Section 118 involves a radical reform of the law of hearsay evidence, which has previously been one of the most complex and confused areas of the law of evidence,,,,”[1]

“[2]From the analysis that has been done above, it is clear to me that the rules on hearsay evidence are still a troublesome area of the Law of Evidence despite the effort by NRCD 323 to simplify it…”

                                        

INTRODUCTION

Hearsay evidence arises where a witness in his own statement repeats a statement, oral or written made by another person in order to prove the truth of the facts stated. Such evidence is not permitted to be given. It is therefore a fundamental rule of evidence at common law that hearsay evidence is inadmissible. Thus, to prove that an accused person committed an offence, a witness is not allowed to offer as evidence that he heard someone else say that the accused committed the offence.[3]

Various textbook writers have differently formulated the rule. According to Phipson[4]: “Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible to prove the truth of the matters stated.” Cross’s[5] formulation is that: “Express or implied assertion of persons other than the witness who is testifying, and assertions in document produced to the court when no witness is testifying is inadmissible as evidence of the truth of that which was asserted.” Keane Adriane[6], aptly put it thus: “Any assertion other than one made by a person while giving oral evidence in the proceedings, was inadmissible if tendered as evidence of the facts asserted.

Though each of these definitions is open to criticisms, both substantially represent the essence of the rule.

The above definitions represent the common law position, which states that hearsay evidence is inadmissible. The common law being part of the laws of Ghana[7], any hearsay rule is applicable to Ghana, notwithstanding the limitations on the application of hearsay evidence by section 117.[8] Under the Evidence Act of Ghana[9], section 116 to 135 deals with hearsay evidence. Some school of thought argue that hearsay evidence is inadmissible in Ghana as the common law position without adverting their minds to the exception or checklist stated in section 117 of the Evidence Act.

This paper tends to examine the intricacies of the hearsay rule and demystify the conundrum of its application in our courts.

THE GHANAIAN POSITION

Hearsay evidence is defined by section 116 of the Evidence Act thus:

“For the purposes of this Part,

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

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

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

In Opanin Osei Akwasi v Dwemoh[10]  Supreme Court per Kulendi JSC elaborated the import of section 116 (c) of the Evidence Act, (NRCD 323) 1975. thus:

“The principal enactment that governs the admissibility of evidence is the Evidence Act, 1975 (Act 332). The said Act defines evidence as “testimony, writings, material objects or any other things presented to the senses that are offered to prove the existence or non-existence of a fact.”

Although as a general rule all relevant evidence is admissible, Act 323 specifically provides for categories of evidence that may be inadmissible. One of such categories is hearsay evidence. Hearsay evidence is defined by section 116 (c) of Act 323 as follows: “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”.

HEARSAY EVIDENCE UNDER THE EVIDENCE ACT, 1975 (NRCD 323)

Section 117 also states:

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

Section 117 implies that the common law rule that makes hearsay evidence completely inadmissible is inapplicable in Ghana because of the provisos: “except as otherwise provided by the Decree or any other enactment or by agreement of the parties.”

Pwamang JSC aptly stated in Republic v High Court (Criminal Division 1); Accra; Ex parte Stephen Kwabena Opuni[11]thus:

“There are about fourteen exceptions in NRCD 323 covering sections 118 to 132 which provide for hearsay evidence to be admissible under the Act. There are other enactments such as section 31 of the Chieftaincy Act, 2008 (Act 759) that makes hearsay evidence admissible, but does not apply in this case. The memorandum to the Evidence Act at paragraph 19 states as follows:

“19. Section 117 makes clear that parties can agree to the admission of otherwise hearsay inadmissible evidence.”

The agreement may be express or by implication. So that where a party fails to object to the admission of hearsay evidence, he may be deemed to have consented to its admission.  As observed (in holding 1) by Taylor JSC in Kuo-Den alias Sobti v The Republic[12] as:

“Sections 117 and 118 of the Evidence Decree (now Act), provided that hearsay evidence became admissible in the case where no objection was raised to it at trial at the time when the said hearsay evidence was given, for such cases clearly connoted an implied an implied agreement in the admission of the said hearsay evidence. In the instant case, the hearsay evidence of the doctor so admitted without objection corroborated the evidence of the police officer’s actual examination, which revealed a cut on the forehead and another big cut on the chest quite consistent with stab wounds. There was therefore admissible evidence as to the cause of death.”

In William Mensah v Mutala Lamidi & Anor[13], the Court of Appeal per Bright-Mensah JA (as he then was) also stated:

“Hearsay evidence is by operation of the law made inadmissible by section 117 of NRCD 323. However, there are exceptions to the general rule, e.g, where a party may be treated as an unavailable witness by reason of death or immune from testifying or is disqualified to testify on grounds of law. These come within the category of circumstances whereby a hearsay statement may be admitted in evidence. Some of the exceptions are provided in sections 118 (1) (a) (b) and 116 (e) (ii) of NRCD 323….”[14]

In other words, hearsay evidence is not wholly inadmissible. There are statutory qualifications to the admissibility of hearsay evidence. As rightly stated by Acquah JSC in Edward Nasser v McVroom[15] , the Supreme Court speaking through Acquah JSC (as he then was) noted the statutory qualification for the admissibility of hearsay evidence when he said as follows:

“The Evidence Decree, NRCD 323 has made major inroads into the law of hearsay and consequently hearsay evidence cannot under the Evidence Decree 1975 (NRCD 323) be said to be inadmissible per se.”

