EMMANUEL KOFI BOATENG & 5 ORS vs. EMMANUEL KWAME SASU & 4 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- AD 2026

CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)

KULENDI JSC

ASIEDU JSC

SUURBAAREH JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO. J4/52/2025

28TH OCTOBER, 2026

1. EMMANUEL KOFI BOATENG

2. KWADWO AMPADU

3. KWAKU MARFO PLAINTIFFS /

4. AFUA NYARKOA APPELLANTS/

5. ABENA AGYEIWAA APPELLANTS

6. ADWOA AMPADU

VRS

1. EMMANUEL KWAME SASU

2. KWAME SARFO DEFENDANTS/

3. KWASI OFORI RESPONDENTS/

4. SETH KWASI AMPADU RESPONDENTS

5. MADAM ABENA AMPONSAH

____________________________________________________________________

JUDGMENT

ACKAAH-BOAFO, JSC: i. Overview:

[1] My Lords, this interlocutory appeal raises a question concerning the admissibility of documentary evidence, namely, whether a document that has previously been tendered, rejected and marked “R” may subsequently be admitted through another witness where the defect that occasioned its exclusion has been remedied. The question arises from the renewed attempt by the Plaintiffs/Appellants/Appellants to tender an affidavit through its deponent after an earlier attempt to tender the same document through a witness had resulted in its rejection.

[2] This appeal is against the judgment of the Court of Appeal dated 16th May 2024, which affirmed the ruling of the High Court, Accra, dated 20th June 2019, refusing the renewed attempt to tender an affidavit attributed to an attesting witness to the WILL of the late Joshua Kwame Ampadu. The affidavit had previously been rejected when it was offered in evidence through the 1st Plaintiff/Appellant. It was subsequently offered again after the deponent himself appeared to testify.

[3] For ease of reference, Emmanuel Kofi Boateng and the five other appellants before this Court shall hereinafter be referred to collectively as “the appellants”, while Emmanuel Kwame Sasu and the four other respondents shall be referred to collectively as “the respondents”. The 3rd and 4th respondents, Kwasi Ofori and Seth Kwasi Ampadu, are the respondents actively contesting the appeal. Rev. William Godbless Buaben, the witness in question, shall hereinafter be referred to as “the deponent”. ii. Background Facts:

[4] By a Writ of Summons and Statement of Claim issued on 4 October 2010, the Appellants commenced the substantive action, that is over sixteen years ago. The suit concerns the validity of a WILL dated 16 December 2005, purportedly made by the late Joshua Kwame Ampadu. The Appellants, who claim to be his children, contend that the WILL was not made by the deceased but was procured through fraud and misrepresentation. They further dispute Emmanuel Kwame Sasu’s relationship with the deceased and his asserted position as head of the deceased’s family. In addition, they challenge the distribution and administration of the deceased’s estate and assert their entitlement to a share thereof. By an Amended Statement of Claim dated 13 February 2014, the Appellants sought the following reliefs:

A Declaration that the Will dated 16th December 2005 purported to have been made by Opanyin Joshua Kwame Ampadu was not of his making and pray that it be set aside.

A declaration that Emmanuel Kwame Sasu is neither a brother nor Head of family of the late Opanyin Joshua Kwame Ampadu.

A further declaration that the plaintiffs are entitled to part of the estate of their late father Joshua Kwame Ampadu as legitimate children.

An order that any distribution made in respect of any property of the late Opanyin Joshua Kwame Ampadu purported to have been distributed be declared null and void.

An order that in the absence of a legally valid WILL the family led by the customary successors apply for letters of administration to administer the said estate.

General damages against Emmanuel Kwame Sasu for the pain and embarrassment he has caused the plaintiffs.

An order of perpetual injunction restraining the defendants, their agents, assigns and servants or any other person from the maternal and paternal families of the deceased from interfering in any way with the estate of the deceased.

Cost.

Any other reliefs including appointment of manager receiver.

