See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/374928102

Relevance of Expert Opinion Evidence in Ghanaian Law

Article in SSRN Electronic Journal · October 2023

CITATIONS READS
0 137

1 author:

Charles Boakye
Ghana School of Law
4 PUBLICATIONS 1 CITATION

SEE PROFILE

All content following this page was uploaded by Charles Boakye on 24 October 2023.

The user has requested enhancement of the downloaded file.

 Relevance of Expert Opinion Evidence in
Ghanaian Law
Charles Boakye
Abstract— Expert evidence is one of the two main exceptions available to the inadmissibility of opinion
evidence. The law recognises the dangers associated with expert opinion evidence insofar as the role of
the trier of fact is concerned and makes effort to outline special conditions required for its admissibility. This
piece attempts to elucidate the intricacies of the law on expert evidence including these special conditions.
It covers the weight to be attached to expert evidence when admitted, the treatment of conflicting expert
opinions and what the court ought to do when accepting or rejecting expert evidence. It then suggests that
even though the court is not bound by expert opinion evidence, a judge, as a matter of prudence, must
seek expert assistance where the subject matter is outside his common experience and cannot properly
dispose of the case without recourse to expert evidence.

Keywords— Opinion Evidence, Expert, Admissibility, Weight, Conflicting Opinions, Reasons

—————————— ◆ ——————————

1 INTRODUCTION

OPINION evidence is generally said to be inadmissible inasmuch as opinion formed

on facts is the task of a judge or jury in jury trials whereas the business of a witness is to state
those facts.1 A witness is not permitted to draw inferences from facts since every witness is a
witness of fact and not of opinion. Hence, a witness before a court is expected to state the facts of
which he has personal knowledge and not his opinion about those facts.2 This general rule is not
without exceptions: firstly, a qualified expert may state his opinion on a matter calling for the
expertise which he possesses (expert opinion evidence); and secondly, a non-expert witness may
state his opinion on a mater not calling for any particular expertise as a way of conveying the
facts which he personally perceived (lay opinion evidence).3 Our focus is to discuss the former
and its relevance in Ghanaian law.

In the discharge of its undaunted duty to administer justice,4 the courts encounter numerous
diverse issues some of which are highly technical and thus require the assistance of specially
trained persons or persons with special knowledge in the relevant field in which the issue arose

• Charles Boakye, LL.B. (Hons.), University of Ghana; B.L. Candidate, Ghana School of Law.
1 Section 2(1) and (3) of the Evidence Act, 1975 (NRCD 323) provide that in a jury trial a question of fact shall
be decided by the jury whereas in a trial without a jury, a question of fact shall be decided by the Court.
2 See: NRCD 323, s. 60(1).

3 See: NRCD 323, ss. 60(4), 111 & 112; Maxwell Opoku-Agyemang, Law of Evidence in Ghana (Second Edition,

ADMAX Law Series 2015), p. 637. On lay opinion evidence, see Tackie and Another v. The State [1964] GLR 262 (SC),
p. 266, where Apaloo JSC held: “We ourselves are aware of no rule of law which lays it down that evidence of handwriting can
only be given by handwriting experts. We think the learned circuit judge was entitled to rely on the evidence of these non-expert
witnesses whose testimony was tested before him in cross-examination.”
4 See: The Constitution 1992, Art. 125(1).

~1~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

known as experts to resolve them.5 The opinion evidence given by an expert is however not free
from dangers. Expert evidence is susceptible to misuse and may distort the fact-finding process.
Dressed up in technical language which the trier of fact does not easily understand and submitted
through a witness of impressive antecedents, this evidence is apt to be accepted by the trier of
fact as being virtually infallible and as having more weight than it deserves.6 Expert opinions
usually emanate from academic literature and out-of-court interviews, which material is unsworn
and not available for cross-examination.7 These materials often times have prejudicial effects
which may influence the mind of the judge or jury. Also, expert evidence is time-consuming and
expensive. The trial may degenerate into a contest of experts with the trier of fact acting as referee
in deciding which expert to accept.8 Notwithstanding these risks, the courts resort to expert
opinion evidence in those exceptional cases where the judge or jury would be unable to reach
their own conclusions in the absence of assistance from experts with special knowledge.

Recognising these dangers and the need to avoid or alleviate its effects, the law allows a party to
cross-examine the expert witness concerning the basis for his opinion or inference.9 While in
appropriate cases expert evidence may be allowed to determine the ultimate issue,10 the law is
explicit that expert evidence is only a prima facie evidence, inconclusive and does not absolve the
trier of fact from coming to its own conclusions.11 The judge or jury also have discretion in
assigning the appropriate weight to the admitted expert evidence.

2 ADMISSIBILITY AND BASIS OF EXPERT OPINION EVIDENCE

A witness is not to give opinion evidence but to testify only to facts within his personal
knowledge. Section 60(1) of the Evidence Act, 1975 (NRCD 323) provides that a witness may not
testify to a matter unless sufficient evidence is introduced to support a finding that the witness
has personal knowledge of the matter. Opinion evidence is thus inadmissible. However, expert
opinion evidence is admissible as an exception to the rule against opinion evidence in matters
which require the application of special knowledge which is outside the experience of the judge
or jury, due to the technical nature of the facts.12 An expert opinion evidence is therefore
admissible only on matters calling for expertise to assist the trier of fact in understanding the

5 See: S. A. Brobbey, Essentials of the Ghana Law of Evidence (Datro Publications 2014), p. 334.
6 See: R v. Mohan [1994] 2 SCR 9, p. 21, Sopinka J.
7 See: Maxwell Opoku-Agyemang, Law of Evidence in Ghana (n 3) 640.

