Judicial Notice (JN)
Gen rule is a judge not permitted to rely on personal knowledge of facts which isn’t of public notoriety and presumed to be known to public or easily verifiable.
S 9 taking judicial notice of facts in issue or relevant to facts in issue only of facts generally known within jurisdiction or capable of accurate and ready determination by resort to undisputed sources, taken even where requested or not, shall be taken if requested and requesting party gives fair notice through pleadings or otherwise and supplies sources and info to court, may be taken at any stage of action and shall direct jury to take as conclusive facts judicial notice are taken of.
Mensah v Republic-supra Cecilia Koranteng-Addow J judicial notice refer to fact which a judge acts upon either from his general knowledge of it or from enquiries made by himself from proper sources, to take such notice however judge needs be convinced matter is notorious that evidence on it need not be led as it won’t be disputed among reasonable men or was capable of immediate accuracy, notice of world inflation since peculiar to countries can’t be taken notice of, court not forum for evaluation of economic factors.Nyarko v Rep JN relates to accepted or noticed facts without proof on ground of being within court’s knowledge, judge has discretion to call witness even without the consent of parties where justice requires, that Rothmans cigarette were not manufactured in Ghana could be judicially taken notice.
Judge may declare he or direct jury to take notice whether with enquiry or without enquiry, of political and diplomatic issues per Duff v Gov’t of Kelantan that the info from secretary of state to the effect that Kelantan was sovereign state by master of arbitration to enforce award could be judicially taken notice of; historical and scientific facts per Dixon J in Austrian Communist Party v Commonwealthcourt may take notice of gen facts of history ascertained or ascertainable from writings of historians, literature works and the like, take notice also of what people must have believed at a given time about matter; custom and practice from business or profession per S 55 of Act 459 existence or content of customary law is question of law for judge not fact, where in doubt adjourn for inquiry to be made and may result as well to textbooks, reported cases, etc.; law and judicial decisions per Hilodgie v George SC held that COA erred in taking notice of fact in textbook which have been challenged by other authors.
Roper v Taylor’s Garages court cannot treat fact as proved on basis of evidence in a previous case unless custom, where judicial notice is taken of customs proved with frequency in other cases. Seraphim v Amua Sakyi judge deemed to know the law has right to apply it in determining dispute even if such law is unknown to both parties or misunderstood by them by taking judicial notice of samebut can’t raise a defence not raised.Rep v HC; Denu Ex Parte Agbesi Awusu II judicial notice taken of ruling of trial judge on section of Act.
Judicial notice of conviction in criminal action is prohibited on another trial of same person to prove guilt as per Ex Parte White.
S 40 law of foreign country presumed same as Ghana, per Davies v Randall judicial notice can’t be taken of laws of foreign country, needs be proved. S 1 questions of law include admissibility, construction of this Act, law of foreign state or subdivision of foreign state determination though question of fact and needs be proved in court and determined by judge, whether evidential burden is met.
Admissions
May be formal or informal-where implied or incidental or adoptive, may be made in pleading in civil or plea in criminal, CL-plea of guilty of co-accused not evidence against accused, implies a fact or issue has been conceded and no longer in contention. Fori v Ayirebi Ollenu J where averment is made and not denied no evidence need be led on it, again if evidence is given and it’s not cross-examined further evidence need not be called of that fact
S 119 evidence of hearsay not made inadmissible if statementoffered against party anddeclarant is party to action or party against whom offered manifested adoption or belief in its truth or authorised declarant to make statement or declarant was agent of party against whom its offered and statement concerns matter within scope of his agency or declarant made statement while conspiring in crimeor civil wrong, policy behind that is because the person who makes a statement out of court against his own interest is likely to be true because it is unlikely for a person to make a statement against his interest out of court.
Atta v Amoasimalicious prosecution, a party need not prove what has already been admitted by their opponent, Adwubeng v Domfeh since both parties didn’t deny ancestors of either party but denied whose ancestor settled first, D failing to call witnesses unlike P who called boundary owners to testify for him was implied admission by D in favour of P.
O 23 of CI 47 party in pleading may give notice of admission of part or whole of case of the other, a party may at any time also request the other to admit the truth of a matter and same served with request, where within 14 days party fails to respond, by specific denial truth or refuses to admit truth and give reasons, it is admission, and admission may be withdrawn with consent or court’s leave, where admission made party entitled by motion for order of court without waiting for determination of any question.Int. Finance Co v Shangri-Laadmission may be made by means of letter written before or after beginning of action, per Arcton v ACC once insurance Co. admitted liability and agreed to pay compensation and were thereafter debarred from raising plea of limitation as they were bound in law.
Mence Mensah v Asiama at summons for directions stage, only unadmitted or denied facts that are in issue needs proof not admitted facts.In the Matter of John Tagoe v Accra Brewery P having admitted that D isn’t owner of land, action should be dismissed with punitive cost as D was sued out of Ps convenience.Francis Yirenkyi v Rep confession made by accused admitted in evidence against him isn’t evidence against any other person unless that person was present and acknowledged incriminating parts, which is contrasted with evidence on oath of co-accused in joint trial which is evidence for all purposes.
Fynn v Fynn even where parties are sued jointly and severally, admission by a D doesn’t bind the other unless same consents to admission, where no issue is joined on a fact admitted, no evidence is to be led on admitted fact.
Aldermann v Aldermann, Delahunty v Delahunty, Slaterie v Pooley
Confession Statement
3 forms-full, partial and judicial or extrajudicial confession. CL-evidence gathered as a result of involuntary confession is admissible though confession itself not admissible. Per Duah v Rep once statement ‘I have killed Aggie’ was made voluntarily and freely, mere denial didn’t render same inadmissible in law, confession made to trusted relation, principle is that a voluntary confession to crime was sufficient to support conviction and onus is on prosecution to prove voluntariness.