Indeed, when an objection is raised to the admissibility of evidence on grounds of same being hearsay, a court of law must go through the checklist exceptions created by the hearsay evidence rule under Act 323 to satisfy itself that the said testimony cannot be saved under any of the exceptions. This is because to disallow evidence which is otherwise admissible per statute may have the dire consequence of occasioning a party injustice especially so where such decisions are not contested by means of appeal. Section 118 to 134 provide the various exceptions to the hearsay rule and section 118 states as follows:

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

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

(b)      the declarant is

(i) unavailable as a witness, or

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

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

Also, section 118 provides for the admission of first hand hearsay evidence subject to conditions set out in the said section. In this regard, Pwamang JSC in Republic v High Court; (Criminal Division), Accra; Ex parte Stephen K, Opuni (Attorney General Interested Party)[16] said concerning first hand hearsay as follows:

“First-hand hearsay evidence is a statement or representation made outside the trial in which it is sought to be introduced which if it had been made by the declarant herself while testifying in the case, would have been admissible…A close reading of section 118 would reveal that it makes first-hand hearsay evidence admissible under three different situations: (i) where the hearsay declarant is not a available as a witness, or (ii) where the hearsay declarant is already a witness in the case or an intended witness, or (iii) where the hearsay declarant is available as a witness in that she is available to be examined on the statement.”

EXCEPTIONS TO INADMISSIBILITY OF HEARSAY EVIDENCE

First hand hearsay

First hand hearsay testimony is admissible if it can be demonstrated that the statement made by the declarant would have been admissible had it been made by the declarant while testifying and the said testimony would itself not have been hearsay evidence. Pwamang JSC opined in the Ex Parte Opuni case[17] thus: “it is obvious that if the makers of the statements in the exhibits in question had made those statements while testifying in the case, the statement would be admissible since they concerned matters perceived by the declarant themselves.”

This requirement is set out in section 118(1)(a) of Act 323. In addition to the above condition, a court must further satisfy itself that any one or more of the following conditions set out in section 118 (1) (b) of Act 323 are met:

1. the declarant is unavailable as a witness or;

2. the declarant is a witness or will be a witness in the case and therefore would be subject to cross-examination concerning the hearsay statement statement or;

3. the declarant is available as a witness and reasonable notice with sufficient particulars has been given to the court and to every other party of the intention to offer the hearsay evidence at trial.”

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

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

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

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

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

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

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

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

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

Where the declarant is available as witness the following steps must be taken:

1. the party offering the evidence (the declarant), must give reasonable notice to the court and every other party of his intention to offer hearsay statement at the trial
2. the party must give sufficient particulars to afford reasonable opportunity to estimate the value of the statement in action.

The law in relation to criminal action is contained section 118 (2)[18].

Where the prosecution is relying on first hand hearsay in the case where the declarant is available as a witness and the other party is offering the evidence, the law stipulates that the evidence shall not be admissible if:

1. An accused person has given reasonable notice to the court and
2. The accused has given reasonable notice to prosecution
3. That he objects to its admission.

However, by section 118(3) of the Act, the prosecution shall not be precluded from offering such evidence under any other clause of section 118(1) or under any other provision of the Act.  In a criminal action, if the accused is or will not be subject to cross examination, evidence of hearsay statement made by an accused shall be inadmissible under section 118(1) when offered by the accused. That is the law in section 118(4) of NRCD 323.

Evidence of declarant who is unavailable as a witness by reason of exemption, preclusion, disqualification, death, inability, absence, or failure of recollection is not admissible if the unavailability was brought about by the wrongdoing of the proponent of his statement for the purpose of preventing the declarant from attending or testifying, according to section 118(5) of the Evidence Act.

Section 116(e) of the Evidence Act defines “unavailability” of a witness as a declarant who 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.

Admissions

The second exception to the inadmissibility of hearsay evidence is provided in section 119 of the Act and this relates to admissions.

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

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

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

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

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

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

In Republic v High Court, Denu; Ex Parte Agbesi Awusu II (No. 1) (Nyonyo Agboada Sri III Interested Party)[19], the Supreme Court per Date-Bah JSC stated in (holding 3) of the report as follows:

“The statement of facts made in the ruling by the respondent Justice Woanyah did not constitute admissible hearsay evidence under section 119(b) of the Evidence Decree, 1975 (NRCD 323), because the judge was precluded, under section 65 of the same decree, from giving sworn testimony in the case before him. However, it would be probably legitimate for the court to take judicial notice of the judge’s ruling under section 9(2)(b) of the Decree which empowered the courts to take judicial notice of facts which were “so capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned that the fact is not subject to reasonable dispute.”

In Nkoah v The Republic[20], at (holding 2) of the report Forster JA held:

“on account of the provision of section 119(e) of the Evidence Decree, 1975 (NRCD 323) the admission of a conspirator was admissible against his coconspirator only if the statement was made “while participating in a conspiracy to commit a crime or a civil wrong in furtherance of that conspiracy.” In effect the essential prerequisite for the application of the rule was the requirement that the acts or statements of a conspirator sought to bind his co-conspirators or criminal confederate should have been done or uttered, as the case may be, in the course and furtherance of the conspiracy and not after the conspiracy had terminated, unless the co-conspirator either expressly or by implication adopted the statement and made it his own. Besides, the settled position of law was that an extra-judicial statement made to the police by an accused person in which he incriminated himself and a co-accused as to the offence charged jointly against them bound only the confessor and not the non-confessing co-accused; and it did not matter that they had charged with conspiracy. In the instant case, the confession statement sought to be used against the non-confessors was made on 17^th April 1992 when the conspiracy had terminated and the conspirator had been apprehended by the police. Exhibits C and D were therefore not admissible against the other co-accused persons and the learned trial judge erred in directing the jury to the contrary. However, there was substantial evidence on record besides exhibits C and B, albeit circumstantial, particularly the evidence of the first prosecution witness, on which the third and fourth accused persons could be properly convicted. Hence there was no substantial miscarriage of justice as to entitle the court to set aside conviction of the third and fourth accused persons.”

Confessions

Section 120. (1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which

(a)      constitutes, or

(b)      forms an essential part of, or

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

In Edzidor v The Republic, the Court of Appeal per Sowah JA defined confession as:

“To be properly termed a confession statement, the statement must make an admission which admission constitute the commission of a crime for which the accused is being tried in the action or must form an essential part of the commission of a crime or must be the basis for an inference of the commission of a crime for which the accused is being tried in the action.”

