Admissibility Of Evidence In The Ghanaian Court With Specific Reference To Stamping Of Exhibits

The courts are constantly packed full of cases with litigants clamouring to prove their case in the hopes that judgment will be entered in their favour. In order to have an impact on the judge's decision, parties are required to prove their case with the use of evidence. That is what the judge would rely on to decide on the matter. What kind of evidence do parties then need? There are 2 elements to this; Relevance and Admissibility. One cannot go without the other. However, this write-up shall focus on the admissibility of evidence with particular regard to the stamping of such evidence.

The law regulating the stamping of exhibits is the Stamp Duty Act, 2005 (Act 689). It details the Instruments that are required to be stamped whether for the purpose of tendering it into evidence or otherwise. Section 12 requires that all Instruments meant to be stamped should be done within 2 months of execution of the Instrument. Failure to do so within the stipulated time attracts a penalty.

Another provision to ensure the stamping of Instruments is done is Section 14 of Act 689 & Section 165 of the Land Act which prevent documents from being registered unless they are stamped.

STAMPING PROCESS

1. A transferee or grantee must first submit to the Commissioner of Income Tax the particulars of the land for the assessment of stamp duty.
2. An instrument creating or transferring interest in land together with a statement in the form set out in schedule 2 of Act 689 shall be submitted to the Commissioner for assessment of chargeable stamp duty.
3. If a person is dissatisfied with an assessment, he may lodge an objection with the Commissioner within 30 days of receipt of the assessment.
4. A person who is satisfied with the decision of the Commissioner in respect of the objection may appeal against the decision of the Commissioner at the High Court within 30 days.

To admit or not to admit?

The question then remains that can an unstamped instrument be admissible in any court or arbitral proceeding?

Section 32 of Act 689 clearly provides that where an instrument with a duty is produced as evidence in a court in a civil matter or before and arbitration or referee, the judge, arbitrator or referee shall take notice of an omission or insufficiency of the stamp on the instrument.

If the instrument is one that should be stamped, payment shall be made to the registrar of the Court, arbitrator or referee and the instrument shall be received into evidence subject to just exceptions on other grounds.

The registrar, arbitrator or referee shall give a receipt for moneys paid as duty or penalty, make an entry in a book kept for recording payment of stamp duty and any penalties, and communicate to the Commissioner, the title of the proceeding in which and name of the party from whom, the registrar, arbitrator or referee received the duty and penalty.

An instrument executed in Ghana or executed outside Ghana but relating to property situate or to any matter or thing done or to be done in Ghana shall, except in criminal proceedings, not be given in evidence or be available for any purpose unless it is stamped in accordance with the law in force at the time when it was first executed.

There exist a number of cases that give credence to Section 32 but for the purpose of brevity and clarity, I shall discuss two.

Lizori Ltd V Boye & School of Domestic Science & Catering [2013 -2014] 2 SCGLR 889: This case centred on whether receipts tendered into evidence by the 2nd Defendant could be relied on by the Court. The trial court allowed the receipts to be tendered into evidence but asked the 2nd Defendant to have it stamped. The 2nd Defendant failed to do so and the Court decided not to rely on it in giving judgment.

On appeal, it was said that the trial judge was to rely on it and that stamping of documents was only for revenue and thus the appeal was allowed.

On further appeal to the Supreme Court, it was held that the receipts should have been stamped by virtue of Section 32. Nevertheless, the court referred to Section 109 of the Courts Act, 1993 (Act 459) and stated as follows, "Thus, where the trial court errs in rejecting a document on account of non stamping, the appellate should treat it as wrongfully excluded evidence and admit it. But then since the appeal is by way of re-hearing it must then place itself in the position of the trial court and evaluate the wrongfully rejected evidence in the light of the totality of the evidence and arrive at a decision".

This case therefore suggests that no document should be tendered in evidence unless it is stamped. However, a judgment or ruling should not be overturned simply because an unstamped document was admitted into evidence.

Bakana Ltd. Vs. Albert Osei and The Official Liquidator of Ghana Airways [2014] DLCA 2777: The Plaintiff claimed ownership of a property situate at Airport Residential Area and that it was not one of the properties listed in Volume 2 of the Official Liquidator's List of Properties for Ghana Airways in liquidation. This was by virtue of his Contract of sale as exhibit C and the Assignment as Exhibits E & K.

It was held on appeal as follows,"In fact the trial judge rightly in my opinion refused to take Exhibit K into account in his judgment for the reason of non-stamping at the conclusion of the trial. .... I hold that since Exhibit E or Exhibit K sins against the provisions of the Stamp Duty Act, 2005 (Act 686), it was inadmissible per se in evidence. As at today, Exhibit E and/or Exhibit K still remain unstamped. Exhibit E and or K being per se inadmissible evidence in law this court cannot rely on it to enter judgment in favour of the plaintiff or Kofi Amponsah-Boateng. This court will not therefore take them into account and/or rely on them in this judgment".

It is therefore conclusive that a document required to be stamped under the Act 689 which is not stamped should not be allowed into evidence.

Offences under the Stamp Duty Act, 2005 (Act 689)

• A person who with the intent to defraud the state executes an instrument without full disclosure of all facts and circumstances commits an offence and is liable to summary conviction of a fine between 250 - 1000 penalty units. – Section 41 of Act 689
• A person who registers an unstamped instrument commits an offence and is liable to summary conviction between 150 - 1000 penalty units.

Documents required to be stamped per Act 689

1. Agreements or Contract
2. Appointment of a new trustee of property, or of any use, share, or interest in property by instrument not being a will
3. Concession
4. Conveyance or transfer on sale of a property
5. Conveyance or transfer operating as a voluntary disposition inter vivos
6. Copy or extract (attested or in any manner authenticated) of or from instrument chargeable with a duty
7. Declaration of a trust concerning a property by a writing.
8. Duplicate or counterpart of any instrument chargeable with duty -
9. Indemnity, letter or other instrument of indemnity
10. Lease
11. Memorandum of hypothecation
12. Mortgage, bond, debenture, covenant, guarantee, lien or instrument of security of any other kind not described in this schedule
13. Natural resources: leases or licences
14. Power of attorney/letter of authority or other instrument in that nature

NB: The above should be read in tandem with their accompanying exemptions in the Stamp Duty Act.

General Exemptions per Act 689

1. Transfer of shares in Government stocks or funds of a foreign country.
2. Transfers made as part of divorce settlement or arrangement.
3. Transfers made upon gifts inter vivos from one spouse to another or from a parent to a child or from a child to a parent.
4. Transfers of shares in unit trusts.
5. Transfers or conveyance to charities.
6. Transfers of loan capital.
7. All bankruptcy or insolvency documents.
8. An agreement, conveyance or other instrument relating to property of a company during winding up.
9. Transfer of property under will or other instruments related to testamentary dispositions.
10. Probates, letters of administration and vesting assents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.