SELORMEY vs. THE REPUBLIC [2001-2002] 1 GLR 144

CASES REFERRED TO:

(1) Myers v Director of Public Prosecutions [1965] AC 1001; [1964] 3 WLR 145; [1964] 2 All ER 881, HL.

(2) Lewis v Marshall (1844) 7 Man & G 729.

(3) Tormekpey v Ahiable [1975] 2 GLR 432, CA.

(4) R v Yacob (1981) 72 Cr App R 313, CA.

(5) R v Seigley (1911) 6 Cr App R 106, CCA.

(6) R v Anderson (M) (1988) 87 Cr App R 349, CA.

APPEAL by the accused-appellant from the interlocutory rulings of the trial High Court, Accra upholding the objection by the prosecution to the tender in evidence by three defence witnesses of a compact disc and certain documents attached to a letter sent to the police by a lawyer on behalf of his client (not the appellant), during the trial of the appellant on six charges of conspiracy to cause financial loss to the State; causing financial loss to the State and defrauding by false pretences. The facts are sufficiently stated in the decision of Afreh JA.

Johnny Quashie-Idun for the appellant.

Anthony Gyambiby, Senior State Attorney, for the Republic.

Gbadegbe JA. Delivered the first judgment at the invitation of Afreh JA. In the course of the hearing of certain charges against the appellant herein before the High Court, Accra the appellant sought to have certain documents, namely a comptact disc and attachments to exhibit 7 tendered in evidence; to which the prosecution (hereinafter referred to as the respondent) raised objections resulting in rulings which are the subject matter of the appeals before us which are in their nature interlocutory. It is important to observe at this point that in the course of these proceedings both counsel and the court were unable to determine with any certitude the time frame provided under the Court of Appeal Rules, 1997 (CI 19), the rules of this court, the time limit within which a party who desires to appeal from an interlocutory decision in a criminal matter may do so. I note in particular that whiles as regards civil matters there is a time limit provided in rule 9 of CI 19, in the case of criminal matters no such provision was made. Since a reading of rule 27A of CI 19 as amended by the Court of Appeal (Amendment) Rules, 1998 (CI 21) contemplates that parties who are

[p.149] of [2001-2002] 1 GLR 144 aggrieved by interlocutory decisions in criminal matters might appeal, this court enabled the instant appeal to be proceeded with, the issues raised in our view bordering on the rights of a citizen to have an unfettered access to the courts particularly in criminal matters. It is to be observed that whiles this approach might be said to be a liberal interpretation of the existing rules applied by analogy to the clear provisions in civil matters, it is preferable that express provisions be made regarding interlocutory appeals in criminal cases to guide the court in future cases in order that the right of appeal so conferred on parties might have a real meaning and substance. Having, in my view, strayed off course to make these observations, I now pass to consider the main issues with which we are concerned in this appeal.

In my thinking, a clear examination of the grounds of appeal filed in this matter on 11 September raise for our determination the following questions:

(1) Whether the refusal of the learned trial judge to admit in evidence the attachments to exhibit 7 was a rightful exercise of his discretion?

(2) Whether the refusal of the learned trial judge to have admitted in evidence the compact disc alleged to contain a record of cases, statutes and other materials was right in the circumstances of the case?

(3) Whether the learned trial judge was right in not having the attachments, which he refused to admit in evidence marked as such?

(4) Whether the learned trial judge was right in calling upon the appellant to tender the compact disc in contention?

I shall commence from the third such issue and wish without any hesitation to say that having regard to the clear provisions of section 6 of the Evidence Decree, 1975 (NRCD 323) there can be no answer to the point on which the said ground of appeal is based. The said section provides as follows:

“6. (1) In every action, and at every stage thereof, any objection to the admissibility of evidence by a party affected thereby shall be made at the time the evidence is offered.

(2) Every objection to the admissibility of evidence shall be recorded and ruled upon by the court as a matter of course.

(3) Where a document is produced and tendered in evidence,

[p.150] of [2001-2002] 1 GLR 144 and rejected by the court, it shall be marked by the court as having been so tendered and rejected.”

In my view, the said provisions are clearly intended to be mandatory in the situations which they apply to and that where as in this case there was a non-compliance by the court with them this court must correct the said error by doing that which the law expressly provide for. In my view, once a party who after having been duly sworn offers to introduce a document in evidence is met with an objection which is ruled upon in favour of the objecting party does not as was the situation in the court below withdraw the offer to tender the document then its effect is as provided for in section 6(3) of NRCD 323. I also think that where a court after rejecting a document does not have it marked as such it creates a situation which might if the point touching the said non-marking is not taken in the course of the trial on appeal as in this case from being well and truly considered by the appellate court in that the document or thing so rejected would not be available to it for its examination to determine if the refusal was a proper exercise of a judicial discretion. Indeed, in the instant case, we do not have the attachments before us, a disability which would have been avoided if there had been a compliance with the rules. Such a situation, in my view, would not serve the ends of justice and might occasion injustice not of a trifling nature to the party affected thereby. In my decision, therefore, the said ground succeeds.