An Order of this Court compelling the 4th Defendant, Seth Kwasi Ampadu to account for all monies and properties (movable and immovable) belonging to the late Opanyin Kwame Ampadu that have been in the 4th Defendant’s possession or control since the date of death of the deceased.

[5] My Lords, it is important to note that the present appeal does not concern the determination of the substantive suit but is confined to the question of the admissibility of a document. On 23 January 2019, the 1st Appellant, Emmanuel Kofi Boateng, was recalled and sought to tender in evidence an affidavit purportedly deposed to by Rev. William Godbless Buaben (see pp. 216–217 of the Record of Appeal, Vol. 1). He identified the document as an affidavit which the deponent had given to him. Counsel for the 3rd and 4th Respondents objected to its admission, challenging the competence of the 1st Appellant to speak to its contents and drawing the Court’s attention to an apparent deletion in paragraph 4. The court upheld the objection, rejected the affidavit and marked same as “R”. iii. The ruling at the High Court:

[6] The Appellants, following the ruling, made considerable efforts to secure the attendance of the deponent in court to testify. Despite having been subpoenaed, the deponent failed to appear. Following his continued non-attendance, committal proceedings were initiated to compel his appearance. The deponent eventually appeared in court on 22nd May 2019 and was treated by the trial Court as Court Witness One (“CW1”). When shown the affidavit, he acknowledged that he had signed it but explained that it had been prepared by Kofi Boateng, the 1st Appellant, and that he had signed it “unwillingly.” Counsel for the Appellants sought to tender the affidavit in evidence through him. The Respondents renewed their objection, contending as follows:

“My lord we object. The basis of our objection is this. This document has already been rejected by this court and it is on record. I do not know of any practice where the same document in the same hearing has been marked as rejected and the same document marked as admitted. Once the document is rejected, you cannot tender it again. We pray accordingly.” (See page 224 ROA Vol 1)

[7] The Court adjourned the proceedings to 4th June 2019 to examine its earlier ruling, observing that both parties had relied on the decision without identifying its date or fully setting out the basis thereof. In a ruling subsequently delivered on 20th June 2019, the Court upheld the renewed objection. It recalled that its earlier ruling of 28th January 2019, by which the affidavit had been rejected, was founded on two grounds: the person through whom the affidavit was sought to be tendered and the apparent use of whiteout in paragraph 4 thereof. The Court observed that the alteration remained uncorrected and held that, notwithstanding the subsequent attendance of the deponent, the affidavit remained inadmissible.

[8] The learned trial judge further recounted the explanation given by the deponent, namely, that the 1st Appellant had prepared the affidavit and that he had signed it unwillingly. The trial judge reasoned that the mere presence of the deponent’s signature did not establish that he had authored the document and considered the 1st Appellant to be better placed to speak to its contents.

[9] The Court also criticised the manner in which the affidavit was sought to be tendered. In its view, counsel ought to have invited the witness to indicate what he wished to do with the document, rather than counsel himself announcing that the document should be tendered. On these and other grounds, the Court upheld the objection raised by the 3rd and 4th Respondents and directed that the affidavit retain its status as a rejected document, marked “R”, in accordance with its earlier ruling. Aggrieved by the ruling, the Appellant appealed to the Court of Appeal. iv. Ruling of the Court of Appeal:

[10] The Court of Appeal unanimously dismissed the interlocutory appeal on 16th May 2024. Although the Respondents had not filed written submissions in answer to the appeal, the Court emphasised that this did not relieve the Appellants of their obligation to demonstrate error in the ruling under appeal.

[11] The Court addressed the classification of the deponent as a court witness. It held that his attendance pursuant to a subpoena obtained at the instance of the Appellants did not, merely by reason of that compulsion, make him a court witness. In the view of the Court of Appeal, the deponent, having been subpoenaed on behalf of the Appellants, remained their witness. The Court accordingly held that the trial judge erred in treating the deponent as a court witness.

