WITNESSES

Generally speaking a witness is a person with frist hand knowledge

about an event or transaction and who could give credible evidence
about that event or transaction to the court and whose evidence is likely
to assist the court to resolve the issue at hand.

People with some kind of expertise may also be permitted to give

evidence to the court. Commented [K1]:

Section 58- 86 of NRCD 323 deals with witnesses

Important consideration in respect to the subject matter of the witness

is whether a particular witness is competent or compellable

Witness

Competent Commented [K2]: Is the witness qualified to give evidence?

Compellable
knowledge Commented [K3]: Republic v Selormy
Commented [K23]: Section 60
A witness may not testify to a matter unless sufficient evidence is
introduced to support a finding that he has personal knowledge of
the matter.

(2) Evidence to prove personal knowledge may, but need not,

Competence: the qualification of a person to testify or be a witness in consist of the testimony of the witness himself.

court concerning an issue pending before the court. A witness is (3) A witness may testify to a matter without proof of personal
knowledge if no objection is raised by any party.

competent if he may lawfully be called to give evidence. (4) This section is subject to section 112 relating to opinion
testimony by expert witnesses.

Also said to be a person capability in law to testify on oath.

Compellability: refers to the susceptibility of a potential witness to the
coercive force of the court to bring him before the court and make him
to give evidence. A witness is compellable if he can lawfully be obliged
to give evidence. Its the process by which a competent witness can be
forced to give evidence.
Courts Act Section 58
Courts Act Section 59
Courts Act Section 63
In Ghana compellability and competence of a witness is governed By
NRCD 323
The General principle is that all persons are qualified to give evidence-
Section 58 of NRCD 323: .( Except as otherwise provided by this Decree, every person is
competent to be a witness and no person is disqualified from testifying to any matter.)
Despite the above provisions of Section 58 there are some exemptions:
where a person is not capable of expressing himself so as to be
understood either directly or through an interpretor
Where a person does not appreciate the duty cast on him to speak
the truth. Section 59 of 323
Section 62(1) of the courts Act
A person who disobeys a court order to give evidence may be visited by
serious sanctions. Section 61 of Courts Act
The courts have the power to punish the person who has been
summoned to attend the court but refuses to give evidence.
Section 62(4)of Courts Act
Commented [K4]: Section 58Summoning Witnesses.
In any proceedings, and at any stage of the proceedings, a
court either on its own motion or on the application of any
party, may summon any person to attend to give evidence, or
to produce any document in his possession or excerpts from it
subject to any enactment or rule of law.
Commented [K5]: Section 59Warrant in Criminal
Cases.
In a criminal case if the court is satisfied by evidence on oath
that a person can give material evidence and will not attend
court unless compelled to do so, the court may immediately
issue a warrant for the arrest and production of the witness
before the court at a time and place specified in the warrant
Commented [K6]: Section 63By stander May be
Required to Give Evidence.
A person present in court, whether a party or not in the
proceedings before the court may be compelled by the court
to give evidence, or to produce any document in his
possession or under his control, in the same manner and
subject to the same rules as if he had been summoned to
attend and give evidence, or to produce the document, and
may be punished in the same manner for refusal to obey the
order of the court.
Commented [K7]: Section - 59 - Disqualification of
Witnesses.
(1) A person is not qualified to be a witness if he is-
(a) incapable of expressing himself so as to be understood, either
directly or through interpretation by one who can understand him; or
(b) incapable of understanding the duty of a witness to tell the truth.
(2) A child or a person of unsound mind is competent to be a witness
unless he is disqualified by subsection (1) of this section.
Commented [K8]: Section 62Examination of
Witnesses.
(1) Subject to any enactment or rule of law to the contrary, a
court shall require any witness to be examined on oath.
Commented [K9]: Section 61Penalty for Non-
attendance by Witness.
(1) Any person summoned as a witness who
(a) without reasonable excuse fails to attend court as
required by the summons after having had reasonable
notice of the time and place at which he is required to
attend; or
(b) having attended court departs without reasonable
excuse and without having obtained the permission of the
court; or
(c) fails without reasonable excuse to attend after
adjournment of the court after being ordered to attend,
may be proceeded against by warrant to compel his
attendance, and commits an offence and may be dealt with
summarily by the court for contempt of court and sentenced
immediately to a fine not exceeding 50 penalty units or six
months imprisonment or both.[As amended by the Courts
(Amendment) Act, 2002 (Act 620), sch. to s.7] ...
Commented [K10]: (4) Whenever a person, appears in
court to give evidence and
(a) refuses to be sworn; or
(b) having been sworn, refuses without lawful excuse to
answer a question put to him; or
(c) refuses or neglects to produce any document or thing
which he is required to produce; or
(d) when lawfully required to do so refuses to sign his
deposition, without offering any lawful or sufficient excuse
for his refusal or neglect, ...
Categories of persons exempt to give evidence though
competent to do same

An accused person

May not be compelled by a court to give evidence at his own trail. The
law grants to the accused person that privilege. Section 96(1) of 323
Where the accused person decides to wave the above privilege and
Commented [K11]: Section 174(1) of Act 30
Commented [K12]: 1) The accused in a criminal action shall not
be called as a witness and shall not be compelled to testify except
on his own application.

testifies on oath a a trail he may be subjected to cross examination.

Section 96(2) of 323 Commented [K13]: (2) Except as otherwise provided in this
Decree, if the accused in a criminal action testifies on his own
behalf he shall be subject to examination in the same manner as
any other witness
Can the prosecutor invite one accused person to give evidence
against a co accused person? Commented [K14]: The position is that such a person can be
called upon if he cease to be a n accused in the case.

How does a co accused cease to be an accused person?

Ans:

If he pleads guilty and has been dealt with by the courts

Or the charge against him has been redrawn.