8 ibid.

9 See: NRCD 323, s. 113(3).

10 See: Evidence Act, 1975 (NRCD 323), s. 115; William Ashitey Armah v. Hydrafoam Estates (Gh.) Ltd [Civil Appeal

No. J4/33/2013] dated 28th May, 2014 (SC), pp. 8-9, Benin JSC.
11 See: Sasu v. White Cross Insurance Co. Ltd. [1960] GLR 4 (CA), Van Lare JA; S. A. Brobbey, Practice and Procedure

in the Trial Courts and Tribunals of Ghana, Second Edition (Advanced Legal Publications; 2011), p. 103, para. 222.
12 Section 60(4) of NRCD 323 provides that the requirement of personal knowledge for a witness to testify under

section 60(1) is subject to section 112 relating to opinion testimony by expert witnesses.

~2~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

evidence or determining the matter. Section 112 of the Evidence Act outlines the essential
conditions for the admissibility of expert opinion evidence as follows:

“Where the subject of the testimony is sufficiently beyond common experience that the opinion or
inference of an expert will assist the Court or tribunal of fact in understanding evidence in the action
or in determining an issue, a witness may give testimony in the form of an opinion or inference
concerning a subject on which the witness is qualified to give expert testimony.”

For an expert opinion evidence to be admissible, the above statutory provision and case laws to
be discussed below require that:

(a) there must be opinion evidence given by a qualified expert;

(b) the subject-matter of the evidence must be sufficiently beyond the common experience
of the judge or jury;
(c) the evidence must assist the Court or tribunal of fact in the determination of the matter;
(d) the evidence must be impartial, unbiased and objective; and
(e) the evidence must be reliable.

In addition to these requirements, the expert opinion evidence must be relevant to the issue before
the court since irrelevant evidence is inadmissible.13 And even if relevant, the opinion evidence
of an expert may be excluded if its probative value is substantially outweighed by undue delay,
unfair prejudice and unfairly surprise a party.14

An expert witness may while testifying base his opinion or inference on matters perceived by or
known to him because of his expertise or on matters assumed by him to be true for the purpose
of giving his opinion or inference.15 The is in contrast with that of an ordinary witness who is
required to testify base on matters within his personal knowledge. The matters on which an
expert witness bases an opinion or an inference when testifying need not be admissible in
evidence.16 This provision according to the esteemed jurist, retired Justice Brobbey, paves way for
the admissibility of hearsay as the basis for expert evidence.17 The matters on which a witness
who is testifying as an expert bases an opinion or an inference need not be disclosed before the
witness states the opinion or inference unless the Court otherwise determines, but the witness
may be examined by a party concerning the basis for the opinion or inference and the witness
shall then disclose that basis.18

13 See: NRCD 323, s. 51(2); Mensah and Others v. The Republic [1979] GLR 523 (HC), p. 534, Cecilia Koranteng-
Addow J. (as she then was) held: “The general rule governing admissibility of evidence is that all evidence which is
sufficiently relevant to an issue before the court is admissible and all that which is irrelevant or insufficiently relevant, should be
excluded.”
14 See: NRCD 323, s. 52; Bonsu alias Benjillo v. The Republic [1999-2000] 1 GLR 199 (SC), p. 209, Bamford-Addo JSC.

15 See: NRCD 323, s. 113(1).

16 See: NRCD 323, s. 113(2).

17 See: S.A. Brobbey, Essentials of the Ghana Law of Evidence (n 5) 338.

18 See: NRCD 323, s. 113(3).

~3~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

2.1 A Qualified Expert

An expert is a person with expertise on the subject-matter to which his testimony relates by reason
of his special skill, experience or training. For it to be admissible, the opinion evidence must be
given by a witness who is shown to have acquired special or peculiar knowledge through study
or experience in respect of the matters on which he undertakes to testify.19 Section 67(1) of the
Evidence Act, 1975 (NRCD 323) stipulates: “A person is qualified to testify as an expert if, to the
satisfaction of the Court, that person is an expert on the subject to which the testimony relates by reason of
the special skill, experience or training of that person.” The competency of an expert witness is a
question of law for the judge to decide.20 Thus, whether or not a person is qualified as an expert
is a question to be determined by the court.

An expertise can be acquired through education, experience or training. Example of qualified

experts are handwriting expert, forensic expert, accountants, surveyors, engineers, medical
practitioner, etc. Section 121 of the Criminal and Other Offences (Procedure) Act, 1960(Act 30)
outlines some of the qualified experts in criminal practice to include medical practitioner, analyst,
chemical examiner, geologist, assayer or mineralogist. In Guy Nee Whang and Another v.
Vanderpuye Manison,21 Her Ladyship Adinyira JSC (as she then was) noted that: “the evidence
of DW1, who from his credentials as a psychiatrist and a lecturer in Neuro Psycho Pharmacy and Chief
Examiner in psychiatry at the College of Physicians and Surgeons in Ghana with 45 years experience, was
evidently that of an expert.” Also, in Luja Development Ltd. v. Lotus Corp,22 on the plaintiff’s claim
that two of the houses bought from the defendant have several defects, Eric Kyei Baffour J (as he
then was) expressed concern that the plaintiff could have called an expert evidence in terms of
the evidence of an architect, a contractor or a structural engineer in the persons of any of the
professionals that worked on the properties to testify.