[12] The Court construed section 6 of the Evidence Act, 1975 (NRCD 323), as precluding the subsequent admission, in the same proceedings, of a document that had already been tendered, rejected, and marked accordingly. The Court stated:

“The trite law is that if a document is tendered in evidence and it is rejected and marked, the same document cannot be admitted in the same proceedings as the Court will be approbating and reprobating on its binding orders. Even though the position is trite, all efforts to get a local decision to support Section 6 of the Evidence Act, N.R.C.D. 323 became difficult and I have to resort to very persuasive decisions from other Common Law countries”

[13] The Court noted the paucity of decisional law on the subject in our jurisdiction and therefore relied on the Nigerian authorities cited in its judgment in support of that proposition. It distinguished a document withdrawn before a ruling on its admissibility from one in respect of which the Court had already ruled, stating:

“The trite position is that where an objection is raised to the admissibility of a document, it can be withdrawn at any time before the judge rules on it and the judge cannot refuse the application to withdraw same but where it is not withdrawn and a ruling is made, that document cannot be used in the same proceedings.”

[14] Applying that distinction, the Court considered that, having allowed the first tendering of the document to proceed to a ruling rejecting the affidavit, the Appellants could not subsequently secure its admission through the deponent. The Court’s reasoning thus treated the earlier rejection as conclusive of the document’s admissibility in the continuing proceedings, notwithstanding the subsequent attempt to tender it through a different witness. The Court concluded:

“The Plaintiffs after having waited for a ruling to be given on the document are forbidden from using it in the same proceeding. An exhibit cannot be rejected and admitted in the same proceedings and the appeal is without merits. The appeal fails and same is dismissed as unmeritorious. The conclusion of the ruling of the trial High Court delivered on 20th June 2019 is affirmed”

The Court accordingly affirmed the trial Court’s decision excluding the affidavit. v. Appeal to the Supreme Court:

[15] Aggrieved by the judgment of the Court of Appeal, the Appellant lodged the present appeal before this Court in June 2024 on the following grounds: a. The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial High Court upholding an objection to the tendering of a document through a witness. b. Further grounds of appeal would be filed upon receipt of the Record of Appeal.

No further grounds of appeal were filed. vi. Submissions of Counsel:

Appellants’ Submission:

[16] Counsel for the Appellants argued that the exclusion of the affidavit constituted an erroneous exercise of judicial discretion warranting appellate intervention. He relied on Oppong v Anarfi [2010–2012] 1 GLR 159 in support of the pursuit of an interlocutory appeal. He contended that section 6 of the Evidence Act, 1975 (NRCD 323), did not absolutely prohibit the retendering of a rejected document, particularly where the initial rejection was based on the person offering it rather than on its contents or relevance. He maintained that procuring the attendance of the deponent cured the earlier deficiency and that the Court of Appeal erred in adopting a prohibition derived from foreign decisions without demonstrating its compatibility with Ghanaian law. He further challenged the subsequent reclassification of CW1 as the Appellants’ witness, arguing that section 68 permitted counsel to cross-examine a court witness without first asking the witness what he intended to do with the document.

[17] Counsel further submitted that the deponent’s acknowledgement of his signature sufficiently identified the affidavit for the purpose of its admission in evidence, while the deponent’s explanation regarding its preparation and the circumstances surrounding his signing of it went to its evidential weight rather than its admissibility. In support of this submission, he relied on Tema Oil Refinery v African Automobile Ltd [2011] 2 SCGLR 907, Antie & Adjuwuah v Ogbo [2005–2006] SCGLR 494, and International Rom Ltd v Vodafone (GH) Ltd, Civil Appeal No. J4/2/2016, 6 June 2016. He also argued that the trial judge contradicted his earlier recognition of the deponent’s authorship of the affidavit by subsequently treating the 1st Appellant as the appropriate person to speak to its contents.