I now come to the other issues, which, in my view, touch and concern the relevance and admissibility of evidence. It is worthy to note of the two items of evidence that were rejected by the learned trial judge that they were made out of court and as such come under the classification of hearsay under the rules of evidence. I refer in particular to section 116 (c) of NRCD 323 which reads: “‘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.” There can be no credible doubt that the attachments, particularly the alleged contract was sought to be put in evidence to show that contrary to the case of the respondent there was a contract under which the appellant authorised the disbursement of funds which has provoked his trial. Equally so, in my opinion, is the fact that the compact disc upon which so much argument has turned in these proceedings was sought to be tendered in order to show that the

[p.151] of [2001-2002] 1 GLR 144 appellant actually authorised the said disbursements in respect of the contents of the said compact disc which was according to his case the basis of the contract. For the said items of evidence to be relevant they must therefore, in my view, have a nexus both with the charge sheet and the defence of the appellant to the said charges. In a situation where the trial is conducted pursuant to pleadings it is not too difficult to discern from the pleadings of the parties the documents or relevant evidence. But in a situation such as confronted the parties in the case before the court below since the trial was proceeding summarily it was incumbent on the party who seeks to tender any piece of item or evidence or both to demonstrate its relevance to the case.

When a party is able to show that the piece of evidence is relevant that is not the end of the matter as far as admissibility is concerned; there might be the need in appropriate cases to identify or authenticate or both the item that is to be admitted in evidence. Relevance, it need be said, therefore should be looked at in relation to the charge as well as the defence of the accused thereto as far as can be discerned from the cross-examination of the witnesses for the prosecution, the appellant not having made any statement to the police from which his defence to the charges might be seen. Although section 51 of NRCD 323 provides that all relevant evidence is admissible there are other conditions that such relevant evidence must satisfy to be allowed in evidence. The first such condition may be seen in section 52 of NRCD 323 which precludes the court, among others, from admitting such evidence if its probative value is outweighed by “the risk that admission of the evidence will create a substantial danger of unfair prejudice or substantial danger of confusing the issues.” Further, there is the very elaborate provision on the admissibility of hearsay evidence commencing with the general statement of the law in section 117 of NRCD 323 thus: “Hearsay evidence is not admissible except as otherwise provided by this Decree or any other enactment or by agreement of the parties.” The provisions governing hearsay evidence cover the entire part 8 of NRCD 323 and span sections 116 to 135 of NRCD 323. Thus, for a party to have hearsay evidence admitted into evidence he must bring it within one of the exceptions to the hearsay rule.

Again in section 136 of NRCD 323, the applicable law, it is provided thus:

[p.152] of [2001-2002] 1 GLR 144

“136. (1) Where the relevancy of evidence depends upon its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.”

The means or various methods or both of authentication or identification are spelt out in sections 137 to 162 of NRCD 323. For example, section 141 of NRCD 323 provides on the authentication of a writing or signature as follows:

“141. Authentication or identification of any signature, handwriting, seal or finger impression may be by a comparison made by a witness or by the court with a specimen which has been proved to the satisfaction of the court to be genuine.”

I proceed by saying that to well determine the instant appeal, one should find out from the proceedings whether the above requirements of the law were satisfied. I start from the attachments of which the contract document was part. When the appellant sought to have them tendered there was an objection by the respondent on the ground of relevance and the learned trial judge upheld the same on the ground that the witness was not competent so to do since he was neither the maker nor did show that he could answer any questions regarding them. The said ruling has been vehemently attacked in these proceedings on the ground that it was wrong. I have anxiously attended to the arguments canvassed by the parties in their oral submissions and I am of the view that the appellant on whose behalf the said documents were sought to be tendered had not laid a sufficient ground for its admissibility. First, there was no evidence by the witness through whom it was being tendered that he was familiar with any of the signatures of the parties to the contract. Secondly, there was no showing that the said document was either an original or a genuine copy thereof. Thirdly, the witness had not met the condition spelt out in section 60 of NRCD 323. In section 60(1) of NRCD 323, it is provided as follows: “A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.” I think that this requirement accords with good sense and is the rationale underlying the hearsay rule and the best evidence rule.

[p.153] of [2001-2002] 1 GLR 144

Although section 60(3) of NRCD 323 allows such evidence to be led without personal knowledge of the deponent, this can only be so when there was no objection taken to the same, but, as was the case in point, there was an objection taken thereto. Further to the above, there was no showing by the proponent that the said contract had any nexus with the contract in respect of which the appellant was charged—the court computerisation project. It repays to say that since the documents were not before their introduction into evidence was sought, in the possession of either party, it was necessary for the party who sought to tender them to give some evidence which would tend to show that the documents are what they purport to be as required by section 136(1) of NRCD 323. It would also appear that since the attachments were several, there should have been an attempt to have each of them tendered separately, for while some could go in others might not. The point being made here is that the means by which learned counsel for the appellant sought to have the documents constituting the attachments tendered, as one piece, in my view, was not proper. For example, if one considers the alleged contract document, it was incumbent on its proponent to have made some effort at identifying it by reference to the signature of the makers and the subject matter of the same with a view to relating it to the proceedings before the court below, but this was unfortunately not done. In such a situation, I do not think as regards it that the rules as to identification or authentication were met for it to have been admitted into evidence. Since we do not have any of the attachments before us, I am unable to deal with each and every one of them, but this goes in my thinking to emphasise the need for their proponent to have taken them one by one instead of attempting to have them go in as one. Besides, from the evidence of the witnesses for the respondent, their efforts to trace the existence of a contract proved futile, a fact which raised an issue as to the existence or genuineness or both of the alleged document, which raised an issue for the alleged contract document to be authenticated and so required the proponent to lead some evidence of its identity or authentication: see Halsbury’s Laws of England (4th ed),Vol 17, para 137 at p 101.