Case: Dogbe v The republic

The appellant was convicted on 13 July 1973, by the Circuit Court, Tamale. He was
the first of three accused persons charged separately as follows: The appellant (as
the first accused) with stealing "ten cassette tapes of tape recorder" valued at 60.00
the property of one Oscar Ntim on or about 14 May 1973; Dominic Baba Amagsime
(as the second accused) with dishonestly receiving the said "ten cassette tapes of
tape recorder from the appellant on 14 May 1973 and Alex Aminu Kadri (as the third
accused) also with receiving from the second accused the said "ten cassette tapes of
tape recorder" or 31 May 1973. After the evidence of the third prosecution witness,
the second and third accused changed their pleas of not guilty to pleas of guilty
resulting in their conviction and sentence to the terms of fifteen months'
imprisonment with hard labour and twelve months' imprisonment with hard labour
respectively. At the close of the case for the prosecution the submission of no case
made on behalf of the appellant was overruled and the appellant was convicted and
sentenced to a term of eighteen months' imprisonment with hard labour after the
close of the evidence of the appellant who did not call any witness.
Aggrieved by this conviction the appeal has been brought

What this court is concerned with is the category (ii) in which the fourth prosecution
witness is placed but the above definition should not lead to any difficulty in seeking
the answer to the question whether the fourth prosecution witness, having been
charged together with the appellant, could be deemed as an accomplice when he
has given evidence for the prosecution. The answer, no doubt, is in the affirmative
and the learned assistant state attorney has conceded the point. It is the learned
trial judge, who, in his view, seemed to differ. What to me seemed to have blurred
his view is his misconception of the term in the statement of the law in the case of R.
v. Barnes and Richards (supra), namely, "evidence on his own behalf incriminating a
co-prisoner" which patently is not the same in meaning as "evidence on his own
behalf that is to say showing his involvement in the crime" expressed by him.

Where a co-accused in his defence steps out of the dock and walks into the witness-
box and gives evidence implicating his co-accused he is, in my opinion, deemed as
giving evidence on his own behalf and therefore, is not deemed as an accomplice.
For this opinion I find support in the same case of Barnes and Richards (supra)
relied on by the learned trial judge where Mrs. Hewitt and Mrs. O'Hara as co-
prisoners were not called as witnesses for the prosecution but went into the witness-
box to give evidence and gave evidence on their own behalf. It was held that the
rule with regard to corroboration did not apply. The position is different where the
co-accused has been called as a witness for the prosecution. In such a case the co-
accused who has given the evidence implicating his co-accused is deemed an
accomplice and the rule will apply. What makes the distinction is that here, when it
is proposed to call such a co-accused as a witness, the practice is to take his plea on
arraignment or during the trial if he withdraws his plea of not guilty. He must be
sentenced before he is called. I refer to the case of R. v. Tomey (1909) 2 Cr.App.R.
329, C.C.A. the headnote of which reads as follows: "A co-prisoner who has pleaded
not guilty may be allowed to plead guilty, and may then be sentenced and called
against co-prisoners jointly indicted." And as the Lord Chief Justice said in the case
of R. v. Tomey (supra) at p. 330: "The case of a prisoner jointly indicted with others
can be disposed of before the case against the others is proceeded with." (See also
Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 1307). It is
clear from the foregoing distinction that the learned trial judge misdirected himself as
to the application of the rule and erred when he held that the fourth prosecution
witness was not an accomplice and therefore the rule of practice with regard to
corroboration did not apply in the present case.

Although the learned trial judge was prevented by this error from warning himself as
to the danger of convicting on the evidence of an accomplice he found there was
corroboration of the evidence of the fourth prosecution witness to warrant conviction
of the appellant. And this is what he said in his judgment:

"If I am wrong in so holding I am satisfied that the evidence of the first, second and
third prosecution witnesses when considered together with that of the second
accused (the fourth prosecution witness) [p.126] show the guilt of the first accused
beyond doubt. I have already given reasons for this conclusion. In the result I am
satisfied that even if the second accused is an accomplice there is corroboration
from the first, second and third prosecution witnesses to link and connect the first
accused with the offence charged. I find on the totality of the evidence that the guilt
of the first accused has been proved beyond doubt. I find the first accused guilty and
accordingly convict him on count one."

As was said in R. v. Baskerville (1916) 12 Cr.App.R. 81 at p. 91, C.C.A.: "The

corroboration need not be direct evidence that the accused committed the crime; it is
sufficient if it is merely circumstantial evidence of his connection with the crime." Also
in the case of R. v. Modam (1938) 4 W.A.CA. 39 at p. 40 the court was of the view
that "it is not necessary that the corroborative evidence should corroborate the
accomplice's evidence in detail, but what is essential is that there should be some
independent evidence which definitely associates the accused with the crime." The
conduct of the appellant on 14 May 1973, namely, as the sole person responsible for
delivery and receipt of parcels and his disappearance from his post before the official
closing time after receiving the parcels and depositing with the third prosecution
witness at the gate a parcel wrapped in the Daily Graphic newspaper were
circumstances which afforded sufficient corroborative evidence and the learned trial
judge rightly so held.

The courts have often laid down as a rule of practice that unless the evidence of
accomplices be corroborated, it is a fatal defect if a caution be not given to the jury,
but it has been held also in R. v. Kirkham (1909) 2 Cr.App.R. 253, C.C.A. that if there
is sufficient corroboration of accomplice's evidence, the court will not interfere,
despite the want of proper warning. In the case of R. v. Tate [1908] 2 K.B. 680,
C.C.A. referred to in the case of Davies v. Director of Public Prosecutions (supra) at
p. 511, the conviction was quashed for want of warning to the jury as to the need for
corroboration of the evidence of an accomplice but the court added that the want of a
warning would have been excused and the maintenance of the conviction justified if
there had been in fact enough corroboration. And in the case of R. v. Moore (1942)
28 Cr.App. R. 111, C.C.A. it was held that the existence of sufficient corroboration
was regarded as an adequate substitute for compliance with the rule.

In my judgment I find that on the facts there was sufficient corroborative evidence
and in the light of the two authorities, R. v. Tate and R. v Moore, the absence of the
warning will not justify the quashing of the conviction. The appeal is therefore
dismissed

Commented [K15]: Section - 59 - Disqualification of

Child or person of unsound mind Witnesses.
(1) A person is not qualified to be a witness if he is-

Being a child or a peson of unsound mind does not take away (a) incapable of expressing himself so as to be understood, either
directly or through interpretation by one who can understand him; or

competence to give evidence. (b) incapable of understanding the duty of a witness to tell the truth.