[18] With regard to the alterations to the affidavit, Counsel contended that the leave granted on 7 June 2017 satisfied the qualification under Order 20 rule 10 of C.I. 47 for the use of an altered affidavit. Relying on Order 20 rule 7 and Republic v Edward Wiredu; Ex parte Amidu [2001–2002] 1 GLR 272, he argued that the affidavit could be received notwithstanding any irregularity in its form and that the trial judge could not subsequently rely on such defects to exclude it. He added that the objection concerning late filing had already been resolved by the ruling of 12 June 2018, which permitted the affidavit to remain on the docket.

[19] Finally, Counsel maintained that relevance was the governing criterion for admissibility under section 51 and that the affidavit directly addressed the pleaded challenge to the WILL. Relying on Republic v High Court (Commercial Division); Ex parte Attorney-General, Civil Motion No. J5/08/2019, 10 April 2019, Nortey v AIJC & Others [2013–2014] 1 SCGLR 705, and Agyeiwaa v P&T Corporation [2007–2008] 2 SCGLR 985, he invited this Court, in the exercise of its appellate jurisdiction to rehear the matter, to examine the entire record and determine the admissibility of the affidavit for itself. He submitted that admitting the affidavit would occasion no injustice, particularly as the substantive trial remained unfinished. Accordingly, he prayed that the decisions of the courts below be set aside and the affidavit admitted in evidence.

Respondents’ Submission:

[20] Counsel for the 3rd and 4th Respondents argued that the affidavit had been properly rejected and could not subsequently be retendered through another witness in the same proceedings. Relying on section 6 of NRCD 323, he submitted that an existing ruling remained binding unless set aside or otherwise successfully challenged. He contended that permitting successive witnesses to tender the same document after its rejection would undermine the orderly conduct of trials and facilitate the circumvention of judicial orders.

[21] Counsel further challenged the character of the document as an affidavit and its intended use in the proceedings. Relying on Order 19 rule 4 of C.I. 47, he argued that an affidavit was intended to support an application, whereas the disputed document did not support any identified application before the trial Court. He distinguished the application for leave to file additional documents from the affidavit sought to be tendered in evidence, maintaining that leave to place a document on the court file did not, of itself, establish its admissibility or entitle the Appellants to rely on its contents.

[22] Counsel also submitted that the cancellations, erasures, and interlineations constituted an independent ground for excluding the document under Order 20 rule 10(1) of C.I. 47, as the required initials and marginal endorsements in respect of the alterations were absent. He maintained that the application determined on 7th June 2017 sought only leave to file an additional document and neither disclosed the alterations nor sought specific permission to rely on the affidavit notwithstanding those defects. Accordingly, he argued that the leave granted did not resolve or cure the objection arising from the alterations.

[23] Counsel further contended that the Appellants had closed their case on 5th April 2016 without obtaining an order formally reopening it. He distinguished permission to call a witness from an order reopening the Appellants’ case and argued that, in the absence of such an order, the subsequent calling or recall of witnesses was procedurally irregular. In support of this submission, he relied on Republic v Michael Conduah; Ex parte Supi George Asmah, Civil Appeal No. J4/28/2012, for the proposition that a court must abide by its existing orders until they are set aside or vacated.

[24] Finally, Counsel argued that the Appellants had failed to establish the deponent’s competence to tender the document or sufficiently authenticate it. Relying on Selormey v Republic [2001–2002] 1 GLR 147 and sections 60 and 139 of NRCD 323, he emphasised the requirements of personal knowledge and identification. He further drew attention to the deponent’s statement that Kofi Boateng had prepared the affidavit and that he had signed it unwillingly, contending that the circumstances surrounding its execution raised concerns about coercion. Counsel also questioned the adequacy of the explanation regarding the document’s custody, transmission, and alterations, and maintained that no applicable exception to the hearsay rule had been established. He accordingly prayed that the appeal be dismissed and the decisions of the courts below affirmed. vii. The Law, Analysis & my Opinion:

[25] Respectfully, My Lords, in the present appeal, the Appellants invite this Court to undertake a careful examination of the Record of Appeal, place itself in the position of the trial Court and the Court of Appeal, and, upon a considered assessment of the applicable law and the facts of the case, arrive at a conclusion different from that reached by the two lower courts.