It is important to observe that in deciding either to admit or allow hearsay evidence or any piece of evidence, a trial judge is not limited only to the grounds stated by the opposing party and that where a document or piece of evidence is inadmissible the judge has no discretion

[p.154] of [2001-2002] 1 GLR 144 than to exclude it: see Myers v Director of Public Prosecutions [1964] 2 All ER 881 at 887, HL. Indeed, in section 8 of NRCD 323 it is provided thus: “Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.” There is yet another ground which the court may take into account in section 52 of NRCD 323.

I think the purpose of these provisions is to enable the court to have control of the proceedings when it takes the view that the evidence might be time wasting or prejudicial or is such that preliminary requirements as to their admissibility have not been met. In so providing, the law retains the position which pertained under the common law and by so doing enables the court to avoid unfair advantage not only where a party is not represented by counsel but also in situations where a piece of evidence which is otherwise objectionable is not objected to. It can thus be said that admissibility is essentially a matter of law: see Lewis v Marshal (1844) 7 Man & G 729 at 743. This view is fortified by the settled attitude of appellate courts in rejecting inadmissible evidence on the record and proceeding only on the basis of evidence which is lawfully on the record: see Tormekpey v Ahiable [1975] 2 GLR 432 at 435, CA. As said of the attachments earlier on in this delivery, the appellant on whose behalf they were sought to be tendered had not laid a proper foundation for their admissibility and as such the refusal of the learned trial judge to admit them in evidence was proper in the circumstances. I refrain from making any comment on whether or not the proponent could have had the documents at that stage identified, for to do so would be purely speculative, having regard to the fact that the ruling on which this appeal has arisen was in respect of an objection to admissibility.

I now come to the ruling in respect of the compact disc. What happened regarding it in the court below was this. In the course of the evidence of the fifth defence witness, counsel for the appellant sought to have a witness recalled to demonstrate to him the contents of the disc with a view to him identifying whether that was the disc which was demonstrated to him some time ago by one Dr Boadu. When this indication was given by learned counsel on behalf of the appellant, his adversaries objected and, as before, the said objection was upheld by the presiding judge. In his ruling, the learned trial judge said the proposed demonstration could not be proceeded with because the disc [p.155] of [2001-2002] 1 GLR 144 was at that stage not part of the record—it was not in evidence. I have examined critically the points raised by the parties to these proceedings and I am of the view that the learned trial judge was right in his ruling. It must be noted that the disc had at the time neither been admitted nor shown to be either the exact one which was shown to the witness or a copy of the same and the circumstances in which if a copy, it was made as well as its custody since the date of its making. Besides, the person who was to undertake the demonstration to the witness had not been shown to be either the maker or a person familiar with the making of the item such as to be able to answer questions on it. Further, no evidence was led to show the custody in which it was since Dr Boadu demonstrated it to some superior court judges and an officer of the Ministry of Justice. Again, since the said document was alleged to have been made by a firm which goes by the name of Leebda Corporation, under section 149 of NRCD 323 this was a business record which ought to have been authenticated first by the testimony of a representative of the business who is shown to be the keeper of such records or familiar with it. It would therefore seem that, as before, the learned trial judge was right in refusing to have the document admitted in evidence. Further, it is to be noted that the witness who was to have undertaken the demonstration of the compact disc to the fifth defence witness had testified earlier on, and as such if he was to come back into the witness box, he could only have done so with the leave of the court; and the said leave not having been sought, the learned trial judge, in my view, was again right on this ground also in refusing to have the demonstration carried out: see section 79 of NRCD 323.

There is yet another ground of appeal before us and to which I must next turn my attention to. It relates to the ruling by the learned trial judge some time after he had refused the admission of the compact disc, that if the accused wished he could mount the witness box to have it tendered. Although in the transcript before us the learned trial judge described it not as a ruling, what is important is to closely examine the substance of what transpired on that day with a view to determining its real nature and not the view which he himself subsequently expressed of it. In fairness to him, this court cannot use views which he subsequently expressed of the said proceeding, as what it actually amounted to. I think that there is some substance in the attack on the said direction of the presiding judge, for it is of no moment to a judge to decide

[p.156] of [2001-2002] 1 GLR 144 for counsel who is seised with the conduct of a case which of the deponents at his disposal should tender a document. I am of the opinion that it amounts to interfering with the conduct of a case by counsel and is wrong. In the instant case, a more fundamental objection is that an accused may thereby be made to provide evidence against himself, which may then become the basis of his conviction. Further, the learned trial judge, from the record, described this gesture as a review of his previous ruling but since the jurisdiction of review is statutory and not innate to the court, I think he erred by purporting to exercise the said jurisdiction and accordingly, the ground touching the same succeeds.

