Republic Vrs High Court, Commercial Division Accra, Ex-parte:kwabena Duffour [2021] GHASC 8 (10 February 2021)

Key Facts

Issues

• Whether the Trial Judge erred in ruling that admitting a document on behalf of a witness who had not sworn an oath before the court does not violate section 61 of the Evidence Act, 1975 (NRCD 323).
• Whether the High Court's admission of prosecution documents into evidence during a Case Management Conference, prior to trial commencement and in the absence of the witness, constitutes a grave error of law patent on the record under the Evidence Act, 1975 (NRCD 323) and Article 19 of the Constitution.
• Whether the admission of documents into evidence as part of a Case Management Conference is permissible under Part III or any part of the Criminal Procedure Act 1960 (Act 30), Evidence Act 1975 (NRCD 323), or Courts Act 1993 (Act 459), and whether such procedures can be amended by Practice Directions.
• Whether the Trial Judge erred in adhering to the Chief Justice's Practice Directions on Case Management in criminal proceedings, which are not binding and cannot supersede the 1992 Constitution, Criminal Procedure Act 1960 (Act 30), Evidence Act 1975 (NRCD 323), or Courts Act 1993 (Act 459).
• Whether the Trial Judge failed to consider that the procedure for admitting evidence under Section 61 of the Evidence Act, 1975 (NRCD 323) requires an enactment or rule of law, and cannot be amended by a Practice Direction.

Holdings

• The Supreme Court held that the Trial Judge committed an error on the face of the record by admitting evidence during case management when the witness was not on oath. The High Court's ruling dated 30th July 2020 was quashed for violating Section 6(1) of the Evidence Act 1975 (NRCD 323), which mandates objections to evidence be made at the time it is offered, not before trial.
• The court directed that objections to witness statements must be heard and determined after the witness has produced the statement at trial, in accordance with Section 6(1) of the Evidence Act 1975 (NRCD 323). This clarifies that such objections cannot be resolved during case management conferences.

Remedies

• The Supreme Court directs that objections to witness statements containing inadmissible evidence or objectionable material during case management conferences must be heard and determined after the witness produces the statement at the trial, in accordance with Section 6(1) of the Evidence Act 1975 (NRCD 323).
• The ruling of the High Court (Commercial Division) Accra dated 30th July 2020, admitting documents into evidence prior to trial, is removed from the registry of the High Court and quashed by the Supreme Court.

Legal Principles

• The court emphasized that certiorari can be granted to quash a decision of a superior court where there is a grave error of law on the face of the record. The error must be fundamental, substantial, or material, as outlined in the Ex parte Tsikata case. The ruling highlighted that such errors must be patent on the record and not merely procedural.
• The court reaffirmed that Practice Directions, while guiding procedural matters, cannot override express statutory provisions. Specifically, Section 6(1) of the Evidence Act 1975 (NRCD 323) mandates that objections to evidence must be raised at the time the evidence is offered, not during pre-trial case management conferences. The Practice Direction’s conflicting guidance was deemed per incuriam and invalid.

Precedent Name

• The Republic Vs. High Court (Commercial Division) Accra; Ex-parte Electoral Commission (Ndoum-Interested Party)
• Republic Vs. Court of Appeal; ex parte Tsatsu Tsikata
• Republic Vs. High Court (Commercial Division) Accra, Ex parte Attorney General (NML Capital & Republic of Argentina-Interested Parties)
• Republic Vs. Central Regional House of Chiefs & Others; Ex parte Gyan IX (Andoh X-Interested Party)
• Republic Vs. High Court, Accra Ex-parte; Ghana Medical Association (Chris Arcmann-Akummey-Interested Party)

Cited Statute

• Criminal Procedure and Other Offences Act, 1960
• Evidence Act, 1975
• 1992 Constitution of the Republic of Ghana
• Courts Act, 1993

Judge Name

• Yeboah, CJ (Presiding)
• Amegatcher, JSC
• Amadu, JSC
• Marful-Sau, JSC
• Owusu (Mrs.), JSC

Passage Text

• The High Court held that objections to exhibits should be made at the Case Management Conference stage, reasoning that this practice aligns with civil procedure rules to expedite trials. It stated: '...objections to any matter disclosed by the Prosecution shall be made in terms of Section 6 of NRCD 323 at the Case Management Conference stage...'
• The Supreme Court ruled that the High Court's decision 'flies in the face of the clear provisions of Section 6(1) of the Evidence Act 1975 (NRCD 323)', stating: '...objections to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered.'
• The Supreme Court emphasized that Practice Directions 'cannot supplant the rules and certainly not substantive statutory provisions such as the Evidence Act', declaring the High Court's reliance on them 'per incuriam' (against established law).