[26] The central question for our determination is this: where a trial court rejects a document tendered in evidence and marks it as rejected pursuant to section 6(3) of the Evidence Act, 1975 (NRCD 323), may the same document subsequently be tendered in evidence through a different witness in the course of the same proceedings?

[27] To resolve this matter, it is necessary to begin with the fundamental principles governing the admissibility of evidence. Section 51 of the Evidence Act, 1975 (NRCD 323), provides that evidence is admissible only if it is relevant. Relevance depends on the materiality and probative value of the evidence and is determined by whether the evidence tends to make a fact of consequence to the determination of the action more or less probable than it would be without that evidence. Relevance, however, though a necessary condition for admissibility, is not sufficient in itself to render evidence admissible. A document may be relevant but nevertheless inadmissible if the applicable statutory or other legal requirements governing its admission have not been satisfied. The Court must therefore consider not only the relevance of the evidence but also whether the requirements governing its admissibility have been met.

[28] In the present case, the evidence which the Appellants seek to tender is documentary. The principles governing the tendering of documents were explained by Ofori-Boateng in The Ghana Law of Evidence, at page 222, and reproduced by the Court of Appeal in Selormey v The Republic [2001–2002] 1 GLR 144, at pages 162–163. The learned author explains that, before a document may be admitted in evidence, its relevance and authenticity must be established through proper identification and authentication. Where a copy of a document is tendered, its accuracy in relation to the original must be established; where an original is tendered, its identity must be established; and where the applicable law requires a seal or stamp, compliance with that requirement must be demonstrated. These preliminary matters, which may be established by oral evidence or affidavit, unless admitted by the opposing party, constitute what is commonly referred to as laying the foundation for the tendering of a document. Once the requisite foundation has been laid, the document may be tendered and admitted in evidence, provided that it satisfies the other applicable rules of admissibility.

[29] In my view, a party seeking to tender a document in evidence must first establish its relevance to a fact in issue. Where its admissibility depends on its authenticity or identity, section 136 of the Evidence Act, 1975 (NRCD 323), requires the proponent to adduce sufficient evidence to support a finding that the document is what the proponent claims it to be. The section provides as follows:

“(1) 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.

(2) Permissible means of authentication or identification include, but are not limited to, those provided in sections 137 to 161.”

[30] The requisite foundation may be laid through the testimony of a competent witness, an admission, a statutory presumption, or any other legally sufficient means. By virtue of section 136(2), the methods of authentication or identification prescribed under sections 137 to 161 are not exhaustive.

[31] Once a document is tendered in evidence, any objection to its admissibility must be raised, recorded, and determined in accordance with section 6 of NRCD 323. See: Republic v High Court, Commercial Division, Accra; Ex parte Kwabena Duffour, Civil Motion No. J5/05/2021, 10 February 2021. Where the document is admitted, it is marked as an exhibit, and its evidential weight is subsequently assessed in the context of the totality of the evidence.

[32] In the present case, the 1st Appellant, Emmanuel Kofi Boateng, was recalled on 23 January 2019 and sought to tender an affidavit which he identified as the document given to him by the deponent on 2 September 2014. Counsel for the 3rd and 4th Respondents objected to its admission on several grounds, including the 1st Appellant’s competence to testify to the averments contained therein, the hearsay nature of the evidence, and the alterations made to paragraph 4. In its ruling dated 28 January 2019, the High Court upheld the objection and directed that the document be marked “R”. In reaching that decision, the Court relied, among other considerations, on the availability of the deponent to testify and the failure of the 1st Appellant to lay an adequate foundation for establishing the matters deposed to in the affidavit.

