Rules on the Admissibility of Evidence

Introduction:

This note will discuss the rules on the admissibility of evidence. The rules to be discussed include the general rule that all relevant evidence is admissible, the rule that judges have an exclusionary discretionary to exclude relevant evidence, the rule that the court has a duty to exclude evidence inadmissible per se, but not such a duty for evidence that is inadmissible upon objection, among others.

1. Admissibility of relevant evidence and inadmissibility of irrelevant evidence:

A. Rule:

Relevant evidence is admissible; irrelevant evidence is inadmissible. Or

Relevance = Admissibility.

B. Explanation of the Rule:

If a piece of evidence does not have probative value and materiality (explained in the introductory note), or does not make it more or less probable that a fact that is of consequence to the determination of the case exists, then it is inadmissible, as the court will not bother itself with information that is not connected with or necessary for the determination of the case.

For example, in a murder trial where the question of whether the accused caused the unlawful harm which resulted in death, evidence that the accused is a powerful wizard who possibly used his powers to cause harm will be inadmissible because even if it is true, the court will not take spiritism in deciding the issue of causing unlawful harm.

C. Authorities for the Rule:

In Section 51(2) of NRCD 323, it is provided that:

All relevant evidence is admissible except as otherwise provided by any enactment

In Section 51(3) of NRCD 323, it is provided that

No evidence is admissible except relevant evidence.

This simply means if the evidence is irrelevant, it is inadmissible.

In the case of Mensah and Others v. The Republic [1979] GLR 523-551 , the court held that:

The general rule governing admissibility of evidence is that all evidence which is sufficiently relevant to an issue before the court is admissible and all that which is irrelevant or insufficiently relevant, should be excluded: see Hollington v. Hewthorn & Co., Ltd. [1943] 1 K.B. 587, C.A . As it is stated in Archbold, Criminal Pleading, Evidence & Practice (35th ed.), pp. 416-417 at para. 1015, "nothing may be given in evidence which does not directly tend to the proof or disproof of the matter in issue."

In the case of Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587 at 594 CA , the court said:

Nowadays, it is relevance and not competency that is the main consideration; and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded.

This simply means that irrelevant evidence must be held inadmissible, and the court has no discretion to admit such evidence.

2. Exclusionary discretion of the courts:

A. Rule:

Relevant evidence may be excluded by the court upon consideration of certain factors.

B. Explanation of Rule:

The fact that a piece of evidence is relevant does not mean it is automatically admissible. Put differently, the fact that a piece of evidence is of consequence to the determination of the case does not automatically mean the court will allow it form part of the record of proceedings to be used in determining the case.

Generally, the courts are given discretion to exclude certain evidence, even if the evidence is relevant. This discretion is referred to as the exclusionary discretion of the court to exclude relevant evidence.

C. Authorities for the Rule:

In the case of Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018) , the Supreme Court of Ghana defined exclusionary discretion as follows:

That practice that gives discretion to the court to determine whether or not to exclude evidence obtained in breach of rights is referred to as the discretionary exclusionary rule.

The exercise of this discretion, however, is bounded (limited) to prevent abuse and arbitrariness. In Section 52 of NRCD 323, the grounds upon which the court may exercise its discretion to exclude relevant evidence are provided as follows:

The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by—

a. considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or

b. the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or

c. the risk, in a civil action, where a stay is not possible or appropriate, that admission of the evidence will unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.

Summarily, a court has the discretion to not admit relevant evidence if, despite its potential or probability to prove or disprove a fact in issue, this potential or probability is substantially outweighed by concerns such as undue delay, the risk of confusing the issues or exposing a party to unfair prejudice, the unnecessary repetition of evidence, or where admission will unfairly surprise a party, among others.

3. No inclusionary discretion to admit inadmissible evidence:

A. Rule:

The court has no discretion to admit evidence that is inadmissible. Or

The court has no inclusionary discretion to admit inadmissible evidence.

B. Explanation of Rule:

As discussed in a previous note, evidence may be inadmissible per se or inadmissible after an objection.

When evidence is inadmissible per se, it simply means a statute or law makes it inadmissible; and even in the absence of objection from any of the parties, the evidence remains inadmissible.

On the other hand, evidence that would have been otherwise admitted if not objected to, can become inadmissible upon being objected to.

What the rule is simply saying is that once evidence is inadmissible per se or is found to be inadmissible following the objection of counsel to its admissibility, the court must exclude the evidence.

