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HIGH COURT (CIVIL PROCEDURE) RULES, 2004

 

C.I.47

      Rule        

 

ORDER 39

EVIDENCE BY DEPOSITION

Power to order depositions to be taken

      1. (1) The Court may, in any cause or matter where it appears necessary in the interest of justice, make an order for the examination on oath of any person, at any place before a Judge, an officer or examiner of the Court or some other person,

(2) An order under subrule (1) may be made on such terms as the Court considers fit including terms that relate to discovery before examination and may contain an order for the production of any document which appears to the Court to be necessary for the purposes of the examination.

 

Where person to be examined is out of the jurisdiction

     2. (1) Where the person in relation to whom an order under rule 1 is required, is out of the jurisdiction, an application may be made

(a) for an order under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence; or

(b) if the government of that country allows a person in that country to be examined before a person appointed by the Court, for an order under that rule appointing a special examiner to take the evidence of that person in that country.

(2) An application may be made for the appointment as special examiner of a Ghanaian consul in the country in which the evidence is to be taken

(a) if there subsists with respect to that county a Civil Procedure Convention that provides for the taking of the evidence of any person in that country to facilitate the proceedings in the High Court; or

(b) with the consent of the Ghana's Minister for Foreign Affairs. 

 

Order for issue of letter of request

       3. (1) Where an order is made under rule 1 for the issue of a letter of request to the judicial authorities of a country to take, or cause to be taken, the evidence of any person in that country, the following provisions shall apply

(a) the party who requires the order shall prepare the letter of request and lodge it in the registry;

(b) if the evidence of the person to be examined is to be obtained by means of interrogatories, there shall be lodged with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him on examination;

(c) unless the official language, or one of the official languages, of the country in which the examination is to be taken is English, each document lodged under paragraphs (a) and (b) shall be accompanied by a translation of the document in the official language of that country or, if that country has more than one official language, in anyone of those laI1guages which is appropriate to the place in that country where the examination is to be taken;

(d) every translation lodged under paragraph (c) shall be certified by the vi person making it to be a correct translation, and the certificate shall contain a statement of that person's full name, address and qualifications for making the translation; and

(e) the party who obtains the order shall, when lodging the documents mentioned in paragraphs (a) to (d) in the registry, also file an undertaking as in Form 16B in the Schedule, signed by the party or the party's lawyer to be responsible personally for all expenses incurred by the Minister for Foreign Affairs in respect of the letter of request and, on receiving due notification of the amount of those expenses, pay that amount to the Minister for Foreign Affairs and produce a receipt for the payment to the Registrar.

(2) The letter of request for examination of a witness abroad, the interrogatories to accompany the letter of request and the undertaking to be responsible for all ' expenses incurred by the Minister for Foreign Affairs shall be as in Forms 16, 16A and 16B in the Schedule.

 

Enforcing attendance of witness at examination

    4. Where an order has been made under rule 1

(a) for the examination of any person before an officer or examiner of the Court or some other person, in this rule and rules 5 to 16 referred to as "the examiner"; or

(b) for the cross-examination before the examiner of any person who has made all affidavit which is to be used in any cause or matter, the attendance of the person before the examiner and the production by the person of any document at the examination may be enforced by writ of subpoena in the same manner as the attendance of a witness and the production by a witness of a document at a trial may be enforced.

 

Refusal of witness to attend or be sworn

    5. (1) If any person, who has been duly summoned by writ of subpoena to attend before the examiner, refuses or fails to attend or refuses to be sworn or to affirm for the purpose of the examination or to answer any lawful question or produce any document, a certificate of the person's refusal or failure, signed by the examiner shall be filed in the registry, and upon such filing the party by whom the attendance of that person is required may apply to the Court for an order requiring that person to attend or to be sworn or to affirm, or to answer any question or produce any document.

(2) An application for an order under this rule shall be made ex-parte.

(3) If the Court makes an order under this rule it may order the person against whom the order is made to pay any costs occasioned by the person's refusal or failure.

(4) A person who willfully disobeys any order made against him under this rule shall be liable to committal for contempt of court.