[33] The central issue arose when the deponent subsequently appeared before the Court and the Appellants sought to tender the same affidavit through him. Before addressing that controversy, I consider it appropriate to comment briefly on the observation of the Court of Appeal concerning his description as a court witness. The learned justices of the 1st Appellate court explained that a witness whose attendance is procured by a party through a subpoena ordinarily remains the witness of that party. Having regard to the procedural history of the case, as recounted by the Court of Appeal, the Appellants had procured the attendance of the deponent for the purpose of advancing their case through a subpoena. The mere invocation of the Court’s compulsory process did not, without more, transform him into a witness summoned by the Court in the exercise of its own authority.

[34] As a general proposition, I agree with that distinction. A witness whose attendance is procured by a party through a subpoena remains the witness of the party who procured the subpoena and may accordingly be described as a Plaintiff’s witness or a Defendant’s witness, as the case may be. Where, however, a party who has called a witness finds that the witness’s testimony is adverse to that party’s case, the party may, with the leave of the Court, be permitted to treat the witness as hostile and cross-examine him.

[35] I state the foregoing as a general rule because a distinction must be drawn between a witness whose attendance is procured by a party and one who is summoned by the Court, either with the consent of the parties or suo motu. In the latter circumstances, the witness may properly be regarded as a court witness, as would be the case, for instance, where the Court summons a surveyor from the Lands Commission to assist it in resolving a matter in controversy. In any event, having regard to the facts of the present case, whether the deponent is classified as a party’s witness or a court witness does not affect the determination of the matters in controversy.

[36] My Lords, I now turn to what transpired when the deponent appeared on 22nd May 2019. The proceedings at pages 223–224 of ROA, Vol. 1, record his evidence under the headings “EVIDENCE OF CW1” and “S.O.B IN TWI”. After identifying himself as Very Rev. William Godbless Buaben and acknowledging that he knew the parties and the deceased, the following material exchange ensued:

“Q: Do you know the deceased Joshua Kwame Ampadu

A: Yes

Q: You will agree with me that sometime in March, 2014, you deposed to an affidavit concerning the estate of Joshua Kwame Ampadu

A: I remember the late Kwame Ampadu during his life time asked me to sign a document for him

Q: Kindly take a look at this document. Are you the author and signatory to the document?

A: Yes but I have something to say on the document. If it is about the affidavit, it was Kofi Boateng who prepared it and when he brought it, I was very surprised about it, I thought he should have pre-informed me before going to prepare it. When he went to prepare it and brought it and asked me to sign, I signed it unwillingly.

Counsel for Plt: My lord the witness has admitted signing the document and has sufficiently identified and spoken to the document as well. We therefore pray that the document be tendered through the witness.”

[37] It was at this point that the objection was raised. The affidavit attributed to Rev. William Godbless Buaben concerns matters relating to the execution of the disputed WILL and his involvement in the transaction as an attesting witness. These circumstances explain the potential relevance of the affidavit to the proceedings.

[38] It is also apparent from the foregoing exchange that the deponent acknowledged signing the affidavit, albeit with an explanation. He stated that Kofi Boateng, the 1st Appellant, had prepared the document and that he had signed it “unwillingly”. That qualification does not in my view negate his express acknowledgment that he signed the document. Nevertheless, on the basis of this explanation, the trial judge made a marked reversal of position and held that the 1st Appellant was better placed to testify in respect of the document.

[39] My Lords, it is pertinent to observe that the admission of a person’s signature on a document may carry significant legal and evidential consequences. In Wilson v Brobbey [1974] 1 GLR 250–253, the High Court affirmed the principle that a person of full age and understanding is ordinarily bound by a contractual document duly signed by him, notwithstanding his failure to read it. Similarly, in Sodzedo Akuteye and Others v Adjoa Nyakoah and Others, Civil Appeal No. J4/58/2017, dated 23 May 2018, this Court explained that, where an illiterate person signs or thumbprints a document, the absence of a jurat clause raises a rebuttable presumption that the document was not read over and interpreted to him, whereas the presence of such a clause raises the presumption that it was. These authorities underscore the legal and evidential significance of a person’s signature on a document.

