The Standard of Proof for Crime in Civil Proceedings: A Ghanaian Perspective

Author(s): Nii Lante Wallace-Bruce

Source: The International and Comparative Law Quarterly , Jan., 1993, Vol. 42, No. 1
(Jan., 1993), pp. 157-166
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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JANUARY 1993] Ghana: Crime and Civil Proceedings 157
THE STANDARD OF PROOF FOR CRIME IN CIVIL
PROCEEDINGS--A GHANAIAN PERSPECTIVE

A. Introduction

In the recent Ghanaian case of Kwame Ampadu v. Joseph Asare Dankwah an

Others' Abakah J posed the question: "What is the standard of proof required
sustain fraud in civil proceedings?"2 In answering the question, he relied on In
Agyepong (Decd.); Poku v. Abosi and Another, where it is stated: "Fraud in c
proceedings required a higher standard of proof than an ordinary civil matt
there must be proof of criminal deception."' Applying this standard, Abakah
came to the conclusion that in the case before him the allegation of fraud had n
been proved. The issue also arose in 1991 in the English case of Halford v
Brookes.4 The purpose of this article is to discuss the law relating to the prop
standard of proof in civil proceedings where there is an allegation of a crimin
offence.

B. The Law in England

In English law it is well established that only two standards of proof are recog
nised. In criminal cases, the prosecution must prove the guilt of the accuse
beyond reasonable doubt. In civil cases the standard is the balance of probabilit
or preponderance of probabilities. Obviously the criminal standard is higher th
the civil one. Attempts to create a third standard lying between the criminal a
the civil standards have not been looked on favourably, particularly in England
Until 1957 it was not clear what the correct standard of proof was in civ
proceedings where a party alleged that a crime had been committed. On the on
hand, a line of authorities held that the appropriate standard was the crimi
one-beyond reasonable doubt." On the other, there were authorities which h
that the normal civil standard of balance of probabilities was more appropriate
In 1957 the English Court of Appeal had the opportunity to bring the debate
an end. It decided in favour of the civil standard-or, more accurately, a standa

1. Civil Suit No.328 of 1986, judgment delivered on 26 Jan. 1988 in the High Court o
Ghana at Koforidua. As yet unreported.
2. Idem, p.4 of the judgment.
3. (1982/83) G.L.R.D. 71, 74. In the unreported judgment the case is erroneous
referred to as In Re Agyepong (deceased) Palm v. Abosi.
4. Judgment on 30 Sept. 1991. Unrep. but see Independent, 1 Oct. 1991 and The Time
3 Oct. 1991.
5. See e.g. Dingwall v. J. Wharton (Shipping) Ltd [ 1961] 2 Lloyd's Rep. 213, 216 (per
Lord Tucker).
6. See e.g. The People of the State of New York v. The Heirs of Phillips [1939]3 All E.R.
952, a case alleging conspiracy to defraud; Willmett v. Harmer (1839) 8 C. & P. 695,
involving an allegation of bigamy in a libel suit; Issais v. Marine Insurance Co. Ltd (1923) 15
Lloyd's L.R. 186, where in an action on an insurance policy there were allegations of arson
on the part of the assured; and Thurtell v. Beaumont (1823) 1 Bing. 339.
7. See e.g. Hurst v. Evans 11917] 1 K.B. 352 (KBD) where in an action on an insurance
policy there was an allegation of theft on the part of the servant of the assured; and Doe d
Devine v. Wilson (1885) 10 Moo P.C.C. 502 (PC) where an allegation of forgery was made in
an action based on a deed.