(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who

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

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

In Nyarko v the Republic[21], the Court per Dordzie JA stated:

“Exhibit B is the appellant’s confession statement to the police. Section 120 of the Evidence Act, (NRCD 323) regulates the admissibility of such statements. Thus for a court to admit and rely on the appellant’s confession statement to convict him the court must investigate the circumstance of obtaining the statement and be sure that it was made voluntary and was made in the presence of an independent witness.”

In Edzidor v The Republic[22], the Court of Appeal held:

“First of all, the requirement in section 120(2) of the Evidence Act, 1975 that evidence of a hearsay statement shall not be admissible under sub-section 1 of 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 was amended by the Evidence and Criminal Procedure (Amendment) Decree 1979 (SMCD 237) by the deletion of the words ‘other than a police officer or member of the armed forces approved by the accused’… The current statutory position is that a police officer is not per se incompetent to be an independent witness under section 120 unless he does not satisfy other qualities expected of an independent witness, as for example not able to read or understand the language in which the statement is made. Since no such issues have been raised in respect of Police Constable Linda Nsiah, the trial judge rightly ruled that she was competent to be an independent witness to exhibit K.”

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

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

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

In Agogrobisah v The Republic[23], Acquah JA (as he then was) held:

“From the provisions of section 120 (3) of NRCD 323 above, any person who claims to have witnessed the making of a confession statement and desires to testify to that effect must in his certificate state that the statement was voluntarily made, and further that the accused fully understood the contents of the alleged statement. These two requirements are indispensable. For the latter requirement would ensure that what ensure that what the accused voluntarily said in whatever language he spoke, is what had indeed been put down in the English language. Where a certificate fails to state either of them, that certificate would be incompetent to authenticate the alleged confession statement. With the result that the said confession statement would be inadmissible.”

In the instant case, I concede that exhibit C, which was tendered, was tendered without objection and one way may therefore say that Mr Agbesi is forbidden by section 6 of NRCD 323 from raising this point. But one must not lose sight of the fact that the appellant was not represented by a lawyer at the trial. And further that if indeed exhibit C is inadmissible per se, then his failure to object is no bar since section 8 of NRCD 323 provides: “8. Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.

In construing section 8 of NRCD 323, especially when the case comes on appeal, the court is enjoined by NRCD 323 to have due regard to parties who were unrepresented by lawyers and therefore would be unable to appreciate the intricacies of the law of evidence. Thus section 178(2) of NRCD 323 provides:

“(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 Act in respect of a party not represented by a lawyer.”[24]

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

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

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

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

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

(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.

Former Testimony

Section 121 of the Evidence Act.

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.

In Ernestina Boateng v Phyllis Serwaa & Ors[25], Pwamang JSC in answering the issue whether a former testimony before a judge in a different case is an exception to hearsay evidence, stated:

“Unfortunately, no legal ground has been articulated by the lawyer and the Court of Appeal for their position except to say that the evidence was not led before the judge in this trial. By that they imply that exhibit “A” is hearsay evidence. Section 117 of the Evidence Act, 1975 (NRCD 323) that makes hearsay evidence inadmissible states that the section is subject to exceptions which are provided for in the Act. Former testimony before a judge in a different case is one of those exceptions stated under section 121 of NRCD 323.

Under section 121 of NRCD 323, the conditions that must exist to make evidence in a previous case admissible in a subsequent case are follows:

1. the party in the current case against whom the evidence is offered was either a party in the previous case or has interests and motives that are identical or similar to those of a party in that previous case.
2. The evidence from the previous case that is sought to be tendered in the second case must have been subjected to cross-examination by the party with interests and identical or similar to the party against whom the evidence is being offered.
3. The evidence was admissible and taken in accordance with law in the previous case, and
4. The evidence must be relevant for the determination of an issue in the current case.”

Past recollection recorded

By section 122 of the Act, 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 the memory of the witness, the witness recognised the written statement as an accurate record of what the witness had perceived or the witness stated what the witness perceived and the written statement, by whomever or however made, correctly sets forth what the witness stated.

State of mind

By section 123, 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.

Business records

By section 125 (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 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 those 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 show 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, “business” includes a 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.

In Scanship (Gh.) Ltd v Effasco[26],

Mr Amarteifio also contended that exhibit M which explained how the loss of the plaintiffs’ goods occurred was wrongly rejected as hearsay and self-serving, having regard to the fact that it was a record made by the Master of the Ship in the log book at the time of the loss of the goods, as a business record. He relies on section 125 of the Evidence Decree, 1975 (NRCD 323).

The Supreme Court held thus (holding 2)

“Exhibit M, made by the Master of the ship to the log book at the time of the loss of goods, explaining how the loss of the plaintiffs’ goods occurred, was a business record admissible in hearsay evidence under sections 117 and 125 of the Evidence Decree, 1975 (NRCD 323). Both the trial court and the Court of Appeal erred in holding otherwise. However, notwithstanding the error, no substantial miscarriage of justice occurred because the error on the evidence, rather enured to the defendant’s benefit; therefore, section 5(3)(b) of NRCD 323 is inapplicable.”[27]

Also in the Republic v High Court (Criminal Division 1), Accra; Ex Parte Stephen Kwabena Opuni[28],Pwamang JSC stated that section 126 of NRCD 323 is usually considered to be the statutory basis for police investigators to tender statements written by them which relates matters the investigator has no person knowledge of and which would otherwise be hearsay evidence.

Official records

By section 126 (1)     Evidence of a hearsay statement contained in 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 officer;

(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 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 officer 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.