(2) A child or a person of unsound mind is competent to be a witness

A Diplomat
Although mostly competent they canot be compleeld to give evidence
because of the diplomatic protection. Ie Diplomatic Immunity Act 1962
unless he is disqualified by subsection (1) of this section.
Commented [K16]: Section - 1 - Articles to Have Force of
Law
Articles 22, 23, 24, and 27 to 40 of the Vienna Convention (which
regulate the immunities and privileges, including exemption from
taxation, freedom of communication, inviolability of premises and
immunity from civil and criminal jurisdiction, to be conferred upon
diplomatic agents) shall have the force of law and references therein

(Act 148), section 1

to the receiving State shall, for this purpose, be construed as
references to the Republic.
Diplomats are not subject to our laws Article 31 of the Vienna
Convention
Despite the above provisions the privileges granted by the sending
state can be waived so that the receiving state can prosecute.
Commented [K17]: Article 31
1.A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) A real action relating to private immovable property
situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the
purposes of the mission;

Where a diplomat institutes an action he cannot invoke the

immunity clause in his favour in respect of counter claims against
him.
When an individual successes in getting judgement against him
(b) An action relating to succession in which the diplomatic
agent is involved as executor,
administrator, heir or legatee as a private person and not on
behalf of the sending State;
(c) An action relating to any professional or commercial
activity exercised by the diplomatic agent in
the receiving State outside his official functions.
2.A diplomatic agent is not obliged to give evidence as a
witness.
3.No measures of execution may be taken in respect of a
diplomatic agent except in the cases

you cannot execute the judgement even though he initiated the

coming under subparagraphs (a), (b) and (c) of paragraph 1 of
this article, and provided that the
measures concerned can be taken without infringing the
action. inviolability of his person or of his residence.
4.The immunity of a diplomatic agent from the jurisdiction of
the receiving State does not exempt
him from the jurisdiction of the sending State.
Case: Kwarteng V Sackey

The plaintiff, Peter Osusu Kwarteng, brought an action in the High Court, Accra
against the defendants claiming damages for certain wrongs he alleges he suffered
at the hand of Sackey, the first defendant, while he was in Liberia. Sackey was at
the time charg d'affaires at the Ghana Embassy. The Attorney-General is sued as
representing the Government of Ghana. The defendants filed a defence to the action
denying the various allegations made by the plaintiff. Issue having been joined, the
next step was for the court to take evidence and come to a decision as to whether or
not the allegations were true. However, at that stage the defendants raised an
objection to the jurisdiction of the court on the ground that Sackey enjoyed diplomatic
immunity. The objection was set out in a notice of amendment and is in the following
terms:

"1. The defendant will at the hearing of this suit contend by way of preliminary
objection that the plaintiff's action cannot hold in law in that the first defendant was
at the material time and now the charg d'affaires of the Ghana Embassy in
Monrovia, Liberia and that all actions taken by him were [p.143] done in his official
capacity and is privileged under diplomatic immunity.

2. Once the action taken by the first defendant was covered by diplomatic immunity
the second defendant is not vicariously liable."

The defendants relied on article 38 (1) in the Schedule of the Diplomatic Immunities
Act, 1962 (Act 148). The learned judge agreed and dismissed the action.

We have read article 38 (1), but we are unable to see how it applies to the case as
presented by the plaintiff or the defendants. The article reads:
"1. Except insofar as additional privileges and immunities may be granted by the
receiving State, a diplomatic agent who is a national of or permanently resident in
that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of
official acts performed in the exercise of his functions."

It has not been suggested that Sackey is a citizen of Liberia or permanently resident
there. It follows, therefore, that whether the acts complained of were official or
private the said article has no relevance to this case.

It was admitted that Sackey is a citizen of Ghana and a person sent by the
Government of Ghana to take charge of its embassy in Monrovia. In terms of the
Vienna Convention which Act 148 gives effect to, he is entitled to diplomatic
immunity while in Liberia or travelling through foreign countries to or from Liberia.
The immunity includes immunity from suit: see Armon v Katz [1976] 2 GLR 115, CA.
However, no such immunity exists for him in his own country. This much, at least, is
clear from article 31 (4) which reads:

"31 (4). The immunity of a diplomatic agent from the jurisdiction of the receiving
State does not exempt him from the jurisdiction of the sending State."

We are of the opinion that the objection taken by the defendants was untenable and
ought not to have been upheld. The appeal is allowed.

Armon v Katz

JUDGMENT OF APALOO J.A.

This appeal raises the somewhat novel but interesting questions as to what legal
privileges diplomatic agents enjoy in this country and how their immunity from the
domestic jurisdiction of our courts is proved. But before entering into an examination
of these questions, it is well to relate the facts.

On 26 February 1967, the respondent who I shall hereinafter call the plaintiff, rode in
a car driven by the first appellant (hereinafter called the first defendant). This car
belonged to the second appellant (hereinafter referred to as the second defendant).
The latter is the father of the first defendant. At a point along the Weija-Accra road,
that car went into ditch and the plaintiff suffered injuries. Both the plaintiff and the
first defendant are infants according to the laws of this country. The plaintiff was then
seventeen-and-a-half years of age and the first defendant was half-a-year her senior,
he being eighteen years old.

On 18 May 1967, the plaintiff through her next friend Hanan Katz, caused to be
issued against both defendants a writ claiming "damages for injuries and loss
suffered by the plaintiff as a result of the negligence of the first defendant the servant
and/or agent of the second defendant." To the writ, was attached a statement of
claim. That statement shows that the infant defendant was sued per his mother, Mrs.
Shalomo Armon, who was described as "his next friend." Although nothing on this
case turned on this, perhaps I should point out that while an infant sues by his next
friend, he defends an action by his guardian ad litem.

The record shows that the writs were served on both defendants on the date of
issue, namely, 18 May. On 29 May 1967 both defendants entered conditional
appearance "without prejudice to an application ... [p.118] to set aside the writ of
summons . . . for want of jurisdiction on the grounds of diplomatic immunity."

Paragraph (6) of the statement of claim averred negligent driving against the first
defendant but no particulars of it were given. There were, however, particulars of
injuries and special damages alleged to have been suffered by the plaintiff. Apart
from the absence of the particulars of negligence, the plaintiff's pleading contains
one peculiarity. The second defendant seems to have insured the car in obedience
to the requirements of section 3 of the Motor Vehicles (Third Party Insurance) Act,
1958 (No. 42 of 1958). Although no relief was sought against the insurers in this
action and no issue can properly be joined between them and the plaintiff, no less
than four of the twelve-paragraph statement of claim contain averments regarding
insurance. But for the fact that this irrelevant pleading was an important
consideration in the court's ruling, this fact would have been unworthy of mention.
Since the fact of insurance weighed heavily with the trial judge, it is necessary to
recite the averments in the pleading specifically referable to it, namely, paragraphs
(9)-(12):

"(9) The plaintiff says that after the accident the second defendant gave the address
of the London & Lancashire Insurance Co., Ltd. as his insurers and told the plaintiff
to contact the insurance for any claim she may have.

