Person who gives evidence oral or sworn affidavit, be called by parties or suo moto by court, competent if may be called to give evidence and compellable if being competent may be compelled by court to do so, sovereigns and heads of states are competent but not compellable to give evidence,per S 61 oath or affirmation required, unlike oath affirmation is a pledge without reference to a supreme being, per S 62 of Act 459 evidence of accused may be taken on or without oath which will depend on weight to be attached to it, per Abadoo v Awotwi no law enjoins P to call material witness whose interest he knows is at variance with his and it is for parties to know which witnesses are likely to help them and not for court to go out of its way to look for witnesses for parties.
CL-party not allowed to impeach credit or call into question the character of a witness he calls, thus treat him as witness of opponent, take victim as he finds him, Unfavourable Witness-displays no hostility but fails to give evidence to favour one’s case per Ewer v Ambrose if witness proves case against the party calling him, the party may show the truth that witness is not to be believed and was entitled to contradict him by calling other witnesses, and Hostile Witness refuses to tell truth, turns mute or be obstructive in court per S 210(1) of Act 29 witness who takes oath or affirms and wilfully makes statement material to proceedings which he knows to be false or doesn’t believe in its truth commits perjury, per Lanquaye v Rep to treat one as hostile witness court must first form opinion that person was adverse to party calling him upon being shown to know the truth, adverse witness’ evidence on oath admissible despite a contrary evidence unsworn given previously by looking at circumstances where made and must be cross-examined to find reason why, unlike unfavourable judge may allow cross-examination of hostile by party calling him. In Re Okine; Dodoo v Okine SC distinguished between adverse witness and hostile witness, as evidence of former being nugatory.
Application ought to be made in order to treat one as a hostile, unfavourable or adverse witness
Per S 58 a person is competent to be a witness S 59 person isn’t qualified if incoherent to be understood or interpreted, incapable of understanding need to tell truth, child or person with unsound mind competent witness unless excluded by 3 exceptions, testimony of witness is admissible without corroboration, per S 7 testimony of child no longer needs corroboration for admissibility.
S 60 personal knowledge required or otherwise if not objected to subject to s112 on opinion by expert evidence or opinion evidence s111, mundane things like name, age, place of birth, etc. to be testified upon if opponent doesn’t raise any objection to them S 62 witness can testify only if he is subject to cross-examination by parties S 63 personal statement of accused in defence of charge may be made without first taking oath or affirm and without examination and same admissibleS64 interpreters be coherent and understandable
S 65 presiding judge disqualified as witness S 66 jury may not testify in case sitting on except upon an issue of validity of juror verdict S 67 qualification as an expert on particular subject matter for judge to determine S 68court may or upon request by parties call or recall a witness, court or parties may ask questions or cross-examine him per Kombat v Lambim Benin J s68(1) of Act 323 which permits court to call or recall witnesses is subject to the gen rule of evidence that the court does so with parties’ consent and parties don’t acquiesce only because they failed to challenge
S 69 court to control mode of interrogation S 70 leading question suggests directly or indirectly the answer desired by examining party, may be asked in matters undisputed or already proved, be asked in cross-examination S 71 cross-examination of non-adverse witness treated as if it were as evidence-in-chief S 72 adverse witness in civil action may be cross-examined by adverse party as if on cross-examination S 73 re-examination is discretionary and direct to matters referred to in cross-examination S 74 examination of witness as to writing no need read or disclose part of writing S 75prior inconsistent statement or conduct concerning part of testimony need not be disclosed S 76 extrinsic evidence of prior inconsistent statement with testimony shall be excluded
S 77 writing used to refresh memory shall be excluded unless produced at trial , per CL-conditions for such is that doc such as diary or book a witness refers to should be verified contemporaneous with events in question or so short thereafter that the fact were still fresh in memory, gen CL rule that witness may not be asked in examination-in chief about former written statements by him consistent with his evidence S 78 exclusion of witnesses by court or parties’ request per R v Bellamy proper test for competence of mentally incapacitated person is whether he has a sufficient appreciation of the seriousness of occasion and taking oath involves more than telling truth in ordinary day to day life, Per R v Hill evidence of lunatic will be excluded where he doesn’t not understand nature and sanction of oath, but will nevertheless give evidence and left to jury to attach weight to it,
