RULING  
At the last adjourned date of 8/3/16 and in the course of the case management conference when the Plaintiff’s counsel sought to tender seven additional documents which were filed on the 15/2/16, the learned Senior State Attorney objected to the admissibility of those documents. All the seven documents are memoranda consisting principally of legal opinions given by State Attorneys ranging from Chief to Assistant States at the Attorney General’s department regarding the present claim of the plaintiff before the court. The objection of learned counsel to the admissibility of the seven documents is a hydra headed legal objections that needs stating ad seriatim. One learned Senior State Attorney contends that by virtue of section 162 and 165 of the Evidence Act, NRCD 323 the documents being sought to be tendered are not coming from proper custody as they ought to be authenticated from the source which they emanate. Second and a much more difficult one is founded on sections 97, 100, 101 and 102 of the Evidence Act which is to the effect that the seven documents that Plaintiff seeks to tender are all privileged from disclosure on the basis of lawyer client privilege as they were given by State Attorneys as lawyers for the State to the head of the Ministry of Justice and therefore such confidential information ought to be 
 
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protected to uphold the sanctity of frank and free flow of communication between a lawyer and his client, more so when the Attorney General is the principal legal adviser to the government, its branches and institutions.  
I start first with the first leg of the submission that is rooted under sections 162 and 165 of the Evidence Act. The net effect of the provisions cited by the defendant is to the effect that the seven documents are not original as not coming from proper custody. Section 162 states as follows:  
“A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorized by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity or which is a public record, report, statement or data compilation if— 
(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and 
(b) the copy is certified to be correct by the custodian or other person authorized to make the certification, provided that the certification must be authenticated”.  
The section establishes a presumption of the genuineness of writings in official custody. This is only a rebuttable presumption and it would only operate where there is no real dispute about the genuineness of the writing. Therefore where there is a dispute as to the genuineness of the writing, the burden of persuasion lies on the opponent of the copy sought to be tendered. However, it must be noted that the presumption arises only if the copy of the writing in question is certified and the certificate authenticated. I do not think that the documents sought to be tendered is within the scope of the documents contemplated by section 162 of the Evidence Act, as writings which is authorized by law to be kept or contemplated by the law could be said to be entries in death, birth registry of the State, or marriage registers kept in the Registrar-General’s department, judgments of courts kept in the court register’s office or government archives. Such documents are required to be authenticated to raise the presumption of its genuiness. It seems to me 
 
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that the objection does not raise questions regarding the genuiness or the existence of the originals in the custody of the defendant.  
In respect of section 165 regarding the admission of only original copies of documents sought to be tendered; it must be noted that the subsequent section 166 gives a number of grounds upon which a photocopy may be tendered in lieu of the original. And it states as follows:  
166. A duplicate of a writing is admissible to the same extent as an original of that writing, unless— 
(a) a genuine question is raised as to the authenticity of the original or the duplicate; or 
(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 
So where the original is in the custody or control of the opponent then the tendering of a photocopy of the original has not sinned against the rules on admissibility of evidence. The first ground of objection to the admissibility of the seven documents therefore fails. 
Now to the second leg of the objection which is rooted and anchored on the lawyer-client privilege. It is trite that under article 88 of the 1992 Constitution of Ghana, the Attorney General is the principal legal adviser to the government and discharges such duties as are imposed on him by the Constitution or referred to him by the government, who is the client. This makes the Attorney General fall within the scope of the definition of a client under section 100 of the Evidence Act as: 
a "client" is a person, including a public entity, association or body corporate, who directly or through an authorised representative seeks professional legal services from a lawyer; 
See also the decision of Lord Denning in the case of ALFRED CROMPTON AMUSEMENT MACHINES v CUSTOMS & EXCISE COMMISSIONER (NO 2) [1972] 2 Q.B.102 
 
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The scope of the privilege has been circumscribed under section 100 (2) as follows:  
“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, reasonably related to professional legal services sought by the client, made between the client or a representative of the client and the lawyer or a representative of the lawyer, or between the lawyer and a representative of the lawyer, or between the lawyer or a representative of the lawyer and a lawyer representing another person in a matter of common interest with the client or a representative of such lawyer”. 
This lawyer client privilege discloses a substantive right to keep privileged material confidential not only even in the context of litigation. Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice.  At the heart of the privilege is that the client must be sure that what he tells his lawyer in confidence will never be revealed without his consent or whatever advise or opinion the lawyer may proffer will not become a subject of disclosure in the court or any other adjudicatory forum.  Lawyer client privilege is seen not as just a mere ordinary rule of evidence but has been lifted over the years to the pedestal of a fundamental condition on which the administration of justice as a whole rests. See the English case of R v DERBY MAGISTRATE COURT; EX PARTE B [1996] AC 487. The test that is applied and which is relevant point for consideration under our Evidence Act is whether the communication in question was made confidentially for the purpose of legal advice or opinion. All the seven documents are memos that were meant for the attention and consideration of State Attorneys and the Attorney General himself and were not supposed to go beyond the Ministry of Justice. Learned counsel for the Plaintiff claims that section 51 of the Evidence Act should be the dominant principle for consideration. He is gravely mistaken when it comes to a claim of lawyer client privilege. This privilege is absolute, in the sense that once it is 
 
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established, it may not be weighed against any other countervailing public interest factor or even how relevant the document is to the suit before the court; the same way when in a criminal case an accused challenges the voluntariness of his statement in a voire dire, which mini trial is not aimed at the truth or otherwise of that statement. See the case of CONLON v CONLONS [1952] 2 ALL 462. The courts have a duty to uphold this hallowed principle of law in order to encourage communication between a lawyer and his client and as long as the communication does not fall within any of the exceptions to the rule as stated under section 101 of the Act, the courts must sustain a claim to any such privilege. I am not unaware that in other common law jurisdictions such as Singapore, where the privileged information gets into the hands of an opponent through fair or foul means the opponent cannot be stopped by a claim of privilege from disclosing it. Ghanaian evidence law does not limit the application of the privilege to that and in that respect our law on lawyer client privilege is wider in scope to the privilege that operates in other jurisdictions. The objection to the admissibility of the seven additional documents filed, all being memoranda meant to be circulated within the Attorney General’s Department are privileged information and as the Attorney General or a person authorized by it has not willingly disclosed that communication to take away that privilege, the claim to that privilege has enough gravitas in law and evidence and same is sustained by the court. The documents will be rejected as inadmissible and marked accordingly. The case management conference continues. 
   
          (sgd.) 
Eric Kyei Baffour, Esq.  Justice of the High Court  
 
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Representations:   
Plaintiff represented by Dr. Nat. Tanoh – present  Defendants – Absent   
David Vandyke, Esq., for Plaintiff – present  Grace Oppong, Ms SSA for Defendants – Present    