In Otsibah v The Republic[29], the Court of dismissing the appeal held:

“The medical evidence in the instant case demonstrated an identification of the deceased to the doctor by the police. That was a question of fact that could be attested to without infringing hearsay rules. It went further to supply links in the chain connecting the deceased with and identifying him as the person who had sustained a fatal wound at the police cell and who was subsequently examined by the doctor. If those facts were rejected on grounds of hearsay no medical identification would be possible, nor would medical evidence of an attempt by receivable contrary to sections 125 and 126 of the Evidence Decree, 1975 (NRCD 323).”[30]

Judgments

By section 127 (1)     Evidence of a final judgment in a criminal action of a Court adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove a 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 a fact which was essential to the judgment in an action in which the judgment debtor seeks

(a) to recover partial or total indemnity or exoneration for money paid or liability incurred because of the judgment; or

(b) to enforce a warranty to protect the judgment debtor against the liability determined by the

judgment; or

(c) to recover damages for breach of a warranty substantially the same as the warranty determined by the judgment to have been breached.

(3) Where 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 against that person is not made inadmissible by section 117 when offered to prove that 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.

Family history

By section 128 (1)     Evidence of a hearsay statement by a declarant concerning the birth, marriage, divorce, relationship by blood, marriage or adoption, ancestry or any other similar fact of the family history of the declarant is not made inadmissible by section 117, and will not be made inadmissible by the fact that the declarant did not have any means of acquiring personal knowledge of the matter declared if the statement was made before the controversy arose over the fact of family history.

In Kuma v Asante[31] per (holding 2) the Court of Appeal stated:

“Section 128 of NRCD 323 did not provide for the admission of traditional evidence to prove or disprove title to family property. It permitted multiple hearsay evidence (traditional evidence) in the nature of declarations concerning the declarant’s own birth, marriage, divorce, relationship by blood, marriage or adoption, ancestry or other similar fact of his family history. It enacted the common law rule of evidence for the admission of hearsay evidence of pedigree. There was no specific provision under NRCD 323 that preserved the admission of multiple hearsay declaration or reputation to prove title or acquisition of property and the like. That type of hearsay was peculiar to customary law and had no root in common law. Its admissibility was however preserved by section 117 that permitted recourse to the Courts Act. 1971 (Act 372) s 49(2) which provided that rules of evidence hitherto applicable in proceedings in Ghana should continue to apply. Under the prevailing rules of admissibility of multiple hearsay or traditional evidence to prove title or any matter appertaining to family or ancestral property, the hearsay declarant ought to be a member of a family.”

(2) Evidence of a hearsay statement concerning the birth, death, marriage, divorce, relationship by blood, marriage or adoption, ancestry or any 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 the 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 a family bible or other family book, family portrait, and inscriptions on a building, a tombstone 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 any 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 any other similar fact of the family history of a member of the family by blood, marriage or adoption.

Boundaries and community history

By section 129. Evidence of reputation in a community given by a person with personal knowledge of the reputation is not made inadmissible by section 177 if

(a) the reputation concerns boundaries of, or customs affecting, land in the community and the reputation arose before the 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.

In Oppon v Anin[32], the court held:

“Now, traditional evidence is derived from tradition or reputation or statements of deceased persons with regard to questions of pedigree, ancient boundaries and the like, when no living witnesses are available to testify about such matter. Thus the person who is himself narrating such evidence has no personal knowledge about the matters to which to which he is testifying. The same usually applies to the person who also told the person testifying. Such evidence is therefore hearsay evidence, and had the common law and sections 128 and 129 of the Evidence Decree, 1975 (NRCD 323) not made same admissible as an exception to the hearsay rule, such evidence would undoubtedly have been inadmissible.”

Deeds and ancient writings

By section 130 (1)     Evidence of a hearsay statement contained in a deed of conveyance or a will or any 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 twenty years old and the statement has since been acted upon as true by persons having an interest in the matter.

Reputation concerning character

By section 131. Evidence of a person’s general reputation with reference to the character or a trait of the character of that person at a relevant time in a group with which that person regularly associated is not made inadmissible by section 117 when offered to prove the truth of the matter reputed.

Reference works

By section 132(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 in that document 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 that 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 any 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).

Credibility of declarant

By section 133; Where hearsay evidence is 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 the declarant did not have an opportunity to explain or deny the inconsistency because the declarant 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.

Examination of declarant

By section 134 (1) The declarant of a hearsay statement admitted in evidence may be called and examined, as if under cross-examination concerning the statement, by a party adverse to the party who introduced the statement.

(2)      Subsection (1) does 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 the interest of that person substantially the same as that of a party.

(3) Subsection (1) does not apply if the statement is hearsay evidence admissible only under section 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.

It can be argued that the above provision indicates that it is not always that the case hearsay evidence is inadmissible. The decision in Edward Nasser is instructive to the effect that the Evidence Act, 1975 has made a number of major inroads into our law of hearsay and consequently hearsay evidence cannot under the Act be said to be inadmissible per se.

By these provisions, I will examine the recent decision in the Ex Parte Opuni case (supra) in light with the relevant provisions of the hearsay rule.

THE EX PARTE STEPHEN KWABENA OPUNI EXPERIENCE (ORDINARY BENCH)

One of the main issues that arose in the case for the purpose of this paper was whether or not the High Court committed any error in deciding that the statements tendered through the investigator be expunged for having offended the hearsay rules which error is obvious and render’s the High Court’s decision expunging the said evidence a nullity.