It was contended by the respondent before us that even if it was without jurisdiction, it was in the interest of the appellant and therefore amounted to no miscarriage of justice. On the contrary, I am of the view that inasmuch as the jurisdiction he purported to exercise was non-existent, its exercise was an instance of substantial miscarriage of justice, particularly in a criminal trial when it was exercised suo motu. Although section 68 of NRCD 323 provides for the court either on its own motion or at the instance of a party to recall witnesses, it is my view that having regard to the controversy over the admissibility of the said compact disc, in the absence of an application from either party to the trial or anything occurring immediately before the order or both which would have made the making of such an order by the learned trial judge one made in the pursuit of justice by it being more likely to assist the appellant, the said order which amounted to his recall was wrong. The result is that the order calling upon the appellant to tender the compact disc is hereby set aside.

The consequence of this is that the appeal succeeds in part only as regards the non-marking of the attachments to exhibit 7 as having been rejected and the order calling upon the appellant to tender the compact disc, the other grounds having failed are hereby dismissed. Let the said attachments be marked as exhibit R3. The order of stay of proceeding made in the course of these proceedings is also set aside.

Omari-Sasu JA. In this consolidated grounds of appeal, six grounds were filed and argued on behalf of the appellant by learned defence counsel and the same were opposed on behalf of the Republic-respondent. Of the six grounds, three concerned attachments to exhibit

[p.157] of [2001-2002] 1 GLR 144

7 and three concerned a CD-Rom.

In respect of the attachments to exhibit 7, the grounds of objection are that (ground one) the learned trial judge erred in refusing them to be tendered. He also failed to have the rejected attachments marked as having been tendered and rejected (ground 2) and the learned trial judge erred when he said “a document can only be tendered by a witness who can answer questions on it” (ground 5). It was also emphasised on behalf of the appellant that it was the duty of the prosecution to tender all documents and things which have come their way during investigations, but this duty was not done in their case and that the covering letter which the prosecution tendered as exhibit 7 should have carried with it all its attachments.

After examining the record of proceedings very closely, I am of the view that the learned trial judge was right in refusing to allow the fourth defendant witness—Mr Sam Awortwe to tender the attachments. By refusing him to tender the attachments he (the learned trial judge) was acting in consonance with section 60(1) of the Evidence Decree, 1975 (NRCD 323) which provides:

“60. (1) A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has “personal knowledge of the matter.”

In our case, the record of proceedings shows that exhibit 7 and the attachments were sent to the Inspector General of Police by the solicitors of Dr Boadu, and the Inspector General of Police in turn directed the fourth defence witness, a senior police officer, to brine them to court. The fourth defence witness (according to the learned trial judge’s finding) had no personal knowledge of the attachments, and in my view, he was right in telling the fourth defence witness that he was not the proper person to tender the attachments.

The learned trial judge never rejected the attachments and he never said they were inadmissible. Learned defence counsel (Barimah Manu) at that stage sought for an adjournment to bring in his witness—to wit, Dr Boadu from Texas in the United States to tender the attachments and the learned trial judge adjourned the case. This fact confirms my view that the learned trial judge never rejected the tendering of the attachments; for if he had done that, there would be no reason in adjourning the matter to bring in somebody from the United States who

[p.158] of [2001-2002] 1 GLR 144 had personal knowledge of the documents to tender them. The only omission I see from the records is that before the adjournment, the fourth defence witness should have been made to identify those documents which were the attachments. This was not done and the learned trial judge is hereby ordered to see that the attachments are identified when the case goes back to the court below. This is what he should do. The grounds of appeal that the learned trial judge erred in refusing the attachments to be tendered is dismissed together with the ground that he made a statement which was wrong in law. From the context in which that statement was made, he was only echoing the provision of section 60(1) of NRCD 323, which I have quoted above and he was right in so saying and there was nothing wrong with the statement.

Grounds (3) and (4) concern the refusal by the learned trial judge to allow the CD-Rom to be tendered or identified. By its very nature a CD-Rom is an electronic device which cannot be simply identified by sight unless it has been put into a computer and demonstrated. This view was shared by all the witnesses called by the defence, ie the fifth defence witness—Mr Justice Kpegah of the Supreme Court; the sixth defence witness—Mrs Ofori-Boateng, a senior official of the Attorney-General’s Department; the seventh defence witness—Mr Justice Acquah of the Supreme Court and Chairman of the Council for Law Reporting and the eighth defence witness—Mr Justice Brobbey of the Court of Appeal. These persons (the fifth to eighth defence witnesses) could not identify the CD-Rom or tender same as they had no personal knowledge of the particular CD-Rom which the defence sought to tender.

It is my considered view, therefore, that all the grounds of appeal argued have failed and the appeal is dismissed. The only saving clause is that the attachments to exhibit 7 are to be identified by the court below. The trial judge should have the attachments to the exhibit 7 identified by the fourth defence witness and marked as identified.

Consequential orders

(1) The attachments to exhibit 7 are to be identified by the fourth defence witness.

(2) The CD-Rom may be tendered by a proper and qualified witness within the meaning of section 60(1) of NRCD 323.

[p.159] of [2001-2002] 1 GLR 144

Afreh JA. This is an interlocutory appeal against some decisions of Baddoo JA, sitting as an additional High Court judge in the trial of the appellant herein on six charges of conspiracy to cause financial loss to the State; causing financial loss to the State and defrauding by false pretences.

The gist of the charges is that the appellant obtained the consent of the government to a payment to a Dr Boadu by making a representation to the Managing Director of Ecobank (Gh) Ltd that consultancy service have been provided under the court computerisation project by Dr Boadu and so a total amount of US$ 1,297,500 was made to Dr Boadu which representation he knew to be false.