(10) The plaintiff says that before she could contact the said insurance company, she
received a letter saying that passenger liability is excluded under the terms of the
policy and therefore no claim will be entertained by them.

(11) The plaintiff will contend that she was not a passenger and that the insurance
company is liable to satisfy any damages which she may be awarded against the
first defendant.

(12) The plaintiff says that the insurance company has accordingly been notified
under the terms of the Motor Vehicles (Third Party Insurance) Act, 1958, and [she]
will proceed against the insurance company for the satisfaction of any damages that
may be awarded against the first defendant."

On 1 June 1967, the defendants moved the court to set aside the service on them of
the writ of summons. They claimed that they were diplomatic agents of the State of
Israel and were, as such, not amenable to the jurisdiction of the court. There was
evidence that the second defendant was the First Secretary of the Embassy of
Israel, the infant defendant was his son and his guardian ad litem was the wife of the
second defendant. This application was resisted on a number of grounds. In so far
as it is possible to determine the grounds of objection from the judge's notes they are
that: (1) though ambassadors and foreign sovereigns enjoy full diplomatic immunity,
officials of the embassy do not; (2) inasmuch as the second defendant engaged in
commercial activity, article 31 of the Vienna Convention on Diplomatic Relations
precludes him from relying on [p.119]diplomatic immunity and (3) as the wrong on
which the action was founded fell outside the official duties of the second defendant,
he could not shield himself under the cloak of diplomatic immunity.

The learned judge, Anterkyi J. (in his ruling delivered on 20 October 1967,
unreported; digested in (1968) C.C. 10) refused to set aside the service of the writ on
two grounds, namely, first, there was no "legal or conclusive proof" that at the date of
the accident, the second defendant had been recognised as the First Secretary of
the Embassy of Israel by the "paramount ruling authority in Ghana," and secondly,
that by taking a policy of insurance pursuant to the Motor Vehicles (Third Party
Insurance) Act, 1958, the second defendant had expressly waived any privilege or
immunity from jurisdiction he might have had. One of the grounds urged by counsel
for the plaintiff for denying diplomatic immunity to the second defendant was that the
insurance company with which the latter insured, was a commercial organisation and
by entering into a contract of insurance with that organisation, the second defendant
had engaged in a commercial activity outside his official functions and article 31. 1.
(c) of the Vienna Convention debars him from claiming immunity from the jurisdiction
of the court. The learned judge expressly rejected that wholly untenable contention
but the fact that it was made, reflects the quality of the legal argument advanced on
behalf of the plaintiff.

The defendants invite us to upset the ruling on the ground: (1) that there was
conclusive evidence before the court that the second defendant was a diplomatic
agent and was accordingly immune from the jurisdiction of the court, and (2) that the
judge was in error in holding that by insuring the car in obedience to the municipal
law of this country, he had waived his diplomatic immunity. It is to the credit of the
judge that although his conclusion favoured the plaintiff, he did not found his ruling
on the grounds urged by counsel for the plaintiff. One does not require a profound
knowledge of public international law to reject the argument that only a foreign
sovereign or an ambassador is entitled to diplomatic immunity or that a diplomatic
agent who in deference to the law of the receiving state insures his car, thereby
engages in the commercial activity which deprives him of the diplomatic immunity to
which he is otherwise entitled.

To say this is, not however, to deny that the rationes decidendi of the learned judge's
ruling are a little surprising. The judge seems to have thought that at the date of the
accident there must be, what he described as "legal and conclusive proof" that the
second defendant was recognised as the First Secretary of Israel by the "paramount
ruling authority in Ghana." Even if that were the right criterion, there was such
evidence. The second defendant swore that he had a Ghana government diplomatic
card dated 19 November 1964 and this was signed by the Principal Secretary of the
Ministry of Foreign Affairs. There was also evidence that it was endorsed in that card
that the holder was entitled to the "courtesies and privileges of a person of a
diplomatic status." Such cards were shown to the court. One of such privileges is
immunity from the criminal, civil [p.120] and administrative jurisdiction of this country:
see article 31. 1. of the Vienna Convention on Diplomatic Relations which has been
enacted into law by the Diplomatic Immunities Act, 1962 (Act 148), s. 1. No evidence
was offered to the court to contradict this.
If the evidence was susceptible of any doubt, such doubt was completely dispelled
by the official communication sent to the court by the Principal Secretary of the
Ministry of Foreign Affairs. He said the second defendant was the First Secretary of
the Embassy of Israel and he and his family were entitled to the full diplomatic
privileges and the immunities laid down by Act 148. The acceptance and recognition
of persons who form the staff of an embassy are acts of sovereignty based on the
comity of nations. The one department of State which oversees this exercise of
sovereignty and is peculiarly knowledgeable about who are diplomatic agents
recognised as such by this country, is the Ministry of Foreign Affairs. What can be
more authentic than an official head of that ministry certifying under his hand that a
person sought to be impleaded before the court was so recognised and was as such,
immune from the jurisdiction of its courts? Article 10. 1.

(a) of the Vienna Convention on Diplomatic Relations provides that:

"The Ministry for Foreign Affairs of the receiving State, or such other ministry as may
be agreed, shall be notified of:

(a) the appointment of members of the mission, their arrival and their final departure
or the termination of their functions with the mission."

There are similar provisions with regard to member's families and servants. Thus,
that ministry is the one department of government that can state with authority at any
given time who are and who are not recognised as diplomatic agents.

The plaintiff produced no evidence nor sought to contend that the second defendant
was not a diplomatic agent. On the contrary, she accepted him as such and sought
to bully him into waiving such immunity. The second defendant by his solicitor,
answered the plaintiff's solicitor's letter of 26 April 1967, inter alia, as follows.:

"Further I am instructed to inform you in the first place that as the usual practice goes
my said client cannot himself decide to waive his immunity which can only be waived
by his government. Even if he and his son could waive their immunity, they would not
be bullied into doing so."

