What is a document?

It is said to be any written thing capable of being evidence. It is

immaterial on what the writing may be inscribed. That is why with

wills, even if it is inscribed on toilet paper, it is valid. It is immaterial

on what it was written. It can be on paper, parchment, stone, marble,

clay, metal. Documentary evidence is subject to all the general rules

of admissibility. In this modern age, you can even make a recording.

principle Statute case

Section 165 Of NRCD 323: Commented [K2]: Omychund was an Indian merchant. Barker
only original Omychund v Barker was a British employee of the East India Company. In July 1729
Omychund and Barker entered into a partnership for the sale of
Except as otherwise goods. Omychund provided money to purchase the goods. Barker
evidence writing is provided by this Act or any In Omychund v Barker (1745) 1 purchased them, and sold them at a great profit. However Barker
refused to account to Omychund for his share of the profit.
other enactment evidence Omychund sued Barker in the mayors court at Kolkata (then known
other than an original writing Atk, 21, 49; 26 ER 15, 33, Lord as Calcutta) but Barker left on a ship for Europe before the case
could be heard. The court interpreted Barkers departure as a flight
admissible in is not admissible to prove the from justice and determined he should pay the full amount he was
content of a writing. Harwicke stated that no sued for plus costs. Unfortunately for Omychund, Barker died on the
ship back to Europe. However Barkers will charged his estate as
evidence evidence was admissible unless responsible for payment of his debts.
Omychund sued Barkers son for the debt in the English Court of
Common Pleas, and commissioners went to India to take evidence.
it was `the best that the nature
Commented [K1]: This known as the best evidence rule.

of the case will allow. The

general rule is that secondary

evidence, such as a copy . . . ,

will be not admissible if an

original document exists, and is

not unavailable due to

destruction or other

circumstances indicating

unavailability.

1
Factors that come to play apart from the originality of the document
Does the document resolve the facts in issue? Relevance
Whether the person seeking to tender the document has personal
knowledge of the document or writing
Case: Republic v Selormy 2001-2002 SGLR
Whether the document the person seeks to tender is authentic
Case: Juxon Smith V KLM Dutch Airlines 2005 2006
Exceptions to principle 1
Under what Circumstances will the court admit documents which are not
original?
1. Where the orginal document is lost or destroyed through no fault
of the proponent then a duplicate may be admitted.
Case: Owusu v the Republic
The appellant was arraigned before a district court charged with the
offences of forgery of four duplicate bank pay-in-slips and stealing.
The case for the prosecution was that the appellant, as a revenue
collector of the Ghana Broadcasting Corporation, being under a duty to
collect and pay into a banking account all fees payable to the
corporation, paid into the corporation's account less money than the
2
Commented [K3]: Section 51(2)
(2) Evidence is not admissible except relevant evidence
Commented [K4]: Section 60
Personal knowledge required
(1) A witness may not testify to a matter unless sufficient
evidence is introduced to support a finding that the witness
has personal knowledge of the matter.
(2) Evidence to prove personal knowledge may, but need not
consist of the testimony of the witness personally.
Page Break
(3) A witness may testify to a matter without proof of personal
knowledge if an objection is not raised
by a party.
(4) This section is subject to section 112 relating to opinion
testimony by expert witnesses
Commented [K5]: Section 166&167
166. Duplicate treated as original
A duplicate of a writing is admissible to the same extent as an
original of that writing, unless
(a) a genuine question is raised as to the authenticity of the
original or the duplicate, or
(b) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.
167. Original lost
Evidence other than an original writing is admissible to the
same extent as an original to prove the content of a writing if
the originals are lost or have been destroyed, unless the loss
or destruction resulted from the fraudulent act of the
proponent of the evidence.
amount of money actually collected. The prosecution tendered in

evidence through a police officer, a bank statement which appeared to

emanate from the books of the bank and which was collected from the

bank by the said police officer. The prosecution also called two cashiers

of the bank whose oral evidence was that the sums of money actually

received by them as cashiers from the appellant, as payment into the

account of the corporation, were less than the amounts endorsed on the

duplicate pay-in-slips which had been apparently altered. The evidence

led by the handwriting expert was that the alterations were made by the

appellant. However, the original pay-in-slips in respect of payments

made by the appellant were not produced by the prosecution and the

explanation given by them was that the originals could not be traced at

the bank; but there was no evidence of any proper search made with a

view to tracing them.