C. Authorities for Rule:

In Section 51(2) of NRCD 323, it is provided that:

All relevant evidence is admissible except as otherwise provided by any enactment.

This provision takes the discretion away from the court if a statute provides that a particular piece of evidence, despite its relevance, is inadmissible.

In the case of Agyei & Anor v. Sakyi [2021] GHASC 125 (1 December 2021) , the Supreme Court, speaking through Kulendi JSC, advance that

A court has no inclusionary discretion to admit inadmissible evidence.

Thus, once evidence is inadmissible per se because of the operation of a law or a statute, or is rendered inadmissible because of objections, it is inadmissible, and the court has no inclusionary discretion.

4. Effect of failing to object to the admission of evidence inadmissible per se at trial:

A. Rule:

When evidence is inadmissible per se (or legally inadmissible), the trial judge is duty bound to not admit the evidence even if counsel fails to object.

If the evidence is wrongfully admitted by the court, it will be excluded on appeal.

B. Explanation:

Once a statute expressly provides that a particular piece of evidence is inadmissible, it becomes the duty of the court to exclude that evidence. This duty persists with or without objection from the parties. If the trial court does not exclude the evidence, it will be excluded on appeal.

C. Authorities:

In the case of Tormekpey v. Ahiable [1975] 2 GLR 432-438, it was advanced that:

This piece of evidence about the alleged further payment of ¢110.00 and the supporting receipt was hearsay, and therefore inadmissible in law. However it was let in without objection. The correct position of the law is as stated in Phipson on Evidence (10th ed.), at p. 855, para. 2053:

"If inadmissible evidence has been received (whether with or without objection), it is the duty of the judge to reject it when giving judgment; and if he has not done so, it will be rejected on appeal, as it is the duty of courts to arrive at their decisions upon legal evidence only . . ." [p.435]

Reference may also be made to Jacker v. International Cable Co., Ltd. (1888) 5 T.L.R.13, where the English Court of Appeal also held (as stated in the headnote at p. 13) that, "Where matter has been improperly received in evidence in Court below, even when no objection has been there raised, it is the duty of the Court of Appeal to reject it and decide the case on legal evidence."

In the case of Amoah v. Arthur [1987-88] 2 GLR 87 Abban JSC advanced that

it was the duty of the Trial Judge to reject inadmissible evidence which had been received, with or without objection, during the trial when he came to consider his judgment; and if he failed to do so, that evidence would be rejected on appeal, because it was the duty of the courts to arrive at decisions based on legal evidence only.

The duty of the court to reject inadmissible evidence, with or without objection , as stated in the Amoah case (supra), was clarified in the case Welbeck v. Acheampong (J4/71/2023) [2024] GHASC 35 (10 July 2024) to only apply to evidence that is inadmissible per se. Their lordships stated that with regards to such inadmissible evidence,

The correct position of law is that, with or without objection the trial court or any appellate court is mandated to exclude such evidence.

Also, in the case of Fofie v. Zanyo [1992] 2 GLR 475 , Wiredu JSC similarly advanced that:

The law as I understand it is that evidence generally described as inadmissible per se must be discarded in its entirety and cannot form the basis of any judicial decision.

Summarily, if the evidence is inadmissible per se, it cannot be admitted even in the absence of an objection. On the other hand, if the evidence is just inadmissible (not per se), an objection would have to be raised before the court will be mandated to not admit it.

4. Effect of failing to object to inadmissible evidence at trial:

A. Rule:

If the evidence is not inadmissible per se and is only inadmissible upon objection, the court will admit the evidence and consider it in its judgement if a party fails to object. On appeal, the appellate court may also consider the evidence in reaching its judgement.

B. Explanation of the Rule:

Some evidence will be held to be inadmissible if objected to by a party. For example, in Section 52, it is provided that the court may exercise its discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by considerations of delay, among others. A party may, thus, get the court to exercise its discretion in the party’s favour if he argues that a particular piece of relevant evidence will cause delay. If the party fails to raise any of the grounds that underpin the court's exercise of its exclusionary discretion, and the court does not exercise that discretion, the party cannot subsequently say that the evidence should have been excluded. Although the court has the discretion to exclude evidence on its own motion, a party cannot complain if he looks on and allows the court to admit evidence that would have been inadmissible if objected to. Upon such admission, the court will consider the evidence in its evaluation.