If the plaintiff did not regard the second defendant as a diplomatic agent and
therefore enjoying immunity, her attempt to get him waive such privilege makes no
sense. The judge considered that the relevant date at which the right to immunity
must exist, is the date the cause of action arose. He said the second defendant was
not shown to have been recognised as a diplomatic agent at the date of the accident.
As a criterion by which immunity could be claimed, the judge's view is wrong. The
relevant date is the time jurisdiction is sought to be exercised over him.

[p.121]

No diplomatic agent is likely to be bothered by the fact that a person acquires a

cause of action against him in the country of his accreditation. Different
considerations arise when that cause of action is sought to be agitated against him
by action. It is only then that he can invoke his immunity. In Mighell v. Sultan of
Johore [1894] 1 Q.B. 149 at pp. 159-160, C.A. Lord Esher M.R. said:
"What is the time at which he can be said to elect whether he will submit to the
jurisdiction? Obviously, as it appears to me, it is when the Court is about or is being
asked to exercise jurisdiction over him, and not any previous time . . . there can be
no inquiry by the Court into his conduct prior to that date. The only question is
whether, when the matter comes before the Court, and it is shewn that the defendant
is an independent sovereign, he then elects to submit to the jurisdiction."

As far as this issue is concerned, there is no difference between a foreign sovereign,

an ambassador or any diplomatic agent. This statement of principle makes no
practical impact on this case because both at the date the cause of action arose and
when he was sought to be impleaded, there is unimpeachable evidence that the
second defendant was the First Secretary of the Embassy of Israel. But in so far as
the learned judge's ruling suggests that diplomatic immunity cannot be claimed at the
date the defendant is sought to be impleaded unless he was recognised as a
diplomat at the date the cause of action arose, that view is wrong and ought to be
disaffirmed.

As I said, there was also an official intimation to the court from the Principal
Secretary of the Ministry of Foreign Affairs to the effect that the second defendant,
being the First Secretary of the Embassy of Israel, enjoys together with his family the
privileges and immunities which the Diplomatic Immunities Act, 1962, accords to
accredited diplomatic agents. The judge refused to accord that letter any weight
because, as the judge put it, "the writer ... should herself have given evidence as to
the facts stated and subjected herself to cross-examination." For this view, the judge
cited the case of Engelke v. Musmann [1928] A.C. 433, H.L. and implied that he
derived support from the observations of Lord Phillimore in denying any weight to
that letter.

With great respect, the learned judge must have misread that learned lord's
pronouncement on this question. The headnote in that case at p. 433 reads:

"A statement made to the Court by the Attorney-General on the instructions of the
Foreign Office as to the status of a person claiming immunity from judicial process
on the ground of diplomatic privilege, whether as ambassador or as a member of the
ambassador's staff, is conclusive."

In ordinary litigation, such a letter, in so far as it seeks to be proof of the facts stated
in it, may be shut out as offending the hearsay rule. But [p.122] the basis on which
such letter from the Foreign Ministry can be acted upon was explained by Lord
Phillimore at p. 451 as follows:

"When therefore the certificate from the Foreign Office was delivered by the
Attorney-General, it was not, as suggested on behalf of the plaintiff, a piece of
hearsay evidence, a mere narrative of what the Ambassador had told the Foreign
Office. It was a statement of what the Secretary of State on behalf of His Majesty
had done, not what he was doing ad hoc, or what he was believing and repeating,
but what the Foreign Office had done. The certificate is no attempt on the part of the
executive to interfere with the judiciary of the country. The status which gives the
privilege has been already created by the Crown in virtue of its prerogative in order
to administer its relations with a foreign country in accordance with international law."
Lord Phillimore accordingly concurred in reversing the ruling of the Court of Appeal
which held that such statement must be subject to cross-examination in accordance
with the ordinary rules of evidence. Lord Buckmaster was also of the same view. He
conceived the issue in these words at pp. 440-441:

"The sole point for determination is the method by which the status of any person
who claims the benefit of this privilege is to be determined. For the appellant it is
contended that the statement of the Attorney-General on the instructions of the
Foreign Office is for this purpose conclusive, while the respondent asserts that any
such dispute should be ascertained in the ordinary way according to the usual rules
of evidence."

After considering the matter and examining a number of decided cases he arrived at
the conclusion at pp. 446-447 that:

"The privilege itself depends upon maintaining the obligations of international law
and the comity of nations. It would, indeed, be unfortunate if, after recognition had
been afforded by His Majesty through the Foreign Office to people as holding such
posts on the ambassadorial staff as entitled them to the privilege and the statement
as to their position had been afforded on behalf of the Crown through the Attorney-
General, it was to be disregarded by the judiciary, for, in such circumstances, the
ensuing contest could not possibly inure to the public good."

If a statement made to the court by the Foreign Office through the Attorney-General
be conclusive, a communication sent direct to the court by that department of state
must be an a fortiori. In Suarez v. Suarez [1918] 1 Ch. 176, C.A. the Foreign Office
by a letter under the hand of an Assistant Secretary of State informed the plaintiff's
solicitors that the defendant's name had been removed from the Diplomatic List. It
was held that that letter was sufficient evidence of that fact. In the earlier case
[p.123] of Mighell v. Sultan of Johore (supra) it was held that a letter written on behalf
of the Secretary of State for the Colonies on the ministry's official letterhead to the
effect that the defendant was an independent sovereign power was conclusive of
that fact. In that case, Wright J. who dealt with the matter as a vacation judge,
caused a communication to be made to the Secretary of State for the Colonies in
order to ascertain the status of the defendant. It was the reply to that letter that was
held to be decisive of the fact stated therein. Wills J. who eventually dealt with the
matter thought the course adopted by Wright J. was correct. He said at p. 153:

"In the first place it is clear that the proper mode of obtaining information with respect
to the status of the defendant was adopted by Wright, J., who communicated with
and obtained a letter from the Colonial Office."

