From paper to pixels: electronic evidence and the evolution of litigation in Ghana

Alfred Paapa Darkwah
Gratia Law Consult, Accra
apdarkwah@gratialawconsult.com

The digitisation of commercial and social interaction has significantly transformed litigation. Commercial negotiations, contractual communications, and corporate communications that once relied on formal correspondence are now routinely conducted through emails, instant messaging platforms and cloud-based systems. As a result, most probative evidence in many disputes consists of digital traces.

This transformation presents both opportunities and challenges. While electronic records can provide detailed and contemporaneous accounts of interactions, they are also susceptible to authenticity, reliability, and manipulation. Courts must therefore balance the probative value of such material against the risks inherent in digital systems.

In Ghana, statutory frameworks recognise electronic records as admissible evidence. However, their treatment continues to evolve as courts address increasingly complex disputes involving digital material.

Statutory framework in Ghana

The Electronic Transactions Act, 2008, primarily governs electronic evidence in Ghana (Act 772), which accords legal recognition to electronic records. Act 772 excludes certain transactions — such as wills, power of attorney, affidavits, and contracts for the sale or conveyance of immovable property;¹  indicating a continued preference for formal requirements in specific contexts.

They also demonstrate that electronic records shall not be denied, but enjoy the same legal recognition of evidentiary value accorded and comparable to traditional written documents.²    

Section 7³    outlines the threshold for evidential weight. These include:
a.    the reliability of the manner in which the electronic record was generated, displayed, stored or communicated;
b.    the reliability of the manner in which the integrity of the information was maintained;
c.    the manner in which its originator was identified, and
d.    any other facts that the Court may consider relevant.

These considerations reflect the reliance on legal and technical considerations in assessing electronic evidence.

The Evidence Act⁴  , 1975 (NRCD 323) continues to apply admissibility generally, requiring relevance and probative value that outweighs any prejudicial effect. Electronic records are therefore subject to the same foundational principles of relevance, authenticity, and reliability principles applicable to traditional documentary evidence. 

Judicial treatment of electronic evidence

Authentication remains central to the admissibility of electronic evidence. Given the ease with which digital content can be manipulated, courts require proof that the digital material is what it purports to be, particularly in relation to emails and instant messaging platforms such as WhatsApp.

In this context, authentication may involve identifying the sender, establishing the source device, or demonstrating that the communication originated from a particular account. This may be established through:

•    witness testimony;
•    forensic examination;
•    examination of metadata and timestamps;
•    corroborative or circumstantial evidence;
•    device extraction reports; and
•    Confirmation from service providers.

Screenshots, while commonly tendered, may be insufficient without supporting evidence linking the communication to a specific device or user. Similarly, maintaining a reliable chain of custody is critical to preserving evidential integrity. Where electronic evidence has been extracted or transferred from multiple devices or hands without proper documentation, questions may arise regarding whether the evidential material has been altered or tampered with.

Ghanaian courts have increasingly accepted electronic evidence where the standards of relevance and admissibility as posited in the Evidence Act  are met.

In Republic v. Alexander Kofi Tweneboah,⁵  the Court of Appeal upheld the use of email activity, browsing data, and electronic contracts in a criminal prosecution. The Court found that the electronic records assembled as evidence were credible and sufficient to support the findings of the trial court. In principle, electronically stored information can constitute admissible evidence before courts where properly obtained and relevant to the issues in dispute.

Similarly, in International Rom Ltd v Vodafone Ghana Ltd,⁶ the Supreme Court relied on email correspondence in resolving a commercial dispute; an illustration of the judiciary’s increasing acceptance of electronic communications as evidentiary material of probative value where its authenticity and reliability can be or has been established.

These decisions demonstrate a growing judicial acceptance of electronic records as probative evidence when properly authenticated.

Constitutional constraints

The admissibility of electronic evidence is also subject to constitutional safeguards, particularly the right to privacy of communication. Courts have emphasised that evidence must be lawfully obtained.

In Raphael Cubagee v. Michael Yeboah Asare;⁷ and Abena Pokua Ackah v. Agricultural Development Bank,⁸ the Courts held that where evidence is obtained in violation of constitutional right, its admissibility depends on whether its use would undermine the integrity of the judicial process.