S 79 recall of witness after excused shall be by leave S 80 attacking or supporting credibility in proof or disproof of testimony S 81 a party may attack or support credibility of witness upon notice to call S 86 reasonable grounds for impeachment but not ask question which conveys adverse imputation concerning character S 111 Lay opinion of witness not expert in form of inference or opinion which are perceived or experienced and helpful in determining issue, it’s testimony given by person who instead of testifying on facts bases on his views, observations or thinking of the facts S 112 expert opinion where beyond common experience give testimony in form of opinion or inference on subject one is qualified to give expert testimony113 basis of expert opinion on matters perceived or known because of expertise or assumes to be true, said matter need not be admissible nor disclosed unless upon examination S 114 court experts appointed by court or parties upon request to inquire into and report on matter
Competent but non-compellable witnesses include: S 174(1) of Act 30 an accused person against whom prosecution has proved a charge, Diplomatic agents are immune from both criminal and civil jurisdictions of receiving state except real action in immovable, succession, professional or commercial activity outside official function per Diplomatic Immunities Act 1962 (Act 148), S 58 of Act 459 court may summon any person to attend to give evidence or produce document subject to ROL or enactment per Addai v Donkor since neither party objected to witness called by court, such evidence was properly obtained if parties subsequently allowed to cross-examine same, per Quartey alias Kuukua v Rep a judge’s discretion under s 58 of Act 459 & 68 of Act 323 shouldn’t be exercised in oppressive or prejudicial manner against a party’s interest but judicially to clarify an obscure and ambiguous matter, and one limitation is that a judge mustn’t call a witness after the close of Ds case unless on a point which has arisen ex improviso.
Gen rule is that all witnesses are liable to be cross-examined but there are two minor exceptions
1-witness who is not sworn being called merely to produce doc
2-witness called by mistake because unable to speak to matters supposed to be within his knowledge.
Tetteh v Rep prosecution to call material witness was important qualification on the discretion of the P who has to prove guilt and not on accused, whether a witness was a material witness depended on the quality and content of the evidence he was expected to offer, failure to call a material witness has the effect of failure to proveafter other evidence have been looked at but P may refuse to call material witness where he won’t speak the truth, negative his case and strengthen A’s case,close relative of A, or could be an accomplice or co-accused per Adam v Rep.; Boakye v Rep the evidence of one credible witness if believed was enough to support a criminal conviction including murder unless that witness was an accomplice,
Corke v Corke & Cooke you are not entitled to give evidence of statements on other occasions by the witness in conformity of her statement, error in admitting telephone conversation with doctor to examine her and lodger to prove if there has been an intercourse which the doctor refused, as such statement was irrelevant to prove or disprove whether there has been sexual intercourse, as a skillful witness might well embark on circumstantial matters to bolster up her story. In rape cases per R v Osbourne if complaint made a voluntary complaint shortly after the alleged offence, the person to whom it is made may give evidence of the particulars, the statement mustn’t be in reply to questions of suggestive or leading except made upon normal questioning, any decision adversely affecting a party denied a right of cross-examination could not be allowed to stand.
Fori v Ayirebi when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact. Mante v Botwe the admissibility of an arbitration award is absolute and final and conclusive and evidence to set it aside on ground that it isn’t justified by evidence or mistaken in law won’t succeed even in a superior court unless breach of NJ rule, failure to challenge in cross-examination evidence of material fact on oath amount to its admission, HC erred in not making finding on allegation by P that she wasn’t allowed to call her witness before arbitrators.
Collateral matters are matters irrelevant to issues in proceedings, answers in cross-examination concerning such questions are final and examining party not permitted to call further evidence with a view to contradict the witness per R v Burke witness who gave evidence through interpreter and cross-examined denying ability to speak English was irrelevant to any matter directly in issue and evidence to rebut same was inadmissible.
R v Holmes in cases of rape, attempted rape and assault with intent to commit rape where consent isn’t in issue, cross-examined about acts of intercourse with men other than accused are collateral facts and their denial doesn’t require evidence to contradict her.R v Bashir in rape prosecution where consent in issue, evidence that she is a prostitute is relevant to consent and evidence to contradict her admissible.