In the light of this evidence, the defence proffered by the appellant that

the apparent alterations made on the duplicate pay-in-slips were in fact

made by his assistant one Oduro (whose whereabouts at the material

time were unknown), was rejected by the trial magistrate who convicted

him accordingly.

On appeal, the appellant contended, inter alia, that (1) the original pay-

in-slips ought to have been tendered in evidence and (2) that the
3
Supreme[High] Court (Civil Procedure) Rules, 1954 (LN. 140A), Order

37, rr. 67-76 relating to the admissibility of banker's evidence were

applicable not only to civil but also to criminal proceedings, and since

rules 67-69 thereof were not complied with by the prosecution, the

evidence led in proof of the charges was hearsay and inadmissible.

Contrariwise, counsel for the respondent contended, inter alia, that the

said rules were applicable solely to civil causes or matters including

arbitration and not to criminal cases, in that the definition of "legal

proceeding in Order 37, r. 76 was limited to civil matters by reason of

the very title of the rules.

Held, allowing the appeal:

(1) the legal principle underlying the admissibility of secondary evidence Commented [K6]: Section 166&167

of the contents of a document is that secondary evidence of a document

is admissible when the original is lost or destroyed, but it must be

shown that a proper search has been made for it. What is proper search

depends on the nature and value of the document. A more careful

search will be required for a valuable than for a useless document.

Consequently, merely stating that the original pay-in-slips could not be

traced, was not sufficient evidence to ground the adduction of

secondary evidence in proof of their contents.

4
(2) In the absence of the original pay-in-slips and since there was no

evidence establishing that a proper search was made for them, the oral

evidence of the bank cashiers, though direct evidence of the amounts

[p.264] received from the appellant, was hearsay and inadmissible as

secondary evidence of the contents of the original pay-in-slips.

(3) The bank statements collected from the bank and tendered in

evidence by the police officer in proof of the contents of the books from

which they had been extracted, were hearsay and inadmissible in that

(a) he was not concerned with their preparation and therefore did not

know from what books they were extracted; and (b) there was no

evidence tending to establish that the original books from which they

had been extracted could not be brought to the court either because it

was physically impossible or that the law did not allow or require those

books to be brought to the court on the grounds that being public

documents, they could be asserted to involve inconvenience to the

public.

(4) Since rule 2 of the Rules made under section 107 of the Courts

Ordinance, Cap. 4 (1951 Rev.), (the rules promulgating the Supreme

[High] Court (Civil Procedure) Rules, 1954 (L.N. 140A)), states that

"[the] Rules shall apply in all causes and matters to which they extend in

the Supreme Court," and since Order 1, r. 1 dealing with the

5
interpretation of the Rules, uses the word "includes," the definition of

the word "cause" is not restrictive but extensive. Thus one or other of

the rules may be applied to other "causes" not included in Order 1, r. 1,

provided that nothing in the subject or context of that "cause" makes

the application of the rule repugnant.

(5) In any event the appellant was tried in a district court whose

proceedings in relation to banker's books is governed by the First

Schedule to the Courts Ordinance, Cap. 4 (1951 Rev.), Order 6, rr. 33-

43 which are identical to L.N. 140A, Order 37, rr. 67-76. Consequently,

under the provisions of the said rules, there was no admissible evidence

in proof that the lesser amounts stated in the charges were what in fact

the appellant paid into the bank.

2. If the original cannot be obtained by available judicial procedure ie Commented [K7]: Section 168
Originals unavailable by judicial means
Evidence other than an original writing is admissible to the
same extent as an original to prove the content of a writing, if
notice to produce. the original can not be obtained by an available judicial
procedure, or if the persons having control of an original after
receiving judicial process compelling production do not

Order 21-23 0f CI 47 produce it.

ORDER 21DISCOVERY AND INSPECTION OF DOCUMENTS

Rule 1Mutual Discovery of Documents
(1) After the close of pleadings in an action there shall be discovery of documents in accordance with
this Order.
(2) Nothing in this Order shall be taken as preventing the parties from agreeing to dispense with or
limit the discovery of documents which they would otherwise be required to make to each other.
Rule 2Discovery by Parties Without Order
(1) Subject to this rule, a party in an action shall within fourteen days after the pleadings in the action
are closed between that party and any other party, make and file for service on the other party a list of
the documents which are or have been in that party's possession, custody or power relating to any
matter in question between them in the action.
(2) Without prejudice to any directions given by the Court under Order 15 rule 4 (1), subrule (1) of this
rule shall not apply in third party proceedings, including proceedings under Order 15 involving fourth
or subsequent parties.
(3) Unless the Court otherwise orders, a defendant to an action arising out of a motor accident shall
not make discovery of any documents to the plaintiff under subrule (1).