A person may also qualify as expert not because of education and training but by experience. In
R v. Silverlock,23 a solicitor was held to be a competent expert on handwriting analysis even
though his only qualification was a study of handwriting on his own and the experience gained
in the course of his practice as a solicitor. On a similar footing, in Osei and Others v. Republic,24
His Lordship Francois JA (as he then was) held that: “a handwriting expert was one who had adequate
knowledge and skill as to handwriting whether acquired in the way of his business or not. Consequently,
any person whose business had been the detection of forgeries could be used to prove attempts to dissemble
handwriting. In this case a witness called by the prosecution, having devoted a considerable

19 See: Maxwell Opoku-Agyemang, Law of Evidence in Ghana (n 3) 648.

20 See: NRCD 323, s. 3(1)(b) & (2).
21 [Civil Appeal No. J4/6/2015] dated 17th June, 2015 (SC), p. 7.

22 [Suit No. GJ/482/2017] dated 11th February, 2019 (HC).

23 [1894] 2 QB 766.

24 [1976] 2 GLR 383 (CA), p. 391.

~4~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

number of years to the examination of and undergone a course in disputed handwriting,

eminently qualified as an expert…”

A qualified expert may be appointed by the parties or the court itself. In civil actions, Order 26
rule 6 of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides that when a court expert
is appointed, any party may call one expert witness to give evidence on the matter reported on
by the court expert. A party may however call more than one expert witness with the leave of the
Court in exceptional circumstances. Section 114(1) of the Evidence Act states that in an action
the Court may, at any time, on its own motion or at the request of a party, appoint a court expert
to inquire into and report upon a matter on which an expert opinion or inference would be
admissible under section 112. The Court expert may be cross-examined by any of the parties.25 A
party however need not appoint his own expert but can rely on the evidence of a court appointed
expert to prove his claim. In William Ashitey Armah v. Hydrafoam Estates (Gh.) Ltd,26 where
the appellant, unlike the respondent who called three different experts for land valuation, did not
call any expert evidence and instead opted to rely on the evidence given by the two experts
appointed by the court, the Supreme Court held that the plaintiff was entitled to rely on the
evidence of the court appointed experts.

2.2 Subject-Matter Sufficiently Beyond the Common Experience of the Judge or

Jury
An expert opinion evidence is admissible on a matter calling for expertise which is sufficiently
beyond the common experience and appreciation of the trier of fact. The expert opinion must
provide information which is outside the experience and knowledge of a judge or jury. Therefore,
if on the proven facts a judge or jury is able to form their own opinion or draw inferences from
the facts to reach their own conclusions without the assistance of any expert evidence due to their
general knowledge on the matter, expert evidence need not be admitted. In R v. Turner,27 Lawton
LJ (as he then was) expounded the principle as follows: “An expert’s opinion is admissible to furnish
the court with scientific information which is likely to be outside the experience and knowledge of a judge
or jury. If on the proven facts a judge or jury can form their own conclusions without help then the opinion
of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment
more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact
alone make his opinion on matters of human nature and behaviour within the limits of normality any more
helpful than that of the jurors themselves; but there is a danger that they may think it does.”

25 See: Evidence Act, 1975 (NRCD 323), s. 114(4). In William Ashitey Armah v. Hydrafoam Estates (Gh.) Ltd (n 10) 2,
Benin JSC (as he then was) said: “The court appointed experts carried out their assignments and submitted their reports.
These experts testified as court witnesses and were cross examined by both sides.”
26 [Civil Appeal No. J4/33/2013] dated 28th May, 2014 (SC), pp. 8-9, Benin JSC.

27 [1975] 1 All ER 70 (CA), p. 74; (1974) 60 Crim App R 80 (CA), p. 83. This was quoted with approval in Director of

Public Prosecutions v. Jordan [1976] 3 All ER 775 (HL), p. 779, per Lord Wilberforce.

~5~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

In Ghana, the locus classicus case in point is Manu alias Kabonya v. The Republic,28 where on
the issue whether medical evidence was necessary to establish the cause of death of a little girl,
the eminent Archer JA (as he then was) speaking for the Court of Appeal held that: “[t]he legal
position is that as regards the proof of the cause of death, medical evidence, though desirable, is not essential:
see R. v. Nwokocha (1949) 12 W.A.C.A. 453. In this appeal, the external wounds inflicted by the appellant
on the deceased were concentrated on the crown of the head and neck of the deceased, and in the words of
the appellant himself, the deceased died instanter after the wounds had been inflicted. In such a case it seems
the jurymen are perfectly entitled to make up their own minds as to whether or not the wounds
caused the death of the deceased without the assistance of any medical evidence. …medical
evidence may be desirable in some cases but not in all cases. In any case the common sense of the jury
can be confidently relied upon.” This requirement was further given due consideration in the
Supreme Court Case of Ebusuapanyin Kweku Assafua and Others v. Regional Secretary, Land
Commission Secretariat and Others,29 where the plaintiff failed to call expert survey evidence to
prove the boundaries of the dispute land. His Lordship Dotse JSC (as he then was) said: “It should
indeed be noted that, in the absence of verifiable scientific Survey Plans, overt acts of physical features like
Anthills, cemeteries, old settlements, sacred groves, streams, rivers and other features have always been
accepted and used to indicate boundary features between two adjoining lands.” Thus, their Lordships
relied on their common experience on issues of land boundaries to determine the boundaries of
the disputed land without resort to expert opinion evidence.

