Inadmissible evidence must not be offered more so, if counsel is aware of the inadmissibility (r 5, sub r 9 of Legal Professional Conduct and Etiquette Rs LI

Neither party is obliged to testify (BARON V. LARBI [1962]1 GLR 168).

But where a party decides to testify he must do so before witnesses are called unless the judge otherwise orders.

Subject to the general control of the court over the hearing, counsel has discretion over the order in which to call witnesses. But it is desirable that witnesses are called in an order that would enhance the judge’s understanding of the case. To this end, the court may intervene to direct the order of presentation of evidence and the interrogation of witnesses in order to ensure rapid distinct and readily understandable presentation. (69 (a) Evidence Decree). It may therefore order a party to re-arrange the order of witnesses for clarity’s sake or for convenience e.g. where such witness has to travel urgently out of the jurisdiction. In the exceptional event that the plaintiffs are separately represented it may determine which of them may first present evidence.

Application to recall a witness previously examined may be overrd and the court may allow the use of demonstrative evidence i.e. maps, charts, photographs etc. by counsel. (commentary on Evidence Decree, pp 50-51).

Each witness must then be sworn, examined in chief and cross-examined and if necessary, an interpreter may be employed to interpret the testimony. (Section 64(1) Evidence Decree). Such interpreter can be cross-examined and otherwise treated as a witness but may be impeached only for incompetence to interpret accurately. (Section 64(2) Evidence Decree).

Examination In Chief

Such examination is for the purpose of eliciting evidence favourable for the case. A party calling the witness would have interviewed him and prepared a proof of evidence which he would have signed. As a r, the witness must testify on oath or affirmation otherwise the testimony is inadmissible. Section 61 (2) of the Decree ). Hearsay evidence is generally inadmissible and unless the adversary does not object a witness must not be questioned except on a matter of personal knowledge of the witness. (section 60 of the Decree). Therefore in examining the witness in chief, counsel must “lay foundation” through the witness or a previous witness with such preliminary questions as would establish the personal knowledge of the witness.

Foundation must be laid for the testimony of an expert witness or other witness previously called, such preliminary questions as would establish the skill, experience or training of the witness. Foundation may be laid for tendering a document through a witness by asking preliminary questions establishing that the witness has personal knowledge of the document as the maker, recipient or otherwise.

In impeaching a witness over a previous inconsistent statement or conduct, it is not necessary to disclose any information as to the statement or conduct in issue.

2/1/2005 2:55:24 PM

Refreshing Memory

A document used by a witness before or during testimony to refresh memory must be produced least the testimony is excluded, unless the court decides otherwise. S77 of D323

Upon production of such documents, the adversary may inspect it and cross-examine the witness on it. Leading questions may not to be asked if the adversary objects. S70 D323 Otherwise the answers will be admissible in court.

A question is leading if it is framed to suggest directly or indirectly an expected answer. But the court may determine to what extent leading questions may be allowed in the circumstances and may permit such questions on matters which are introductory and disputed or already proved sufficiently. A party calling a witness vouches for the credibility of the witness and must not seek to discredit the witness. However the witness may turn out to be hostile or unfavourable. A hostile witness is one who would simply not tell the truth while the unfavourable witness merely fails to establish a relevant fact or proves a contrary.

A witness must not be treated as a hostile witness unless the testimony of such witness is in conflict with the previous statement or conduct of the witness.

LANQUAYE V. REPUBLIC [1976]1 GLR 1.

Where hostility is envisaged, the party would inform the court before the witness is called of the need to impeach the witness as a hostile witness. (Section 80 of The Decree). In cross examining such a witness, it is not necessary to disclose any information regarding a previous statement or conduct.

Where no explanation is offered (for the inconsistency), the inconsistency would destroy the credibility of the witness. Where however the witness offers an explanation, it would be for the trial judge to form an opinion on his credibility. In either situation, the previous testimony or conduct establishes nothing by itself and the trial judge may not base a finding thereon. ADWUBENG V. DOMFEH [1996-97] SCGLR 660.

The character of such a hostile witness may be attacked by imputations in cross-examination as to instances of specific conduct establishing bad traits of character but evidence may not be adduced to establish those traits. SEE SECTION 83(4) AND 84(2) OF THE EVIDENCE DECREE).

The witness may be examined as to a previous conviction involving dishonesty or false statement within the last ten years. (SECTION 85 OF THE DECREE).

In exercise of the general control of the proceedings the judge must ascertain the basis of the question put in cross-examination while impeaching a witness as a hostile witness. Insulting, annoying, indecent or scandalous questions must be disallowed or the line of cross-examination closed altogether. (SEE PAGES 50-51 OF THE COMMENTARY TO THE EVIDENCE DECREE).