6
(4) Subrule (1) shall not be taken to require a defendant
(a) to an action for the recovery of a penalty under any enactment to make a discovery of any
documents; or 83

7
(b) to an action to enforce a forfeiture to make discovery of any documents relating to the issue of
forfeiture.
(5) subrules (3) and (4) shall apply to a counterclaim as they apply to an original action.
(6) On the application of any party required by this rule to make discovery of documents, the Court
may
(a) order that the parties or any of them shall make discovery under subrule (1) of such documents or
such matters in question, as may be specified in the order; or
(b) if satisfied that discovery is not necessary, order that there shall be no discovery of documents by
any of the parties.
(7) An application for an order under subrule (6) shall be made before the expiration of the period for
discovery of documents under this rule.
(8) A party entitled to discovery under this rule may, at any time before the application for directions in
the action is made, serve on the party required to make the discovery a notice requiring that party to
make an affidavit verifying the list that that party is required to make under subrule (1), and the party
on whom the notice is served shall within fourteen days after service of the notice, make and file an
affidavit in compliance with the notice and serve a copy of the affidavit on the party by whom the
notice was served.
Rule 3Discovery by Court Order
(1) Subject to rule 6, any party to a cause or matter may apply at the stage of the application for
directions for such discovery as is necessary and the Court may, on the application of the party, order
any other party to the cause or matter to serve on the applicant a list of the documents which are in
respondent's possession, custody or power relating to any issue in the cause or matter, and may at
the same time order the respondent to file an affidavit verifying the list and serve a copy of it on the
applicant.
(2) Notwithstanding subrule (1) the Court may after the application for directions, upon an application
by a party for reasonable cause shown, order any other party to make discovery.
(3) Notwithstanding subrules (1) and (2), an order under this rule may be limited to such documents
only, or to only the issues in the cause or matter as may be specified in the order.
Rule 4Persons Entitled to List
(1) A defendant who pleads in an action is entitled to have a copy of any list of documents served by
any other defendant on the plaintiff under rule 2 or 3; and a plaintiff against whom a counterclaim is
made in an action is entitled to have a copy of any list of document served by any other defendant to
the counterclaim on the party making the counterclaim under rule 2 or 3.
(2) A party required by subrule (1) to supply a copy of a list of documents shall supply it free of charge
on request made by the party entitled to it.
(3) In this rule, "list of documents" includes an affidavit verifying a list of documents.
Rule 5Order for Discovery of Particular Documents
(1) Subject to rule 6, the Court may at any time, on the application of any party to the cause or matter,
make an order requiring any other party to make an affidavit stating whether any document specified
or described in the application, has at any stating whether any document specified or described in the
application, has at any time been in that party's possession, custody or power, and if not then in the
party's possession, custody or power, when that party parted with it and what has become of it. 84

