
(2) In determining whether an
erroneous admission of evidence
resulted in a substantial
miscarriage of justice the court
shall consider—
(a) whether the trial court
relied on that inadmissible
evidence; and
(b) whether an objection to or a
motion to exclude, to strike out
the evidence could and should have
been made at an earlier stage in
the action; and
(c) whether the objection or
motion could and should have been
so stated as to make clear its
ground or grounds; and
(d) whether the admitted evidence
should have been excluded on one
of the grounds stated in
connection with the objection or
motion; and
(e) whether the decision would
have been otherwise but for that
erroneous admission of evidence.
(3) No finding, verdict, judgment
or decision shall be set aside,
altered or reversed on appeal or
review because of the erroneous
exclusion of evidence unless—
(a) the substance of the excluded
evidence was made known to the
court by the questions asked, an
offer of proof, or by any other
means; and
(b) the court which decides on the
effect of the error also
determines that the excluded
evidence should have been admitted
and that the erroneous exclusion
of the evidence resulted in a
substantial miscarriage of
justice.
Section 6—Objections to Evidence.
(1) In every action, and at every
stage thereof, any objection to
the admissibility of evidence by a
party affected thereby shall be
made at the time the evidence is
offered.
(2) Every objection to the
admissibility of evidence shall be
recorded and ruled upon by the
court as a matter of course.
(3) Where a document is produced
and tendered in evidence, and
rejected by the court, it shall be
marked by the court as having been
so tendered and rejected.
Section 7—Corroboration.
(1) Corroboration consists of
evidence from which a reasonable
inference can be drawn which
confirms in some material
particular the evidence to be
corroborated and connects the
relevant person with the crime,
claim or defence.
(2) Evidence may in proper
circumstances be corroborated by
other independent evidence that
requires corroboration.
(3) Unless otherwise provided by
this or any other enactment,
corroboration of admitted evidence
is not necessary to sustain any
finding of fact or any verdict.
(4) No finding, verdict, judgment
or decision shall be set aside,
altered or reversed on appeal or
review on the sole ground that the
court failed to caution itself or
the jury as to the danger of
acting on uncorroborated evidence
unless the appellate court is
satisfied that such failure
resulted in a substantial
miscarriage of justice.
(5) Nothing in this section shall
preclude the court or any party
from commenting on the danger of
acting on uncorroborated evidence
or commenting on the weight and
credibility of admitted evidence
or preclude the tribunal of fact
from considering the weight and
credibility of admitted evidence.
Section 8—Power of Court to
Exclude Evidence.
Evidence that would be
inadmissible if objected to by a
party may be excluded by the court
on its own motion.
Section 9—Judicial Notice.
(1) This section governs the
taking of judicial notice of facts
in issue or facts which are
relevant to facts in issue.
(2) Judicial notice can be taken
only of facts which are either:
(a) so generally known within the
territorial jurisdiction of the
court, or
(b) so capable of accurate and
ready determination by resort to
sources whose accuracy cannot
reasonably be questioned,
that the fact is not subject to
reasonable dispute.
(3) Judicial notice may be taken
whether requested or not.
(4) Judicial notice shall be
taken if requested by a party and
the requesting party:
(a) gives each adverse party fair
notice of the request, through the
pleadings or otherwise, and
(b) supplies the necessary
sources and information to the
court.
(5) A party shall be entitled
upon timely request to an
opportunity to present to the
court information relevant to the
propriety of taking judicial
notice and the meaning of the fact
to be noticed.
(6) Judicial notice may be taken
at any stage of the action.
(7) In an action tried by jury
the court may, and upon timely
request shall, instruct the jury
to accept as conclusive any facts
which have been judicially
noticed.
PART II—BURDEN OF PROOF
Section 10—Burden of Persuasion
Defined.
(1) For the purposes of this
Decree, the burden of persuasion
means the obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the court.
(2) The burden of persuasion may
require a party to raise a
reasonable doubt concerning the
existence or non-existence of a
fact or that he establish the
existence or non-existence of a
fact by a preponderance of the
probabilities or by proof beyond a
reasonable doubt.
Section 11—Burden of Producing
Evidence Defined.
(1) For the purposes 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.
(2) In a criminal action the
burden of producing evidence, when
it is on the prosecution as to any
fact which is essential to guilt,
requires the prosecution to
produce sufficient evidence so
that on all the evidence a
reasonable mind could find the
existence of the fact beyond a
reasonable doubt.
(3) In a criminal action the
burden of producing evidence, when
it is on the accused as to any
fact the converse of which is
essential to guilt, requires the
accused to produce sufficient
evidence so that on all the
evidence a reasonable mind could
have a reasonable doubt as to
guilt.
(4) In other circumstances the
burden of producing evidence
requires a party to produce
sufficient evidence so that on all
the evidence a reasonable mind
could conclude that the existence
of the fact was more probable than
its non-existence.
Section 12—Proof by a
Preponderance of the
Probabilities.
(1) Except as otherwise provided
by law, the burden of persuasion
requires proof by a preponderance
of the probabilities.
(2) "Preponderance of the
probabilities" means that degree
of certainty of belief in the mind
of the tribunal of fact or the
court by which it is convinced
that the existence of a fact is
more probable than its
non-existence.
Section 13—Proof of Crime.
(1) 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 a reasonable
doubt.
(2) Except as provided in section
15 (3), in a criminal action the
burden of persuasion, when it is
on the accused as to any fact the
converse of which is essential to
guilt, requires only that the
accused raise a reasonable doubt
as to guilt.
Section 14—Allocation of Burden of
Persuasion.
Except as otherwise provided by
law, unless and until it is
shifted a party has the burden of
persuasion as to each fact the
existence or non-existence of
which is essential to the claim or
defence he is asserting.
Section 15—Burden of Persuasion in
Particular Cases.
(1) Unless and until it is
shifted, the party claiming that
a person is guilty of crime or
wrongdoing has the burden of
persuasion on that issue.
(2) Unless and until it is
shifted, the party claiming that a
person did not exercise a
requisite degree of care has the
burden of persuasion on that
issue.
(3) Unless and until it is
shifted, the party claiming that
any person, including himself, is
or was insane or of unsound mind
has the burden of persuasion on
that issue.
Section 16—Instruction on Burden
of Persuasion.
The court on all proper occasions
shall instruct the jury as to
which party bears the burden of
persuasion on each issue and as to
whether that burden requires that
a party raise a reasonable doubt
concerning the existence or
non-existence of a fact or that he
establish the existence or
non-existence of a fact by a
preponderance of the probabilities
or by proof beyond a reasonable
doubt.
Section 17—Allocation of Burden of
Producing Evidence.
(1) Except as otherwise provided
by law, the burden of producing
evidence of a particular fact is
on the party against whom a
finding on that fact would be
required in the absence of further
proof.
(2) Except as otherwise provided
by law, the burden of producing
evidence of a particular fact is
initially on the party with the
burden of persuasion as to that
fact.
PART III—PRESUMPTIONS
Section 18—Presumption and
Inference Defined.
(1) A presumption is an assumption
of fact that the law requires to
be made from another fact or group
of facts found or otherwise
established in the action.
(2) An inference is a deduction of
fact that may logically and
reasonably be drawn from another
fact or group of facts found or
otherwise established in the
action.
(3) A presumption is either
conclusive or rebuttable.
Section 19—Prima Facie Evidence.
An enactment providing that a fact
or group of facts is prima facie
evidence of another fact creates a
rebuttable presumption.
Section 20—Effect of Rebuttable
Presumptions.
A
rebuttable presumption imposes
upon the party against whom it
operates the burden of producing
evidence and the burden of
persuasion as to the non-existence
of the presumed fact.
Section 21—Procedure in Applying
Rebuttable Presumptions Where
Proof by a
Preponderance of the Probabilities
is Required.
In an action where proof by a
preponderance of the probabilities
is required:
(a) a rebuttable presumption
requires the tribunal of fact to
assume the existence of the
presumed fact unless and until the
party against whom the presumption
operates proves that the
non-existence of the presumed fact
is more probable than its
existence;
(b) when no evidence is introduced
contrary to the existence of the
presumed fact, the question of the
existence of the presumed fact
depends upon the existence of the
basic facts that give rise to the
presumption and is determined as
follows:—
(i)
if reasonable minds would
necessarily agree that, the
evidence renders the existence of
the basic facts more probable than
not, the court shall find, or
direct the jury to find, in favour
of the existence of the presumed
fact, or
(ii) if reasonable minds would
necessarily agree that the
evidence does not render the
existence of the basic facts more
probable than not, the court shall
find, or direct the jury to find,
against the existence of the
presumed fact, or
(iii) if reasonable minds would
not necessarily agree as to
whether the evidence renders the
existence of the basic facts more
probable than not, the court shall
find, or submit the matter to the
jury with an instruction that it
shall find, in favour of the
existence of the presumed fact if
it finds from the evidence that
the existence of the basic facts
is more probable than not, but
otherwise, it shall find against
the existence of the presumed
fact;
(c) where evidence is introduced
contrary to the existence of the
presumed fact, when reasonable
minds would necessarily agree that
the evidence renders the existence
of the basic facts that give rise
to the presumption more probable
than not, the question of the
existence of the presumed fact is
determined as follows:—
(i)
if reasonable minds would
necessarily agree that the
evidence renders the non-existence
of the presumed fact more probable
than not, the court shall find, or
direct the jury to find, against
the existence of the presumed
fact, or
(ii) if reasonable minds would
necessarily agree that the
evidence does not render the
non-existence of the presumed fact
more probable than not, the court
shall find, or shall direct the
jury to find in favour of the
presumed fact, or
(iii) if reasonable minds would
not necessarily agree as to
whether the evidence renders the
non-existence of the presumed fact
more probable than not, the court
shall find, or submit the matter
to the jury with an instruction
that it shall find, in favour of
the existence of the presumed fact
unless it finds from the evidence
that the non-existence of the
presumed fact is more probable
than its existence, in which case
it shall find against the
existence of the presumed fact;
(d) when evidence as to the
existence of the basic facts that
give rise to the presumption is
such that reasonable minds would
not necessarily agree whether
their existence is more probable
than not and evidence as to the
non-existence of the presumed fact
is such that they would not
necessarily agree that its
non-existence is more probable
than not, the court shall find, or
submit the matter to the jury with
an instruction that it shall find,
in favour of the existence of the
presumed fact if it finds from the
evidence that the existence of the
basic facts is more probable than
not and it does not find the
non-existence of the presumed fact
more probable than not, but
otherwise it shall find against
the existence of the presumed
fact.
Section 22—Effect of Certain
Presumptions in Criminal Actions.
In a criminal action a presumption
operates against the accused as to
a fact which is essential to guilt
only if the existence of the basic
facts that give rise to the
presumption are found or otherwise
established beyond a reasonable
doubt, and thereupon, in the case
of a rebuttable presumption, the
accused need only raise a
reasonable doubt as to the
existence of the presumed fact.