On the other hand, where the subject-matter is sufficiently beyond the common experience of the
judge or jury, a party may call for expert evidence to enable him prove or disprove a claim. In
Luja Development Ltd. v. Lotus Corp (supra), where the plaintiff claimed that two of three
houses bought from the defendant have several defects, he failed to call expert evidence to prove
the alleged defects. These alleged defects in the houses were not within the common experience
of the judge and hence call for expert opinion. His Lordship Eric Kyei Baffour J (as he then was)
said that: “I find it baffling that in a case such as this, where an expert evidence in terms of the evidence of
an architect, a contractor or a structural engineer in the persons of any of the professionals that worked on
the properties was not called by Plaintiff to testify. …the consequences of the failure to call such material
witnesses must be borne by the Plaintiff who had made those claims before the court.”

A judge, as a matter of prudence, must seek expert assistance where the subject matter is outside
his common experience and cannot properly dispose of the case without recourse to expert
evidence. In Mr. Senti Michael v. Rev. Father Mon Kwame and Another,30 Amegatcher JSC (as
he then was) delivered as follows: “In this case, the trial judge did not find the need to seek guidance
from a forensic expert to assist him resolve the conflicting claims regarding the signature of the testator on
the Will. The trial judge opted to determine this contest using his ocular vision to do a comparison of four
signatures of the testator tendered in court by the respondent. Apart from the original Will, the rest of the

28 [1977] 1 GLR 196 (CA), p. 198.

29 [Civil Appeal No. J4/17/2013] dated 12th March, 2014 (SC), pp. 12-13.
30 [Civil Appeal No. J4/51/2019] dated 4th November, 2020 (SC), pp. 27-28.

~6~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

documents were not produced from proper custody but nevertheless accepted by the trial judge. After doing
the comparison, he came to the conclusion that the testator signed the 2005 lease agreement exhibit ‘B’, the
2009 letter to Agnes Pokua, exhibit ‘C’ but not the 2012 Will, Exhibit ‘1’ and the 2012 letter to Ecobank,
exhibit ‘D’. How the trial judge came to that conclusion is difficult to fathom because apart from not being
a forensic expert in handwritings, he was not conversant with the testator’s signature and could not say
for sure which signature should be the primary one for the purposes of comparison with others. … An
invitation to the bankers of the testator and other key public institutions where the testator transacted
business requesting them to furnish the court with signatures on cheques and letters authored by the
testator in 2005, 2009 and 2012 would have assisted the court greatly. … In the peculiar facts of this case,
we agree with the earlier conclusion of the Court of Appeal that in the absence of an expert examination to
assist the court make its findings on which signatures of the testator were different from others and why,
the trial court could not determine conclusively that the testator did not author the signature on the Will.”

2.3 Assisting the Court or Tribunal of Fact in the Determination of the Matter
To be admissible, the expert opinion evidence must assist the Court or tribunal of fact in
understanding evidence in the action or in determining the issue in dispute. Assist here means
the opinion evidence must help the trier of fact to reach a conclusion. If on the proven facts a
judge or jury can form their own conclusions without help then the opinion of an expert is
unnecessary.31 In likewise manner, if the expert evidence to be adduced will not assist the trier of
fact in understanding evidence in the action or in determining the issue, then it is not worth been
called for. This essential admissibility requirement was accentuated in the case of Madam
Comfort Ofori v. Kwame Appenteng,32 where Benin JSC (as he then was) said: “[i]t is true that it
is the court’s duty to ascertain the relative positions of the land being claimed by each party. But it is to
ease that finding that an expert, in this case, a surveyor was called upon to assist the court arrive at a
decision. If the expert is unable to tell the court precisely where the respective pieces of land are located, in
spite of the site plans, then it would have been better not calling for expert testimony at all.” In a murder
case on appeal, His Lordship Gyaesayor JA (as he then was) commended in Joseph Kwasi
Quarshie v. Republic,33 that “[e]ven though the post-mortem report like any other expert evidence is not
conclusive, it helps us to arrive at a decision as to the nature of the injuries inflicted on the deceased and
the cause of her death.”

The condition that the expert evidence must assist the trier of fact, as used in section 112 of the
Evidence Act, 1975(NRCD 323), has also been taken to mean that the expert evidence is not
binding but serves as a guide for the trier of fact to arrive at a conclusion. In Mary Quarcoo v.
Victoria Welbeck,34 Ansah JSC (as he then was) stated that: “the trial judge had able guidance from
a well-qualified writing expert... …the report was supposed merely to assist the court in deciding the vital

31 See: R v. Turner [1975] 1 All ER 70 (CA), p. 74, Lawton LJ.

32 [Civil Appeal No. J4/17/2017] dated 6th December, 2017 (SC), p. 3.
33 [Criminal Appeal No. H2/20/17] dated 26th July, 2018 (CA).

