MEANS OF PROOF

Question 1

What is testimonial evidence?

Answer 1

This is oral or written assertions offered in a court by a party, the accused person or a witness as proof of what is being stated

Question 2

What is hearsay?

Answer 2

This is a statement oral or written made by a person who is not testifying in court to prove the truth of the matter stated.

Question 3

Documentary evidence

Answer 3

These include any documents or written records that help prove or defend a claim. It is essentially anything that contains writings including digital records.

Question 4

Real evidence

Answer 4

This is tangible evidence. It takes the form of material objects produced before the court.

Question 5

Circumstantial evidence

Answer 5

It is defined as any fact from the existence of which the judge or jury may infer the existence of a fact in issue.

This is also referred to as indirect evidence. It’s termed indirect in that it does not directly prove a fact in issue but rather allows the fact finder to draw a reasonable inference about the existence or non-existence of a fact based on the evidence. It is different from direct evidence in that direct evidence establishes the existence or no-existence of a fact on its own.

Question 6

In considering circumstantial evidence, regard should be made from the following:

Answer 6

• Inferences that support the conclusion that an offence has been committed (Ametwee v State);
• Inferences that it was the accused and no one else who committed the crime charged (Duah v Republic “before drawing inferences of the guilt of an accused person from circumstantial evidence, it was very important to make sure that there was no other coexisting circumstances which could destroy or weaken the inference. Thus, circumstantial evidence had to be closely examined and acted upon only where the circumstances were such that the guiltt of the accused had of necessity to be inferred and that the facts led to no other conclusion”)); and
• Inferences that guilt is the only rational hypothesis or that the inferences are incompatible or inconsistent with the innocence of the accused

Question 7

TRADITIONAL EVIDENCE

Answer 7

This form of evidence is used in cases such as ownership of stools or stool lands. They are generally in the nature of hearsay evidence but are made admissible pursuant to sections 128 and 129 of the Evidence Act as exceptions to the hearsay rule.

Question 8

Adjeibi-Kojo v Bonsie

Answer 8

The privy council stated inter alia that:

“memories are not so short in our family set up. The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation,, mistakes may occur without any dishonest motives whatever. The most satisfactory method of testing traditional history is examining it in light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements is more probably correct”

Question 9

How is traditional evidence tested?

Answer 9

The SC settled the principle in ADJEI V. ACQUAH when it held that: “facts establish by matters and events within living memory especially evidence of acts of ownership and possession must take precedence over mere traditional evidence.”

Question 10

DIGITAL OR ELECTRONIC EVIDENCE

Answer 10

It is any form or information stored, transmitted or reproduced in an electronic form for use in court proceedings.

Question 11

What should be regarded when dealing with electronic evidence:

Answer 11

Grimm J in Lorraine suggested that in dealing with electronic evidence, regard should be had to the following:
• Relevance i.e. would the evidence being proposed prove or disprove a fact in issue or make a fact in issue more or less probable
• Authenticity i.e. whether evidence can be adduce to prove that the evidence is in fact what it purports to be
• Hearsay i.e. consider whether the evidence falls within the definition of hearsay and if so whether it is admissible under any of the exceptions
• Best evidence rule i.e. whether the evidence being offered is original and if not whether secondary evidence can be offered
• Generally exclusionary rule i.e. whether the probative value of the electronic/digital evidence is substantially outweighed by the possibility of unfair prejudice, confusion or waste of time.

Question 12

How can digital evidence be authenticated?

Section 136-Authentication*

Answer 12

Where the relevancy of evidence depends upon its authenticity or identity, and the authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or any other showing which is sufficient to support a finding that the matter in question is what its proponent claims.

Question 13

How can digital evidence be authenticated?

Section 137- Authentication by admission

Answer 13

Authentication may be by evidence that the party against whom it is offered has at any time admitted its authenticity or identify or acted upon it as authentic.

Question 14

How can digital evidence be authenticated?

Section 138- Authentication by statute

Answer 14

Authentication or identification may be by any of the means provided by an enactment or the Rules of Court.

Question 15

How can digital evidence be authenticated?

Section 139-Authentication by testimony of witness with knowledge

Answer 15

Authentication or identification may be by testimony that a matter is what its proponent claims.

Question 16

How can digital evidence be authenticated?

Section140-Authentication by non-expert opinion on handwriting

Answer 16

To authenticate or identify handwriting, a witness who is not an expert on handwriting may state an opinion whether the 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.

Question 17

Section 141-Authentication by comparison by Court or witness*

Answer 17

Authentication or identification of a 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.

Question 18

Section 142-Voice identification

Answer 18

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 an opinion whether the voice is that of the alleged speaker if the Court is satisfied that the witness has at anytime heard the voice in circumstances connecting it with the alleged speaker.

Question 19

Section 143-Identification by telephone

Answer 19

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
• the call was to a place of business and the conversation related to business reasonably transacted with that person over the telephone, or
• circumstances, including self-identification, show the person answering to be the one called.

Question 20

Section 144-Authentication by distinctive characteristics*

Answer 20

Authentication or identification may be by evidence of distinctive characteristics, appearance, contents, substance or internal patterns.

Question 21

Section-145-Authentication by reply

Answer 21

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.

Question 22

Section 146-Ancient documents

Answer 22

Authentication or identification of a writing may be by evidence that the writing
• is in a condition which does not create a suspicion concerning its authenticity;
• was in a place where, if authentic, it might be expected to be; and
• is at least twenty years old at the time it is offered.

Question 23

Section 147-Authentication by process or system*

Answer 23

Authentication or identification may be by evidence describing a process or system used to produce a result and showing that the result is accurate.

Question 24

Traditional Evidence Definition

Answer 24

As defined in In re Asere Stool, it is evidence of history of events which happened some time past concerning a person’s pedigree, family, migration, stool or land which has been passed on by oral tradition from one generation to another.

The narration of the event is given by a person who has no personal knowledge of the matter they are testifying to because the events being narrated occurred long time ago, even before they were born.

Question 25

Traditional Evidence test: Conflicting traditional evidence

Answer 25

In re Kodie Stool, the court explained the connotations of Adjeibi Kojo v. Bonsie. The court explained that the principle enunciated in the Adjeibi Kojo case was not exhaustive of the grounds for evaluating traditional evidence. The court added that where traditional evidence is conflicting and evidence of occupation and ownership are also in conflicting, the court should decide the case by sifting and weighing the respective testimonies to see which outweighs the few clearly established facts. Facts within living memory must take precedence over mere traditional evidence. Achoro also added to this test by stating that the court should test the authenticity of the rival versions against the backgrounds of positive recent facts. Hilodjie held that what may constitute a fact or an event in recent memory is determined on a case by case basis and each should be evaluated on its own facts.