Section 23—Procedure in Applying
Presumptions in Criminal Actions
Tried by Jury.
In a criminal action tried by
jury—
(a) the court shall not direct the
jury to find a presumed fact
against the accused if that fact
is essential to guilt, unless on
all the evidence a reasonable mind
could have no reasonable doubt
either as to the existence of the
basic facts that give rise to the
presumption or as to the existence
of the presumed fact;
(b) when the presumed fact is
essential to guilt the court may
submit the question of the
existence of the presumed fact to
the jury, if, but only if, on all
the evidence a reasonable mind
could find both the existence of
the basic facts that give rise to
the presumption and the existence
of the presumed fact beyond a
reasonable doubt;
(c) when the presumed fact is not
essential to guilt the question of
the existence of the presumed fact
may be submitted to the jury if
the basic facts that give rise to
the presumption are established or
otherwise supported by evidence
sufficient to meet the burden of
producing evidence;
(d) whenever the jury is asked to
determine the existence of a
presumed fact against the accused
if that fact is essential to
guilt, the court shall instruct
the jury that they shall find
against the existence of the
presumed fact unless they find
both the existence of the basic
facts that give rise to the
presumption and the existence of
the presumed fact beyond a
reasonable doubt.
Section 24—Conclusive
Presumptions.
(1) Where the basic facts that
give rise to a conclusive
presumption are found or otherwise
established in the action, no
evidence contrary to the
conclusively presumed fact may be
considered by the tribunal of
fact.
(2) Conclusive presumptions
include, but are not limited to
those provided in sections 25 to
29.
Section 25—Facts Recited in
Written Instrument.
(1) Except as otherwise provided
by law, including a rule of
equity, the facts recited in a
written document are conclusively
presumed to be true as between the
parties to the instrument, or
their successors in interest.
(2) This section does not apply to
the recital of consideration.
Section 26—Estoppel by Own
Statement or Conduct.
Except as otherwise provided by
law, including a rule of equity,
when a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another person
to believe a thing to be true and
to act upon such belief, the truth
of that thing shall be
conclusively presumed against that
party or his successors in
interest in any proceedings
between that party or his
successors in interest and such
relying person or his successors
in interest.
Section 27—Estoppel of Tenant to
Deny Title of Landlord.
Except as otherwise provided by
law, including a rule of equity,
against any claim by a tenant the
title of his landlord at the time
of the commencement of their
relation is conclusively presumed
to be valid.
Section 28—Estoppel of Licensee to
Deny Title of Licensor.
Except as otherwise provided by
law, including a rule of equity,
against any claim by a licensee of
immovable property his licensor is
conclusively presumed to have a
valid right to possession of the
immovable property.
Section 29—Estoppel of Bailee,
Agent or Licensee.
Except as otherwise provided by
law, including a rule of equity,
against any claim by a bailee,
agent or licensee to whom movable
property has been entrusted, his
bailor, principal or licensor is
conclusively presumed to have been
entitled to the movable property
at the time it was entrusted;
provided that any such bailee,
agent or licensee may show that he
was compelled to deliver up any
such movable property to some
person who had a right to it as
against his bailor, principal or
licensor, or that his bailor,
principal or licensor wrongfully
and without notice to him obtained
the movable property from a third
person who has claimed it from
him.
Section 30—Rebuttable
Presumptions.
Rebuttable presumptions include,
but are not limited to, those
provided in sections 31 to 49 and
151 to 162.
Section 31—Marriage.
(1) A marriage which has been
celebrated before witnesses is
presumed to be valid.
(2) This section applies whether
or not the witnesses to the
marriage are called as witnesses
in the action.
(3) This section applies both to
monogamous and polygamous
marriages.
Section 32—Children of a Marriage.
(1) A child born during the
marriage of the mother is presumed
to be the child of the person who
is the husband of that mother at
the time of the birth.
(2) A child of a woman who has
been married, born within 300 days
after the end of the marriage, is
presumed to be a child of that
marriage.
(3) This section applies both to
monogamous and polygamous
marriages.
Section 33—Death After Seven
Years' Absence.
(1) Where a person has not been
heard of for seven years despite
diligent effort (whether or not
within that period) to find him,
he is presumed to be dead.
(2) There is no presumption as to
the particular time when he died.
Section 34—Simultaneous Death.
Subject to the provisions of any
enactment relating to succession
to property, where two or more
persons have died in circumstances
in which it is uncertain which
survived the other, the older is
presumed to have predeceased the
younger.
Section 35—Owner of Legal Title is
Owner of Beneficial Title.
The owner of the legal title to
property is presumed to be the
owner of the full beneficial
title.
Section 36—Transfer by Trustee.
A
trustee or other person, whose
duty it was to convey immovable
property to a particular person,
is presumed to have actually
conveyed to him when such
presumption is necessary to
perfect title of such person or
his successor in interest.
Section 37—Official Duty Regularly
Performed.
(1) It is presumed that official
duty has been regularly performed.
(2) This presumption does not
apply to an issue as to the
lawfulness of an arrest if it is
found or otherwise established
that the arrest was made without a
warrant.
Section 38—Ordinary Consequences
of Voluntary Act.
(1) A person is presumed to intend
the ordinary consequences of his
voluntary act.
(2) This section is not applicable
in a criminal action to establish
specific intent where specific
intent is an element of the crime
charged.
Section 39—Judicial Jurisdiction.
(1) Any court of Ghana, or any
court of general jurisdiction in
any other state or sub-division of
a state, or any judge of such a
court, acting as such, is presumed
to have acted in the lawful
exercise of its jurisdiction.
(2) This section applies only when
the act of the court or judge is
under collateral attack, namely
where the jurisdiction of the
court is not directly in issue.
Section 40—Foreign Law.
The law of a foreign state is
presumed to be the same as the law
of Ghana.
Section 41—Continuation.
A
thing or state of things which has
been shown to be in existence
within a period shorter than that
within which such things or states
usually cease to exist is presumed
to be still in existence.
Section 42—Full Age and Sound
Body.
A
person is presumed to be of full
age and of sound body.
Section 43—Thing Delivered.
(1) A thing delivered by one to
another is presumed to have
belonged to the one to whom it was
delivered.
(2) In this section, "thing "
includes money.
Section 44—Obligation Delivered.
An obligation delivered up to the
debtor is presumed to have been
paid.
Section 45—Possession of Order to
Pay or Deliver.
A
person in possession of an order
on himself for the payment of
money, or delivery of a thing, is
presumed to have paid the money or
delivered the thing accordingly.
Section 46—Possession of
Obligation by Creditor.
An obligation possessed by the
creditor is presumed not to have
been paid.
Section 47—Prior Payment of Rent.
The payment of earlier rent or
instalments is presumed from
receipt for later rent or
instalments.
Section 48—Ownership.
(1) The things which a person
possesses are presumed to be owned
by him.
(2) A person who exercises acts of
ownership over property is
presumed to be the owner of it.
Section 49—Partners, Landlord and
Tenant, Principal and Agent.
Persons acting as partners,
landlord and tenant, or principal
and agent are presumed to stand in
that relationship to one another.
Section 50—Judgments When not
Conclusive.
A
judgment, when not conclusive, is
presumed to determine or set forth
the rights of the parties
correctly, but there is no
presumption that the facts
essential to the judgment have
been correctly decided.
PART IV—RELEVANCY
Section 51—Relevant Evidence
Admissible.
(1) For the purpose of this
Decree, "relevant evidence" means
evidence, including evidence
relevant to the credibility of a
witness or hearsay declarant,
which makes the existence of any
fact that is of consequence to the
determination of the action more
or less probable than it would be
without the evidence.
(2) All relevant evidence is
admissible except as otherwise
provided by any enactment.
(3) No evidence is admissible
except relevant evidence.
Section 52—Discretion to Exclude
Relevant Evidence.
The court in its discretion may
exclude relevant evidence if the
probative value of the evidence is
substantially outweighed by—
(a) considerations of undue delay,
waste of time, or needless
presentation of cumulative
evidence; or
(b) the risk that admission of the
evidence will create substantial
danger of unfair prejudice or
substantial danger of confusing
the issues; or
(c) the risk, in a civil action,
where a stay is not possible or
appropriate, that admission of the
evidence will unfairly surprise a
party who has not had reasonable
ground to anticipate that such
evidence would be offered.
Section 53—Evidence of Character
not Admissible to Prove Conduct.
Evidence of a person's character
or a trait of his character is not
admissible to prove his conduct in
conformity with such character or
trait of character on a specific
occasion, except—
(a) in a criminal action evidence
of the character or trait of the
character of the accused when
offered by the accused to prove
his innocence, or by the
prosecution to rebut such evidence
previously introduced by the
accused; or
(b) in a criminal action evidence
of the character or trait of the
character of the victim of the
alleged crime when offered by the
accused to prove the conduct of
the victim in connection with the
alleged crime, or by the
prosecution for the same purpose;
or
(c) evidence of the character or a
trait of the character of a
witness or hearsay declarant when
offered to support or attack his
credibility;
(d) where character or a trait of
character is an essential element
of a charge, claim or defence.
Section 54—Methods of Proving
Character.
(1) Except as provided in sections
83 to 85 relating to the
credibility of a witness, and in
subsection (2) of this section, in
all circumstances in which
evidence of the character or trait
of the character of a person is
admissible, such evidence may only
be in the form of an opinion or
evidence of reputation.
(2) Evidence of the character or a
trait of the character of a person
may not be in the form of specific
instances of the person's conduct,
except where the character or a
trait of the character of such
person is an essential element of
a charge, claim or defence.
(3) Notwithstanding subsection
(2), evidence of specific
instances of the person's conduct,
including the commission of a
crime or civil wrong, may be
admissible to show such facts as
motive, opportunity, intent,
preparation, plan, knowledge,
identity, or absence of mistake or
accident.
Section 55—Routine Practice.
(1) Any otherwise admissible
evidence of the routine practice
of a person or an organisation is
admissible to prove conduct on
specified occasion in conformity
with the routine practice.
(2) Routine practice may be proved
by evidence in the form of an
opinion or by evidence of specific
conduct on specified occasions
sufficient in number to support a
finding of fact that the practice
was routine.
Section 56—Remedial and
Precautionary Measures.
(1) When, after an event, measures
are taken which, if taken
previously, would have made the
event less likely to occur,
evidence of the subsequent
measures is not admissible to
prove negligence or culpable
conduct in connection with the
event.
(2) This section does not require
the excursion of evidence of
subsequent remedial or
precautionary measures when
offered for another purpose, such
as to show ownership, control or
feasibility of remedial or
precautionary measures.
Section 57—Offers to Plead Guilty,
Withdrawn Pleas of Guilty.
Evidence of a plea of guilty,
later withdrawn, or of an offer to
plead guilty to the crime charged
or any other crime is not
admissible in a civil or criminal
action involving the person who
made the plea or offer.
PART V—WITNESSES
Section 58—Every Person Competent.