His defence is that pursuant to proposals made by Dr Boadu on the court computerisation project he, on behalf of the government, signed a contract with Dr Boadu. In due performance of the contract, Dr Boadu put all the laws of Ghana, statutory and decided cases, on a CD-Rom which he demonstrated to two Supreme Court justices, an Appeal Court judge and the head of the Drafting Division of the Attorney- General’s Office, Mrs Ofori-Boateng. They were so highly impressed that each of them wrote down their commendatory impressions on paper.

It emerged in the course of the evidence of the investigations officer, the sixth prosecution witness, that the solicitors of Dr Boadu and his company LEEBDA Corporation had, in a covering letter dated 22 May 2001, sent the proposals, the contract document, the CD-Rom and the judges’ recommendations to the Inspector General of Police. The defence tried to tender them in evidence through him but the learned trial judge advised them to wait and tender them through their own witness.

In the court below, the appellant gave evidence on the proposal, the contract document and the CD-Rom but did not put or seek to put them in evidence. The defence tried to tender the CD-Rom through the third defence witness, one of the solicitors of Dr Boadu and LEEBDA but the learned trial judge refused to allow him to do so on the ground that he did not prepare the CD-Rom, that the contract document was not before the court and the solicitor did not know the contents of it. The defence then called Commissioner of Police, Mr William Sam Awortwe, who was the head of the investigating team that investigated the appellant, as the fourth defence witness. He also admitted that in

[p.160] of [2001-2002] 1 GLR 144 the course of his investigations, a letter Mr Bram-Larbi had written to the Inspector General of Police was made available to him. It was dated 22 May 2001 and came together with some attachments. Upon this admission counsel for the appellant wanted the fourth defence witness to tender the letter together with its attachments. The judge allowed him to tender the letter that Mr Bram-Larbi had written to the Inspector General of Police (to which he had attached the proposals, the contract, the CD-Rom and the recommendations of some superior court judges on the CD-Rom). But he refused to allow him to tender the attachments. It is against these decisions that the instant appeal has been brought.

In ground (1), the appellant contends that the learned trial judge erred when he refused to allow the attachments to exhibit 7 to be admitted in evidence. The reason the learned trial judge gave for not allowing the fourth defence witness to tender the attachments was that a person can only talk the about the matters of which he is aware of; which he knows of. He can only talk about the exhibits if he knows about them. If he received them and did not make them, he cannot talk about them. Exhibits admitted in evidence must be tendered by the persons who made them and can answer questions on them. The person who made the exhibits must come and testify, so that he can be asked questions about them; otherwise it would be very easy to tender exhibits; a person can call any person to come and tender documents. Once a document is admitted it becomes part of the evidence, but before it becomes part of the evidence the person who tenders it must be able to tell the court something about it.

In the court below, and in this court, counsel for the appellant has argued, strongly and vigorously, that the learned judge’s reasons and decision are wrong. The gist of their argument is that where a document is tendered in evidence and the document makes references to other documents accompanying it and there is an objection to the tendering of it, the objection must be either to the letter and all its attachments or not at all. The judge cannot admit the letter and reject the attachments to it. The letter and its attachments should be accepted as one whole. They cannot be divided up, some admissible, some not.

The submissions of counsel for the appellant would have had considerable force if the letter and its attachments constituted one document or transaction. When a transaction is contained in several documents

[p.161] of [2001-2002] 1 GLR 144 parol evidence is admissible to connect them and show what papers were intended to constitute the transaction: see Phipson on Evidence (14th ed), para 35-24 at p 954. It is when it can be shown that several documents constitute one transaction or document that it can be argued with some justification that the documents cannot be divided up, with some of the constituent parts being admitted while others are rejected, though in principle, in my view, this can be done in appropriate cases; for instance if certain material is clearly inadmissible there is no reason why it should not be rejected.

In the case before us, there is no evidence that when Mr Bram-Larbi wrote to the Inspector General of Police he intended his letter and all its attachments to be regarded as one indivisible document. There is no indication in his letter, exhibit 7, that there are internal references to each other which should lead to the conclusion that they constitute one document. In fact in the very first sentence of exhibit 7 Mr Bram-Larbi made it clear that his firm represented Dr Fred Owusu Boadu and LEEBDA and had been instructed to provide an “input” to assist in the police investigations. Exhibit 7 is in effect a statement to the police on behalf of Dr Boadu in the course of which certain pieces of information, including the attachments, are referred to, explained or commented upon. It must be emphasised that exhibit 7 is a letter written by Dr Boadu’s lawyers to convey some information to the Inspector General of Police on his behalf. It is a document made by the lawyers not by Dr Boadu. The lawyers were not acting as mere amanuenses employed by Dr Boadu. Exhibit 7 is their own document designed to convey the case of their client to the police. The fact that it made reference to some documents made by Dr Boadu could not be said to have incorporated those documents in it so as to make all of them one document or transaction which should be accepted or rejected as one whole indivisible document.

In my opinion, if Dr Boadu had testified he could not have tendered all the documents described as attachments together as one exhibit. This is because each document might have had its own provenance and history; each its own problems of admissibility; each its own probative effect or weight. Each document would therefore have been tendered separately; and in the case of each one, the proper foundation for its admissibility would have been laid, questions asked and answered and so on. They might even have been introduced at different stages of the

[p.162] of [2001-2002] 1 GLR 144 trial. Since they were separate documents, the admissibility of each of them would have been subject to the process established by the Evidence Decree, 1975 (NRCD 323) for the authentication and tendering of documents.