Accordingly, courts are enjoined to exclude evidence improperly obtained where its admission would bring the administration of justice into disrepute.

Comparative perspectives

The challenges associated with treatment of electronic records as evidence are not unique to Ghana. Similar challenges arise in other jurisdictions.

In R v Grant, the English Court of Appeal excluded covert recordings of privileged communications, holding that such deliberate interception of legally privileged communications constituted an abuse of process capable of undermining the integrity of the justice system.⁹ 

In Barbulescu v Romania,¹⁰  the European Court of Human Rights addressed workplace monitoring of private communications, emphasising the need for proportionality and transparency in balancing evidentiary use against privacy rights.

These cases underscore the global tension surrounding the evidentiary value of electronic material and the protection of fundamental rights.

Practical challenges

Despite its statutory recognition, reliance on electronic evidence presents practical challenges. Extracting and analysing digital data often requires specialised expertise, increasing litigation costs.

Authenticity remains a recurring concern. Messaging platforms allow deletion, editing, and anonymise, complicating verification of authorship. Additionally, evidentiary asymmetry may arise where one party exercises exclusive control over sources or access to critical electronic records. 

Emerging technologies further complicate matters. Artificial intelligence and digital editing tools now enable the creation of highly convincing fabricated content, raising concerns about evidentiary reliability. Courts will increasingly need to rely on forensic experts to distinguish authentic records from manipulated ones.

Blockchain and evidentiary integrity

Blockchain technology presents potential solutions to evidentiary challenges. By creating decentralised, tamper-resistant records with verifiable timestamps, blockchain systems can enhance the integrity of digital evidence.¹¹

In theory, blockchain-based records may enhance evidentiary reliability by providing immutable timestamps and verifiable transaction histories. Such systems could strengthen chain-of-custody mechanisms by demonstrating that records have remained unchanged since creation.

As blockchain becomes more prevalent in commercial transactions, courts may increasingly encounter blockchain-based evidence capable of satisfying authenticity and reliability requirements under section 7 of Act 772, since the system preserves a verifiable record of when and how information was recorded.

Emerging practices

In view of the courts’ heavy reliance on the Rules of Court, clear evidentiary guidelines on forensic extraction and digital chain of custody would enhance consistency in handling electronic evidence.

As a result, heavy reliance on forensic experts is likely, particularly in verifying metadata, timestamps, and system integrity. Ghanaian courts have demonstrated procedural flexibility, permitting substituted service via electronic platforms in circumstances where traditional service methods proved ineffective. In IFS Financial Services Ltd v. Jonathan Mensah,¹² and Kwabena Ofori Addo v Hildalgo Energy & Julian Gyimah,¹³ service via social media platforms was permitted where traditional methods proved ineffective.

These developments illustrate a broader judicial willingness to adapt procedural mechanisms to contemporary modes of communication. Practitioners must develop greater technology literacy and exercise heightened diligence in evidence handling. Sources containing critical records should be preserved early, and reliance on screenshots alone should be minimised in favour of forensic extraction methods that maintain evidential integrity.

Conclusion

Electronic materials have fundamentally altered the evidentiary landscape in Ghana. While Act 772 provides the statutory foundation, emerging case law demonstrate an increasing willingness to admit electronic evidence where it meets established evidentiary standards pursuant to  Evidence Act, 1975 (NRCD 323).

As emerging technologies such as artificial intelligence and blockchain continue to evolve, courts will face complex questions relating to authenticity, privacy, and evidentiary weight.

Addressing these challenges will require the development of robust evidentiary standards that balance technological innovation with the traditional principles of reliability, authenticity, and procedural fairness.

Notes

1.  Act 772 s 4
2.  Ibid. s 7(1)
3.  Ibid. s 7(2)
4.  NRCD s 51
5.  (2017) JELR 66460 (CA)
6.  NO. J4/09/2020 (CA)
7.  CIVIL APPEAL NO. J6/04/2017
8.  CIVIL APPEAL NO. J4/31/2015
9.  [2005] EWCA Crim 1089
10.  App. No. 61496/08
11.  Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System (2008); see https://bitcoin.org/bitcoin.pdf
12.  Suit No. GJ563/2017
13.  Suit No. AC/198/2015