 Facts of the case

At the end of criminal trial pending in the High Court, Accra, the applicant who used to be the Chief Executive Officer of Cocobod has been charged together with two others on various counts including abetment of defrauding by false pretenses and willfully causing financial loss to the state of Ghana in relation to the procurement and supply of Lithovit Foliar Fertilizer from Germany. The fertilizer was for application by farmers on cocoa so as to increase the country’s output. At the close of the case of the prosecution, the applicant made a submission of no case to answer and in his ruling dismissing that application the trial judge made the impugned orders and findings. Part of the case made by the prosecution against the accused persons, as captured by the trial judge at pages 17 to 21 of his 89 page ruling, which exhibit “EXH OPS” in these present proceeding was as follows:

“Investigations have revealed that on assumption of office, Stephen Kwabena Opuni 1^st accused person as Chief Executive Officer (CEO) of COCOBOD directed, contrary to established policy and practice, that the period for testing should be shortened. Additionally, upon the direction of the 1^st accused person no field or laboratory tests were conducted for renewal of certificates for the use of Lithovit Foliar Fertilizer on cocoa during his tenure in office…On the 19^th February, 2014, the 1^st accused person applied to the Public Procurement Authority (PPA) for approval for the 3^rd accused company to be singled sourced to procure 700,000 litres of “Lithovit Fertilizer” although conditions for single source procurement had not been satisfied.’….In the course of the investigations, tests conducted revealed variously that the “Lithovit” supplied by the 2^nd and 3^rd accused to COCOBOD had been adulterated and did not meet the specified standard and that the product could not be used as foliar nutrient on cocoa. Furthermore, the tests indicated that the “Lithovit” which was tested could be harmful to humans and animals as well as hazardous to water and that the amount of Lithovit found in the sample was insignificant and could compromise the outcome of its application on cocoa. Even though COCOBOD had spent (sic) a sum of $ 65,200,000 (GHC 217, 345, 289.20) on Purchase of “Lithovit Liquid Fetilizer,” COCOBOD’s records show that there was not significant increase in cocoa yield within the period.”

As justification for excluding the statements tendered by the accused persons through the investigator the trial judge said as follows:

“However, counsel tendered exhibits 71, 72 and 73 being statements of Genevieve Baah Mante (Mrs), Fiona Gyamfi and Paula Adjei Gyang which confirm that there was another test conducted on the Lithovit supplied by GSA for further testing. It is trite that a witness should not talk about something of which he had no personal knowledge but rely upon his own observations and recall of the matters in dispute and this is the rule against hearsay provided under section 117 of NRCD 323. See Ekow Russel[33] It is also trite learning that a court could admit documents into evidence and reject same during judgment. In view of the decision in Ekow Russel v The Republic, a Supreme Court decision, this court was wrong in admitting exhibits 71, 72 and 75 since they offend against the hearsay rule in section 117 of NRCD 323.

In the circumstances, this court rejects exhibits 71, 72 and 75 as hearsay since the authors were not under section 117 of NRCD available to answer questions and in denial of PW7 about scientific test, these exhibits are hereby rejected as marked as rejected.”

Further, at page 88 of his ruling he said thus:

“Moreover, by the decision of the Supreme Court in Ekow Russel v The Republic case (supra) I would reject exhibits 58, 59, 60, 61, 62, 63, 64 65. 66, 67, 68 69, 70, 71, 72, 73, 74 and 75 as they offend the hearsay rule in section 117 of NRCD 323 as a court has to reject evidence during judgment stage, the exhibits were all tendered through witnesses who were not authors and could not answer questions based on them. Meanwhile the witnesses are available.”

It was the case of the applicant that the above orders of the trial judge are grievously erroneous in that they were made in breach of statute and secondly, the trial judge did not hear him before suo motu expunging from the record evidence that had been tendered without objection by the prosecution. The applicant invoked the supervisory jurisdiction of the Supreme Court to quash the orders made by the trial judge.

One type of error of law that this court has consistently held to be fundamental and would warrant the exercise of its supervisory jurisdiction over a superior court is where the error committed by the court amounts to violation of provision of statute or the constitution 1992.[34]

The Supreme Court by 3:2 majority decision (departing from the Ekow Russel case supra) Pwamang JSC, Dordzie and Tanko concurring, whilst Dotse JSC and Lovelace Johnson dissenting as follows:

Per Pwamang JSC opined:

“It is apparent from the ruling of the trial judge that the reason he described the exhibits in question as hearsay is the fact that PW7 through they were tendered is not the person who personally perceived the matters referred to in the statements but it is rather the makers of the statements. The contention is therefore, that to the extent that the statements were tendered by the accused person to prove the truth of their contents, they are hearsay. That may well be so but the correct legal position is that it not every hearsay that is inadmissible and under NRCD 323, hearsay evidence is not inadmissible per se. Edward Nasser & Co. Ltd v Mcvroom and Another [1996-97] SCGLR 468 and section 117 of the Evidence Act, 1975 (NRCD 323). There are about fourteen exceptions in NRCD 323 covering sections 118 to 132, which provide for hearsay evidence to be admissible under the Act…..

Therefore, there is authority to hold, that in this case, by not raising objection to the tendering of the exhibits that were ordered to be excluded by the trial judge, the prosecution agreed with the accused person to the tendering of those otherwise hearsay statements so they are admissible as an exception to the hearsay rule and ought not to be excluded. Ekow Russell v The Republic (supra) was not decided on hearsay evidence that was tendered without objection so this case is different but it appears the full ambit of section 117 of the Act eluded the trial court.

Therefore, the trial himself said in his ruling quoted above that the declarants of these statements were available as witnesses, the third situation that enables first-hand hearsay evidence to be admissible is applicable to those statements.

What the interested party must realise is that it is only where the declarant is unavailable as a witness that her statement is admissible as first-hand hearsay under section 118, subsection (1)(b)(ii) of the section talks of where the declarant is a witness or will be a witness, and subsection (1) (b)(iii) covers where the declarant is available as a witness and particulars of the statement are provided to the court and the opposite party. Subsections (1)(b)(ii) and (iii) are stated to be alternative provisions to subsection (1)(b)(i) on where the declarant is unavailable as witness. By the use of the word “or” between subsection (1)(b)(i) and subsection (1)(b)(ii) and (iii) anyone of those three situations would qualify a statement to be admissible first-hand hearsay under section 118 as an exception to section 117.