[40] Against this background, the witness’s acknowledgement of his signature constituted material evidence in identifying the document and establishing his connection with it. Section 139 of the Evidence Act, 1975 (NRCD 323), provides that: “Authentication or identification may be by testimony that a matter is what its proponent claims.” In the instant case, the deponent’s testimony provided a direct evidential basis for identifying the affidavit attributed to him. When the document was shown to him, he acknowledged that he had signed it and explained that Kofi Boateng had prepared it, brought it to him, and requested that he sign it. His testimony thus connected him to the particular document sought to be tendered in evidence and provided an account of the circumstances in which he signed it.

[41] It is significant, my Lords, that section 139 of the Evidence Act does not require a witness identifying a document to have personally drafted or typed it. The material consideration is whether the testimony sufficiently establishes that the document is what its proponent claims it to be. Accordingly, the deponent’s explanation that he signed the document “unwillingly” bears on the circumstances in which his signature was obtained; it does not, in itself, negate his express acknowledgement that he signed the particular document. The distinction is material: an explanation concerning the circumstances in which a signature was obtained does not, without more, displace the evidential value of an express admission that the signature is one’s own.

[42] The trial judge’s rejection of the document was further informed by the fact that it had previously been rejected in evidence by the same court and the Court of Appeal agreed. The question whether a document previously rejected in evidence may subsequently be tendered through another witness was considered by our respected brother Kulendi, JSC, in Grace Afriyie v Osei Kwadwo, Civil Appeal No. J4/15/2023, dated 16 April 2025.

[43] In that case, His Lordship distinguished between evidence that is inherently inadmissible by reason of its nature or substance and evidence whose initial rejection stems from a curable technical, procedural or evidential deficiency. His Lordship explained that, where the latter deficiency is subsequently remedied, the court ought to reconsider the admissibility of the evidence in the light of the circumstances prevailing at the time of the renewed attempt to tender it, rather than maintain its earlier rejection merely because the document had previously been refused admission.

[44] The learned Justice emphasised that the initial rejection of a document on a procedural ground does not necessarily render it permanently inadmissible. He opined that where subsequent testimony or other appropriate steps cure the defect that occasioned the initial rejection, the court must assess the renewed attempt to tender the document on its merits. To hold otherwise would be to elevate procedural rigidity above the substantive pursuit of truth and justice.

[45] My Lords, the question whether a trial judge, having earlier rejected a document, may revisit that decision and admit the same document through a different witness in the same proceedings finds persuasive support in the Canadian decision of R v R.V., 2019 SCC 41, [2019] 3 SCR 237. In my view, that decision is the closest analogue to the ruling of the Court of Appeal in the present matter. In that case, the trial judge considered himself bound by an earlier evidentiary ruling and declined to reconsider it. The majority, per Karakatsanis J., held that he was wrong to do so. At paragraph 74, the majority stated:

“As a general rule, an order related to the conduct of trial may be varied or revoked if there is a material change of circumstances… As evidence emerges at trial, both the probative value and potential prejudice of proposed evidence may change. If a material change of circumstances occurs, either party may request that a previous evidentiary ruling be re-visited.”

[46] In my opinion, a party seeking to tender a document that has previously been rejected must disclose the earlier rejection, identify the ground upon which it was rejected, and demonstrate how the renewed tender addresses the deficiency that occasioned the initial rejection. The opposing party remains at liberty to object, and the court must determine the question afresh in light of the circumstances then prevailing. In exercising that power, the court retains control over the mode of presenting evidence under section 69, as well as its discretion to exclude relevant evidence on the grounds specified in section 52.