34 [Civil Appeal No. J4/41/2012] dated 25th November, 2015 (SC), pp. 9-10.

~7~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

issue of whether or not the signature on the purported will as being that of Joseph Nii Narh Ashong, was a
forgery. And the trial judge was right in treating the evidence of the expert as a guide to arrive at this
conclusion.” This was further explained in the case of Mr. Senti Michael v. Rev. Father Mon
Kwame and Another,35 where His Lordship Amegatcher JSC (as he then was) articulated that:
“[a]s a general rule, the final decision on the authenticity of a document or a signature rests with the court.
But the court cannot just conjure that decision-making from the wilderness without strong and cogent
reasons and in many cases without the assistance of an aid especially in a highly technical matter such as
comparing signatures and establishing its authenticity. So, in the absence of clear evidence, expert forensic
evidence is relevant to assist the court make a determination one way or the other. That is not to say the
expert opinion is binding on the court. The expert opinion is to guide the court in making a just
determination...”

Even though not binding on the court or the tribunal of fact, where the expert opinion evidence
is shown to assist the trier of fact in making a just determination, the judge or jury ought to take
it into consideration before arriving at a conclusion. In Richard Osae Duodu v. Nana Ama
Benewah,36 where the respondent who alleged fraud raised an issue calling upon the court to
appoint a forensic expert to examine and report on all the relevant documents in connection with
the case to assist the trial court to determine the issue of forgery, the trial judge made an order for
examination by the forensic expert of all the relevant documents. The expert witness gave
evidence and made it clear that exhibit “A” which is the title deed transferring the land in dispute
by Carl Reindorf to Emmanuel Roger Amudzi, was not genuine as the signature of Carl Reindorf
was forged. The trial court did not find the fraud to have been proved because of its failure to
take into account the expert evidence. In reversing this decision, both the Court of Appeal and
the Supreme Court held that the alleged fraud which was pleaded had been proved by the
forensic expert and other corroborative evidence on record.

2.4 An Impartial, Unbiased and Objective Evidence

The expert opinion evidence to be admissible must be impartial, unbiased and objective evidence
irrespective of the appointor, whether by a party or by the court. Thus, the evidence must not be
fabricated, concocted, cooked, contrived or distorted to suit one party’s case but rather must come
from an objective, independent and unbiased consideration of the facts. The reason been that lack
of independence, impartiality and objectivity of the expert evidence can incontrovertibly lead to
miscarriage of justice. In Banousin v. Republic,37 in accepting the evidence of a medical officer
PW3 on rape, His Lordship Dotse JSC (as he then was) held that: “…PW3 was a prosecution witness.
In line with the quotation referred to supra, he ought to have been deemed to support the case of the
prosecution, but he turned out to have given an objective and unbiased expert testimony. Under these
circumstances, we feel quite comfortable to make the necessary deductions and conclude that it is safe to

35 [Civil Appeal No. J4/51/2019] dated 4th November, 2020 (SC), p. 26.
36 [Civil Appeal No. J4/32/ 2011] dated 12th December, 2012 (SC).
37 [Criminal Appeal No. J3/2/2014] dated 18th March 2014 (SC), p. 26.

~8~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

rely on the expert evidence of PW3.” In 2000 Limited v. Francis Otoo,38 where the trial court
appointed an accountant to prepare a report in a matter where the respondent sued the appellant
claiming for the recovery of an amount of GHc36,000.00 as appellant’s indebtedness to it, to which
the appellant denied. In rejecting the report as having no value, Appau JSC (as he then was)
expressed that: “[t]his was no sound reasoning for presenting a one-sided report as a referee. Justice must
not be slaughtered on the altar of time. As a court appointed expert witness, if in the course of his
assignment C.W.1 encountered any difficulties that were making the proper accomplishment of his
assignment near impossible, he was duty bound to report back to the appointing authority, which is the
court, for further direction which he never did. He accepted everything the appellant told him; even
about the documents the respondent had already filed, without any verification and thereafter
presented a one-sided report which he himself admitted did not conform to accounting
principles.”

2.5 A Reliable Evidence

Finally, the opinion evidence rendered by an expert must be reliable in order to be admissible.
The expert opinion must be credible, consistent, uncontradictory and unimpeachable. The law
therefore allows any of the parties to cross-examine the expert who gave the opinion evidence to
establish its credibility and accuracy.39 In Saanbaye Basilde Kangberee v. Alhaji Seidu
Mohamed,40 Dotse JSC (as he then was) held as follows: “it is evident that the trial Judge had no
basis to have ignored the credible and convincing evidence of the plaintiff based on his documentary
materials of title and to have rather preferred the porous, weak, untested, inconsistent and
contradictory evidence of a discredited Surveyor, which is what Andy Agbakpe, C.W.1 at the end
of the day proved to be on record. …a trial Judge need not accept the evidence given by an expert witness
such as C.W.1.” In Madam Comfort Ofori v. Kwame Appenteng,41 Benin JSC (as he then was)
said: “From the totality of the evidence of the surveyor one is able to point out not less than nine areas
where he gave contradictory and inconsistent statements. Since he was called as a court witness, the court
ought to have treated his testimony as unreliable and lacking credibility, and should have discountenanced
it altogether. … And given the fact that the surveyor was not positive and conclusive in findings he himself