The process for tendering documents is stated succinctly by Ofori-Boateng JSC in his book The Ghana Law of Evidence, p 220:

“Authentication A document or the writing in a document cannot be used as evidence unless it is relevant to the issue being tried. A document needed for such a purpose cannot be relevant unless it is genuine or authentic. Section 136 of the Decree accordingly provides that ‘where the relevance depends on its authenticity or identity, so that authentication is required as a condition, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question, is what its proponent claims’. Before a document can be admitted in evidence therefore, its logical connection with the case in issue ought to be established, and it is often done through authentication and identification. That is the document ought to be produced in court or otherwise identified, and its authenticity established. If a copy, its correctness as compared with the original, if original its identification, and if a seal, or stamping is required, the presence of the seal or the stamp. Once these preliminary facts have been established, there is then established also rebuttable presumption that the document is genuine, relevant and so admissible, if no other rule of admissibility is violated. The establishment of these preliminary facts which may be either by oral evidence or affidavit, unless admitted by the other side, is known as ‘laying the foundation’ for tendering a document. When the foundation has been laid, the document will be ‘put in’; that is, it will be handed over to the court clerk or judge to be received in evidence.”

A party cannot evade this process for tendering a document by attaching it to another document, which is admissible. The attached document, unless it can be shown to be an integral part of the other document so that the two should go in as one document has to pass the tests of authentication, relevance and admissibility described above.

[p.163] of [2001-2002] 1 GLR 144

At the time counsel for the appellant sought to tender the attachments to exhibit 7, they had not passed the tests of admissibility and no attempt had been made to pass them through the tests. Moreover, the defence sought to tender them through a person who as the learned judge held, could not testify to the authenticity or genuineness of the documents except to say that he received or saw them in the course of his investigations.

I think the judge was right in refusing to allow the fourth defence witness to tender the attachments to exhibit 7. But perhaps if the defence had only asked him to identify them as the documents he received with the letter, exhibit 7, he would, I believe, have been allowed to do that. However, that was not what they asked for.

Ground 2

When the learned judge refused to allow the fourth defence witness to tender the attachments to exhibit 7 he also refused to have the documents marked “rejected”, though his attention was drawn to section 6(3) of NRCD 323. His reason was that it was when the attachments were going to be tendered that an objection was raised and he upheld it. So they were not tendered. That was why they were not marked as “rejected.” If the documents had been tendered, they would have been marked “rejected.”

Counsel for the appellant contend in ground (2) that this was an error. The prosecution agreed with them. But this does not mean the matter is settled in favour of the appellant, for if counsel on both sides are wrong in law the court can reject their view and apply or declare what it considers to be the correct position. In this case, this depends on an interpretation of section 6 of NRCD 323. This section provides:

“6. (1) In every action, and at every stage thereof, any objection to the admissibility of evidence by a party affected thereby shall be made at the time the evidence is offered.

(2) Every objection to the admissibility of evidence shall be recorded and ruled upon by the court as a matter of course.

(3) Where a document is produced and tendered in evidence and rejected by the court, it shall be marked by the court as having been so tendered and rejected.”

It should be noted that section 6 of NRCD 323 applies only when

[p.164] of [2001-2002] 1 GLR 144 the admissibility of evidence is in issue. In this case, it was the competence or qualification of a witness not admissibility of evidence which was in issue. The applicable provision was section 60 of NRCD 323 and other sections referred to elsewhere in this judgment and not section 6. Since the witness was disqualified before he could proceed to produce and tender the documents he, as the trial judge pointed out, never produced and tendered them in evidence. The court, therefore, was never in a position to reject them. Without their being rejected they could not, of course, be marked “rejected.” The fact that the documents were mentioned by counsel in arguments and by the third and fourth defence witnesses, does not mean the witness tendered them and they were rejected. It was only a matter which the learned trial judge had to consider in determining whether or not the fourth defence witness could tender them. I agree with the learned trial judge that the documents were not rejected and therefore did not need to be marked “rejected.”

Grounds (3) and (4) were argued together. Ground (3) states that the learned trial judge erred when he refused to allow the solicitors of LEEBDA to demonstrate and tender the CD-Rom in evidence. And ground (4) also contends that he erred in refusing the CD-Rom containing the laws of Ghana demonstrated to the justices of the superior courts and Mrs Ofori-Boateng to enable them give evidence as to whether it was the same product that was demonstrated to them by Dr Boadu. The two grounds raised two matters for consideration: (i) admissibility of computers; and (ii) demonstration of computers for the purpose of verifying their content.

Information from a computer, as an electronic recording, is a writing or document under section 179 of NRCD 323. This statute does not make any special provisions in respect of computers. Their admissibility are therefore governed by the provisions on writings or documents in NRCD 323 as regards identification, authentication or relevance. Information obtained from a computer whether printed out or read from a display, may be divided into three categories: (1) where the computer is used simply as a calculator to process information; (2) information which the computer has been programmed to record; and (3) information recorded and processed by the computer which has been entered by a person, whether directly or indirectly. Information in this third category is hearsay: see Archibold (2000), para 9-11 to

[p.165] of [2001-2002] 1 GLR 144

9-13 at p 1142.