Except as otherwise provided by
this Decree, every person is
competent to be a witness and no
person is disqualified from
testifying to any matter.
Section 59—Disqualification of
Witnesses.
(1) A person is not qualified to
be a witness if he is—
(a) incapable of expressing
himself so as to be understood,
either directly or through
interpretation by one who can
understand him; or
(b) incapable of understanding
the duty of a witness to tell the
truth.
(2) A child or a person of unsound
mind is competent to be a witness
unless he is disqualified by
subsection (1) of this section.
Section 60—Personal Knowledge
Required.
(1) A witness may not testify to a
matter unless sufficient evidence
is introduced to support a finding
that he has personal knowledge of
the matter.
(2) Evidence to prove personal
knowledge may, but need not,
consist of the testimony of the
witness himself.
(3) A witness may testify to a
matter without proof of personal
knowledge if no objection is
raised by any party.
(4) This section is subject to
section 112 relating to opinion
testimony by expert witnesses.
Section 61—Oath or Affirmation
Required.
Subject to any enactment or rule
of law to the contrary, every
witness before testifying shall
take an oath or affirmation that
he will testify truthfully, and
any statement made by a witness
without such oath or affirmation
shall not be considered as
evidence.
Section 62—Cross-Examination.
(1) At the trial of an action, a
witness can testify only if he is
subject to the examination of all
parties to the action, if they
choose to attend and examine.
(2) If a witness who has
testified is not available to be
examined by all the parties to the
action who choose to attend and
examine, and the unavailability of
the witness has not been caused by
any party who seeks to
cross-examine the witness, the
court may in its discretion
exclude the entire testimony or
any part of the testimony as
fairness requires.
(3) This section is subject to
section 63 relating to certain
statements of an accused.
Section 63—Statement of Accused.
(1) An accused in a criminal
action may make a statement in his
own defence without first taking
an oath or affirmation that he
will testify truthfully and
without being subject to the
examination of all parties to the
action.
(2) Such a statement by an accused
is admissible to the same extent
as if it had been made under oath
or affirmation and subject to
examination in accordance with
sections 61 and 62.
(3) The fact that the evidence was
given without oath or affirmation,
or that there was no possibility
of examination, may be considered
in ascertaining the weight and
credibility of the statement, and
may be the subject of comment by
the court, the prosecution or the
defence.
Section 64—Interpreters.
(1) A person called to interpret
statements of a witness incapable
of expressing himself so as to be
understood directly by the
tribunal of fact is qualified for
that purpose if the court is
satisfied that the proposed
interpreter can understand and
interpret the expressions of the
witness.
(2) A person who serves as an
interpreter in any action is
subject to all of the provisions
of this Decree relating to
witnesses except that he may be
impeached only as to his ability
to interpret and the accuracy of
his interpretation.
Section 65—Presiding Judge
Disqualified as a Witness.
A
judge sitting at the trial may not
testify as a witness in that
trial.
Section 66—Competency of Jurors.
(1) A member of the jury may not
testify as a witness in the trial
of the action in which he is
sitting as a juror.
(2) Upon an issue of the validity
of a verdict, a juror who
participated in rendering that
verdict may testify as any other
witness except that he may not
testify concerning the effect of
any matter upon the determination
of the verdict or concerning the
mental processes by which the
verdict was reached.
(3) Upon an issue of the validity
of a verdict, no statement or
affidavit made by a juror who
participated in rendering that
verdict is admissible to the
extent that it concerns the effect
of any matter upon the
determination of the verdict or
concerns the mental processes by
which the verdict was reached.
Section 67—Qualification as an
Expert.
(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, consist of the
testimony of the witness himself.
Section 68—Court May Call and
Examine Witnesses.
(1) The court may, on its own
motion or at the request of a
party, call or recall witnesses.
(2) All parties may cross-examine
witnesses called by the court.
(3) The court may ask questions of
witnesses, whether they were
called by a party or the court.
(4) A party may object to
questions asked by the court and
to evidence obtained by the
court's questions at any time
prior to the submission of the
action to the tribunal of fact for
determination.
(5) A juror or the jury may,
through the court, ask questions
of witnesses which the court
itself might ask and which the
court considers proper.
Section 69—Court Controls Mode and
Order of Interrogation.
The court shall exercise
reasonable control over the mode
and order of interrogating
witnesses and presenting evidence
so as to—
(a) make the interrogation and
presentation as rapid, as
distinct, and as readily
understandable as may be, and
(b) protect witnesses from being
unduly intimidated, harassed or
embarrassed.
Section 70—Leading Questions.
(1) A "leading question" is a
question that suggests directly or
indirectly the answer that the
examining party expects or
desires.
(2) The court may, in its
discretion, determine to what
extent, and in what circumstances
a party calling a witness shall be
permitted, and a party not calling
him shall be forbidden, to ask
leading questions of the witness.
(3) Subject to the discretion of
the court, leading questions may
not, if objected to by an adverse
party, be asked in
examination-in-chief, or in
re-examination.
(4) Subject to the discretion of
the court, leading questions may
be asked as to matters which are
introductory or undisputed, or
which have, in the opinion of the
court, been already sufficiently
proved.
(5) Subject to the discretion of
the court, leading questions may
be asked in cross-examination or
examination by leave of the court.
Section 71—Cross-Examination of
Non-Adverse Witness.
Subject to the discretion of the
court, the cross-examination of a
witness by any party whose
interest is not adverse to the
party calling the witness is to be
treated as if it were an
examination-in-chief.
Section 72—Adverse Witness in
Civil Action.
(1) Subject to the discretion of
the court, in a civil action a
party, or a person whose
relationship to a party makes his
interest substantially the same as
a party, may be called by any
adverse party and examined as if
on cross-examination at any time
during the presentation of
evidence by the party calling the
witness.
(2) When such a witness is
cross-examined by his own lawyer
or by a party who is not adverse
to the party with whom the witness
is related that examination is to
be treated as if it were a
re-examination.
Section 73—Scope of
Re-Examination.
(1) Subject to the discretion of
the court, re-examination shall be
directed to the explanation of
matters referred to in
cross-examination.
(2) A witness cannot be
re-examined or otherwise further
examined as to the same matter
raised by the examining party on a
previous examination without leave
granted by the court in its
discretion, but the witness may be
re-examined or otherwise further
examined as to any new matter upon
which he has been examined by
another party to the action.
Section 74—Examination as to
Writing.
(1) In examining a witness
concerning a writing, it is not
necessary to show, read, or
disclose to him any part of the
writing.
(2) If the witness is not a party,
all parties to the action shall be
given an opportunity, if they
choose, to inspect the writing
before any questions concerning it
may be asked of the witness.
Section 75—Prior Inconsistent
Statement or Conduct.
In examining a witness concerning
a statement or other conduct by
him that is inconsistent with any
part of his testimony at the
trial, it is not necessary to
disclose to him any information
concerning the statement or other
conduct.
Section 76—Extrinsic Evidence of
Prior Inconsistent Statement.
Unless the court in its discretion
determines otherwise, extrinsic
evidence of a statement made by a
witness that is inconsistent with
any part of his testimony at the
trial shall be excluded unless—
(a) the witness was so examined
while testifying as to give him an
opportunity to explain or to deny
the statement; or
(b) the witness has not been
excused from giving further
testimony.
Section 77—Writing Used to Refresh
Memory.
(1) If a witness, either while or
before testifying, uses a writing
to refresh his memory with respect
to any matter about which he
testifies, the testimony on that
matter shall be excluded if the
writing is not produced at the
trial unless the court in its
discretion allows the testimony to
stand.
(2) If the writing is produced at
the trial, any adverse party may,
if he chooses, inspect the
writing, cross-examine the witness
concerning it, and introduce in
evidence those parts of it which
relate to the testimony of the
witness for the purpose of
attacking his credibility or, if
the writing is otherwise
admissible, for any other purpose.
Section 78—Exclusion of Witnesses.
(1) The court, on its own motion
or at the request of a party, may
exclude from the courtroom any
witness so that he cannot hear or
see the testimony of other
witnesses.
(2) The court, on its own motion
or at the request of a party, may
during any trial take such steps
as it considers necessary and
proper for preventing
communication with or between
witnesses who are within the court
house or its precincts awaiting
examination.
(3) This section does not
authorise the exclusion or
sequestration of a party, a lawyer
representing a party at the trial,
or any other person shown by a
party to be essential to the
presentation of his case.
Section 79—Recall of Witness.
After a witness has been excused
from giving further testimony in
the action, he cannot be recalled
without leave granted by the court
in its discretion.
Section 80—Attacking or Supporting
Credibility.
(1) Except as otherwise provided
by this Decree, the court or jury
may, in determining the
credibility of a witness, consider
any matter that is relevant to
prove or disprove the truthfulness
of his testimony at the trial.
(2) Matters which may be relevant
to the determination of the
credibility of the witness
include, but are not limited to
the following:—
(a) the demeanour of the witness;
(b) the substance of the
testimony;
(c) the existence or
non-existence of any fact
testified to by the witness;
(d) the capacity and opportunity
of the witness to perceive,
recollect or relate any matter
about which he testifies;
(e) the existence or
non-existence of bias, interest or
other motive;
(f) the character of the witness
as to traits of honesty or
truthfulness or their opposites;
(g) a statement or conduct which
is consistent or inconsistent with
the testimony of the witness at
the trial;
(h) the statement of the witness
admitting untruthfulness or
asserting truthfulness.
Section 81—Any Party May Attack or
Support Credibility.
(1) The credibility of a witness
or of any part of his testimony
may be attacked or supported by
any party, including the party
calling the witness.
(2) Where, before he calls the
witness, a party has reasonable
grounds to believe that he will
want to attack the credibility of
the witness or of any part of his
testimony, the party shall, out of
the presence of the witness,
notify the court and every other
party of his expectation, except
that if the witness is a party the
witness need not be notified.
Section 82—Extrinsic Evidence
Affecting Credibility.
Except as otherwise provided by
this Decree, to attack or support
the credibility of a witness
evidence other than the testimony
of the witness is admissible if
relevant to prove or disprove the
truthfulness of his testimony.
Section 83—Character Traits
Affecting Credibility.
(1) Subject to subsection (2) of
this section evidence of good
character to support the
credibility of a witness is not
admissible unless evidence which
impugns the good character of the
witness has been admitted for the
purpose of attacking his
credibility.
(2) An accused in a criminal
action may introduce evidence of
good character to support his
credibility, and unless he first
introduces such evidence the
prosecution may not attack his
credibility by introducing
evidence, including evidence of a
previous conviction to impugn his
good character.
(3) A witness may give his opinion
of the character of another
witness and may state whether or
not he would believe the statement
of the witness in question.
(4) For the purpose of attacking
or supporting the credibility of a
witness evidence of the reputation
of the witness is not admissible
to prove traits of his character.
Section 84—Specific Instances of
Conduct Affecting Credibility.