38 [Civil Appeal No. J4/04/2017] dated 17th October, 2018 (SC), pp. 4-5.
39 Section 113(3) of the Evidence Act, 1975 (NRCD 323) provides inter alia that the expert “witness may be examined by a
party concerning the basis for the opinion or inference and the witness shall then disclose that basis”; Section 114(4) also states:
“Whether called as a witness by the Court or a party, the Court expert may be cross-examined by the party calling the Court
expert and by any other party.” In Nyameneba & Others v. The State [1965] GLR 723 (SC), the Supreme Court held that
“a scientific report is prima facie evidence of the matters contained therein and not conclusive evidence. Accordingly, once the
appellants had disputed the accuracy of the report, the prosecution should have called the chemist to be cross-examined.”
40 [Civil Appeal No. J4/44/2012] dated 4th July, 2012 (SC), p. 24.

41 [Civil Appeal No. J4/17/2017] dated 6th December, 2017 (SC), pp. 3-4. See: Mfum Farms and Feedmill Ltd. v.

Madam Agnes Gyamfua (Substitued by Mrs. Lovia Opoku Bandoh) [Civil Appeal No. J4/25/2017] dated 24th
October, 2018 (SC), p. 13, per Dotse JSC.

~9~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

had put down, nothing prevented the courts from rejecting same as unreliable and forming their own
opinions on the evidence adduced by the parties.”

In Eric Asante v. The Republic,42 DNA evidence was held to be a reliable expert evidence. His
Lordship Pwamang JSC (as he then was) had this to say: “A scientific report is prima facie evidence
of the matters contained in it and not conclusive evidence so the law requires that where the accuracy of a
scientific report is disputed in proceedings then the person who undertook the investigation or examination
and produced the report should testify and subject himself to cross examination. ... The usual objective of
forensic DNA analysis is to detect variations in the genetic material that differentiate one individual from
another. Its accuracy is rated very high and it is considered reliable.” The source of the expert
opinion may also induce its reliability. In Celestine Kuagbenu v. Cecilia Spencer,43 Gbadegbe
JSC (as he then was) said: “we are left on the crucial issue of fact which the trial court had to determine
regarding the location of the disputed land with the evidence of the surveyor from the Town and Country
Planning Department and that of the town planning officer. The pieces of evidence testified to by these
independent witnesses were derived from documents which were undisputed and tended to render their
evidence quite worthy of belief. Further, the unchallenged pieces of evidence testified to by the said persons
dealt with matters in the realm of specialised knowledge, and had the mark of reliability.”

3 THE ULTIMATE ISSUE AND WEIGHT OF EXPERT EVIDENCE

The law is trite that an expert opinion evidence does not decide the issue it is offered to prove or
disprove. It only assists the court in making a finding on the issue by considering it alongside
other evidence on record. It is only a prima facie evidence of the matters contained therein and
not conclusive evidence, and should not be taken as a substitute for what the court has to decide.44
The court is thus not bound by an expert opinion evidence. There is a plethora of cases on this
point, the locus classicus of which include but not limited to Sasu v. White Cross Insurance Co.
Ltd.,45 where the Court of Appeal held that the expert evidence is to be received with reserve, and
does not absolve a judge from forming his own opinion on the evidence as a whole. Van Lare JA
(as he then was) said thus: “[w]e think that the learned judge attached too much importance to the opinion
of the two other expert witnesses. Admittedly they were qualified engineers, but they cannot detract by an
ex cathedra opinion from the weight of the circumstance that the physical condition of the steering
mechanism disclosed by the evidence was, on the face of it, due to wear and tear. … We are of opinion that

42 [Criminal Appeal No. J3/7/2013] dated 26th January, 2017 (SC), pp. 8-9.
43 [Civil Appeal No. J4/58/2013] dated 3rd June, 2015 (SC), pp. 2-3.
44 See: S.A. Brobbey, Practice and Procedure in the Trial Courts and Tribunals of Ghana (n 11). In S.A. Brobbey,

Essentials of the Ghana Law of Evidence (n 5) 339, the learned jurist stated that: “The established rule is that experts give
evidence and do not decide cases. The evidence given by the expert is only prima facie case and should not be considered as
deciding the issue for the court. That evidence is not binding on the judge. It is to be considered as guides which are to assist the
judge in deciding on the issues before him.”
45 [1960] GLR 4 (CA).

~ 10 ~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

the learned trial judge erred when, accepting without question the opinion of the experts…”46 The law was
succinctly captured in the case of Fenuku v. John Teye,47 where his Lordship Ampiah JSC (as he
then was) held thus: “[t]he principle of law regarding expert evidence was that the judge need not accept
any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a
conclusion of his own after examining the whole of the evidence before him. The expert evidence was only
a guide to arrive at the conclusions.” In a much similar holding in In Re Agyekum (Decd.);
Agyekum & Ors v. Tackie & Ors,48 Twum JSC (as he then was) explained that a handwriting
expert is “ordinarily employed to furnish aids to the trier of facts by which he is enabled, without any
personal expertise, to reach conclusions as to the genuineness or lack thereof of a disputed writing. But in
the last analysis the fact-finder has both the privilege and function of reaching his own conclusions as to
the genuineness of disputed signatures or other writing with or without the opinion evidence of a
handwriting expert.”