The information on the CD-Rom which the defence sought to tender through the solicitors for LEEBDA is hearsay. To be admissible it had to be brought within one of the exceptions to the hearsay rule. It must be subjected to and pass the same tests of authentication and relevance as any other document. Cross on Evidence (7th ed), p 49 gives an indication of the test a video film or a computer output or other automatic recording has to satisfy to be admissible:

“At a trial by jury the party relying on a recording or film must satisfy the judge that there is a prima facie case that it is authentic, and it must be sufficiently intelligible to be placed before the jury. The evidence must define and describe the provenance and history of the recording up to the moment of its production in court.”

It appears from this statement that only the person who made it or could define and describe the provenance and history of the CD-Rom the defence wanted to tender could tender it in evidence. There was no evidence that the third defence witness representing the solicitors of Dr Boadu and LEEBDA had such personal knowledge. The judge was therefore right in refusing to allow him to tender the CD-Rom in evidence.

As regards the demonstration of the CD-Rom in court, the general rule on documents should apply to it. The established rule and practice is that before the contents of a document can become part of the evidence the document itself must have been admitted in evidence. This rule or practice applies to computers. In the case before us the defence wanted to demonstrate the CD-Rom to the superior court judges and Mrs Ofori-Boateng to indicate whether it was the CD-Rom Dr Boadu demonstrated to them.

What was sought to be demonstrated to them and their reactions to them would have become part of the evidence offered to prove the truth of the evidence of the appellant that the CD-Rom in issue was the one Dr Boadu made pursuant to the contract (which was not in evidence). In my view, this would have been highly irregular. The judge did not err when he did not allow this to be done. As regards the demonstration by the third defence witness, it is my view that he would have had to be properly recalled before he could do so.

Ground (5) states that the learned trial judge’s ruling that a docu-

[p.166] of [2001-2002] 1 GLR 144 ment can only be tendered by a witness who can answer questions on it is erroneous and without legal basis. The general rule is that every person is competent to be a witness and no person is disqualified from testifying to any matter: see section 58 of NRCD 323. But as that section makes clear, there are exceptions to this general rule. Under section 59 of NRCD 323, certain categories of persons are disqualified from being witness: persons who are incapable of expressing themselves so as to be understood or incapable of understanding the duty of a witness to tell the truth. But even where a person is competent or not disqualified from being a witness, the law requires that he or she must have a personal knowledge of the matter to which he testifies or seeks to testify. This law is stated in section 60 of NRCD 323 which provides:

“60. (1) A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.

(2) Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

(3) A witness may testify to a matter without proof of personal knowledge if no objection is raised by any party.

(4) This section is subject to section 112 relating to opinion testimony by expert witnesses.”

According to the Commentary on the Evidence Decree, 1975, p 42 on section 60 of NRCD 323: “The purpose of this section is to assure the use in court of the most reliable evidence available. The same purpose is evidence in the hearsay rule and the best evidence rule. If a matter can be perceived by the senses, the witness must in fact have perceived it before he can testify to it.”

Section 60 of NRCD 323 puts in statutory form what has always been a fundamental rule of the common law of evidence: see McCormick on Evidence (2nd ed), chpt 3, para 10 at p 20 and chapt 7, para 69 at p 149. Phipson on Evidence (14th ed), chpt 12, para 12-01, p 238 puts the rule in a proper context: “After the witness has been sworn or has affirmed, it is the province of the party by whom he is called to examine him in chief,

[p.167] of [2001-2002] 1 GLR 144 sometimes called the direct examination, the object of which is to elicit from the witness all the facts he can prove in support of such party’s case. These may embrace facts in issue; facts relevant to the issue (provided they are not excluded by public policy or privilege); in certain cases hearsay and opinions as to such facts; and any such facts which affect the admissibility or weight of the evidence tendered. Thus, facts showing any special means of knowledge, opportunities of observations, reasons for recollection or belief or other circumstances increasing the witness’s competency to speak of the particular cases may be elicited in chief, as well as impugned in cross-examination.

(i) PERSONAL KNOWLEDGE — DIRECT TESTIMONY The facts testified to by such witness must, however, only be those which have occurred within his own personal knowledge, i.e. which he has himself seen, heard or otherwise perceived. This rule, which dates back to modes of trial long preceding the jury, and has been said to have no exceptions whatever, must be distinguished from the hearsay rule, which is of later growth and has many.”

On testimony on documents the same paragraph states:

“DOCUMENTS Witnesses may, in general, testify to the execution and identity of unattested documents, but not, in the first instance, to their contents; and may prove facts to interpret, but not usually to contradict or vary their terms.”

The tendering of a document is one mode of adducing evidence. Section 60 of NRCD 323 therefore applies to it. Except as otherwise provided by NRCD 323 or some other enactment, every person who is called to tender a document in evidence as part of the case of the person calling him must be able, by his testimony, to show that the authenticity or identity of the document is what he or the person calling him to tender it claims: see section 139 of NRCD 323.