"In my opinion, there was convincing evidence that the second defendant was a
diplomatic agent and that this issue was completely clinched by the letter addressed
to the court by the Ministry of Foreign Affairs. It seems to me desirable and in accord
with the public interest that on this matter, both the executive and judiciary should
speak with one voice. I think notwithstanding the hearsay rule, the letter from the
Foreign Office was admissible on the question whether or not the second defendant
was recognised by the government as a diplomatic agent. In my judgment, the
judge's contrary holding was erroneous. I venture to suggest that a court faced with a
similar problem in the future, would do well to cause the Foreign Ministry to be
addressed on the matter and an official communication from that ministry to the
effect that the person affected was or was not recognised as a diplomatic agent,
should, unless the court has reason to doubt the genuineness of that
communication, be conclusive of the matter.

If the learned judge was in error in holding that there was no proof that the second
defendant was recognised by the government as a diplomatic agent because of what
the court conceived to be deficiency of evidence, his second reason for rejecting his
claim to diplomatic immunity is even less defensible. That reason is simply that his
insurance of the car out of deference to our Motor Vehicles (Third Party Insurance)
Act, 1958, amounts to an express waiver of his immunity to the jurisdiction. That
reason drives a coach and four through the clear provisions of article 32. 1. and 2. of
the Vienna Convention on Diplomatic Relations. By reason of section 1 of the
Diplomatic Immunities Act, 1962, that article has statutory force in this country. It
provides that:

"1. The immunity from jurisdiction of diplomatic agents and of persons enjoying
immunity under Article 37 may be waived by the sending State.

2. Waiver must always be express."

(The emphasis is mine.)

[p.124]

In the context of this case, the second defendant and his family's diplomatic
immunity could only validly be waived by the Government of Israel. This was pointed
out to the plaintiff's counsel in the second defendant's solicitor's letter of 28 April
1967. It was re-asserted by the Principal Secretary in his letter to the court dated 11
August 1967. That letter in fact averred that no such waiver was made by the Israeli
Government. To say then that there was express waiver is to fly both in the face of
the law and the fact. Although the learned judge said the insurance of the car
"amounted to an express waiver of his immunity from the jurisdiction of the court"
what he meant was in fact that by insuring his car, the second defendant impliedly
waived his immunity. This is because at no time did the second defendant in terms
say he was waiving his immunity. According to the Shorter Oxford Dictionary (3rd
ed.), at p. 658 "express" means definitely stated, "expressed and not merely
implied." I am inclined to think it is to avoid the implication of waiver from ambiguous
conduct that article 32. 1. and 2. lays it down that "Waiver must always be express."

That aside, it is hardly reasonable to imply waiver, even if this were permissible, by
the simple fact of the second defendant insuring his car. There is no evidence as to
what was the precise nature of the cover taken up by the second defendant. If it was
comprehensive, his object might well be the protection of his own property and
incidentally, that of others. If it was a third party insurance, it may well be out of
deference to our Motor Vehicles (Third Party Insurance) Act, 1958. Article 41. 1. of
the Vienna Convention on Diplomatic Relations enjoins all diplomatic agents to
respect the laws of the receiving State. It enacts:
"Without prejudice to their privileges and immunities. it is the duty of all persons
enjoying such privileges and immunities to respect the laws and regulations of the
receiving State .

It would indeed be strange if a diplomatic agent were to flout the laws of his host
country so as to be able to assert his immunity. The Motor Vehicles (Third Party
Insurance) Act, 1958, was passed to meet a felt social need of this country and I
entirely reject the argument that a diplomatic agent who in deference to this law
insures his car, thereby loses his diplomatic immunity. I think this is the less
satisfactory of the two reasons given by the learned judge for denying diplomatic
immunity to the First Secretary of the Embassy of Israel and his family. In my
judgment, that reason is wholly wrong. My conclusion is that all the defendants were
immune from the jurisdiction of the courts of this country and that the judge ought to
have acceded to their application and set aside the writs.

Judges

A judge is a competent witness? but is not compellable. Commented [K18]: Section - 65 - Presiding Judge
Disqualified as a Witness.
A judge sitting at the trial may not testify as a witness in that trial.

It does not mean that the judge cannot give evidence at all he may give
Commented [K19]: check
evidence on a case he is not sitting on.
Commented [K20]:

Judges are immune from all forms of prosecution in cases handled by

the both civil and criminal.

Article 127(3) Commented [K21]: (3) A Justice of a Superior Court, or any

person exercising judicial power,
shall not be liable to any action or suit for any act or omission by

Section 113 of courts Acts

him in
the exercise of the judicial power.
Commented [K22]: Section 113Non Liability of
Judges, Magistrates and Tribunal Members in Exercise of
Functions.
A Judge of the Superior Court, a Circuit Judge, a Magistrate,

Jurors
panel members of a Regional Tribunal, and Juvenile Courts
shall not be liable to any action or suit for any matter or thing
done in the performance of their functions as such officers.[As
amended by the Courts (Amendment) Act, 2002 (Act 620),
Exceptions sch. to s.7]

You cannot invite him to give evidence in respect of the validity of

the judgement
Cannot invite him to give evidence in a case which he is a juror
One cannot be a judge of fact in his own case
After a verdict has been reached a juror if any case arises
irrespective of the validity of the verdict he is compellable to give
evidence. His testimony is limited to the validity of that evidence.
You cannot compel him to disclose what each individual juror said.
 COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence refers to the capacity of a person to give evidence. Not all people have that
capacity, e.g. old people, insane, children, etc.

Compellability means whether a particular witness can be subjected to the compulsory

process of court to induce him to testify, i.e. can that person be summoned? If such person
refuses, can he be arrested and imprisoned for contempt of court? Sometimes not all
witnesses are compellable especially if they enjoy certain privileges.

COMPETENCE OF WITNESSES
Rules governing competence

S.117- The general rule is that all persons are competent unless they suffer from a certain
disability. All persons shall be competent unless the court considers that they are prevented
from understanding questions put to them or from giving rational answers to those questions
put to them or from giving rational answers to those questions by tender years, or extreme old
age, disease of body/mind or any other cause of the same kind. A lunatic is not incompetent
to testify unless he is prevented by his lunacy from understanding the question rational
answers thereto.

