GHANA LAW FINDER

                         

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               EVIDENCE DECREE, 1975 (NRCD 323)

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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 Offers to plead guilty, withdrawn pleas of guilty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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