 

Time and place for examination

    6. (1) The examiner shall give the party on whose application the order for examination is made a notice appointing the place and time at which, subject to any application by the parties, the examination shall be taken, and the time shall, having regard to the convenience of the persons to be examined and all the circumstances of the case, be as soon as practicable after the making of the order.

(2) The party to whom a notice under subrule (1) is given shall, on receiving it, immediately give notice of the appointment to all the other parties.

 

Documents to be supplied

    7. The party on whose application the order for examination is made shall supply the examiner with copies of such of the documents in the cause or matter as are necessary to inform the examiner of the questions in issue in the cause or matter.

 

Conduct of examination

      8. (1) The examination shall take place in the presence of the parties, their lawyers or agents.

          (2) Subject to any directions contained in the order for examination

(a) any person ordered to be exan1ined before the examiner may be cross- examined and re-examined; and

(b) the examination, cross-examination and re-examination of persons before the examiner shall be conducted in the same manner as at the trial of any cause or matter.

 (3) The examiner may put any question to any person examined before him as to the meaning of any answer made by that person or as to any matter arising in the course of the examination.

(4) The examiner may, if necessary, adjourn the examination from time to time.

 

Examination of additional witnesses

   9. The examiner may, with the written consent of all the parties to the cause or matter, the examination of any other person in addition to those named provided for in the order for examination and shall annex the consent to the original deposition of that other person

 

Objection to questions

     10. (1) If a person being examined before the examiner refuses to answer any question put to that person, or if objection is taken to any question, the ground for the objection and the answer to the question to which objection is taken shall be set out in the deposition of that person or in a statement annexed to it.

(2) The validity of the ground for objecting to answer any question or for objecting to any question shall be decided by the Court and not by the examine, but the examiner shall state to the parties, an opinion on it, and the statement of the examiner's opinion shall be set out in the deposition or in a statement annexed to it.

(3) If the Court decides against the person who raised the objection, it may order the person to pay the costs caused by the objection.

 

Taking of depositions

     11. (1) The deposition of any person examined before the examiner shall be taken down or recorded by the examiner or a shorthand writer or some other person in the presence of the examiner but, subject to subrule (2) and rule 10 (1), the deposition need not set out every question and answer so long as it contains as nearly as may be the statement of the person examined.

(2) The examiner may direct the exact words of any particular question and the answer to it to be set out in the deposition if that question and answer appear to the examiner to have special importance.

(3) The deposition of any person in transcript shall be read to the person, and the person shall be asked to sign it in the presence of such of the parties as may attend, but the parties may agree in writing to dispense with the foregoing provision.

(4) If a person refuses to sign a deposition under sub rule (3) the examiner shall sign the deposition.

(5) The original deposition of any person, authenticated by the signature of the examiner before whom it was taken, shall be sent by the examiner to and filed at the registry

 

Indorsement of time occupied

     12. Before sending a deposition to the registry, the examiner shall indorse on it a signed statement of the time occupied in taking the examination and any fees received in respect of the examination.

 

 

Special report by examiner

     13. An examiner may make a special report to the Court with regard to any examination before the examiner and with regard to the absence or conduct of any person at the examination, and the Court may direct such proceedings to be taken, or make such order on the record as it considers fit.

 

Fees and expenses of examiner of the Court

    14. (1) An examiner is entitled to charge such fee as the Court may authorise for each day or part of the day on which the examiner conducts an examination.

(2) The party prosecuting the order shall also pay all reasonable traveling and other expenses of the examiner.

(3) An examiner is not obliged to send any deposition to the registry until all fees and expenses due to the examiner in respect of the examination have been paid.

 

Order for payment of examiner's fees

     15. (1) If the fees and expenses due to an examiner are not paid, the examiner may report that fact to the court, and the Court may direct the Registrar to apply for an order against the party on whose application the order for examination was made to pay the examiner's the fees and expenses in respect of the examination.

(2) An order under this rule shall not prejudice any determination as to the party by whom the costs of the examination shall ultimately be borne.

Appointment of examiner

16. The Chief Justice may appoint any lawyer of not less than three years' standing to act as an examiner of the Court for a period not exceeding five years at a time, and may revoke the appointment at any time.

 

 

 

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