Competence of special categories of witnesses

1. Dumb witnesses
A dumb witness (one who is unable to speak) may still be a competent witness. Being a deaf
mute does not render a person incompetent per se. He may give his or her evidence in any
other manner in which he can make it intelligible as by writing or signs but such writing but
 such writing must be written and the signs must be made in open court. Evidence so given
shall be deemed to be oral evidence as in the case of:
Hamisi s/o Balum v R
Facts: This case involved a deaf mute witness who would, however, make some noises. He
was called as a witness and the trial Magistrate allowed this. The witness gave evidence with
the help of a sister who said that she understood the noises. The sister was then sworn in as an
interpreter. The case went on appeal because of the witnesss form of evidence and the use of
the sister as an interpreter.

Held: Court of Appeal- Such a witness was competent but in this case, the method of
interpretation was so crude that the witness should not have been allowed to give evidence.
Where there is need for interpretation, an expert should be called; the sister could have been
biased.

2. Accused persons
An accused person is a competent witness for the defence or for himself, but he is not
compellable to give evidence at his trial. There are a number of options at his trial. He can
give evidence on oath by way of application; where he does so, the prosecution can examine
him. Cross examination is the only time during which an accused person may be compelled
to answer questions. See s.131. In practice, whether an accused gives sworn evidence or not,
should not be used against him in judgment.

3. Accomplices
An accomplice is one charged with, but not for the same offence as the accused. An
accomplice is a competent witness against an accused person and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice. In practice,
however, few courts convict on uncorroborated evidence of an accomplice. During trial,
when a witness other than the accused stands before court, such evidence must be on oath.
See s.12 of the Oaths Act.

4. Spouses
S.120 of the Evidence Act. In criminal proceedings, the following provisions shall have
effect:
S. 120 (1) (b) - The wife or husband of the accused shall be a competent and compellable
witness for the defense and whether the accused is charged alone or jointly with another
person. The rationale for this is to protect the confidentiality in marriage, i.e. any marriage
recognized by the laws of Uganda.

In ss120 (2) and 121, the terms husband and wife mean respectively the husband and wife
of a subsisting marriage as such under any written or customary law. The principle laid down
in R v Amkeyo was changed in the case of Alai v Uganda where it was sought to use
evidence of the accuseds wife. Court recognized her as a wife and she could not therefore
testify against her husband. Because of this ruling, s.120 was amended to have s.120 (2).

As to whether spouses can testify against each other is still a big question, e.g. in Kenya,
where the spouse is being charged with bigamy, incest or any moral offence, stealing
property of the spouse, a spouse may be compelled.

English cases, however, have applied these instances selectively:

R v Lockworth [1931] 1 KB 117

Facts: The husband was accused of inflicting grievous bodily harm on the accused. The wife
was called to testify against her husband and she refused.

Held: When a husband is indicted for inflicting harm on the wife, she is a compellable
witness for both the defense and the prosecution. If she refuses continuously, she is
incompetent in court.

Hoskyns v Metropolitan Police [1912] AC 474

Facts: The wife was unwilling to testify against her husband.

Issue: whether or not the wife could be compelled to testify against her husband despite her
unwillingness?

Held: She could not be compelled to testify against her husband even if she is the one on
whom the harm was inflicted.
 In civil proceedings, however, spouses are both competent and compellable. S. 121 of the
Evidence Act- In civil proceedings, the parties to the suit and the husband and wife of any
party to the suit shall be competent and compellable witnesses.

5. Children of tender years

All persons are competent to testify, however, under s.117 of the Evidence Act, a child of
tender years may not be a competent witness if by reason of his or her age, the child cannot
understand the questions put to him or her, or if s/he cannot answer rationally. For this
category, they may not always be considered as competent witnesses. There is no statutory
definition of who a child is, but a number of cases have considered this:

Kibagenyi v R
Facts: The appellant was appealing against a conviction for murder. The main evidence
against him at the trial court had been given by his 2 sons, one aged between 12-14 years and
the other between 9-10 years. He challenged the admissibility of their evidence on the
grounds that they were children of tender years and therefore incompetent witnesses.

Held: The phrase child of tender years refers to any child of the average or apparent age of
14 years. Whether or not a particular child is of tender years depends on the good sense of
court.

Omukono v Uganda [1979] HCB 171

Procedure of court with regard to child witnesses

Where the court is faced with a child witness, it is expected to voire dire, which involves an
attempt to determine if the child understands the nature of an oath, whether the child has
sufficient capacity or intelligence to give reliable evidence and whether the child knows the
duty of telling the truth, i.e. can the child distinguish right from wrong or even know the
consequences?

Uganda v Oloya s/o Omoke [1977] HCB 4

Held:
i) When a court is confronted with a child of tender years as a witness, it should question the
child whether s/he understands the nature of an oath. If court finds that the child does not
understand the nature of an oath, it may not allow the child to give evidence.
ii) If the child understands, the child may give sworn evidence. If the court does not allow the
child to swear, it is up to the court whether in its opinion, the child is possessed of sufficient
intelligence, to justify the reception of his or her evidence and whether the child understands
the duty to tell the truth.
iii) Special note must be taken that where a child is a prosecution witness, the court should also
direct itself that the childs evidence needs corroboration, but in all cases of child witnesses,
court must conduct a voire dire. If court does not, that is a good ground for appeal and
quashing such evidence.

If a child gives unsworn evidence, it must be corroborated. However, in practice, all evidence
given by children must be corroborated. The rationale is to ensure the reliability of their
evidence. If they cannot swear, they must affirm that they will tell the truth and nothing but
the truth. If a child witness gets tongue-tied ordinarily, the advocate or person representing
the child may ask for an adjournment.
See s.12 of the Oaths Act.

COMPELLABILITY OF WITNESSES

Compellability means whether a particular witness can be subjected to the compulsory

process of court to induce him to testify.

General rule: All ordinary witnesses are compellable to testify on matters asked of them
during proceedings. S.131 Evidence Act- A witness shall not be excused from answering any
questions as to any matter relevant to matter in issue in any suit or civil/ criminal proceeding
upon the ground that the answer to such question will incriminate or may tend directly/
indirectly to incriminate such witness or that it will expose such witness to a penalty or
forfeiture of any kind or that it may establish or tend to establish that he owes a debt or is
otherwise subject to a civil suit.
There are, however, special categories of persons who are not compellable, e.g. an accused
(with a constitutional right to silence). However, the exception is under s.131 where the
accused gives sworn evidence, the accused is compellable to answer questions.