S 120 hearsay evidence admitting matter forming essential part of or if taken together with other info is a basis for inference of crime is unless it isn’t made voluntary and made in the absence of an independent witness and where illiterate or blind jurat that it was read over and interpreted to his or her understanding by independent witness, Ekow Russel v Republic independent witness must be qualified to be a competent witness, understands the language spoken by the accused as well as the language in which it is recorded, it may be a police officer or soldier who isn’t the investigator or part of investigation team and who has no direct interest in the case, overruling Iboman’s case. JSC Brobbey in Amaning alias Tagor v Republic said that the mere fact that one boasts or brags that he has killed or stolen doesn’t entitle police to bring him to court on the said statement without proof of actual affirmation of what is said, such statement unless confirmed without more cannot be basis for trials
Rep v Agribi independent witness must be chosen by accused. the fruit of the poisonous tree doctrine inSilverthorne Lumber & Co v US that evidence gathered as a result of an involuntary confession is generally inadmissible and evidence gathered therefrom isn’t admissible contrary to CL position supra, Matt 7:17-20 good tree bringth forth good fruit….
Statutory Exemptions
Presumptions:
CL-classified it into presumptions of fact (POF) and of law, presumption of law (POL) is further divided into rebuttable and irrebuttable presumptions. Two ingredients, group of facts ought to be proved or otherwise established by court (primary or basic fact (BF)) and these facts must be among those selected by law to be capable of precipitating a presumption or be capable of lending itself to reasonable inferences therefrom (presumed fact (PF)).Employed by court to pronounce on an issue notwithstanding there being no evidence or sufficient enough on the issue.
Unlike rebuttable POL, establishment of basic fact doesn’t have effect of placing either evidential or legal burden against party it operates, however irrebuttable POL bars party against whom it operates from adducing evidence in rebuttal.Oteng v State judge was wrong for directing himself that driver was negligent as his presumption that the community must be protected against citizens had no basis as he forgot that the citizens too are entitled to protection against the state.
S 18 presumption and inference defines: former is assumption of fact made from established facts, latter is deduction of fact that may logically and reasonable be drawn from established or otherwise facts, presumption is either conclusive or rebuttable, S 19 prima facie evidence: of another fact creates a rebuttable presumption, S 20 effect of rebuttable presumption: imposes on against party evidential burden or persuasion burden as to non-existence of PF, S 21 applying rebuttable presumptions: if two minds will agree evidence renders PFs existence more probable finding is in favour of PF, where evidence doesn’t then finding against presumed fact, and where uncertain find in favour of PF if BFs existence is more probable or against PF if not, same applies to evidence render of BFsS 22 effect of presumption in criminal actions: BF must be found beyond reasonable doubt for a PF essential to guilt. S 23 applying presumptions in jury trial: if PF not essential to guilt BF must be supported by evidence sufficient to meet BOPE, if existence of PF PBRD of existence of BF as well as PF.
S 24 Conclusive Presumptions: where established from proved BF contrary evidence to it may (not shall) not be considered, conclusive presumptions include but not limited to S 25-facts recited in written instrument, per Messrs African Distributors Co v Commissioner CEPS once written agreement wasn’t in dispute its content raised conclusive presumption against them as bound by terms26-estoppel by own statement or conduct 27-estoppel of tenant to deny title of landlordper Antie v Ogbo that tenant denying title of landlord and claiming title himself or for another is conclusive presumption of forfeiture of his interest 28-estoppel of licensee to deny title of licensor to immovable 29-estoppel of bailee, agent or licensee to movable; all precede with unless otherwise provided by law or equity…
S 30 Rebuttable presumptions: also called conditional, inconclusive or disputable, have prima facie effect only and may be displaced by evidence, include but are not limited to S 31-marriageper Gorleku v Pobee though no customary rites performed, other pieces of evidence like attendance of funerals and festivities as man and wife manifested by express declaration by deceased evince the existence of valid customary marriage, per Addo v Addo man and wife living under same roof is presumption of living as husband and wife unless rebutted. 32-children of a marriage, born 300 days after end of marriage33-death after 7 years absenceper Chad v Chadonce there’s proof that within 7 years those likely to have seen to hear from him haven’t done so and due inquiries made AB is presumed dead sometime within said period 34-simultaneous death in succession to property older dies first 35-owner of legal title is owner of beneficial title 36-transfer by trustee of immovable to beneficiary presumed 37-official duty regularly performed, per SGPHA v Nova Complex Ltd may also apply to duties required to be performed by law, party against who it operates to call evidence that in fact there was no regularity or performance of the official or statutory duty 38-ordinary consequence of voluntary act 39-judicial jurisdiction where jurisdiction of court isn’t in issue 40-Foreing law same as that of Gh 41-continuation presumed of thing existing beyond period deem to have existed42-full age and sound body 43-thing delivered presume to belong to receiver 44-obligation delivered is paid 45-possession of order to pay or deliver 46-possession of obligation by creditor 47-prior payment of rent presumed from later rent receipts 48-ownership by possession 49-persons standing as partners, landlord & tenant, principal stand in relationship to one another & agent and 151-public publications are authentic 152-law reports and treatise are authentic153-maps and charts by public entity are authentic 154-the gazette prima facie public nature intended to notify 155-reference books 156-newspapaers and periodicals 157-signs and labels of businesses 158-acknowledged writings authentic 159-seals of republic presumed genuine and authentic160-domestic and official signatures genuine if in official capacity of officer of Gh 161-foreign official signatures of its official genuine and authentic 162-copies of writings in official custody genuine.