8
(2) An application for an order under this rule shall be supported by an affidavit stating the belief of the
deponent that, the respondent from whom discovery is sought under this rule has, or at some time
had, in the respondent's possession, custody or power the document specified or described in the
application and that it relates to one or more of the issues in the cause or matter.
(3) An order may be made against a party under this rule notwithstanding that he has made or been
required to make a list of documents of affidavits under rule 2 or 3.
Rule 6Discovery to be Ordered only if Necessary
On the hearing of an application for an order under rule 3 or 5, the Court shall refuse to make the
order if it is of the opinion that discovery is not necessary either to dispose fairly of the cause or
matter or to save costs.
Rule 7Inspection of Documents Referred to in List
A party who serves a list of documents on any other party in compliance with this Order shall at the
same time serve a notice on that other party, stating a time within seven days after the service, when
that other party may inspect and take copies of the documents other than any of those to which the
party objects to produce, at a place specified in the notice.
Rule 8Inspection of Documents Referred to in Pleadings and Affidavits
(1) A party may at any time serve a notice on any other party in whose pleading or affidavit reference
is made to a document to produce the document for the inspection of the party giving the notice and
to permit the party giving the notice to take copies of it.
(2) A party on whom notice to inspect documents is served shall within four days after service of the
notice inform the party giving the notice of a date within seven days after the service of the notice to
inspect documents and of a time between 9.30 a.m. and 4.30 p.m. when the documents may be
inspected at the office of the lawyer of the party served, or at some other convenient place, and shall
at the time and place named make the documents available for inspection.
(3) A party on whom notice to inspect documents is served shall within four days after service of the
notice inform the party giving the notice, of documents the production of which are objected to and the
grounds of the objection.
Rule 9Order for Production for Inspection
(1) If a party who is required by rule 7 to serve a notice or who is served with a notice under rule 8 (1)
(a) fails to serve the notice under rule 7, 8 (2) or 8 (3);
(b) objects to produce any documents for inspection; or
(c) offers inspection at an unreasonable time or place,
the Court may, subject to rule 11 (1), on the application of the party entitled to inspection, make an
order for production of the documents in question for inspection at such time and place, and in such
manner, as it thinks fit.
(2) Notwithstanding subrule (1), but subject to rule 11 (1), the Court may, on the application of any
party to a cause or matter, order any other party to permit the party applying, to inspect any
documents in the possession, custody or power of that other party which relates to any issue in the
cause or matter.
(3) An application for an order under subrule (2) shall be supported by an affidavit specifying or
describing the documents of which inspection is sought and stating the belief of the deponent that
they are in the possession, custody or power of the other party and that they relate to an issue in the
cause or matter. 85

9
Rule 10Order for Production to Court
At any stage of the proceedings in any cause or matter the Court may, subject to rule 12 (1), order
any party to produce to the Court any document in the party's possession, custody or power relating
to any issue in the cause or matter and the Court may deal with the document when produced in such
manner as it thinks fit.
Rule 11Production to be Ordered only if Necessary
(1) An order for the production of any document for inspection or to the Court shall not be made under
any of these Rules unless the Court is of opinion that the order is necessary either to dispose fairly of
the cause or matter or to save costs.
(2) Where, on an application under this Order for production of a document for inspection or to the
Court, privilege from the production is claimed or objection is made to the production on any other
ground, the Court may inspect the document to decide whether the claim or objection is justified.
Rule 12Production of Business Records
(1) Where production of any business records for inspection is applied for under these Rules, the
Court may, instead of ordering production of the original records for inspection, order a copy of any
entries in it to be supplied and verified by an affidavit of a person who has examined the copy with the
original records.
(2) The affidavit shall state whether or not there are in the original records any and if so what
erasures, interlineations or alterations.
(3) Notwithstanding that a copy of an entry in any record has been supplied under this rule, the Court
may order the production of the record from which the copy was made.
Rule 13Withholding Document or Record in the Public Interest
This Order shall be without prejudice to any rule of law which authorises or requires the withholding of
any document or record on the ground that the disclosure of it would be injurious to the public interest.
Rule 14Failure to Make Discovery
(1) If any party who is required by any of these Rules, or any order made under them, to make
discovery of documents or records, or to produce any documents or records for the purpose of
inspection or any other purpose, fails to comply with any provision of that rule or with that order, then
without prejudice to rule 9 (1), the Court may make such order as it considers just including, in
particular, an order that
(a) the action be dismissed;
(b) the defence be struck out and judgment entered accordingly;
(c) where the document is favourable to the party's case, the party may not use the document at the
trial, except with leave of the Court; or
(d) where the document is not favourable to the party's case, the party may be committed for
contempt.
(2) Service on a party's lawyer of an order for discovery or production of documents or records made
against that party shall be sufficient service to found an application for committal of the party
disobeying the order, but the party may show in answer to the application sufficient cause for the
failure to obey the order. 86