(1) Subject to subsection (2) of
this section and to section 85,
evidence of specific instance of
conduct of a witness relevant only
as tending to prove or disprove
traits of his character is not
admissible to attack or support
the credibility of the witness.
(2) Subject to section 52 relating
to limitations on relevant
evidence and to section 69
relating to limitations on
interrogation specific instances
of the conduct of a witness
relevant only as tending to prove
or disprove traits of his
character may, for the purpose of
attacking or supporting his
credibility, be inquired into on
cross-examination of the witness
himself or on cross-examination of
a witness who testifies to an
opinion of the character of the
witness in question.
Section 85—Previous Convictions
Affecting Credibility.
(1) For the purpose of attacking
the credibility of a witness, it
may be shown by the examination of
the witness or by record of the
judgment that he has been
convicted of a crime involving
dishonesty or false statement, but
no conviction for any other crime
may be shown.
(2) 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, whichever last occurs
for that conviction.
(3) The pendency of an appeal
against a conviction does not
prevent the conviction from being
shown.
(4) If a conviction may be shown,
the pendency of an appeal against
that conviction may be shown.
Section 86—Reasonable Grounds for
Impeachment.
In attacking or supporting the
credibility of a witness, a person
may not ask a question which
conveys an adverse imputation
concerning the character of that
witness unless he has reasonable
grounds for believing the
imputation to be true.
PART VI—PRIVILEGES
Section 87—Application of this
Part.
(1) The provisions of this Part
shall apply in all proceedings.
(2) The provisions of any
enactment or rule of law which
make rules of evidence
inapplicable or of limited
application in particular
proceedings shall not make this
Part inapplicable to such
proceedings.
(3) For the purpose of this Part a
"proceeding" means any action,
investigation, inquiry, hearing,
arbitration or fact-finding
procedure, whether judicial,
administrative, executive,
legislative or not before a
government body, formal or
informal, public or private.
(4) For the purpose of this Part a
"presiding officer" means the
court or the person authorised in
the proceeding to rule on a claim
of privilege.
Section 88—Privilege Recognised
Only as Provided.
(1) Except as otherwise provided
in this Part or in any other
enactment, no person has a
privilege to—
(a) refuse when duly subpoenaed to
be a witness: or
(b) refuse as a witness to
disclose any matter; or
(c) refuse as a witness to produce
any object or writing.
(2) Except as otherwise provided
in this Part or in any other
enactment, no person may prevent
another person from being a
witness, from disclosing any
matter, or from producing any
object or writing.
Section 89—Waiver.
(1) Except as otherwise provided
in this section, a person who
would otherwise have privilege to
refuse to disclose or to prevent
any other person from disclosing a
particular matter has no such
privilege if he or any other
person while the holder of the
privilege has voluntarily
disclosed or consented to the
disclosure of a significant part
of that matter.
(2) A disclosure of a privileged
matter where the disclosure itself
is a privileged communication does
not affect the right of any person
to claim the privilege.
(3) A waiver of a joint privilege
to refuse to disclose or to
prevent any other person from
disclosing a particular matter by
any holder of the joint privilege
does not affect the right of any
other holder to claim the
privilege.
Section 90—Comment and Inferences
as to Exercise of Privilege.
If a privilege to refuse to
disclose, or a privilege to
prevent another from disclosing, a
matter is claimed and allowed, the
presiding officer, counsel or the
parties may comment thereon and
the tribunal of fact may draw all
reasonable inferences therefrom.
Section 91—Determination and
Enforcement of Privilege.
(1) The presiding officer shall
determine a claim of privilege in
the manner provided in Part I of
this Decree.
(2) No person shall be punished
for failure to disclose or produce
any matter claimed to be
privileged unless he has failed to
comply with an order of court that
he disclose or produce the matter
or unless the presiding officer,
by law, has the power to punish
for contempt.
Section 92—Disclosure of
Privileged Information in Ruling
on Claim of Privilege.
(1) Subject to subsection (2), the
presiding officer may not require
disclosure of information claimed
to be privileged in order to rule
on the claim of privilege.
(2) When a court is ruling on a
claim of privilege under section
105, 106 or 107 relating to state
secrets, informants, and trade
secrets and is unable to do so
without requiring disclosure of
the information claimed to be
privileged, the court may require
the person from whom disclosure is
sought or a person authorised to
claim the privilege, or both, to
disclose the information in
chambers out of the presence and
hearing of all persons except the
person authorised to claim the
privilege and such other person as
the person authorised to claim the
privilege is willing to have
present.
(3) If the judge determines that
the information is privileged,
neither he nor any other person
shall ever disclose, without
consent of a person authorised to
permit disclosure, what was
disclosed in the course of the
proceedings in chambers.
Section 93—Communications Presumed
Confidential.
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.
Section 94—Error in Allowing
Privilege.
A
party may, on appeal or review,
allege error on a ruling
disallowing a claim of privilege
only if he is the holder of the
privilege.
Section 95—Effect of Error in
Disallowing Privilege.
Evidence of a statement or other
disclosure of privileged matter
that was compelled to be disclosed
in any proceeding by an erroneous
ruling disallowing a claim of
privilege is inadmissible against
a holder of the privilege in any
later proceeding or in any
re-hearing of the original
proceeding.
Section 96—Privilege of an
Accused.
(1) The accused in a criminal
action shall not be called as a
witness and shall not be compelled
to testify except on his own
application.
(2) Except as otherwise provided
in this Decree, if the accused in
a criminal action testifies on his
own behalf he shall be subject to
examination in the same manner as
any other witness.
(3) An accused in a criminal
action has no privilege to refuse
to submit his body to examination
by the court or the tribunal of
fact or to refuse to do any act in
their presence for the purpose of
identification other than to
testify.
(4) If an accused in a criminal
action does not testify on his own
behalf, the court, the prosecution
and the defence may comment upon
the accused's failure to testify,
and the tribunal of fact may draw
all reasonable inferences
therefrom.
Section 97—Privilege Against
Self-incrimination.
(1) In any proceeding a person has
a privilege to refuse to disclose
any matter or to produce any
object or writing that will
incriminate him.
(2) No person has a privilege
under subsection (1), where the
court thinks that it is necessary
to the determination of an issue,
to refuse—
(a) to submit his body to
examination for the purpose of
discovering or recording his
corporal features and other
identifying characteristics, or
his physical or mental condition;
or
(b) to furnish or permit the
taking of samples of body fluids
or substances for analysis; or
(c) to speak, write, assume a
posture, make a gesture, or do any
other act for the purpose of
identification.
(3) An accused in a criminal
action who voluntarily testifies
on his own behalf in the action
has no privilege under subsection
(1) to refuse to disclose any
matter or produce any object or
writing that is relevant to any
issue in the criminal action.
(4) A matter, object or writing
will incriminate a person within
the meaning of this Decree if it—
(a) constitutes, or
(b) forms an essential part of, or
(c) is taken in connection with
other matters already disclosed is
a basis for a reasonable inference
of,
a
violation of the criminal laws of
Ghana.
(5) Notwithstanding subsection
(4), a matter, object or writing
that would otherwise incriminate a
person will not incriminate him if
he has for any reason become
permanently immune from punishment
for a violation of the criminal
laws of Ghana which may reasonably
be inferred from that matter,
object or writing.
Section 98—Disclosure of Things
Owned by Another.
No person has a privilege under
section 97 to refuse to obey an
order made by a court to produce
an object or writing under his
control constituting, containing
or disclosing matter which will
incriminate him if by law some
other person has a superior right
to the object or writing ordered
to be produced.
Section 99—Required Reports.
(1) A person making a record,
report or disclosure required by
law has no privilege to refuse to
disclose or to prevent any other
person from disclosing the
contents of the record, report or
disclosure except as otherwise
specifically provided by any
enactment.
(2) A public official or public
entity to whom a record, report or
disclosure is required by law to
be made has a privilege to refuse
to disclose the contents of the
record, report or disclosure if
the law requiring it to be made
prevents its disclosure for the
purpose in question.
Section 100—Lawyer-Client
Privilege.
(1) For the purpose of this
section and sections 93, 101 and
102—
(a) a "client" is a person,
including a public entity,
association or body corporate, who
directly or through an authorised
representative seeks professional
legal services from a lawyer;
(b) a "representative of the
client" is a person having
authority from the client to make
to, or receive from, a lawyer
confidential communications
relating to professional legal
services sought by the client;
(c) a "representative of the
lawyer" is a person having
authority from the lawyer to
assist the lawyer in rendering
professional legal services sought
by the client;
(d) a communication is
"confidential" if 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 the communication.
(2) A client has a privilege to
refuse to disclose and to prevent
any other person from disclosing a
confidential communication,
reasonably related to professional
legal services sought by the
client, made between the client or
a representative of the client and
the lawyer or a representative of
the lawyer, or between the lawyer
and a representative of the
lawyer, or between the lawyer or a
representative of the lawyer and a
lawyer representing another person
in a matter of common interest
with the client or a
representative of such lawyer.
The client's privilege under
subsection (2) may be claimed by—
(a) the client; or
(b) the client's guardian or
committee; or
(c) the personal representative
of a deceased client; or
(d) the successor in interest of
a client who was an artificial
person; or
(e) the person who was the
client's lawyer at the time of the
communication, or the
representative of such lawyer, but
such person may not claim the
privilege if there is no other
person in existence who is
authorised by paragraph (a), (b),
(c) or (d) of this subsection to
claim the privilege or if he is
otherwise instructed to permit
disclosure by a person so
authorised.
Section 101—Exceptions to
Lawyer-Client Privilege.
No person has a privilege under
section 100—
(a) if, apart from the
communication, sufficient evidence
has been introduced to support a
finding of fact that the services
of the lawyer were sought or
obtained to enable or aid any
person to commit or plan to commit
a crime or intentional tort;
(b) as to a communication relevant
to an issue between parties who
claim an interest in property
through the same deceased client
of the lawyer;
(c ) as to a communication
relevant to an issue of breach of
duty by a lawyer to his client or
a client to his lawyer;
(d) as to a communication relevant
to the formalities of the
execution of a writing by a client
where the lawyer or a
representative of the lawyer is an
attesting witness to the execution
of the writing;
(e) as to a communication relevant
to a matter of common interest
between two or more clients if the
communication was made by any of
them to a lawyer sought by them in
common, when offered in any
proceeding between any of the
clients.
Section 102—Work Produced by a
Lawyer for a Client.
(1) A client has a privilege to
refuse to disclose and to prevent
any other person from disclosing
information obtained or work
produced by his lawyer or a
representative of the lawyer in
rendering professional legal
services sought by the client.
(2) The client's privilege under
subsection (1) may be claimed by—
(a) the client; or
(b) the client's guardian or
committee; or
(c) the personal representative
of a deceased client; or
(d) the successor in interest of
a client who was an artificial
person; or
(e) the lawyer who himself or
through his representative
obtained the information or
produced work, or the
representative of such lawyer, but
such lawyer or his representative
may not claim the privilege if
there is no other person in
existence who is authorised by
paragraph (a), (b), (c) or (d) of
this subsection to claim the
privilege or if he is otherwise
directed to permit disclosure by a
person so authorised.