C. Authorities for the Rule:

In the case of Aryeh & Kakpo v. Ayaa Iddrisu [2010] SCGLR 891 , it was stated that

If a party looked on and allowed the inadmissible evidence to pass without objecting, it would form part of the court record and the trial judge would be entitled to consider it in evaluating the evidence on record for what it is worth.

This position was cited by the Supreme Court with approval in the recent case of Welbeck v. Acheampong (supra) where the Supreme Court added that where evidence is not inadmissible per se and a party fails to object timeously as required by Section 6(1) of NRCD 323 , “the court would be entitled to consider the said piece of evidence in its evaluation.” They proceeded to cite with approval the case of Edward Nasser & Co Ltd v. McVROOM & Another [1996-97] SCGLR 468 . In that case, Acquah JSC similarly submitted that:

If a party failed as required by Section 6 of NRCD 323 to object to the admission of evidence which in his view, ought not to be led, he would be precluded by Section 5(1) of the Act to complain on appeal or review about the admission of that evidence unless the admission had occasioned a substantial miscarriage of justice. Factors helping to determine whether or not a substantial miscarriage of justice had occurred have been set out in Section 5(2). Consequently, where evidence in respect of an unpleaded fact had been led without objection, the trial judge was bound to consider that evidence in the overall assessment of the merits of the case, unless that evidence was inadmissible per se. An appeal or review against the judgment might succeed only where it was established that the admission had occasioned a substantial miscarriage of justice.

Also, in the case of Taylor v. Taylor, Court of Appeal, 20 January 1969, unreported; digested in (1969) C.C. 47 where the distinction was made between evidence inadmissible per se and evidence inadmissible upon object, the court said

... Unless the evidence sought to be excluded is the type which is inadmissible per se, this court will not allow a party to the proceedings to complain about any evidence led in the trial court as being inadmissible when he had every opportunity to raise formal objection to it at the time when questions were being asked.

Also, in the case of Akufo-Addo v. Cathline [1992] 1 GLR 377 , the court explained this rule as follows:

The evidence having been admitted without objection from counsel for the defendants, the question arises whether it can be excluded on appeal. The cases of Abowaba v. Adeshina (1946) 12 W.A.C.A. 18; Yartey v. Construction & Furniture (W.A.) Ltd. [1962] 1 G.L.R. 86, S.C. and Adejumo v. Abegunde [1965] G.L.R. 499, S.C. show that where evidence is inadmissible only because the facts relied on have not been pleaded, the judge is under no duty to exclude it and its admission at the trial without objection cannot be questioned on appeal. Where, however, the evidence would be inadmissible to prove even pleaded facts, there is a duty on the judge to exclude it even if no objection is raised, and it will be excluded on appeal.

Finally, in Asamoah v Servordzie [1987-1988] 1 GLR 67 , the Supreme Court, again, held that

Before considering these issues, however, let me say a word about pleadings. The purpose of pleadings is to define the issues for trial. Pleadings plead facts, but not evidence. The evidence is led at the trial to prove the facts relied on: see High Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 19, r. 4. Therefore if at the trial evidence being given by a party has no bearing on the facts he has pleaded, it is the duty of opposing counsel to object to that evidence and to exclude it. If this is not done, and the evidence gets on to the record, then a court cannot shut its eyes to it in considering the case as a whole, particularly if it is against the party who led it.

This position was cited with approval in the recent case of Tamakloe and Partners Unltd v. Gihoc Distilleries Co Ltd [2019] GHASC 35 (3 July 2019) .

Summarily, if a party fails to object to inadmissible evidence, particularly one that is not inadmissible per se, the trial judge, unlike in the case of evidence inadmissible per se, is not under a duty to exclude such evidence and may admit and consider it. On appeal, the admission of the trial court cannot be questioned, although the Court of Appeal may exclude the evidence on grounds that it occasioned a substantial miscarriage of justice.

5. Setting aside or varying judgement following erroneous admission of evidence:

A. Rule:

A judgement that is based on erroneous admission of evidence shall not be set aside or varied by virtue of the erroneous admission unless the erroneous evidence occasioned a substantial miscarriage of justice.

B. Explanation and authorities:

A party to a suit may recognise, usually after losing the case, that he should have objected to certain pieces of evidence, as doing so would have helped his case. If he eventually appeals against the decision of the trial court, the appellate court will not set aside the judgement simply because the trial court erroneously admitted evidence. However, the appellate court may set aside or vary the judgement if it is established that the erroneous admission resulted in a substantial miscarriage of justice.