10
(3) Where an order made against the client of a lawyer is served on the lawyer and the lawyer fails
without reasonable excuse to give notice of it to the client, the lawyer shall be liable to committal for
contempt.
Rule 15Revocation and Variation of Orders
Any order made under this Order, including an order made on appeal, may, on sufficient cause
shown, be revoked or varied by a subsequent order or direction of the Court made or given at or
before the trial of the cause or matter in connection with which the original order was made.
ORDER 22INTERROGATORIES
Rule 1Discovery by Interrogatories
(1) A party may apply for an order
(a) giving the party leave to serve on another party interrogatories relating to any matter in question
between the applicant and that other party in the cause or matter; and
(b) requesting that other party to answer the interrogatories on affidavit within such period as may be
specified in the order.
(2) The interrogatories shall be as in Form 10 in the Schedule and the answer shall be as in Form 11
in the Schedule.
(3) A copy of the proposed interrogatories shall be served with the application, or the notice under
Order 32 rule 4 or rule 9 by which the application for the leave is made.
(4) On the hearing of an application under this rule, Court shall give leave only of the interrogatories
which it considers necessary either to dispose fairly of the cause or matter or to save costs.
(5) In deciding whether to give leave the Court shall take into account any offer made by the party to
be interrogated to give particulars or to make admissions or to produce documents relating to any
matter in question.
(6) A proposed interrogatory which does not relate to a matter mentioned in paragraph (a) of subrule
(1) shall be disallowed, notwithstanding that it might be admissible in oral cross examination of a
witness.
Rule 2Interrogatories where Party is a Body of Persons
Where a party is a body of persons, whether corporate or not, being a body which is empowered by
law to sue and be sued whether in its own name or in the name of an officer or other person, the
Court may, on the application of any other party, make an order allowing that other party to serve
interrogatories on such officer or member of the body as may be specified in the order.
Rule 3Statement as to Party Required to Answer
Where interrogatories are to be served on two or more parties or are required to be answered by an
agent or servant of a party, a note at the end of the interrogatories shall state which of the
interrogatories each party or, an agent or servant is required to answer.
Rule 4Privilege
Where a person objects to answering any interrogatory on the ground of privilege, the person may
state the objection in the person's affidavit in answer.
Rule 5Insufficient Answers 87

11
If a person on whom interrogatories have been served answers any of them insufficiently, the Court
may make an order requiring the person to make a further answer either by affidavit or on oral
examination as the Court may direct.
Rule 6Failure to Comply with Order
(1) If a party against whom an order is made under rule 1 or 5 fails to comply with it, the Court may
make such order as it considers just including, in particular, an order that the action be dismissed or,
an order that the defence be struck out and judgment be entered accordingly.
(2) If a party against whom an order is made under rule 1 or 5 fails to comply with it, then,
notwithstanding subrule (1), he shall be liable to committal for contempt.
(3) Service on a party's lawyer of an order to answer interrogatories made against the party shall be
sufficient service to found an application for committal of the party disobeying the order, but the party
may show in answer to the application that the party had no notice or knowledge of the order.
(4) A lawyer on whom an order to answer interrogatories made against a client is served and who fails
without reasonable excuse to give notice of it to the client shall be liable to committal for contempt.
Rule 7Use of Answer to Interrogatories at Trial
(1) A party may put in evidence at the trial of any cause or matter, or of any issue in it, some of the
answers to interrogatories, or part of an answer, without putting in evidence the other answers or, the
whole of that answer.
(2) Notwithstanding subrule (1), the Court may look at the whole of the answers and if it is of the
opinion that any other answer or other part of an answer is so connected with an answer, or any part
of it used in evidence that the one ought not to be used without the other, the Court may direct that,
that other answer or part shall be put in evidence.
Rule 8Revocation and Variation of Orders
An order made under this Order, including an order made on appeal may, on sufficient cause shown,
be revoked or varied by a subsequent order or direction of the Court made or given at or before the
trial of the cause or matter in connection with which the original order was made.
ORDER 23ADMISSIONS
Rule 1Notice of Admission of Facts
A party to a cause or matter may give notice, by that party's pleadings, or otherwise in writing, that the
party admits the truth or the whole or any part of the case of any other party.
Rule 2Request to Admit Fact or Document
(1) A party may at any time, by serving a request to admit, request any other party to admit for the
purposes of the cause or matter only, the truth of a fact or the authenticity of a document. The request
shall be as in Form 12 in the Schedule.
(2) A copy of any document mentioned in the request to admit shall, where practicable, be served with
the request, unless a copy is already in the possession of the other party.
Rule 3Effect of Request to Admit
(1) A party on whom a request to admit is served shall respond to it within fourteen days after it is
served by serving on the requesting party a response to request to admit. The response shall be as in
Form 13 in the Schedule. 88