Having regard to the clear provisions of subsection (1)(b)(iii) of section 118 concerning where the declarant is available as a witness, which is an alternative provision to subsection (1)(b)(i) on where the declarant is unavailable as a witness, it seems to that Ekow Russel v The Republic was not correctly decided. By saying section 118 would avail the prosecution “where the declarant is unavailable as a witness”, the court confined itself to subsection (1)(b)(i) of section 118 and failed to consider subsection (1)(b)(iii) of the section which was applicable in the Ekow Russel case as the evidence was that first-hand hearsay declarant was available and could be called as a witness. Furthermore, the court did not advert its mind to the applicability of section 126 of the Act.

In conclusion, I am of the opinion that the exhibits excluded by the trial judge are indeed admissible under sections 117, 118, and 128 of NRCD 323 and that the trial judge purported to exclude them in error. By excluding them the trial judge acted in clear violation of the statute and that is a ground for which this court would exercise its supervisory jurisdiction in respect of a decision by a superior court.”

Dissenting opinion by Dotse JSC

“There is nothing in the Evidence Act supra and the Criminal and other Offences (Procedure) Act, supra that require or stipulate that a presiding judge should further give hearing to a party before the court determines the admissibility, or non-admissibility or weight that is to be attached to document that has been tendered without objection. These considerations are in the domain of the trial court judge and he cannot be faulted for what he did.

I have looked at sections 6 and 8 of the Evidence Act supra. What is important to observe is that, whilst section 6 states, that objections to the admissibility of evidence shall be made at the time of tendering, section 8 on the other hand reiterates the power of the court to exclude inadmissible evidence on the courts own motion if not objected to by the parties.

In the instant case, there is absolutely no controversy that the rejected exhibits had been tendered and admitted without any admission. However, it is at the evaluation of the submission of no case ruling that the learned trial judge had been given the first opportunity to evaluate all the evidence that had been led up to that stage. That is when the court was considering whether a prima facie case had been established for defence to open.  

If there had been no such submission, and the defence had opened, the learned trial judge would have been required to evaluate the entire evidence at the end of the trial before judgment. But, when the applicant exercised his right at the time he did, the learned trial judge was also bound to evaluate the evidence led up to that stage…..My understanding is that and this has been recognized by the learned trial judge that the persons from whom PW7 took the statement from, are present and available as a witness and can be called by the applicant to testify on behalf if he so desires.

I am therefore of the considered view that the reliance of the learned trial judge on the case of Ekow Russell v The Republic (supra) is appropriate. If the applicant complains about the ruling, it is his right, but then the error complained of is definitely not apparent or latent on the face of the record for him to apply to this court to invoke this court’s supervisory jurisdiction under article 132 of the Constitution 1992.”

THE REVIEW DECISION

The Supreme Court by 4:3 majority ratio with  Torkornoo (Mrs) JSC giving the lead opinion and Dotse JSC, Prof. Kotey and Lovelace-Johnson(Ms) JSC concurring with same whilst Tanko Amadu delivered the dissenting view with Pwamang JSC and Dordzie JSC (concurring with same).  The majority reviewed the decision of the ordinary bench and affirmed that the Ekow Russell case was not delivered per incuriam.

Per Torkonoo JSC (as she then was) relied on the doctrine of judicial precedent and affirmed the decision in the Ekow Russell case and held thus:

“My lords, the doctrine of judicial precedent, with the basic rule being that “Like Cases Be Treated Alike” as already indicated, is a foundational doctrine of the common law system of administration of justice that Ghana operates. The doctrine is the thread of coherence that ensures consistency and predictability in the legal principles used to decide the myriad of fact diverse cases that brought to court. It eschews arbitrariness of a judge, and is therefore a bedrock of assuring justice to the one who comes to the seat of justice. It requires that when a higher court, has outlined the contours of a legal principle, that decision upon a question of law is conclusive, and becomes an authoritative precedent that must stand, or stare decisis, and bind all lower courts….In article 129(3), this common law doctrine of judicial precedent and principle of stare decisis has been elevated to a constitutional pillar on which our legal system operates, and so I do not need to discuss its development from seminal cases as London Street Tramways v London County Council 1898 A,C 375.

From the record before us, the trial judge whose decision to exclude exhibits has been quashed was doing exactly what he was required to do by reason of this constitutional edict derived from the common law doctrine of judicial precedent. He was following the principles directed by this court in the cases of Ekow Russell and Juxton Smith. To quash his decision for being ‘contrary to statute’ would therefore be an exceptional a circumstance.

Further, in line with the silence of the majority panel on the invitation to find the judge’s failure to call on the accused persons in the middle of his ruling to speak to admitted exhibits as a breach of the rules of natural justice. I can agree with the Attorney General that this position from counsel for the respondents is not known to any rules of practice in our legal system,

It is for the above reasons that I would hold the order granting the application for certiorari constitutes an exceptional circumstances, and also works substantial miscarriage of justice against the parties, and the directions of article 129(3) of the Constitution 1992.”

Dotse JSC also said:

“We must bear in mind at this stage that our brother Honyenuga JSC was presided over the Suit at the High Court, did so as an additional  judge of the High Court. This therefore meant that he was exercising the jurisdiction conferred on the High Court as by law established.

This therefore meant that, at all material times, when there is an authority on a subject matter from the Supreme Court, all courts lower than that court are bound to follow the decision of the Supreme Court. The case of Ekow Russell v The Republic [2017-2020] SCGLR 469 which was re lied upon by the learned High Court judge was actually a binding authority. There was no way he would have departed from it,”

Pwamang JSC dissenting on the judicial precedent as applied by the majority stated thus:

“The impression must not be given to lower courts that the mere mention of a Supreme Court decision, even if it not applicable to the facts of a case, can justify the violation of statutory and constitutional rights.”

Contra Per Tanko Amadu JSC:

“A judicial position taken in violation of statute therefore cannot deliver the justice for which the parties are before the court. In the majority decision, it was first observed as follows: “One type of error of law that this court has consistently held to be fundamental and would warrant the exercise of its supervisory jurisdiction over a superior court is where the error committed by the court amounts to violation of provision of a statute or the constitution.”