(3) A court, in its discretion,
may disallow a claim of privilege
under subsection (1) if the
information sought is not
reasonably available from another
source and the value of the
information substantially
outweighs the disadvantages caused
by its disclosure.
Section 103—Mental Treatment.
(1) A person has a privilege to
refuse to disclose and to prevent
any other person from disclosing a
confidential communication between
himself and a physician or
psychologist or any other persons
who are participating in the
diagnosis or treatment under the
direction of the physician or
psychologist if the communication
was made for the purpose of
diagnosis or treatment of a mental
or emotional condition.
(2) For the purpose of this
section a communication is
confidential if it is not intended
to be disclosed to third persons
other than those reasonably
necessary for the transmission of
the communication or persons who
are participating in the diagnosis
or treatment under the direction
of a physician or psychologist.
(3) The privilege under
subsection (1) may be claimed by—
(a) the person himself; or
(b) the person's guardian or
committee; or
(c) the person's personal
representative if the person is
deceased; or
(d) the person who was the
physician or psychologist or any
other person who participated in
the diagnosis or treatment under
the direction of the physician or
psychologist, unless he is
otherwise instructed to permit
disclosure by a person authorised
to claim the privilege by
paragraph (a), (b), (c) or (d) of
this subsection.
(4) A court, in its discretion,
may disallow a claim of privilege
under subsection (1) if—
(a) in a proceeding to commit the
person who was the patient, the
information sought is relevant to
the determination of whether the
person should be committed, or
(b) in a criminal or civil
proceeding the person claiming the
privilege raises any matter
relating to his mental or
emotional condition, or
(c) a court has ordered the person
who was the patient to submit to
an examination of his mental or
emotional condition by a physician
or psychologist.
Section 104—Religious Advice.
(1) A person has a privilege to
refuse to disclose and to prevent
any other person from disclosing a
confidential communication by the
person to a professional minister
of religion who is prevented from
disclosing such communication by
the code of his religion and has
been consulted in his professional
role as a spiritual adviser.
(2) For the purpose of this
section, a communication is
confidential if made privately and
not intended for further
disclosure.
(3) The privilege under
subsection (1) may be claimed by—
(a) the person himself; or
(b) the person's guardian or
committee; or
(c) the person's personal
representative if the person is
deceased; or
(d) the professional minister of
religion to whom subsection (1)
applies.
Section 105—Compromise.
(1) A person has a privilege to
refuse to disclose and to prevent
any other person from disclosing
to the tribunal of fact
information concerning the
furnishing, offering or accepting
by such person or his authorised
representative of valuable
consideration in compromising a
claim which was disputed either as
to validity or amount and
information concerning conduct or
statements made as an integral
part of such compromise
negotiations.
(2) A person has no privilege
under this section if his, or his
authorised representative's
conduct or statements relating to
the compromise were made with the
intention that they would not be
privileged from disclosure to a
tribunal of fact.
Section 106—State Secrets.
(1) Except as otherwise provided
by section 107 or by any other
enactment, the Government has a
privilege to refuse to disclose
and to prevent any person from
disclosing a state secret unless
the need to preserve the
confidentiality of the information
is outweighed by the need for
disclosure in the interest of
justice.
(2) A "state secret" is
information considered
confidential by the Government,
that has not been officially
disclosed to the public, and which
it would be prejudicial to the
security of the state or injurious
to the public interest to
disclose.
(3) The Government's privilege
under subsection (1) may be
claimed only by the member of the
National Redemption Council
responsible for administering the
subject matter which the secret of
state concerns, or by a person
authorised in writing to claim the
privilege by such member.
(4) In an action in a court when
the Government's privilege under
subsection (1) is claimed, other
than for an official document, the
court may determine the claim
itself, or, on its own motion or
at the request of a party or the
Government, shall stay the
proceedings and refer the claim of
privilege to the Court of Appeal
for determination.
Section 107—Informants.
(1) The Government has a privilege
to refuse to disclose and to
prevent any other person from
disclosing the identity of a
person who has supplied to the
Government information purporting
to reveal the commission of a
crime or a plan to commit a crime.
(2) The Government does not under
this section have privilege to
refuse to disclose a communication
from such a person except to the
extent necessary to protect the
identity of the person from
disclosure.
(3) The Government's privilege
under this section may be claimed
by any person authorised by the
Government to claim the privilege.
(4) The Government has no
privilege under this section if
the identity of the informant has
been disclosed to the public by
the Government or the informant or
if the informant appears as a
witness in court in an action to
which his communication relates.
(5) If the Government claims its
privilege under this section and
the circumstances indicate a
reasonable probability that the
informant can give testimony
necessary to a fair determination
of guilt or innocence, in a
criminal action the court may on
its own motion and shall on the
motion of the accused, dismiss the
action.
Section 108—Trade Secrets.
(1) The owner of a trade secret or
a person authorised by the owner
of a trade secret has a privilege
to refuse to disclose and to
prevent any other person from
disclosing the trade secret unless
the value of the disclosure of the
trade secret substantially
outweighs the disadvantages caused
by its disclosure.
(2) In making his determination as
to the existence or otherwise of
the privilege the presiding
officer shall consider whether the
trade secret is adequately
protected by patent, trade mark,
copyright or other law and whether
adequate protection can be
provided by disclosure of the
trade secret in chambers or in any
other appropriate manner.
(3) When disclosure of a trade
secret is required a court, on its
own motion or at the request of
any party, may take such actions
to protect the trade secret from
further disclosure or unauthorised
usage as may be appropriate.
Section 109—Political Vote.
A
person has a privilege to refuse
to disclose how he cast his vote
at a public election or referendum
conducted by secret ballot unless
sufficient evidence has been
introduced to support a finding of
fact that the vote was cast
illegally.
Section 110—Marital
Communications.
(1) A person has a privilege to
refuse to disclose and to prevent
any other person from disclosing a
confidential communication made
between himself and his spouse
during their marriage.
(2) A communication is
confidential if not intended to be
disclosed, and made in a manner
reasonably calculated not to
disclose its contents, to any
third person.
(3) This section applies to both
monogamous and polygamous
marriages.
PART VII—OPINION
Section 111—Lay Opinion.
(1) A witness not testifying as
an expert may give testimony in
the form of an opinion or
inference only if—
(a) the opinion or inference
concerns matters perceived by the
witness, and
(b) 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.
(2) The matter on which the
witness bases his opinion or
inference need not be disclosed
before the witness states his
opinion or inference, unless the
court in its discretion determines
otherwise, but he may be examined
by any party concerning the basis
for his opinion or inference and
he shall then disclose that basis.
Section 112—Expert Opinion.
If the subject of the testimony is
sufficiently beyond common
experience that the opinion or
inference of an expert will assist
the court or tribunal of fact in
understanding evidence in the
action or in determining any
issue, a witness may give
testimony in the form of an
opinion or inference concerning
any subject on which the witness
is qualified to give expert
testimony.
Section 113—Basis of Expert
Opinion.
(1) A witness testifying as an
expert may base his opinions or
inferences on matters perceived by
him or known to him because of his
expertise or on matters assumed by
him to be true for the purpose of
giving his opinion or inference.
(2) The matters on which a witness
testifying as an expert bases his
opinion or inference need not be
admissible in evidence.
(3) The matters on which a witness
testifying as an expert bases his
opinion or inference need not be
disclosed before the witness
states his opinion or inference,
unless the court in its discretion
determines otherwise, but he may
be examined by any party
concerning the basis for his
opinion or inference and he shall
then disclose that basis.
Section 114—Court Expert.
(1) In any action at any time the
court in its discretion may, on
its own motion or at the request
of any party, appoint a court
expert to inquire into and report
upon any matter on which an expert
opinion or inference would be
admissible under section 112.
(2) Unless otherwise ordered by
the court, the report of the court
expert shall be made to the court
in writing together with such
number of copies as the court may
require and the court shall make
one copy of the report available
to each party.
(3) The report of the court expert
shall be admissible to the same
extent as the testimony of any
other expert witness and shall to
that extent be deemed to be in
evidence without formal
introduction by the court or any
party.
(4) Whether called as a witness by
the court or a party, the court
expert may be cross-examined by
any party, including the party
calling the court expert.
(5) The court expert shall if
possible be a person agreed
between the parties, and failing
agreement shall be nominated by
the court.
(6) The matters to be submitted to
the court expert shall if possible
be agreed between the parties and
the court, and failing agreement
shall be settled by the court.
(7) The court expert may conduct
such experiments and tests as he
deems appropriate and he may
communicate with the parties to
arrange for the attendance of any
person or the provision of samples
or information or any similar
matter; and failing agreement
between the parties and court
expert as to any of these matters,
they shall be determined by the
court.
(8) The court expert appointed
under this section is entitled to
reasonable remuneration as
determined by the court.
(9) The remuneration of the court
expert shall be taxed as costs to
the parties.
(10) If it is necessary or
appropriate to pay the court
expert any or all of his
remuneration before costs are
taxed, without prejudice to the
ultimate taxation of costs and
unless otherwise ordered by the
court, in a civil action each
party shall contribute a pro rata
share of such remuneration and
shall be jointly and severally
liable for the whole remuneration,
and in a criminal action the
prosecution shall contribute the
whole remuneration.
Section 115—Opinion on Ultimate
Issue.
Testimony in the form of an
opinion or inference admissible
under section 111 or 112 shall not
be inadmissible because the
opinion or inference concerns an
ultimate issue to be decided by
the tribunal of fact.
PART VIII—HEARSAY
Section 116—Hearsay Defined.
For the purpose of this Part
(a) a "statement" is an oral or
written expression, or conduct of
a person intended by him as a
substitute for oral or written
expression;
(b) a "declarant" is a person who
makes a statement;
(c) "hearsay evidence" is evidence
of a statement, other than a
statement made by a witness while
testifying in the action at the
trial, offered to prove the truth
of the matter stated;
(d) a "hearsay statement" is a
statement evidence of which is
hearsay evidence;
(e) "unavailable as a witness"
means that the declarant is:
(i)
exempted or precluded on the
ground of privilege from
testifying concerning the matter
to which his statement is
relevant; or
(ii) disqualified as a witness
from testifying to the matter; or
(iii) dead or unable to attend or
testify at the trial because of a
then existing physical or mental
condition; or
(iv) absent from the trial and the
court is unable to compel his
attendance by its process; or
(v) absent from the trial and the
proponent of his statement has
exercised reasonable diligence but
has been unable to procure his
attendance by the court's process;
or,
(vi) in such a position that he
cannot reasonably be expected in
the circumstances (including the
lapse of time since the statement
was made) to have any,
recollection of matters relevant
to determining the accuracy of the
statement in question.
(f) "available as a witness"
means that the declarant is not
unavailable as a witness.