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(2) Where the party on whom the request is served fails to serve a response as required by subrule
(1), the party shall be deemed, for the purposes of the cause or matter only, to admit the truth of the
facts or the authenticity of the documents mentioned in the request to admit.
(3) A party shall also be deemed, for the purposes of the cause or matter only, to admit the truth of
the facts or the authenticity of the documents mentioned in the request, unless the party's response
(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or
(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the
refusal.
Rule 4Costs on Refusal to Admit
Where a party denies or refuses to admit the truth of a fact or the authenticity of a document after
receiving a request to admit, and the fact or document is subsequently proved at the hearing, the
Court may take the denial or refusal into account in exercising its discretion with respect to costs.
Rule 5Withdrawal of Admission
An admission made in response to a request to admit or an admission under rule 2 or an admission in
a pleading may be withdrawn on consent or with leave of the Court.
Rule 6Order Based on Admission of Fact or Document
(1) Where an admission of the truth of a fact or the authenticity of a document is made
(a) in an affidavit filed by a party;
(b) in the examination for discovery of a party or a person examined for discovery on behalf of a party;
or
(c) by a party on any other examination under oath or affirmation in or out of court
any party may apply to the Court or Judge in the same or another cause or matter for such order as
the party may be entitled to on the admission without waiting for the determination of any other
question between the parties, and the Court or Judge may make such order as is just.
(2) Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading

or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to

the Court or to the Judge for such order as the party may be entitled to on the admission without waiting for the

determination of any question between the parties, and the Court or the Judge may make such order as is just.

Section 75(2)(b) of the courts Act 1993(act 459)

75Order for the Examination of Witnesses in Matters Pending before a Foreign Tribunal.
(1) The High Court may order the examination of a witness within its jurisdiction on such terms as it
considers necessary when an application is made by a court or tribunal of competent jurisdiction in
another county for the testimony in respect of criminal, civil or commercial matters before that court or
tribunal.
(2) The High Court may order the attendance of the person before any person named in the other
(a) to be examined on oath, on interrogatories; or
(b) to produce specific documents and shall give such directions as it thinks fit.
(3) Any order of the High Court made under this section may be enforced in the same manner as an order made
Commented [K8]: Original under control of an opponent
in a cause pending in the High Court. (1) Evidence other than an original writing is admissible to the
same extent as an original to prove the content of a writing, if
at a time when an original was under the control of the
3. Section 169 In point 2 above there was no mention of pleadings opponent of the evidence, the opponent was given express or
implied notice by the pleadings or otherwise, that the content
of the writing would be a subject of proof at the hearing, and

but in this instant it mentions pleadings.

on request at the hearing the opponent does not
produce it.
(2) Though a writing requested by one party is produced by
another and is inspected by the party
4. Collateral writings Section 170 of 323 if the content of the calling for it, the party calling for the writing is not obliged to
introduce it as evidence in the action.

writing you want to tender is collateral to the main issue and you Commented [K9]: 170. Collateral writings
Evidence other than an original writing is admissible to the
same extent as an original to prove the
content of a writing if the content of the writing is not closely
have a duplicate of the collateral, the document may be admitted related to a controlling issue in the action

13
 5. Voluminous writings Section 171 of NRCD 323 Commented [K10]: Voluminous writings
(1) Evidence other than an original writing is admissible to the
same extent as an original to prove the content of a writing if
the originals consist of numerous accounts of other writings
This results when: which cannot conveniently be examined in Court and the fact
to be proved is the general result of the whole.
(2) The Court may require that the accounts or other writings

Not all the content is needed so copies of portions maybe admitted

be produced in Court or be produced for
inspection or copying by an adverse party.

in evidence if :

a. The original consists of numerous account of other things which

cannot be conveniently allowed in court

b. The facts to be proved is the general result of the whole. Then

in that case the court might admit a duplicate copy of the

original

6. Immovable Writings Section 172 Commented [K11]: Immovable writings

Evidence other than an original writing is admissible to the
same extent as an original to prove the
content of a writing if the original is of a nature that it can not
7. Admitted writings Section 173. Where an opponent has admitted be easily moved.