Swearing means taking an oath to tell the truth therefore you cannot be heard not to answer a
question asked. What happens when a witness gives evidence different from what was in his
statement to the Police? How about those who refuse to give evidence in court yet they have
been called as witnesses? Such people may be charged with contempt of court for 7 days until
they give evidence before court. (Refractory witnesses).

A hostile witness is a witness on the accuseds side but when giving evidence, starts giving
evidence against the accused and in favour of the prosecution. How do you deal with such a
witness? You may apply to court to declare such a witness hostile. You then have a right to
ask court to allow you to cross examine your witness in this manner:
a) Examination-in-chief
You encourage the witness to tell their story, during which you treat them very calmly and
gently to speak without fear or intimidation. At this point if you find him hostile, you may
indulge court to declare him as such.
b) Cross examination
This is done by the other side, to destroy or impeach the credit of the witness by showing that
their evidence should be taken with less weight and that it should not be believed. Once court
rules that he is unreliable, no side can use him. If this step of cross examination is skipped,
court will still consider the evidence adduced.

c) Re-examination
During this time, whatever else a witness has to say is heard although the court has the final
say. The party who called the witness tries to repair the damage that was caused during
examination in chief and cross examination. At this point new evidence cannot be introduced
unless it is to clear any damage that had been caused at those previous stages.
If it is found that the witness told lies, such witness may be prosecuted for perjury. See s.131
Evidence Act.

Exceptions to the general rule as to the compellability of witnesses

Most of these are based on the privileges granted by law, e.g. public privilege, professional
privilege and private privilege. These privileges are based on public policy, i.e. a spouse
cannot testify against another his/ her spouse due to the desire to protect the marriage
institution. A witness may be competent but not compellable.

Private privilege
This is the privilege or immunity enjoyed by private persons as a result of their personal
status, e.g. husband and wife. See s.120. The communication between spouses during the
subsistence of the marriage is deemed to be privileged therefore a spouse cannot be
compelled to testify against the other during criminal proceedings. The aim is to protect the
sanctity of the marriage relationship. The parties are still bound even after divorce/separation.

Professional privilege
This refers to the privileges enjoyed by professionals not to disclose any communication
between them and their clients, e.g. doctors cannot be compelled to testify about matters that
come to their knowledge in the course treating their patients. They are bound by their Laws
and Ethics not to disclose, which if they do, amounts to misconduct.

The Evidence Act specifically provides for the protection of Advocates and Legal Advisers
against compulsion from testifying about matters between them and their clients. S.125
provides that no Advocate shall at any time, be permitted, unless with his clients express
consent to disclose any communication made to him in the course and for the purpose of his
employment as such Advocate by or on behalf of his client or to state the contents or
conditions of any document with which he has become acquainted in the course and for the
purpose of his professional employment or to disclose any advice given by him to his client
during the course of and for the purpose of his employment. It would amount to professional
misconduct if such advocate failed to disclose although there is an exception where the client
gives express consent to disclose.

Omari s/o Salum v R [1956] 22 EACA

Held: Court restated the provisions of s.125, that it is professional misconduct for an
advocate to disclose any communication made to him by his client, unless the latter has
 consented, that the only exception is when the client has consented or when the
communication is for an illegal purpose.

S.125 has exceptions to this rule. The proviso- provided that nothing in this section shall
protect from disclosure:
a) any such communication made in furtherance of an illegal purpose;
b) Any fact observed by any Advocate in the course of his employment as such showing that
any crime or fraud has been committed since the commencement of his employment. The
section also says that the obligation not to disclose information unless it is for an illegal
purpose continues even after the employment relationship has ceased.
S.126 - the obligation not to disclose as well as the privilege of not being compellable
extends to the interpreters, servants and clerks employed by the Advocate. This is in
recognition of the fact that the advocate does not know of the facts or act on them alone.
They are bound even on termination of the contract.

Under s.127, even if a party volunteered the evidence in court on the communication between
him and the Advocate, he shall not be deemed to have consented to disclosure by the
Advocate, i.e. you cannot waive a privilege as attached to the communication. This provision
also attaches to legal advisors- s.128. The difference between an Advocate and a Legal
Advisor is that the former is LDC trained with a PGDP while the latter may not possess those
qualifications.

Judges and Magistrates also have professional privilege. S.119 provides that no judge or
magistrate shall, except upon the specific order of some court to which he is subordinate, be
compelled to answer any questions as to his own conduct in court, as such judge or
magistrate or as to anything which came to his knowledge in court while in such position, but
s/he may be examined as to other matters which occurred in his presence while acting as such
e.g. Her Worship Alividza and the accused, Arinaitweshe could testify.

S.124 provides for both professional and public privilege- no magistrate or political officer
shall be compelled to say where he got any information as to the commission of any offence
and no revenue officer shall be compelled to say where he got any information as to the
commission of any offence against the public revenues. This section protects informers.
 Public Privilege
This protects Government secrets from disclosure during court proceedings. It deals with
Diplomatic and Presidential immunity. These categories of people cannot be compelled to
give evidence in court. See ss122-123. From these sections, the issue is- who has the
authority to determine whether the public interest and security would be in danger? In court
the issue is usually whether the court can compel a public officer to explain why he thinks a
public document must be confidential.

Duncan v Cammell-Laird
Facts: A British sub-marine was sunk during World War II, killing 99 men. The dependants
of the deceased persons sued for damages due to negligence. They applied for the discovery
of certain documents relating to the accident. Government refused to disclose the documents
contending that their production would injure public security. The plaintiffs counter-argued
that the claim for privilege should not be final, but should be investigated by the court to
avoid injustice.
Held: HOL- The court should accept the claim for privilege on face value and should not
inquire into the reasons for not disclosing the documents.

Conway v Rimmer
Issue: The issue was the same as in the Duncan case; however, the HOL overruled their
decision in the Duncan case.
Facts: The plaintiff was a former Police Constable. He sues the department for malicious
prosecution and false imprisonment and he applied for discover of certain documents in the
possession of the defendant who claimed privilege.
Held: Court laid down a number of principles:
i) The documents should be provided for inspection in court and if court finds that disclosure
will not be prejudicial to public interest or that any possibility of such prejudice was
insufficient to justify its being withheld, then disclosure should be ordered.
ii) In all cases, the court should balance the two conflicting public interests in such cases, i.e.
that no harm should be done to the state by disclosure against the public interest in the proper
administration of justice, by ensuring that all relevant evidence is adduced.