Section 117—Hearsay not
Admissible.
Hearsay evidence is not admissible
except as otherwise provided by
this Decree or any other enactment
or by agreement of the parties.
Section 118—First Hand Hearsay.
(1) Evidence of a hearsay
statement is not made inadmissible
by section 117 if—
(a) the statement made by the
declarant would be admissible had
it been made while testifying in
the action and would not itself be
hearsay evidence, and
(b) the declarant is:
(i)
unavailable as a witness, or
(ii) a witness, or will be a
witness, subject to
cross-examination concerning the
hearsay statement; or
(iii) available as a witness and
the party offering the evidence,
has given reasonable notice to the
court and every other party of his
intention to offer the hearsay
statement at the trial and that
notice gave sufficient particulars
(including the contents of the
statement, to whom it was made,
and, if known, when and where) to
afford a reasonable opportunity to
estimate the value of the
statement in the action.
(2) In a criminal action where
the prosecution offers evidence
under clause (b) (iii) of
subsection (1) of this section,
the evidence shall not be
admissible if an accused has given
reasonable notice to the court and
the prosecution that he objects to
its admission.
(3) Nothing in this section shall
preclude the prosecution from
offering such evidence under any
other clause of subsection (1) of
this section or under any other
provision of this Decree.
(4) In a criminal action evidence
of a hearsay statement made by an
accused shall not be admissible
under subsection (1) of this
section when offered by the
accused unless the accused is or
will be a witness subject to
cross-examination concerning the
hearsay statement.
(5) Evidence of a hearsay
statement offered under clause (b)
(i) of subsection (1) of this
section shall not be admissible if
the declarant is unavailable as a
witness because the exemption,
preclusion, disqualification,
death, inability, absence or
failure of recollection of the
declarant was brought about by the
wrongdoing of the proponent of his
statement for the purpose of
preventing the declarant from
attending or testifying.
Section 119—Admissions.
Evidence of a hearsay statement is
not made inadmissible by section
117 if the statement is offered
against a party, and—
(a) the declarant is a party to
the action either in his
individual or representative
capacity, or
(b) the party against whom it is
offered has manifested his
adoption of, or his belief in the
truth of, the statement, or
(c) the party against whom it is
offered had authorised the
declarant to make a statement
concerning the subject matter of
the statement, or
(d) the declarant was an agent or
employee of the party against whom
it is offered and the statement
concerns a matter within the scope
of the declarant's agency or
employment and was made before the
termination of the agency or
employment, or
(e) the declarant made the
statement while participating in a
conspiracy to commit a crime or
civil wrong and in furtherance of
that conspiracy.
Section 120—Confessions.
(1) In a criminal action, evidence
of a hearsay statement made by an
accused admitting matter which—
(a) constitutes; or
(b) forms an essential part of; or
(c) 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 in the
action is not admissible against
him unless the statement was made
voluntarily.
(2) Evidence of a hearsay
statement shall not be 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 (other than a
police officer or member of the
Armed Forces) approved by the
accused.
(3) The independent witness must
be a person who—
(a) can understand the language
spoken by accused;
(b) can read and understand the
language in which the statement is
made,
and where the statement is in
writing the independent witness
must certify in writing that the
statement was made voluntarily in
his presence and that the contents
were fully understood by the
accused.
(4) Where the accused is blind or
illiterate, the independent
witness shall carefully read over
and explain to him the contents of
the statement before it is signed
or marked by the accused, and
shall certify in writing on the
statement that he had so read over
and explained its contents to the
accused and that the accused
appeared perfectly to understand
it before it was signed or marked.
(5) For the purpose of this
section a statement that was not
made voluntarily includes, but is
not limited to, a statement made
by the accused if—
(a) the accused when making the
statement was not capable, because
of a physical or mental condition,
of understanding what he said or
did; or
(b) the accused was induced to
make statement by being subjected
to cruel or inhuman conditions, or
by the infliction of physical
suffering upon him by a public
official, or by a person who has a
direct interest in the outcome of
the action, or by a person acting
at the request or direction of a
public official or such interested
person; or
(c) the accused was induced to
make the statement by a threat or
promise which was likely to cause
him to make such a statement
falsely, and the person making the
threat or promise was a public
official, or a person who has a
direct interest in the outcome of
the action, or a person acting at
the request or direction of public
official or such an interested
person.
(6) in a criminal action tried by
a jury a party may not, in the
presence of the jury, offer to
prove a hearsay statement under
this section.
(7) When a party offers to prove
a hearsay statement under this
section the court shall, in the
absence of the jury, determine the
admissibility of the statement as
provided in section 3.
(8) A determination by the court
under subsection (7) that a
statement is admissible shall not
preclude the jury from determining
that the statement is not to be
believed.
Section 121—Former Testimony.
Evidence of a hearsay statement is
not made inadmissible by section
117 if it consists of testimony
given by the declarant as a
witness in an action or in a
deposition taken according to law
for use in an action, and when the
testimony was given or the
deposition was taken the declarant
was examined by a party with
interests and motives identical
with, or similar to, the party
against whom the evidence is
offered in the present action.
Section 122—Past Recollection
Recorded.
Evidence of a hearsay statement is
not made inadmissible by section
117 if—
(a) the statement is contained in
a writing and constitutes a record
of what was perceived by a witness
who is present and subject to
cross-examination; and
(b) the statement would have been
admissible if made by the witness
while testifying; and
(c) at a time when the matter
recorded was recently perceived
and clear in his memory, the
witness recognised the written
statement as an accurate record of
what he had perceived or the
witness stated what he perceived
and the written statement, by
whomever or however made,
correctly sets forth what the
witness stated.
Section 123—State of Mind.
Evidence of a hearsay statement is
not made inadmissible by section
117 if the statement states the
declarant's existing state of
mind, emotion or physical
sensation and is not a statement
of the declarant's memory or
belief of a fact offered to prove
the truth of the fact remembered
or believed.
Section 124—Res Gestae.
Evidence of a hearsay statement is
not made inadmissible by section
117 if the statement was made—
(a) while the declarant was
perceiving the event or condition
which the statement narrates or
describes or explains or
immediately thereafter; or
(b) while the declarant was under
the stress caused by his
perception of the event or
condition which the statement
narrates or describes or explains.
Section 125—Business Records.
(1) Evidence of a hearsay
statement contained in a writing
made as a record of an act, event,
condition, opinion or diagnosis is
not made inadmissible by section
117 if—
(a) the writing was made in the
regular course of a business;
(b) the writing was made at or
near the time the act or event
occurred, the condition existed,
the opinion was formed, or the
diagnosis was made; and
(c) the sources of the information
and the method and time of
preparation were such as to
indicate that the statement
contained in the writing is
reasonably trustworthy.
(2) Evidence of the absence from
records of a business of a record
of an alleged act, event or
condition is not made inadmissible
by section 117 when offered to
prove the non-occurrence of the
act or event, or the non-existence
of the condition, if—
(a) it was the regular course of
that business to make records of
all such acts, events or
conditions at or near the time the
act or event occurred or the
condition existed and to preserve
those records; and
(b) the sources of information and
method and time of preparation of
the records of that business were
such that the absence of a record
is a reasonably trustworthy
indication that the act or event
did not occur or that the
condition did not exist.
(3) For the purpose of this
section a "business" includes
every type of regularly conducted
activity, business, profession,
occupation, governmental activity,
or operation of an institution,
whether carried on for profit or
not.
(4) A hearsay statement
admissible in evidence under this
section is not made inadmissible
by the fact that it is not based
on the personal knowledge of the
declarant.
Section 126—Official Records.
(1) Evidence of a hearsay
statement contained in a writing
made as a record of an act, event
or condition is not made
inadmissible by section 117 if—
(a) the writing was made by and
within the scope of duty of a
public official;
(b) the writing was made at or
near the time the act or event
occurred or the condition existed;
and
(c) the sources of information and
method and time of preparation
were such as to indicate that the
statement contained in the writing
is reasonably trustworthy.
(2) Evidence of a hearsay
statement contained in a writing
made by the public official who is
the official custodian of the
records in a public office,
reciting diligent search and
failure to find a record, is not
made inadmissible by section 117.
(3) A hearsay statement
admissible in evidence under this
section is not made inadmissible
by the fact that it is not based
on the personal knowledge of the
declarant.
Section 127—Judgments.
(1) Evidence of a final judgment
in a criminal action of a court in
Ghana adjudging a person guilty of
a crime is not made inadmissible
by section 117 when offered to
prove any fact essential to the
judgment.
(2) Evidence of a final judgment
of a court is not made
inadmissible by section 117 when
offered by a judgment debtor to
prove any fact which was essential
to the judgment in an action in
which he seeks to—
(a) recover partial or total
indemnity or exoneration for money
paid or liability incurred because
of the judgment; or
(b) enforce a warranty to protect
the judgment debtor against the
liability determined by the
judgment; or
(c) recover damages for breach of
a warranty substantially the same
as the warranty determined by the
judgment to have been breached.
(3) When the liability, obligation
or duty of a person other than a
party is in issue in an action,
evidence of a final judgment of a
court in Ghana against that person
is not made inadmissible by
section 117 when offered to prove
such liability, obligation or
duty.
(4) A judgment offered in evidence
and admissible under this section
is not made inadmissible by the
fact that the judgment is an
opinion or is not based on
personal knowledge.
Section 128—Family History.
(1) Evidence of a hearsay
statement by a declarant
concerning his own birth,
marriage, divorce, relationship by
blood, marriage or adoption,
ancestry or other similar fact of
his family history is not made
inadmissible by section 117 and
will not be made inadmissible by
the fact that the declarant had no
means of acquiring personal
knowledge of the matter declared
if the statement was made before
controversy arose over the fact of
family history.
(2) Evidence of a hearsay
statement concerning the birth,
death, marriage, divorce,
relationship by blood, marriage or
adoption, ancestry or other
similar fact of the family history
of a person other than the
declarant is not made inadmissible
by section 117 if the statement
was made before controversy arose
concerning the fact of family
history and—
(a) the declarant was related to
the other person by blood,
marriage or adoption; or
(b) the declarant was otherwise so
intimately associated with the
other person's family as to be
likely to have had accurate
information concerning the matter
declared.
(3) Evidence of entries in family
bibles or other family books,
family portraits, and inscriptions
on buildings, tombstones and the
like is not made inadmissible by
section 117 when offered to prove
the birth, death, marriage,
divorce, relationship by blood,
marriage or adoption, ancestry or
other similar fact of family
history of a member of the family
by blood, marriage or adoption.
(4) Evidence of reputation among
members of a family is not made
inadmissible by section 117 when
offered to prove the truth of the
matter reputed if the reputation
concerns the birth, death,
marriage, divorce, relationship by
blood, marriage or divorce,
ancestry or other similar fact of
the family history of a member of
the family by blood, marriage or
adoption.
Section 129—Boundaries and
Community History.