Cross examination thus remains a strong and useful weapon for testing the credibility of the witness, but it is an abuse of process and waste of public funds to embark upon irrelevant or protracted interrogation or treat the witness without the expected courtesy and consideration. Counsel remains an office of the court and must guard against misuse of the office as a channel for annoyance, harassment and insults to the witness. (MECHANICAL AND GENERAL INVENTIONS V. AUSTIN & AUSTIN MOTOR CO. [1955] AC 146 @ 359.

Allegations of fraud (R 5 (8) LI 613) i.e THE LEGAL PROFESSION (CONDUCT AND ETIQUETTE RS), misconduct or commission of crime (HALSBURY’S LAWS OF ENGLAND VOLUME 37 PARA 514) must neither be pleaded nor put to a witness in cross-examination unless there is evidence in support. The court will ensure that each witness is cross-examined without undue intimidation, harassment or embarrassment. As a r, a witness may be examined in chief only if such witness would be available for cross examination if need be (section 52 of the Decree). If the witness is unavailable for cross-examination, the court may exclude all or part of the testimony unless the party seeking to cross-examine had caused the witness to be unavailable. LARYEA V. OFORIWAA [1984-86] 2 GLR 410. See also YORKWA V. DUAH [1973] GLR 278.

To discredit the testimony of the witness the cross-examiner must suggest or put to the witness that the testimony is not creditable, failing which the court MAY accept the testimony as admitted. See AYIWAH V. BADU [1963] 1 GLR 86 where the SC approved BROWN V. DUNN [1894] saying, “it seems to me to be absolutely essential to the proper conduct of a course where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions and not take his evidence and pass it by as a matter altogether unchallenged and then when it is impossible for him to explain, to argue that he is a witness unworthy of credit. I have always understood that if you intend to impeach a witness, you are bound while he is in the witness box to give him an opportunity of making an explanation and it seems to me that it is not only a r of professional practice in the conduct of a case but is essential to fairplay and fair dealing with witnesses”.

In other words, it is a matter of professional propriety and fairness that while in the witness box the cross examiner should say that the witness’s testimony is not true and not when he has left the witness box. An obvious exception to the r is where the testimony is “incredible and romancing in character”. Where the witness had notice that the testimony would be disputed or the circumstances justify abstention in cross examination as where a child is called to testify in a divorce case or where a witness had earlier on been challenged on the point. RE JOHNSON (DECEASED) DONKOR V. PREMPEH [1975] 2 182.

3-2-2005 2:13 PM

A party who omits to cross-examine a witness on a vital testimony is deemed to have accepted the veracity of the testimony. WIAFE V. KOM [1973] 1 GLR 240. therefore further evidence will not be required on the issue. The r will not apply to the party not represented by counsel. Upon the close of cross examination, the witness may be re-examined to explain any new matter referred to in cross-examination or upon which the witness is questioned by the leave of Court. (Section 73 of the Decree). NB! Re-examination is restricted to matters arising from cross-examination!

Beyond those instances re-examination must be disallowed. See page 54 of the Commentary to the Decree. Whether a question may be allowed or disallowed will depend on the circumstances and the interest of justice.

While it may be futile to re-examine a literate witness who contradicts himself in cross-examination, it may become necessary to re-examine an illiterate or timid witness overwhelmed by the Court atmosphere or style of cross-examination in order to explain a contradiction. The judge may question any witness called by a party but persistent questions and interruption from the bench would not augur for the impartiality required in our adversarial system. As Denning LJ said in JAMES V. NATIONAL COAL BOARD [1957] 2 AER 155@ 158, “In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large as happens in some foreign countries.... If a judge should himself conduct the examination of witnesses, he so to speak descends into the arena and is liable to have his vision clouded by the dust of conflict. Yes, he must keep his vision unclouded. It is all very well to paint justice blind but she does better without a bandage around her eyes. She should be blind indeed to favour or prejudice but clear to see which way lies the truth. Let the advocates, one after the other, put the weights into the scales, but the judge at the end decides which way the balance tilts, be it ever so slightly”.

The Court may however call and re-call a witness suo motu or on application for clarification,(Section 68(1) Evidence Decree) subject to such objection as may be raised.

By the close of the evidence for the plaintiff, the defendant may have cross- examined the evidence of the plaintiff or put in documents. The plaintiff will then enquire whether the defendant proposes to call evidence. Where the defendant elects not to call evidence, the plaintiff’s case would be brought to a close and the defendant may state his case. (Order 36 r 4 CI 47).

Where the defendant elects to call evidence, the defence may open and after all the evidence (on behalf of the defendant) has been given, the defendant’s case would close and the plaintiff may make a speech in reply. (Address). (Order 36 r 4 CI 47).

Where all the defendants appearing in person or represented separately elect to call evidence they would state their cases in the order in which they appear on the record and open their case and deliver a closing speech in that order. Where the plaintiff or defendant in the course of a final speech raises a fresh point of law, or cites an authority not previously referred to, the other party will be entitled to reply on the point of law or authority cited.