A judge or jury is therefore entitled to reach their own conclusions independent of the expert
evidence on record. In Madam Comfort Ofori v. Kwame Appenteng,49 his Lordship Benin JSC
(as he then was) said thus: “The courts below failed to realize that they were not bound to accept the
findings of the court-appointed surveyor even if his testimony was credible and reliable. They failed to
realize that the surveyor, as an expert, was there to assist the court only, so his evidence was subject to all
the rules pertaining to evaluation of witness testimony. The court as the trier of fact was bound to
form an opinion on the facts, independent of the surveyor’s testimony. … Thus, even where expert
evidence has been received, the power of decision rests solely with the trial judge in civil matters”
and in criminal matters except in jury trials where it rests with the jury. In Kwame Bakala v. Eric
Amoah Bampo and Another,50 Angelina Mensah-Homiah J (as she then was) stated thus:
“…expert evidence is in fact opinion evidence and the court is not bound by it. Thus, in the absence of the
expert’s evidence, the court is still enjoined to examine all the evidence on record, make its findings and
come to a conclusion.”

Notwithstanding the rule that expert opinion evidence is inconclusive and not decisive of the
issue, the law provides that an expert may testify on the ultimate issue. Section 115 of the
Evidence Act, 1975 (NRCD 323) states inter alia that the expert testimony in the form of an
opinion or inference admissible under section 112 shall not be inadmissible because the opinion
or inference concerns an ultimate issue to be decided by the tribunal of fact. In William Ashitey
Armah v. Hydrafoam Estates (Gh.) Ltd.,51 where the Supreme Court held that an expert may

46 p. 6. In Darbah and Others v. Ampah [1989-90] 1 GLR 598 (CA), p. 606, Wuaku JSC (as he then was) said: “Although
a handwriting expert was called and who asserted that the disputed signature is genuine and is that of the deceased, Edward
Benjamin Kwesi Ampah, the learned trial judge on his evaluation of the evidence rejected it. This the trial judge was perfectly
entitled to do.”
47 [2001-2002] SCGLR 985.

48 [2005-2006] SCGLR 851, pp. 856-857. See: Conney v. Bentum-Williams [1984-86] 2 GLR 301 (CA), p. 309, per Abban

JA.
49 [Civil Appeal No. J4/17/2017] dated 6th December, 2017 (SC), pp. 3-4.

50 [Suit No. INTS/15/13] dated 19th January, 2015 (HC).

51 [Civil Appeal No. J4/33/2013] dated 28th May, 2014 (SC), p. 9.

~ 11 ~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

testify on an ultimate issue in accordance with sections 112 and 115 of the Evidence Act, his
Lordship Benin JSC (as he then was) said thus: “Valuation of land, especially one which is developed,
is the work of experts, and the trial court could not be faulted in that regard when he called for expert
evidence with the support of both parties. And the value of the land being the ultimate issue the parties were
absolutely entitled to rely upon expert evidence only as expert evidence was dispositive in the circumstances
of this case.”

Even though expert evidence may be admitted and may decide the ultimate issue, the judge or
jury have discretion to determine the weight to be attached to such evidence.52 In Mary Quarcoo
v. Victoria Welbeck,53 his Lordship Ansah JSC (as he then was) held thus: “…in as much they are
experts in the type of evidence they give, they do not decide the issue; the court decides the issue. Therefore,
it is up to the court or the trial judge to apportion the requisite weight as the case may be to the evidence so
given by the expert.”

4 CONFLICTING EXPERT OPINIONS

There are instances where two or more experts give conflicting opinions on the same subject-
matter since each party is at liberty to appoint expert of his own. The law is that where two or
more experts give conflicting expert evidence, none of them bind the court which may accept any
of them or come to its own conclusion. In Nana Kwasi Broni v. Kwame Kwakye & Others,54
which concerns conflicting expert opinions on whether the signature of a Testator on Exhibit “A”
is really his signature as compared to other undisputed documents examined by two forensic
experts. His Lordship Dotse JSC (as he then was) held thus: “[i]n any event, it still remained an
opinion and it was the court’s duty to critically evaluate the evidence and come to the right conclusion. …
Indeed the learned trial Judge was not bound to accept any of the expert opinions that had been led before
him. Those pieces of evidence did not relieve him of his duty of the trier of facts before him.” In Kofigah
and Kofigah v. Atanley and Atsu,55 Pwamang JSC (as he then was) delivered as follows: “We
now turn to consider the evidence led by the plaintiffs to prove the forgery they alleged. ... Their contention
was supported by the testimony of the court appointed document examiner from the Police Forensic Science
Laboratory. We have read his testimony and examined the report of the court appointed expert, just as we
have considered the evidence of the defendants’ expert. The settled position of the law is that where the
authorship of a writing is in dispute and hand writing experts are called to offer expert opinion, such

52 In Asare Alias Fanti v. The State [1964] GLR 70 (SC), p. 74, Ollennu JSC (as he then was) held thus: “The admissibility
of the statement is one thing, the weight to be attached to its contents is quite a different thing. The admissibility is a question of
law for the judge; the weight to be attached to it, or the questions whether the contents are true or accurate are questions of fact
for the [judge] or jury. Therefore, the statement must first be admitted before its contents can be evaluated.” In Antoh v. The
State [1965] GLR 676 (SC), p. 678, Ollennu JSC (as he then was) held thus: “It is therefore incumbent on a court, after
admitting a statement in evidence … to direct itself on the issue as to the weight to be attached to the admitted statement.”
53 [Civil Appeal No. J4/41/2012] dated 25th November 2015 (SC), p. 8.