Evidence of reputation in a
community given by a person with
personal knowledge of the
reputation is not made
inadmissible by section 117 if—
(a) the reputation concerns
boundaries of, or customs
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.
Section 130—Deeds and Ancient
Writings.
(1) Evidence of a hearsay
statement contained in a deed of
conveyance or a will or other
writing purporting to affect an
interest in movable or immovable
property is not made inadmissible
by section 117 if—
(a) the matter stated was relevant
to the purpose of the writing;
(b) the matter stated would be
relevant to an issue as to an
interest in the property; and
(c) the dealings with the property
since the statement was made have
not been inconsistent with the
truth of the statement.
(2) Evidence of a hearsay
statement is not made inadmissible
by section 117 if the statement is
contained in a writing more than
20 years old and the statement has
since been acted upon as true by
persons having an interest in the
matter.
Section 131—Reputation Concerning
Character.
Evidence of a person's general
reputation with reference to his
character or a trait of his
character at a relevant time in a
group with which he regularly
associated is not made
inadmissible by section 117 when
offered to prove the truth of the
matter reputed.
Section 132—Reference Works.
(1) A published treatise,
periodical, or pamphlet on a
subject of history, literature,
science or art is not made
inadmissible by section 117 when
offered to prove the truth of a
matter stated therein if the court
takes judicial notice, or a
witness expert in the subject
testifies, that the author of the
statement in the writing is
recognised in his field as an
expert in the subject.
(2) Evidence of a hearsay
statement, other than an opinion,
contained in a tabulation, list,
directory, register or other
published data compilation is not
made inadmissible by section 117
if the compilation is generally
used and relied upon as accurate
in the regular course of a
business as defined in section 125
(3).
Section 133—Credibility of
Declarant.
Whenever hearsay evidence has been
admitted—
(a) evidence of a statement or
other conduct by the declarant
that is inconsistent with the
declarant's hearsay statement is
not inadmissible for the purpose
of attacking the credibility of
the declarant though he had no
opportunity to explain or deny the
inconsistency because he was not
called as a witness, and
(b) any other evidence offered to
attack or support the credibility
of the declarant is admissible if
it would have been admissible had
the declarant been a witness in
the action.
Section 134—Examination of
Declarant.
(1) The declarant of a hearsay
statement admitted in evidence may
be called and examined, as if
under cross-examination concerning
the statement, by any party
adverse to the party who
introduced the statement.
(2) Subsection (1) shall not apply
if the declarant is—
(a) a witness who has testified in
the action concerning the subject
matter of the statement; or
(b) a party; or
(c) a person whose relationship
to a party makes his interest
substantially the same as that of
a party.
(3) Subsection (1) shall not apply
if the statement is hearsay
evidence admissible only under
sections 119, 120, 121 or 127.
(4) Hearsay evidence that is
otherwise admissible is not made
inadmissible by this section
because the declarant who made the
statement is unavailable for
examination under this section.
Section 135—Discretionary
Exclusion if Declarant Available.
In a criminal action tried by a
jury the court, in its discretion,
may exclude evidence admissible
only under sections 121, 123, 124,
128 and 130 if the circumstances
in which the statement was made
are such as to indicate that it is
not reasonably trustworthy and the
declarant is available as a
witness.
PART IX—AUTHENTICATION AND
IDENTIFICATION
Section 136—Authentication.
(1) Where the relevancy of
evidence depends upon its
authenticity or identity, so that
authentication or identification
is required as a condition
precedent to admission, that
requirement is satisfied by
evidence or other showing
sufficient to support a finding
that the matter in question is
what its proponent claims.
(2) Permissible means of
authentication or identification
include but are not limited to,
those provided in sections 137 to
161.
Section 137—Authentication by
Admission.
Authentication may be by evidence
that the party against whom it is
offered has at any time, admitted
its authenticity or identity or
acted upon it as authentic.
Section 138—Authentication by
Statute.
Authentication or identification
may be by any means provided by
any enactment or rules of court.
Section 139—Authentication by
Testimony of Witness with
Knowledge.
Authentication or identification
may be by testimony that a matter
is what its proponent claims.
Section 140—Authentication by
Non-Expert Opinion on Handwriting.
To authenticate or identify
handwriting, a witness who is not
an expert on handwriting may state
his opinion whether handwriting is
that of the alleged writer if the
court is satisfied that the
witness has personal knowledge of
the handwriting of the alleged
writer.
Section 141—Authentication by
Comparison by Court or Witness.
Authentication or identification
of any signature, handwriting,
seal or finger impression may be
by a comparison made by a witness
or by the court with a specimen
which has been proved to the
satisfaction of the court to be
genuine.
Section 142—Voice Identification.
To identify a voice, whether heard
directly or through mechanical or
electronic transmission or
recording, a witness who is not an
expert on voice identification may
state his opinion whether the
voice is that of the alleged
speaker if the court is satisfied
that the witness has at any time
heard the voice in circumstances
connecting it with the alleged
speaker.
Section 143—Identification by
Telephone.
A
person may be identified by
evidence that a telephone call was
made to a number reputed to be
that of the person in question,
if—
(a) the call was to a place of
business and the conversation
related to business reasonably
transacted with that person over
the telephone; or
(b) circumstances, including
self-identification, show the
person answering to be the one
called.
Section 144—Authentication by
Distinctive Characteristics.
Authentication or identification
may be by evidence of distinctive
characteristics, appearance,
contents, substance or internal
patterns.
Section 145—Authentication by
Reply.
Authentication or identification
of a communication, whether
written or otherwise, may be by
evidence that the communication
was received in response to a
communication sent to the alleged
author of the communication in
question.
Section 146—Ancient Documents.
Authentication or identification
of a writing may be by evidence
that the writing—
(a) is in such condition as to
create no suspicion concerning its
authenticity;
(b) was in a place where, if
authentic, it might be expected
to be; and
(c) is at least 20 years old at
the time it is offered.
Section 147—Authentication by
Process or System.
Authentication or identification
may be by evidence describing a
process or system used to produce
a result and showing that the
result is accurate.
Section 148—Authentication of
Public Reports and Records.
Authentication or identification
of a writing may be by evidence
that—
(a) the writing is a public
record, report, statement or data
compilation and is from an office
of a public entity in Ghana; or
(b) the writing is one authorised
by law to be recorded or filed and
has in fact been recorded or filed
in an office of a public entity in
Ghana and is from an office of a
public entity in Ghana where items
of that nature are regularly kept.
Section 149—Business Records.
(1) Authentication or
identification of writings made or
kept in the regular course of a
business may be by the testimony
of a representative of the
business who is responsible for
keeping the records or familiar
with them even though he did not
make the writing or see it made.
(2) For the purpose of this
section a "business" includes
every type of regularly conducted
activity, business, profession,
occupation, governmental activity,
or operation of an institution,
whether carried on for profit or
not.
Section 150—Attested Writings.
(1) An attested writing that is
not required by law to be attested
may be authenticated in the same
manner as any other writing and
the testimony of an attesting
witness is not required.
(2) An attested writing, other
than a will or testamentary
writing, that is required by law
to be attested may be
authenticated in the same manner
in which it might be authenticated
if no attesting witness were
alive.
Section 151—Public Publications.
Books, pamphlets, gazettes or
other publications purporting to
be printed or published by a
public entity are presumed to be
authentic.
Section 152—Law Reports and
Treatises.
Printed and published books of
statutes or reports of the
decisions of the courts of any
nation and books proved to be
commonly admitted in those courts
as evidence of the law of that
nation are presumed to be
authentic.
Section 153—Maps and Charts.
All maps or charts made under the
authority of a public entity, and
not made for the purpose of any
litigated question, are presumed
to be authentic and correct.
Section 154—Ghana Gazette.
All proclamations, Acts of State,
whether legislative or executive,
nominations, appointments, and
other official communications
appearing in the Ghana Gazette are
prima facie evidence of any fact
of a public nature which they are
intended to notify.
Section 155—Reference Books.
A
reference book, text or treatise
which is produced for inspection
by the court if in such condition
as to create no suspicion
concerning its authenticity is
presumed to be written and
published at the time and place it
purports to have been.
Section 156—Newspapers and
Periodicals.
Printed materials purporting to be
newspapers or periodicals are
presumed to be authentic.
Section 157—Signs and Labels.
Inscriptions, signs, tags or
labels purporting to have been
affixed in the course of business
and indicating ownership, control
or origin are presumed to be
authentic.
Section 158—Acknowledged Writings.
Writings accompanied by a
certificate of acknowledgement
bearing the signature and seal of
a notary public in Ghana or other
officer in Ghana authorised by law
to take acknowledgments are
presumed to be authentic.
Section 159—Seals.
A
seal is presumed to be genuine and
its use authorised if it purports
to be the seal of—
(a) Ghana or of a Ministry,
Department, officer or agency of
Ghana;
(b) a public entity in Ghana or a
Department, officer or agency of
such a public entity;
(c) a State recognised by Ghana or
a Ministry, Department, officer or
agency of such a State;
(d) a public entity in a State
recognised by Ghana or a
Department, officer or agency of
such a public entity;
(e) a court in Ghana or a court
in a State recognised by Ghana;
(f) an international public entity
or a Department, officer or agency
of such a public entity;
(g) a notary public or a
commissioner for oaths in Ghana.
Section 160—Domestic Official
Signatures.
A
signature is presumed to be
genuine and authorised if it
purports to be the signature,
affixed in his official capacity,
of—
(a) a public official of Ghana;
(b) a public official of any
public entity in Ghana;
(c) a notary public or a
commissioner for oaths in Ghana.
Section 161—Foreign Official
Signatures.
(1) A signature is presumed to be
genuine and authorised if it
purports to be the signature,
affixed in his official capacity,
of an official of an international
public entity or a State or a
public entity in a State
recognised by Ghana and the
writing to which the signature is
affixed is accompanied by a
certification of the genuineness
of the signature and official
position of the person who
executed the writing.
(2) Such certification must be
signed and sealed by a diplomatic
agent of Ghana or of a
Commonwealth country who is
assigned or accredited to that
country.
(3) If reasonable opportunity has
been given to all parties to
investigate the authenticity of a
foreign official signature, the
court may, for good cause shown,
order that it be treated as
presumptively authentic without a
certification.
Section 162—Copies of Writings in
Official Custody.
A
copy of a writing is presumed to
be genuine if it purports to be a
copy of a writing which is
authorised by law to be recorded
or filed and has in fact been
recorded or filed in an office of
a public entity or which is a
public record, report, statement
or data compilation if—
(a) an original or an original
record is in an office of a public
entity where items of that nature
are regularly kept; and
(b) the copy is certified to be
correct by the custodian or other
person authorised to make the
certification, provided that the
certification must be
authenticated.
PART X—WRITINGS
Section 163—Original Writings.
(1) An "original" of a writing is
the writing itself or any copy
intended to have the same effect
by the person or persons executing
or issuing it.
(2) An "original" of a writing
which is a photograph includes the
photographic film (including a
positive, negative or photographic
plate) or any print made therefrom.