This rule is provided in section 5(1) of NRCD 323, which reads:

(1) No finding, verdict, judgment or decision shall be set aside, altered or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission of evidence resulted in a substantial miscarriage of justice.

In Section 5(2), the factors to be considered in determining whether an erroneous admission resulted in substantial miscarriage of justice are stated as follows:

(2) In determining whether an erroneous admission of evidence resulted in a substantial miscarriage of justice the court shall consider—

(a) whether the trial court relied on that inadmissible evidence; and

(b) whether an objection to or a motion to exclude, to strike out the evidence could and should have been made at an earlier stage in the action; and

(c) whether the objection or motion could and should have been so stated as to make clear its ground or grounds; and

(d) whether the admitted evidence should have been excluded on one of the grounds stated in connection with the objection or motion; and

(e) whether the decision would have been otherwise but for that erroneous admission of evidence

Particularly in paragraph (b), statutory recognition is given to the fact that if a party looks on and allows inadmissible evidence to be admitted, consideration of that evidence by the court will not be held to amount to substantial miscarriage of justice.

6. Setting aside or varying judgement following erroneous exclusion of evidence:

A. Rule:

A judgement that is based on erroneous exclusion of evidence shall not be set aside or varied by virtue of the erroneous exclusion unless the erroneous evidence occasioned a substantial miscarriage of justice.

B. Explanation and authorities:

Sometimes, a court may exclude evidence it should have admitted. When that happens, the exclusion is an erroneous exclusion. Upon such erroneous exclusion, Section 5(3) of NRCD 323 provides that:

(3) No finding, verdict, judgment or decision shall be set aside, altered or reversed on appeal or review because of the erroneous exclusion of evidence unless—

(a) the substance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; and

(b) the court which decides on the effect of the error also determines that the excluded evidence should have been admitted and that the erroneous exclusion of the evidence resulted in a substantial miscarriage of justice.

Thus, if an appellate court is of the opinion that an excluded evidence should have been admitted, and the failure to admit such evidence has resulted in a substantial miscarriage of justice, it may vary or set aside the judgement of the trial court if it is also shown that the trial court was made aware of the substance of the excluded evidence through questions asked, among others.

7. Power of the court to exclude evidence on its own motion:

In Section 8 of NRCD 323, it is provided that:

Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.

In recent times, the courts seem to be limiting this power of the court to the exclusion of evidence inadmissible per se. In the case of Juxon-Smith v. KLM Dutch Airlines [2005-2006] SCGLR 438 , Georgina Wood JSC advanced that:

The object of section 8 which stipulates that: “Evidence that would be inadmissible if objected to by a party may be excluded by a court on its own motion”, has been spelt out in a host of cases including Amoah v Arthur [1987-88] 2 GLR 87, CA; Ussher v Kpanyinli [1989-90] 2 GLR 13 CA and Edward Nasser & Co Ltd v McVroom [1996-97] SCGLR 368. In the words of Acquah JSC (as he then was) in the McVroom case (at page 476) that power is to enable the court: “to exclude evidence which is inadmissible per se,”

Also, in the case of Republic v High Court (Fast Track Division) Accra; Ex Parte Ghana Lotto Operators Association (National Lottery Authority Interested Party) 2009 SCGLR 372 , the Supreme Court said:

From the jurisprudence, it is only evidence that is inadmissible per se that may be excluded by the court on its own motion when delivering final judgment or on appeal. Therefore, the question in this case is whether the exhibits that were ordered to be expunged are evidence that is inadmissible per se?

This was cited with approval in the majority decision in Republic v. High Court (criminal Division 1), Accra Ex parte: Opuni [2021] GHASC 187 (26 October 2021) .

8. The fact that evidence is admitted does not mean it has conclusively determined the issue:

In any action, several pieces of evidence are admitted which are often contradictory. The court, post admission, will have to evaluate the evidence and record to make a determination of the matter.

Conclusion

This note discussed several rules on the admissibility of evidence, starting from the key rule that relevant evidence is admissible but irrelevant evidence is inadmissible. The note then highlighted that while relevance is a necessary condition for the admissibility of evidence, the court has an exclusionary discretion to exclude relevant evidence in accordance with Section 52. Further, the note examined the effect of objections and, in doing so, distinguished between the duty of the court in admitting evidence that is inadmissible per se and evidence that is inadmissible upon an objection. In a subsequent note, we will discuss the admissibility of illegally obtained evidence.