Tanko Amado further opined on the hearsay rule thus:

“Further, in the interpretation of statutes, the time honoured rule is to read the statute as a whole. In this case, the High Court simply failed tp read the whole of the specific statutory provision in contention, let alone its other component parts. The High Court glossed over that part of section 117 of the Evidence Act which says that hearsay evidence is admissible “by the agreement of the parties.” There cannot, in my view, be an error less obvious than one that is made patently manifest by a cursory reading of a very short statutory provision and omitting six key words which define the provision. In so doing, the learned trial judge glossed over a phrase that was crucial to the matter before him. This phrase is “or by the agreement of the parties.” I have already pointed out that even if the court could at a later stage exclude that evidence, it must be subject to the parties’ right to be heard once it was admitted without objection.”

ANALYSIS OF HEARSAY RULE IN LIGHT WITH THE EKOW RUSSELL CONUNDRUM

The Ordinary Bench in the Stephen Kwabena Opuni case held that the Ekow Russell case was inapplicable to the instant case and that the learned trial judge was wrong to rely on it to reject exhibits that were tendered without objection. By necessary implication, the admission of those exhibits was agreed upon by the parties.

An agreement between parties to admit evidence constitutes one of the exceptions under which hearsay evidence may be admitted. Such agreement may be made expressly or by necessary implication. A holistic reading of section 117 of the Evidence Act is particularly instructive in this regard.

The question that arises, therefore, is whether the learned trial judge was right in rejecting the evidence as hearsay when parties had agreed to its admission. Does that amount to a breach of statute as held by the majority decision in the Ordinary Bench or does it accord with the minority view of the Review Bench?

I submit, with respect, that the learned trial judge breached the provisions of section 117 of the Act. This is because an agreement not to object to the admissibility of an exhibits amount to a compromise and no court has powers to re-open agreement that has been compromised by parties unless it is shown to be unconscionable.  As rightly noted by Atuguba JSC in the case of Republic v High Court; Accra (FTD); Ex Parte Attakora (Cudjoe, Interested Party)[35]held:

“When a cause or matter was settled by the parties in or out of court, there was no longer subsisting causa or res litigiosa before the court for determination on the merits. The cause or matter had been replaced by the settlement which would be binding upon by the parties because they were contractual…”

In the Opuni case supra, although the prosecution’s failure to object to the exhibit by the prosecution was not a contractual settlement, it nonetheless amounted to a compromise.  It was therefore wrong for the learned trial judge to have suo motu rejected same exhibits without affording the applicants an opportunity to be heard.

Secondly, was the learned trial judge right in relying heavily on the Ekow Russell case as binding precedent?

To my mind, a Supreme Court decision is binding on the lower courts when the issues discussed therein are directly applicable to the lower court, particularly the ratio decidendi. Relying on a precedent that is inapplicable to the facts or legal issues before the court may result in grave injustice. As rightly stated by Lord Denning in London Transport Executive v Betts[36] on the question of precedent thus:

“It seems to me that when a particular precedent, even in your Lordship’s House, comes into conflict with a fundamental principle, also of your Lordship’s House, then the fundamental principle must prevail. This must at least be true on the one hand, the particular precedent leads to absurdity or injustice, and on the other hand, the fundamental principle leads to consistency and fairness. It would I think, be a great mistake to cling too closely to a particular precedent at the expense of fundamental principle,”

One of Ghana’s distinguished jurists, J.N.K Taylor in his article titled: “Judicial Precedent in Ghana” [37]puts it this way:

In the adjudicatory environment of the English courts, this normal human tendency of finding a rational foundation for one’s decision by praying in aid the analogy of previous thinking was not uncommon. Such reasoning in previous case however, crystallizing as precedent with legal conditions under which a court of law is bound to follow them as a doctrine is not a universal phenomenon. Many continental judicial systems renounce it. The American jurist Wigmore is critical of an inflexible application of the stare decisis. He states[38]:

“Stare decises as an absolute dogma has seemed to me an unreal fetish. The French civil code expressly repudiates it and though French and other continental judges do follow precedent to some extent, they do so presumably only to the extent that justice requires it for safety’s sake.”

But as Sir Carlton so rightly points out:

“It has never been claimed, even in the most rigidly codified system, that the judge should shut his mind to the reasoning of others in like circumstances. No intelligent system would so crudely paralyse the indispensable instruments of analogy and parity of reasoning.”

In addition, it is trite law that statutes overrides judicial decision as stated in article 11 of the Constitution 1992 and therefore the learned trial respectfully erred when he ignored the dictates in section 117 and relied on the Ekow Russell case as binding decision. This my humble view led to a grave injustice to the applicants in theOpuni case (ordinary bench).

Was the Ekow Russel case applicable to the Stephen Kwabena Opuni case?

A police caution statement one by Maxwell Antwi, a co-accused who was charged with possession of narcotic substances without lawful authority stated that the appellant, a police officer, was the one who supplied him the drugs to sell for him. The appellant was thus charged with possession and supply of narcotic drugs. The co-accused pleaded guilty to the charges and was convicted and sentenced to a term of imprisonment. The appellant pleaded not guilty and contested the charges against him. As part of the case of the prosecution against the appellant, the investigator tendered that statement of co-accused pointing to the appellant as the source of his supply. The appellant objected to the tendering of exhibit F. His reasons were that he did not give such statement but rather it was the Chief Inspector who wrote a statement in his own words of which he had no idea and he was made to sign it while he was in his office. However, the prosecution closed their case without calling the co-accused declarant to testify in confirmation of his statement. The Supreme Court per Akamba JSC held thus:

“The rule against hearsay provided under section 117 of the NRCD 323 required that a witness should not talk about something of which he had no personal knowledge but rather rely upon his own observation and recall of the matter in dispute. The question of whether a matter was hearsay or not be answered without establishing what was it that the court was invited to infer from the evidence. In the instant case, the evidence of the sixth prosecution witness was being proffered to prove that the person so mentioned was the one who gave out the whitish substance and thus committed the offences charged and in those circumstances, the evidence would clearly be hearsay.  Accordingly, the sixth prosecution witness had no personal knowledge of that fact and relied upon information derived from elsewhere or someone else.