(3) If information contained in a
writing is stored in a manner not
readable by sight, as in a
computer or on magnetic tape, any
transcription readable by sight
and proved to the satisfaction of
the court to accurately reflect
the stored information, is an
"original" of that writing.
Section 164—Duplicates.
A
"duplicate" of a writing is a copy
produced by a technique that
ensures an accurate reproduction
of the original, and includes a
copy produced by the same
impression, or from the same
matrix, or by means of
photography, including
enlargements and miniatures, or by
mechanical or electronic
re-recording, or by chemical
reproduction, but does not include
a copy reproduced after the
original by manual handwriting or
typing.
Section 165—Evidence of Content of
a Writing.
Except as otherwise provided by
this Decree or any other
enactment, no evidence other than
an original writing is admissible
to prove the content of a writing.
Section 166—Duplicate Sometimes
Treated as Original.
A
duplicate of a writing is
admissible to the same extent as
an original of that writing,
unless—
(a) a genuine question is raised
as to the authenticity of the
original or the duplicate; or
(b) in the circumstances it would
be unfair to admit the duplicate
in lieu of the original.
Section 167—Originals Lost.
Evidence other than an original
writing is admissible to the same
extent as an original to prove the
content of a writing if all
originals are lost or have been
destroyed, unless the loss or
destruction resulted from the
fraudulent act of the proponent of
the evidence.
Section 168—Originals Unavailable
by Judicial Means.
Evidence other than an original
writing is admissible to the same
extent as an original to prove the
content of a writing if no
original can be obtained by any
available judicial procedure or if
all persons having control of an
original after receiving judicial
process compelling production do
not produce it.
Section 169—Original Under Control
of Opponent.
(1) Evidence other than an
original writing is admissible to
the same extent as an original to
prove the content of a writing if
at a time when an original was
under the control of the opponent
of the evidence the opponent was
given express or implied notice,
by the pleadings or otherwise,
that the content of the writing
would be a subject of proof at the
hearing, and on request at the
hearing he does not produce it.
(2) Though a writing requested by
one party is produced by another
and is inspected by the party
calling for it, the party calling
for the writing is not obliged to
introduce it as evidence in the
action.
Section 170—Collateral Writings.
Evidence other than an original
writing is admissible to the same
extent as an original to prove the
content of a writing if the
content of the writing is not
closely related to a controlling
issue in the action.
Section 171—Voluminous Writings.
(1) Evidence other than an
original writing is admissible to
the same extent as an original to
prove the content of a writing if
the originals consist of numerous
accounts of other writings which
cannot conveniently be examined in
court, and the fact to be proved
is the general result of the
whole.
(2) The court may in its
discretion require that such
accounts or other writings be
produced in court or be produced
for inspection or copying by any
adverse party.
Section 172—Immovable Writings.
Evidence other than an original
writing is admissible to the same
extent as an original to prove the
content of a writing if the
original is of such a nature as
not to be easily moved.
Section 173—Admitted Writings.
Evidence other than an original of
a writing is admissible to the
same extent as an original to
prove the content of a writing if
the contents of the writing have
been admitted by the opponent of
the evidence in writing or by
testimony in the action.
Section 174—Copy Sometimes Treated
as Original.
A
copy of a writing is admissible to
the same extent as an original to
prove the content of a writing if
an original and the copy have been
produced at or before the hearing
and made available for inspection
and comparison by the court, and
all adverse parties.
Section 175—Copies of Official
Writings.
(1) A copy of a writing which is
authorised by law to be filed or
recorded and has in fact been
filed or recorded in an office of
a public entity, or which is a
public record, report, statement
or data compilation is admissible
to the same extent as an original
to prove the content of the
writing if—
(a) an original or an original
record is in an office of a public
entity where items of that nature
are regularly kept; and
(b) the copy is certified to be
correct by the custodian or other
person authorised to make the
certification and that certificate
is authenticated or the copy is
testified to be a correct copy by
a witness who has compared it with
an original.
(2) If a copy which complies with
subsection (1) cannot be obtained
by the exercise of reasonable
diligence, other evidence of the
content of the writing is
admissible to the same extent as
an original.
Section 176—Bankers Books.
(1) A copy of a record made in the
ordinary course of business by a
bank is admissible to the same
extent as an original to prove the
content of the writing if the copy
is testified to be a correct copy
by a witness who has compared it
with an original.
(2) Evidence that the record was
made in the regular course of
business or that the copy is a
correct copy may be given by oral
testimony or affidavit by a
representative of the bank.
(3) A representative of a bank in
any action to which the bank is
not a party shall not be compelled
to produce the original records of
the bank or to appear as a witness
concerning them unless the court
finds that fairness requires such
compulsion.
(4) The court may, on application,
order a bank to allow a party to
inspect or copy any records of the
bank which concern the action,
provided that reasonable advance
notice is given to the bank.
(5) For the purposes of this
section, a bank is any business
registered in Ghana as a bank.
Section 177—Extrinsic Evidence
Affecting the Contents of a
Writing.
(1) Except as otherwise provided
by the rules of equity, terms set
forth in a writing intended by the
party or parties to the writing as
a final expression of intention or
agreement with respect to such
terms as are included in the
writing may not be contradicted by
evidence of any prior declaration
of intention, of any prior
agreement or of a contemporaneous
oral agreement or declaration of
intention, but may be explained or
supplemented—
(a) by evidence of consistent
additional terms unless the court
finds the writing to have been
intended also as a complete and
exclusive statement of the terms
of the intention or agreement,
provided that a will and a
registered writing conveying
immovable property shall be deemed
to be a complete and exclusive
statement of the terms of the
intention or agreement; and
(b) by a course of dealing or
usage of trade or by course of
performance.
(2) Nothing in this section
precludes the admission of
evidence relevant to the
interpretation of terms in a
writing.
(3) For the purpose of this
section—
(a) "a course of dealing" means a
sequence of previous conduct
between parties to a particular
transaction which is fairly to be
regarded as establishing a common
basis of understanding for
interpreting their expressions and
other conduct;
(b) "a usage of trade" means any
practice or method of dealing in a
place, vocation or trade as to
justify an expectation that it
will be observed with respect to
the transaction in question;
(c) "course of performance" means,
in respect only of a contract
which involves repeated occasions
for performance by either party
with knowledge of the nature of
the performance and opportunity
for objection to it by the other,
any manner of performance accepted
or acquiesced in without
objection.
PART XI—MISCELLANEOUS
Section 178—Application.
(1) This Decree shall apply in
every action, whether civil or
criminal, and as provided in
section 87 relating to privileges.
(2) In applying this Decree, and
in particular in determining
whether and to what extent to
exercise its power under section
8, the court shall have special
regard to the fair application of
this Decree in respect of a party
not represented by a lawyer.
(3) Any rule of law which
provides that acts in derogation
of the common law shall be
narrowly construed shall have no
application to this Decree.
(4) This Decree shall be
interpreted and applied so as to
achieve a consistent law of
evidence and the most just,
expeditious and least costly
administration of the law.
Section 179—Interpretation.
(1) In this Decree, unless the
context otherwise requires—
"action" includes every suit,
proceeding or other matter
conducted before a court;
"burden of persuasion" has the
meaning assigned to it in section
10 (1);
"burden of producing evidence" has
the meaning assigned to it in
section 11 (1);
"character" means a person's
generalised disposition made up of
the aggregate of his traits,
including traits of honesty,
peacefulness, temperance, skill or
care and their opposites;
"committee" means a person,
committee or other representative
authorised by law to protect the
person or property or both of an
incompetent and to act for him in
matters affecting his person or
property or both. An incompetent
is a person under disability
imposed by law;
"conduct" includes all active and
passive behaviour, both verbal and
non-verbal;
"court" includes the Superior
Court of Judicature and all other
courts of Ghana which constitute
the Judiciary;
"crime" has the meaning assigned
to it in section 1 of the Criminal
Code, 1960 (Act 29);
"enactment" means any enactment
including this Decree;
"essential facts" are facts which
must be established to make out a
cause of action or defence as
determined by substantive law;
"evidence" means testimony,
writings, material objects, or
other things presented to the
senses that are offered to prove
the existence or non-existence of
a fact;
"judge" means a member or members
of a court conducting a trial and
includes a Magistrate;
"law" includes constitutional,
statutory, decisional and
customary law, and rules of
equity;
"perceive" means to acquire
knowledge through one's own
senses;
"proof" is the establishment by
evidence of a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the court;
"public entity" includes a state,
a political sub-division of a
state, an organisation or
association of states and any
public authority or agency
thereof;
"public official" means an
officer, agent, employee or other
representative of a public entity
acting in the course of duty as
such officer, agent, employee or
representative;
"routine practice" means a regular
response to a repeated specific
situation;
"tribunal of fact" means trier of
fact and includes—
(a) the jury and
(b) the court when the court is
trying an issue of fact other than
one relating to the admissibility
of evidence;
"writing" means handwriting,
typewriting, printing,
photostating, photographing,
mechanical or electronic
recording, and every other means
of recording upon any tangible
thing any form of communication or
representation, including letters,
words, pictures, sounds or
symbols, or combinations thereof.
(2) In this Decree—
"examination by leave of the
court" is such further examination
as the court may allow;
"examination-in-chief" is the
first examination of a witness by
the party who called the witness;
"cross-examination" is the
examination of a witness other
than by the party who called the
witness;
"re-examination" is the
examination of a witness by the
party who called the witness after
the witness has been
cross-examined.
Section 180—Repeals and
Amendments.
(1) The English statutes specified
in the Schedule to this Decree
shall cease to apply in Ghana.
(2) The Supreme Court (Civil
Procedure) Rules 1954 (L.N. 140A)
are hereby amended—
(a) by the revocation of rules 1,
4, 21, 28 and 50 to 84 of Order
37;
(b) by the revocation of Order
37A.
Section 181—Commencement.
(1) This Decree shall come into
force on the first day of January,
1976 and shall apply to all trials
commenced thereafter.
(2) For the purposes of this
section—
(a) a trial commences when the
first evidence is admitted; and
(b) a re-trial is a new and
separate trial.
(3) If an appeal is taken form a
trial which commenced before the
first day of January, 1976 the
appellate court shall apply the
law applicable at the commencement
of the trial.
SCHEDULE
ENGLISH STATUTES CEASING TO APPLY
Witnesses Act, 1806 (46 Geo. 3, c.
37);
Evidence Act, 1851 (14 and 15 Vict.,
c. 99);
Evidence Amendment Act, 1853 (16
and 17 Vict., c. 83);
Common Law Procedure Act, 1854 (17
and 18 Vict., c. 125);
Evidence Further Amendment Act,
1869 (32 and 33 Vict., c. 68).
Made this 18th day of April, 1975.
COLONEL I. K. ACHEAMPONG
Chairman of the National
Redemption Council
Date of Gazette Notification: 22nd
April, 1975.
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