54 [Civil Appeal No. J4/19/2016] dated 22nd February, 2017 (SC), p. 31.

55 [Civil Appeal No. J4/05/2019] dated 22nd January, 2020 (SC), pp 11-12.

~ 12 ~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

opinion is only meant to assist the judge in forming her opinion as to the authorship of the writing and is
not binding on her. It is the judge who has the final say as to who the author of the writing is. ... Particularly,
where two experts give contrasting opinions, such as we have in this case, the judge is to decide
which expert opinion she prefers and assign reasons for the preference.”

5 ACCEPTING OR REJECTING EXPECT EVIDENCE

The law is that even though a court is not bound by expert opinion evidence, where the court
decides to reject the evidence of an expert, good reasons must be given for its rejection. In Tetteh
& Another v. Hayford (Substituted by Larbi & Decker),56 Dotse JSC (as he then was) said: “It is
generally understood that a court is not bound by the evidence given by an expert such as the Surveyor, in
this case. …a trial Judge need not accept evidence given by an expert. But the law is equally clear that a
trial court must give good reasons why an expert evidence is to be rejected.” This position was
reaffirmed in the case of Mfum Farms and Feedmill Ltd. v. Gyamfua,57 where his Lordship Dotse
JSC (as he then was) observed that: “…we are not unaware of the legal position stated in a good number
of respected judicial decisions that, a court is not bound by the evidence relating to an expert’s opinion such
as the surveyor given in this case. … But where a court decides to disregard the evidence of an expert,
good reasons must be given for this rejection.”

This legal proposition has been restated that where the court decides to accept or reject expert
opinion evidence, reasons must be given for its preference. In Nana Kwasi Broni v. Kwame
Kwakye & Others,58 where a Forensic Expert had testified in proof of the due execution of a Will.
Dotse JSC (as he then was) said: “The legal position might very well be stated that, in evaluating the
expert evidence given in trial of cases before the courts, in as much as the court is not bound to accept such
opinion hook line or sinker, the court in rejecting or accepting such an expert opinion must proffer
explanation for whatever position is taken in the matter.” This was further reiterated in the case of Mr.
Senti Michael v. Rev. Father Mon Kwame and Another,59 where his Lordship Amegatcher JSC
(as he then was) said: “So, in the absence of clear evidence, expert forensic evidence is relevant to assist
the court make a determination one way or the other. That is not to say the expert opinion is binding on the
court. The expert opinion is to guide the court in making a just determination and where the expert
evidence is accepted or rejected, it is the duty of the court to give reasons for its preference.” In a
more practical manner, in Benjamin Quarcoopome Sackey v. Issaka A. Musah,60 Dotse JSC (as
he then was) stated as follows: “We have warned ourselves that we need not necessarily endorse the
expert opinion of the Surveyor if there are indeed any legal reasons why we should not. However, there are
no compelling reasons why we should not accept the opinion in this case. We therefore endorse the survey

56 [2012] 1 SCGLR 417, p. 423.

57 [Civil Appeal No. J4/25/2017] dated 24th October, 2018 (SC), p. 13.
58 [Civil Appeal No. J4/19/2016] dated 22nd February, 2017 (SC), p. 32.

59 [Civil Appeal No. J4/51/2019] dated 4th November, 2020 (SC).

60 [Civil Appeal No. J4/3/2015] dated 14th March, 2017 (SC), p. 5.

~ 13 ~

Electronic copy available at: https://ssrn.com/abstract=4611542

 Relevance of Expert Opinion Evidence in Ghanaian Law

plan and it’s report tendered into evidence before the Circuit Court as authentic and one that has brought
closure to the real identity of the land in dispute.”

6 CONCLUSION
In a nutshell, expert opinion evidence is not free from dangers and the court usually admits it in
special circumstances where the matter requires expertise beyond the common experience of the
trier of fact and the said evidence is capable of assisting the court in understanding evidence in
the action or in determining the matter. In addition, the opinion evidence to be admissible must
have come from a qualified expert, must be impartial and objective, and must be relevant and
reliable. Even though expert evidence is not decisive, an expert may testify on the ultimate issue.
The court is not bound by expert opinion evidence and the weight to be attached to such evidence
is at the discretion of the judge or jury who may choose to arrive at their own conclusions
independent of the expert evidence. Nonetheless, where the court accepts or rejects expert
opinion evidence, good reasons must be given for its preference.

~ 14 ~

Electronic copy available at: https://ssrn.com/abstract=4611542

View publication stats