If the party against whom the document is tendered or sought to be tendered challenges the competence or qualification of the witness to tender it, on the ground that he lacks personal knowledge of it, the judge must determine that question as a preliminary point. The most

[p.168] of [2001-2002] 1 GLR 144 appropriate time to raise the objection is at the beginning of the trial or before the witness begins to testify: see R v Yacob (1981) 72 Cr App R 313, CA and Archibold (2000), para 8-38 at p 1028. The burden of proving a witness’s competence or qualification, in this case personal knowledge lies on the party calling him or her: see McCormick on Evidence (supra), chpt 3, para, 10, p 21. If the party is the prosecution, it must prove it beyond reasonable doubt: see section 11 of NRCD 323; R v Yacob (supra) and Archibold (2000), para 8-36, p 1027; if it is the defence the standard is a preponderance of the probabilities: see section 10 of NRCD 323 and Archibold (2000) (ibid).

In this case, before the witness, the fourth defence witness, could tender the documents the prosecution objected to his doing so. The judge concluded that the witness did not have sufficient personal knowledge of the documents and refused to allow him to tender them. Once he found that the witness lacked personal knowledge of the documents he had to disqualify him for, as we have seen, there are no exceptions to the requirement of personal knowledge. If there is a waiver, that is if no objection is raised, and the witness goes on to give evidence but his incompetence or disqualification later becomes appa rent, it seems the judge may strike it out: see section 8 of NRCD 323, Archibold (2000), para 8-8–37 at p 1028 and McCormick on Evidence, chpt 3, para 10 at p 21 where the learned editor states:

“By failing to object the adversary waives the preliminary proof, but not the substance of the requirement, so that if it later appears that the witness lacked opportunity, or did not actually observe the fact, his testimony will be stricken.”

It is clear from section 60 of NRCD 323 and other provisions of NRCD 323 as well as the other authorities cited herein, that the learned trial judge did not err when he held that a document can only be tendered by a witness who can answer questions on it and that there was solid legal basis for his ruling.

I must, however, again add that if the fourth defence witness had only been called to identify, in court, the attachments as the documents that were attached to exhibit 7 it might have been perfectly proper. The documents might then had been marked D until they were tendered in evidence as part of the accused person’s case by a competent or

[p.169] of [2001-2002] 1 GLR 144 qualified person. But it was clear from counsel’s submissions in the court below and in this court that they wanted to do more than that. The judge was right in not allowing them to do so.

In the last ground of appeal, the appellant contends that the trial judge’s ruling that he was prepared to allow the accused person to tender the CD-Rom and the contract was a wrong exercise of discretionary power, which was not in the interest of the defence. In his submission before us the only thing that the appellant’s counsel would say on this ground was that the judge’s decision was dangerous because it could open a Pandora’s box. The simplest thing for us to do, he argued, was to ask the judge to allow Mr Awortwe to tender the documents and then the defence would be satisfied.

This does not tell us why the judge’s ruling was a wrong exercise of discretionary power which was not in the interest of the defence. Under section 68 of NRCD 323 the court may, on its own motion or at the request of a party, call or recall witnesses. Section 79 of NRCD 323 also provides that after a witness has been excused from giving further testimony in an action, he can be recalled with leave granted by the court in its discretion. It is amply clear from these provisions that the trial judge had a discretionary power to recall witnesses (including the appellant, the accused in the court below) at any stage of the trial.

Obviously this is a discretion that must be exercised, especially in a criminal trial, with great care and circumspection. But an accused person, once he has made himself a witness is liable, like any other witness, to be recalled for the purpose of answering such questions as the judge permits to be put to him: see R v Seigley (1911)6 Cr App R 106, CCA; R v Anderson (M) (1988) 87 Cr App R 349, CA and Archibold (2000), para 8-251 at p 1136. So the judge would have been within his right if he had recalled the appellant to answer such questions as he thought fit.

But in this case he did nothing of the sort. After he had refused to allow the third and fourth defence witnesses to tender the document the appellant claimed was the contract he had signed with Dr Owusu Boadu and the CD-Rom, which the defence claimed was the product of the contract and contained legal information, he decided in the spirit of article 19(2)(e) of the Constitution, 1992 and in the interest of justice and fair trial to permit the appellant to be recalled so that he could tender the contract document and the CD-Rom The judge’s

[p.170] of [2001-2002] 1 GLR 144 decision was in reaction to an application for stay of proceedings pending the hearing of an appeal the appellant had made against his refusal to allow the fourth defence witness to tender the documents attached to exhibit 7, the third defence witness the solicitor of LEEBDA to tender the CD-Rom and the three judges of the superior courts and Mrs Ofori-Boateng of the Attorney-General’s Office to demonstrate the CD-Rom. His purpose, if his proposal was accepted by both parties, was to make the trial proceed; and to allow the appellant to prosecute his defence which was built around the contract document and the CD-Rom. The judge was not compelling the appellant to give further evidence or to tender the contract document or the CD-Rom if he did not want to. It was a clear indication that if the defence wanted to have the appellant recalled, an application for that purpose would be granted.

I do not see here any wrongful exercise of discretionary power which was not in the interest of the defence. If he wrongly exercised his discretionary powers at all, it was in favour of the appellant; to enable him to tender a document and a CD-Rom around which the whole defence had been built. In my opinion, there is no merit in this ground of appeal and it should be dismissed.

I end this judgment by fully associating myself with the views expressed by my brother Gbadegbe JA about the need to have explicit rules on interlocutory appeals in criminal cases.

Appeal dismissed.

DRKS