[47] The principle to be derived from the foregoing decisions, in my view, is that the previous rejection of a document does not, without more, preclude its subsequent admission where the ground for the initial rejection was a curable procedural or evidential deficiency that has since been remedied. The court must, however, distinguish such a deficiency from an inherent defect that renders the document inadmissible in law. Moreover, even where the document is subsequently admitted in evidence, the question of its admissibility remains distinct from that of the weight to be attached to it. viii. Conclusion & Disposition:

[48] My Lords, to reiterate, it is my opinion that evidence previously rejected on a ground of admissibility may become admissible where the defect that occasioned its exclusion has been cured. This does not, however, result in its automatic admission. The Court must identify the original ground of exclusion, determine what has materially changed based on either statutory or decisional law, and consider whether any independent ground of objection remains. In doing so, the Court must properly exercise its discretion under section 52 of the Evidence Act, 1975 (NRCD 323), by weighing the probative value of the evidence against the applicable statutory considerations governing its exclusion. Mere delay, inconvenience, or the fact of an earlier rejection does not, without more, justify its continued exclusion.

[49] The rules governing admissibility are intended to promote the orderly presentation of reliable evidence and the fair determination of disputes, not to furnish litigants with a technical means of defeating an otherwise proper claim or defence. Similarly, section 6(3) of the Evidence Act, which requires a document that has been rejected to be marked as having been tendered and rejected, serves to preserve an accurate record of the proceedings. That requirement does not, in itself, preclude the Court from reconsidering the admissibility of the document where the relevant circumstances have materially changed. The Court may, therefore, properly hold that an initial attempt to tender a document failed for want of a proper evidential foundation, while a subsequent attempt succeeds because the deficiency has been cured.

[50] I am accordingly of the considered opinion that a party may invite the trial Court to reconsider an earlier evidential ruling where a material change in the circumstances affects the admissibility of the evidence. The party must, however, identify the change and demonstrate how it cures the original defect. Furthermore, the opposing party must be afforded a fair opportunity to contest the renewed tender and raise any objection that may still be available.

[51] I would, therefore, answer the central question posed and stated in paragraph 26 of this opinion in the affirmative, subject to the qualification that a document previously rejected and marked “R” may subsequently be tendered and admitted only where the defect that occasioned its exclusion has been cured and all other applicable requirements for admissibility have been satisfied. The earlier rejection, standing alone, does not in my view constitute a sufficient ground for refusing admission. The decisive question is whether the renewed tender has overcome the original ground of exclusion and whether any independent statutory or procedural bar to admission remains.

[52] In the circumstances of this case, the deponent’s subsequent attendance and acknowledgement of his signature on the affidavit constituted evidence of identification that required consideration under section 139. His explanation concerning the preparation and execution of the affidavit also required evaluation in light of its proper legal significance. The renewed tender could not be rejected solely on the ground that the affidavit had previously been rejected, although the Appellants remained obliged to satisfy all other applicable requirements for its admissibility.

[53] This conclusion concerns the Appellants’ right to have admissible evidence received and evaluated by the trial Court; it does not, however, predetermine the weight to be attached to that evidence. For these reasons, I would uphold the sole substantive ground of appeal.

[54] Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal dated 16th May 2024, and substitute therefore an order overruling the objection to the renewed tender and admitting the affidavit appearing at pages 204–205 of Volume 1 of the Record of Appeal.

[55] I would further remit the substantive action to the High Court for continuation from the stage at which the proceedings were interrupted, with a direction that the affidavit be assigned an appropriate exhibit mark, without expunging from the record the fact of its earlier rejection. The parties shall be afforded the opportunity, subject to the applicable rules of procedure, to examine the deponent in relation to the affidavit and to address the permissible use of the affidavit and the evidential weight to be attached to it. Those matters shall be determined by the trial Court in conjunction with the remaining evidence.

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

(SGD.) G. S. SUURBAAREH

(JUSTICE OF THE SUPREME COURT)

COUNSEL

JOHN F. APPIAH ESQ. FOR THE 3RD & 4TH DEFENDANTS/RESPONDENTS/

RESPONDENTS WITH PRISCILLA OHEMENG-MENSAH ESQ.

KWADWO ADDEAH-SAFO ESQ. FOR THE PLAINTIFFS/APPELLANTS/

APPELLANTS