Gen rule that if you want to get the contents of a written doc, proper way is to produce it if you can per MacDonnell v Evans and that evidence is admissible if it’s the best evidence.
CL-party seeking to rely on content of doc must adduce primary evidence of those contents, per R v Daye a doc is any written thing capable of being evidence, inscribed on paper, parchment, stone, marble, clay, metal, in modern technology interpreted to include tape and video recording, hard disk, photographs, etc. essential part of definition is that it is capable of being used as evidence.
S 179 writing means handwriting, typewriting, Photo stating, mechanical or electrical recording upon any tangible thing, words, letters, pictures, sounds, symbols.
S 163 original writing is writing itself or a copy intended to have same effect by person executing or issuing it S 164 duplicate of writing is copy produced by technique ensuring accurate reproduction of original but doesn’t include copy reproduced after original by manual handwriting or typing, per Owusu v Rep legal principle underlying admissibility of secondary evidence of contents of a doc is when original is lost or destroyed and that proper search has been made for it, original pay-in slips couldn’t be traced was not sufficient to ground adduction of secondary evidence.
S 165 except otherwise provided by law or Act evidence other than original writing isn’t admissible to prove content of writing, however per S 166 a duplicate of original admissible to same extent as original except authenticity or original or duplicate questioned or it will be unfair per circumstance to admit in lieu of original, or per S 167 admissible where originals are lost or destroyed unless was deliberate act by proponent.Amoah v Arthur-supra though only original is admissible CL&S 165, the two exceptions are S 167 original lost or destroyed and S 169 original in possession of opponent and notice has been served on him that contents of doc will be subject of proof and yet fails to produce original at trial, mere destruction or lost isn’t enough if original copies still with D and notice not served.
Per R v Uxbridge Justices, Ex Parte Sofaer jury was right in committing applicants for trial based on photographs which were secondary evidence to prove that the aircraft parts were usable and not scrap as applicants alleged. R v Eriswell evidence upon oath, as evidence of declarations of pauper insane and dead relative to his settlement, being hearsay and to affect an absent person, is incompetent because he cannot be cross-examined.
Other instances where evidence other than original will be admitted include where S 168 originals unavailable by judicial means per R v Nowaz secondary evidence of photograph previously refused by Pakistani diplomat as immune is admissible S 170 collateral writings where original’s content not closely related to a controlling issue in action S 171 Voluminous writings inclusive in original which can’t be conveniently examined in court
S 172 immovable writings S 173 admitted writings S 174 copy treated as original if copy produced at or before hearing and made available for inspection and comparison by court and adverse parties S 175 copies of official writings authorized by law and filed in office of public entity admissible to same extent as original per Mortimer v McCallan secondary copies of books kept at Bank of England which would cause inconvenience if originally produced is admissible S176evidence in bankers books in course of business admissible to same extent as original, representative in action not compellable to produce evidence if bank isn’t party
S 177 extrinsic evidence such as consistent additional terms, course of dealing or usage of trade or course of performance affecting the contents of a writing being final expression of intention are admissible but not contradicted by prior agreement or declaration or oral agreement.
Garton v Hunter party mustproduce best evidence as any less good will be excluded so once original of doc is availableone must produce it, one can’t give secondary evidence by producing a copy, nowadays we confine ourselves to relevant but not best evidence as its goodness or badness goes to its weight and not toits admissibility.
Samuel Okudzeto Ablakwa v AG though the doc sought to be tendered by AG passed the test of relevance, thus tendering without objection although unpleaded, not considerable because it wasn’t authentic to prove that gov’t approval is needed always for sale of gov’t lands, as it was not headed from the cabinet office, typed but title in ink, not dated nor signed, didn’t mention property in dispute or area but some other area, no name of minister or AG, as so was suspicious.
O 21 of CI 47-Discovery and inspection of docs whether or not referred to in pleadings or affidavit after close of pleadings before or after application for directions, within 14 days, file for service on other list of docs in possession relating to any matter in question and same time serve notice stating time within 7 days when other party may inspect and take copies of docs other than those object to, not applicable in 3rd party proceedings or motor accident actions, court orders for discovery if necessary, court may suo moto make discovery of docs.
O 38 of CI 47 evidence of witness be oral and in open court or affidavit
S 4 of Act 262 Illiteracy Protection Act, Kwamin v Kuffour Adomako v Adomako in protecting illiterates however, the courts must be careful in allowing a person to rely on illiteracy to defraud people.
Extrinsic or Parole Evidence: CL-person not permitted to adduce evidence to vary or contradict terms of doc whether contract or official per Bank of Australia v Palmer which parties have deliberately agreed to record, prima facie if court is faced with doc,oral and parole evidences, doc evidence prevails over oral and parole evidence per Duah v Yorkwa especially where doc if found authentic and oral found conflicting. Wilson v Brobbey full age and literate person bound by signature on terms whether he reads or not.
Extrinsic evidence may however be admissible where terms of written instrument are contradictory, agreement subsequent to doc, illiteracy, consistent additional terms, trade usages, fraud, non est factum (not my deed) available to innocent party as defence which must be pleaded. Brown v Byrne in mercantile contracts extrinsic evidence of custom and usage admissible to vary terms, per Zabram v Segbedzi where illiterate executes doc, presumption in favour of illiterate that doc wasn’t read and interpreted to him to his understanding and onus lies on proponent of doc even where an interpretation clause existed and same signed by illiterate.
Receipts: all docs in respect of monies paid to another is a receipt and must be stamped to be admissible per S 46 & 14 of Stamp Act 311 and Ricketts v Addo stamp objections ought to be taken by judge for parties cannot waive.