In the instant case since the testimony of the sixth prosecution witness was based on hearsay evidence the same could not be allowed to stand against the appellant, Accordingly, the trial judge’s admission of the hearsay evidence of the sixth prosecution witness against the appellant and its subsequent endorsement by the Court of Appeal was wrongful and pursuant to section 8 of NRCD 323, it would be excluded from the record.”

I submit that the Ekow Russell case was not applicable to the Opuni case because, in the Ekow Russell case the appellant objected to the tendering of exhibit F. However, in the Opuni case the prosecution did not object to the tendering of exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75. However, the trial judge rejected them suo motu because it offended the hearsay rule.

Secondly, the in the Ekow Russel case, the Supreme Court  respectfully did not advert its mind to section 126 of the Evidence Act, which provides that police investigators may tender statements written by them relating to matters of which the investigator has no personal knowledge of and which would otherwise be hearsay evidence. Section 126 (2) states that: “Evidence of a hearsay statement contained in a writing made by the public officer 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 the personal knowledge of the declarant.”

I submit further  that on the authority of section 126(3) of the Evidence Act, the Ekow Russel case was decided per incuriam because of Akamba JSC holdings thus: “….the sixth prosecution witness had no personal knowledge of that fact and relied upon information derived from elsewhere or someone else.”

Thirdly, the Maxwell Antwi in the Ekow Russell case could have come under section 118 (b)(iii) of the Evidence Act, instead of the Supreme Court limiting itself to section 118(b) (i) of the Act.

By this analysis, I respectfully submit and with all humility, that the learned trial judge’s reliance on the Ekow Russell case to reject exhibits, which were tendered without objection, was wrong and therefore it was amenable to be quashed by certiorari.

CONCLUSION

In dealing with the hearsay rule, one ought to advert their mind to the ratio in the Edward Nasser case (supra) which was aptly decided by the Supreme Court per Acquah JSC. In addition, all the relevant provisions governing the hearsay rule under the Evidence Act must be given due consideration. Limiting oneself to only part of section 117 will gravely lead to injustice.

I submit that the learned trial judge in the Opuni case erred in law by rejecting exhibits tendered without objection on the basis of hearsay. Section 117 of the Evidence Act clearly recognizes that evidence admitted by agreement of the parties whether express or implied is admissible and not subject to the hearsay exclusion.

The trial judge’s decision in the Opuni case to unilaterally reject such exhibits, without affording the applicants an opportunity to be heard, amounted to a breach of statutory duty and procedural fairness.

Moreover, the reliance on the Ekow Russell case as binding precedent was misplaced, as the factual and legal circumstances in that case were materially distinct.

The Ekow Russell decision itself failed to consider the import of section 126 of the Evidence Act[39] and was, therefore, decided per incuriam. Consequently, the trial court’s strict adherence to that precedent at the expense of statutory provisions and fairness principles resulted in grave injustice to the applicants.

It is humbly submitted that the decision of the learned trial judge in the Opuni case (supra) was erroneous, both in law and in principle, and the ordinary bench of the Supreme Court was right in setting it aside by certiorari.

[1] Paragraph 20 of the Memorandum to the Evidence Act, 1975 (NRCD 323).

[2] Per Pwamang JSC in Republic v High Court (Criminal Division 1) Ex Parte Stephen Kwabena Opuni [2021] 187 GMJ 382 SC

[3] Nwadialo, Fidelis Modern Nigerian Law of Evidence, p. 229, 2^nd edition

[4] Evidence, 7^th  edition P. 387

[5] Evidence, 3^rd edition p. 387

[6] The Modern Law of Evidence, 7^th ed.p322

[7] Article 11(1) (e) and (2) of NRCD 323.

[8] NRCD 323 (1975)

[9] NRCD 323 (1975)

[10] [2023] 183 GMJ 494 SC

[11] [2021] 173 GMJ 382 SC

[12] [1984-86] 2 GLR 48 SC

[13] [2023] 183 GMJ 332 C A

[14] See ECG v Kranyarko Farms Ltd [2016-2017] 1 GLR 515 CA

[15] [1996-97] GLR 467 SC

[16] [2021] 174 GMJ 338 at 429

[17] infra

[18] Evidence Act, 1975 (NRCD 323)

[19] Supra

[20] [1997-98] 2 GLR 746

[21] [2015] 89 GMJ 22 CA

[22] [2014] 70 GMJ 87 CA

[23] [1995-96] 1 GLR 557 at 577

[24] Republic v Animah [1989-90] 1 GLR 440; Nyarko v The Republic [1992-93] 4 GBR 1545 CA.

[25] [2021] 172 GMJ 188 SC at 237

[26] [2001-2002] SCGLR 70

[27] Acquah v Oman Ghana Trust Holdings Ltd

[28] supra

[29] [1984-86] 2 GLR 394

[30] See Dictum of Lord Wilberforce in Ratten v R [1972] AC 378 at 387; PC cited.

[31] [1992-93] GBR 328 CA

[32] [1997-98] 2 GLR 1039 SC

[33] (2017-2020) SCGLR 469 Holding (4)

[34] See Republic v High Court, Ex Parte CHRAJ (Addo Interested Party) [2003-2004] SCGLR 312; Republic v High Court (FTD) Accra; Ex Parte National Lottery Authority (Ghana Lotto Operators Association & Ors Interested Parties) [2009] SCGLR 390.

[35] [2013-2015] 1 GLR 71 SC

[36]  (1969) AC 213

[37] (1991-92) 18 RGLR 159 at 163

[38] Wignore, Problems of Law, p79 quoted in Goodhart, Case Law in England and Amerioca. P. 125

[39] NRCD 323 (1975)