Commented [K12]: Admitted writings

to the content of the writing a duplicate of the writing may be Evidence other than an original of a writing is admissible to
the same extent as an original to prove the
content of a writing if the contents of the writing have been

admitted in evidence
admitted by the opponent of the evidence in
writing or by testimony in the action

8. Copy of a writing- section 174 Commented [K13]: Copy treated as original

A copy of a writing is admissible to the same extent as an
original to prove the content of a writing if
an original and the copy have been produced at or before the
9. copies of official writings Section 175. A certified signed true copy hearing and made available for inspection
and comparison by the Court and the adverse parties.

of the original document can be admitted in place of the original. Commented [K14]: (1) A copy of a writing which is authorised
by law to be filed or recorded and has in fact been filed or recorded
in an office of a public entity, or which is a public record, report,

Requirements for the above :

statement or data compilation is admissible to the same extent as an
original to prove the content of the writing if-

(a) an original or an original record is in an office of a public entity

original document must be in the office where items of that nature are regularly kept; and

(b) the copy is certified to be correct by the custodian or other

person authorised to make the certification and that certificate is
the office must be a public office. authenticated or the copy is testified to be a correct copy by a
witness who has compared it with an original.

Order 38 R9 of CI 47(Rule 9Official Documents in Evidence

(2) If a copy which complies with subsection (1) cannot be obtained
by the exercise of reasonable diligence, other evidence of the content
Without prejudice to the provisions of any enactment, every document purporti ng to be sealed with the seal of of the writing is admissible to the same extent as an original.

any office or department shall be received in evidence without further proof, and any document purporting to be

14
 so sealed and to be a copy of a document filed in or issued out of that office or department shall be presumed to
be an office copy of that document without further proof unless the contrary is shown ) read together
with Section 159 of NRCD 323 deals with sealed official documents.
10. Bankers book. Section 176. A copy of the bankers book is
admissible in court if the document was made in the regular
course of the business of the bank and the copy has been
compared to the original and found to be accurate.
11. Parole evidence Rule Section 177. If the parties have reduced
their terms of the contract into writing then no oral evidence or
written matter which existed before the parties reduced their
agreement into writing, no such evidence will be admitted to vary
the nature of the contract, except as provided by the rules of
equity. ( Ratification): Rectification is an equitable remedy that is normally
granted in a situation where a written instrument does not accord with the true
agreement of the parties. If by mistake, a written instrument does not accord
with the true agreement of the parties, equity has the power to reform or
rectify that instrument so as to make it accord with the true agreement.
What is rectified is not a mistake in the transaction itself (the agreement or contract),
but rather a mistake in the way which that transaction has been expressed in
writing. If for example the intention or the agreement is agreed at 1.5 million as the
purchase price, if the document shows a different price of 150,000 what is being
rectified is the way the agreement has been translated in writing.
The mistake that has been analysed in the case of Mackenzie, where it was stated
that courts of equity do not rectify contracts, they only rectify instruments purporting
to have been made in pursuance of the terms of the contract.
Whiteside v. Whiteside
Evershed M.R. stated that Rectification is a discretionary remedy which must be
cautiously watched and jealously guarded.
The rules are strict and the courts are hesitant to give rectification remedy.
For remedy of rectification to apply there must be:
1. Absence of an alternative remedy rectification will not be granted e.g
(a) addition in instrument-collateral contract; (
(b) parties voluntarily agree to rectify instrument;
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Commented [K15]: A seal is presumed to be genuine and its use
authorised if it purports to be the seal of-
(a) Ghana or of a Ministry, Department, officer or agency of Ghana;
(b) a public entity in Ghana or a Department, officer or agency of
such a public entity;
(c) a State recognised by Ghana or a Ministry, Department, officer
or agency of such a State;
(d) a public entity in a State recognised by Ghana or a Department,
officer or agency of such a public entity;
(e) a court in Ghana or a court in a State recognised by Ghana;
(f) an international public entity or a Department, officer or agency
of such a public entity;
(g) a notary public or a commissioner for oaths in Ghana.
Commented [K16]: (1) A copy of a record made in the ordinary
course of business by a bank is admissible to the same extent as an
original to prove the content of the writing if the copy is testified to
be a correct copy by a witness who has compared it with an original.
(2) Evidence that the record was made in the regular course of
business or that the copy is a correct copy may be given by oral
testimony or affidavit by a representative of the bank.
(3) A representative of a bank in any action to which the bank is not
a party shall not be compelled to produce the original records of the
bank or to appear as a witness concerning them unless the court
finds that fairness requires such compulsion.
(4) The court may, on application, order a bank to allow a party to
inspect or copy any records of the bank which concern the action,
provided that reasonable advance notice is given to the bank.
(5) For the purposes of this section, a bank is any business registered
in Ghana as a bank.
Commented [K17]: Except as otherwise provided by the rules
of equity, terms set forth in a writing intended by the party or parties
to the writing as a final expression of intention or agreement with
respect to such terms as are included in the writing may not be
contradicted by evidence of any prior declaration of intention, of any
prior agreement or of a contemporaneous oral agreement or
declaration of intention, but may be explained or supplemented-
(a) by evidence of consistent additional terms unless the court finds
the writing to have been intended also as a complete and exclusive
statement of the terms of the intention or agreement, provided that a
will and a registered writing conveying immovable property shall be
deemed to be a complete and exclusive statement of the terms of the
intention or agreement; and
(b) by a course of dealing or usage of trade or by course of
performance.
(2) Nothing in this section precludes the admission of evidence
relevant to the interpretation of terms in a writing.
(3) For the purpose of this section-
(a) "a course of dealing" means a sequence of previous conduct
between parties to a particular transaction which is fairly to be
regarded as establishing a common basis of understanding for
interpreting their expressions and other conduct;
(b) "a usage of trade" means any practice or method of dealing in a
place, vocation or trade as to justify an expectation that it will be
observed with respect to the transaction in question;
(c) "course of performance" means, in respect only of a contract
which involves repeated occasions for performance by either party ...
(c) obvious clerical, typographical or grammatical error- court corrects as a matter of
construction.

