Gathering Evidence in Aid of Foreign Litigation Guide |
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Ghana |
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(Africa)
Firm
Bentsi-Enchill, Letsa & Ankomah
Contributors
Daad Akwesi |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, it does. Under Section 75 of Ghana’s Courts Act 1993 (Act 459), the High Court of Ghana may order the examination of a witness within its jurisdiction on such terms as it considers necessary; and Under Section 5 of the Mutual Legal Assistance Act 2010 (Act 807), a foreign state or entity (listed in the schedule to this act) may, under an existing agreement or other arrangement with Ghana, request mutual legal assistance to gather evidence in criminal matters. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | No. Ghana is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Yes, there are other statutory requirements for obtaining evidence in aid of foreign litigation.
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| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, approval is required. If the request is to obtain evidence in respect of a criminal, civil or commercial matter before a foreign court or tribunal under the Courts Act and High Court (Civil Procedure) Rules, the appropriate forum is the High Court. If the request is made under the Mutual Legal Assistance Act, the appropriate forum is the Ministry of Justice. The Minister of Justice may apply to the High Court, without notice, for an order to take the evidence of the person in private if a witness or expert is required to provide evidence on oath or by video conference. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | The type of information sought: Under the Courts Act:
Under the High Court (Civil Procedure) Rules:
Under the Mutual Legal Assistance Act:
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| Who bears the burden of showing whether any privileges apply? | Under the Evidence Act 1975 (NRCE 323) the burden of proof lies on the person making the assertion, that is the person claiming privileges applies for the court in Ghana to rule on the claim. Under the Mutual Legal Assistance Act, the Minister of Justice may grant a request for mutual assistance in a criminal matter, subject to the undertaking central authority of the foreign state or the competent authority of the foreign entity that a competent court in the foreign state or connected to the foreign entity will determine whether or not the evidence is subject to a privilege. The burden of proof in those circumstances will be as provided by the law of the foreign state or entity. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | There is no specific requirement under the Courts Act and High Court (Civil Procedure) Rules. However, under Section 40 of Ghana’s Evidence Act, the law of a foreign state is presumed to be the same as the law of Ghana. Thus, if the information sought is allowable in Ghana, it will be presumed allowable in the foreign jurisdiction subject to any rebuttal. With regards to requests under the Mutual Legal Assistance Act, where evidence is to be gathered by video conference, the information sought must be allowable in the foreign jurisdiction where the action is pending. This is because Section 41(11) of the act provides that where a person gives evidence by means of video conference, the evidence shall be given as though the witness were physically before the court or tribunal outside Ghana for the purpose of the laws relating to evidence and procedure except that the evidence given shall not disclose confidential, privileged or protected information. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, the High Court (Civil Procedure) Rules provide for depositions. In civil matters under the High Court (Civil Procedure) Rules the court may allow a witness to give evidence through a video link or by any other means. In criminal matters falling under the Mutual Legal Assistance Act, evidence can be gathered by video conference or any other means of technology designated by the Minister for Justice. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. There are no Blocking Statutes in Ghana limiting the extent to which Ghanaian residents may give evidence in a foreign court’s civil or criminal proceedings save for the general rules governing privileges and compellability of witnesses which would apply to giving evidence in a Ghanaian court. Under section 88(2) of the Evidence Act except where a privilege applies, no person may prevent another person from being a witness, from disclosing any matter, or from producing any object or writing. Under section 79 of the Courts Act, a person examined under an order made for the purpose of giving evidence in a foreign court’s civil or criminal shall have the same right to refuse to answer questions tending to incriminate himself and other questions as a witness, in any case, pending in the court in Ghana would be entitled to; and a person shall not be compelled to produce any writing or other document if that person would not be compellable to produce same at a trial in the court in Ghana Under Section 33 of the Mutual Legal Assistance Act a person shall not be compelled in a court in Ghana to give any evidence that a witness is not required to give in criminal proceedings in this country, or criminal proceedings in a foreign state or before the respective forum of the foreign entity. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, citizens may voluntarily give evidence in a foreign proceeding. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, it does. Under Section 75 of Ghana’s Courts Act 1993 (Act 459), the High Court of Ghana may order the examination of a witness within its jurisdiction on such terms as it considers necessary; and
Under Section 5 of the Mutual Legal Assistance Act 2010 (Act 807), a foreign state or entity (listed in the schedule to this act) may, under an existing agreement or other arrangement with Ghana, request mutual legal assistance to gather evidence in criminal matters.