2. Mistake

Parties must show final and genuine agreement and that the instrument failed to
record it. Oral evidence is admissible to prove agreement. In order to show that the
written instrument does not reflect what the parties agreed on.

Remedy exists to correct, not improve instrument.

Gross Mistake can be

Common mistake common to both or all parties to the instrument

rectification will be granted as a general rule.
Unilateral mistake one party incorrectly records a term of the agreement;
term is accepted bona fide by the other party.
The general rule is no rectification.

EXCEPTIONS

Fraud
Estoppel there is no deliberate intention to defraud but the mistake is not
brought to the attention of the other party.
Equitable election Paget v. Marshall (1884) 28 Ch. D the court puts defendant
where he has to choose rectification or rescission.
Unilateral transactions e.g. Deed Poll.

Riverlate Properties Ltd v. Paul

Roberts & Co Ltd v Leicestershire

Burden of Proof of Mistake

Very high standard of proof. Strong irrefragable evidence, strong unshakeable

evidence with a high degree of conviction

There must be evidence of the clearest and most satisfactory description that will
establish the mistake with a high degree of conviction and leave no fair and
reasonable doubt that the deed does not embody the final intention of the parties.

Difficult in particular circumstances e.g.

Passage of years Fredensen v. Rothschild lapse of over 33 years. Held:

Time begins to run from discovery of mistake
Where the Plaintiff is a solicitor who drafted the instrument: Ball v Storie

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 Examples of instruments that the court will rectify

Mercantile documents e.g. policies of marine insurance. Mackenzie v.

Coulson
Bills of exchange
Transfer of shares forms
Conveyancing documents
Consent order (agreement inter parties)
Land Register RLA Cap 300 Section 143 deals

Instruments that will not be rectified

Memorandum and Articles of Association of a company. These have provisions
stipulating how they are to be altered or amended.
A Will cannot be rectified except for fraud; where there is not fraud a codicil is
prepared.
The Constitution. There is a special procedure for amending the constitution and
courts cannot do that
Acts of Parliament have a procedure for amending them;

RECTIFICATION DEFENCES

There are certain defences that can be pleaded by the defendant against an order to
rectification

1. Contract no longer capable of performance Equity does not act in vain. (for
example where the subject matter is destroyed i.e. vegetables have perished or
goods lost at sea)

2. It cannot be granted to the prejudice of bona fide purchaser for value without
notice: Smith v. Jones.

3. Laches or acquiescence: Beale v Kyte

Carelessness of P is no defence, only increases burden of proof of mistake but

cannot be used as a defence to defeat a claim of rectification -

EFFECT OF RECTIFICATION ORDER

No new document needs to be executed;

Copy of court order endorsed on instrument being rectified;
Decree has retrospective Commented [K18]:

They are permitte to adduce oral evidence to explain but not permitted

to introduce new oral evidence. Section 177(a)

17
As far as a will is concerne the law does not permit you to

introduce evidence to explain anything.

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