No. Ghana is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
Yes, there are other statutory requirements for obtaining evidence in aid of foreign litigation.
- The Courts Act in respect of criminal, civil or commercial matters before a foreign court or tribunal.
- The High Court (Civil Procedure) Rules 2004 (CI 47) sets out the procedure for obtaining evidence for foreign courts; and
- The Mutual Legal Assistance Act in respect of criminal matters under an agreement or other arrangement in which offenses are among others (i) not of a political character (ii) not offenses in Ghana and (ii) are offenses only under military law or law relating to military obligations.
Yes, approval is required.
If the request is to obtain evidence in respect of a criminal, civil or commercial matter before a foreign court or tribunal under the Courts Act and High Court (Civil Procedure) Rules, the appropriate forum is the High Court.
If the request is made under the Mutual Legal Assistance Act, the appropriate forum is the Ministry of Justice. The Minister of Justice may apply to the High Court, without notice, for an order to take the evidence of the person in private if a witness or expert is required to provide evidence on oath or by video conference.
The type of information sought:
Under the Courts Act:
- Requests for documents
- Oral evidence under oath
- Interrogatories
Under the High Court (Civil Procedure) Rules:
- Requests for documents
- Depositions
Under the Mutual Legal Assistance Act:
- Requests for documents
- Written and or oral evidence under oath or solemn affirmation
- An exhibit admitted in evidence in proceedings in respect of a serious offense, judicial and official documents.
Under the Evidence Act 1975 (NRCE 323) the burden of proof lies on the person making the assertion, that is the person claiming privileges applies for the court in Ghana to rule on the claim.
Under the Mutual Legal Assistance Act, the Minister of Justice may grant a request for mutual assistance in a criminal matter, subject to the undertaking central authority of the foreign state or the competent authority of the foreign entity that a competent court in the foreign state or connected to the foreign entity will determine whether or not the evidence is subject to a privilege. The burden of proof in those circumstances will be as provided by the law of the foreign state or entity.
There is no specific requirement under the Courts Act and High Court (Civil Procedure) Rules.
However, under Section 40 of Ghana’s Evidence Act, the law of a foreign state is presumed to be the same as the law of Ghana. Thus, if the information sought is allowable in Ghana, it will be presumed allowable in the foreign jurisdiction subject to any rebuttal.
With regards to requests under the Mutual Legal Assistance Act, where evidence is to be gathered by video conference, the information sought must be allowable in the foreign jurisdiction where the action is pending. This is because Section 41(11) of the act provides that where a person gives evidence by means of video conference, the evidence shall be given as though the witness were physically before the court or tribunal outside Ghana for the purpose of the laws relating to evidence and procedure except that the evidence given shall not disclose confidential, privileged or protected information.
Yes, the High Court (Civil Procedure) Rules provide for depositions.
In civil matters under the High Court (Civil Procedure) Rules the court may allow a witness to give evidence through a video link or by any other means.
In criminal matters falling under the Mutual Legal Assistance Act, evidence can be gathered by video conference or any other means of technology designated by the Minister for Justice.
No. There are no Blocking Statutes in Ghana limiting the extent to which Ghanaian residents may give evidence in a foreign court’s civil or criminal proceedings save for the general rules governing privileges and compellability of witnesses which would apply to giving evidence in a Ghanaian court.
Under section 88(2) of the Evidence Act except where a privilege applies, no person may prevent another person from being a witness, from disclosing any matter, or from producing any object or writing.
Under section 79 of the Courts Act, a person examined under an order made for the purpose of giving evidence in a foreign court’s civil or criminal shall have the same right to refuse to answer questions tending to incriminate himself and other questions as a witness, in any case, pending in the court in Ghana would be entitled to; and a person shall not be compelled to produce any writing or other document if that person would not be compellable to produce same at a trial in the court in Ghana
Under Section 33 of the Mutual Legal Assistance Act a person shall not be compelled in a court in Ghana to give any evidence that a witness is not required to give in criminal proceedings in this country, or criminal proceedings in a foreign state or before the respective forum of the foreign entity.
Yes, citizens may voluntarily give evidence in a foreign proceeding.
No.