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158 International and Comparative Law Quarterly [VOL. 42
within the civil one. In Hornal v. Neuberger Products Ltd' the plaintiff, a preci-
sion engineer, in an action for damages for breach of warranty or, alternatively,
for fraudulent misrepresentation, had alleged that the director of the defendant
company had in the course of negotiations for the purchase of a used capstan
lathe, stated that it had "been Soag reconditioned". Soag was a reputable firm of
toolmakers and if the statement had been made, the director must have known
that it was untrue because the machine had not been reconditioned at all.
In the court of first instance the judge applied the balance of probability test on
the claim based on fraud and held that the statement had been made. But he noted
that if the criminal standard of proof had been applied he would not have been so
satisfied. On appeal, the Court of Appeal agreed with the learned judge below.
The case is significant because it is generally accepted as having settled the issue
on the correct standard of proof. There are important dicta in the judgment worth
drawing attention to, for the purposes of our discussion.
Denning LJ (as he then was) stated: "The more serious the allegation the higher
the degree of probability that is required: but it need not, in a civil case, reach the
very high standard required by the criminal law."' Hodson LJ said:'"

Notwithstanding the existence of some cases where the point appears to have been
argued and decided in a contrary sense, I think the true view, and that most strongly
supported by authority, is that which the judge took, namely, that in a civil case the
balance of probability standard is correct.

And finally, in a statement which has been oft quoted, Morris LJ stated:"

But in truth no real mischief results from an acceptance of the fact that there is some
difference of approach in civil actions. Particularly is this so if the words which are
used to define that approach are the servants but not the masters of meaning. Though
no court and no jury would give less careful attention to issues lacking gravity than to
those marked by it, the very elements of gravity become a part of the whole range of
circumstances which have to be weighed in the scale when deciding as to the balance
of probabilities.

Two clear principles are discernible from the holding and these dicta. First, the
correct standard of proof in civil proceedings where a crime such as fraud is
alleged, is the applicable standard in civil actions generally-that is, proof on the
balance of probabilities-and not the higher criminal standard of proof beyond
reasonable doubt. Second, there is no absolute standard as such in either case.
Thus, the degree of probability must be proportionate to the subject matter. Or,
in the words of Denning LJ (as he then was), "the more serious the allegation the
higher the degree of probability that is required".
Hornal v. Neuberger, which settled the law in England, has been followed in a
number of cases. In In Re Dellow's Will Trusts,' where both spouses were found
dead in their home from coal gas poisoning, the issue before the court was
whether the husband or the wife had died first. As the evidence was not conclu-

8. [1957] 1 O.B. 247.

9. Idem, p.258.
10. Idem, p.261.
11. Idem, p.266.
12. Lloyds Bank Ltd v. Institute of Cancer Research and Others [1964] 1 W.L.R. 451.

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JANUARY 1993] Ghana: Crime and Civil Proceedings 159
sive, the husband, being the elder, was presumed to have died first. Thereupon,
the issue became whether the wife had feloniously killed the husband. As
Ungoed-Thomas J pointedly put it: "There can hardly be a graver issue than
that."" The learned judge held on the evidence that the wife had feloniously
killed the husband. In so holding, he applied the civil standard of proof, relying as
his authority on Hornal. The result was that neither the wife nor anybody claiming
through her could claim the husband's estate.
Another civil case, in which there was an allegation of criminal conduct but the
civil standard of proof was applied, is Post Office v. Estuary Radio Ltd." The sole
issue was whether Red Sand Tower in the Thames estuary, from where the
appellant operated a wireless transmitting station without a licence from the
Postmaster General, was part of the United Kingdom or the territorial waters
adjacent thereto. Although the claim was for a civil remedy in a civil action, it was
necessary to prove an offence under section 14 of the Wireless Telegraphy Act
1949. It was held that the proper standard of proof was the civil one of the balance
of probabilities. The Court of Appeal rejected a submission by Estuary Radio Ltd
that since the acts relied upon constituted a criminal offence, the onus lay upon
the Post Office of proving them beyond reasonable doubt. In rejecting that
submission, the Court of Appeal followed its decision in Hornal.
Again, in The Michael"5 the Court of Appeal affirmed the trial judge's holding
that it was for the owners of the ship to prove the absence of complicity upon "a
clear balance of the probabilities". In that case the vessel, with a cargo of soda ash
on a voyage from the United States to Venezuela, sank in 1973 and became a total
loss. It was alleged by Lloyd's underwriters that the vessel had been deliberately
sunk with the knowledge and consent of its owners. Alternatively, they pleaded
that the owners' initial claim for a loss by perils of the seas had been put forward
fraudulently or recklessly on the ground that the owners then knew or strongly
suspected that the vessel had in fact been deliberately sunk.
Further, but more recently, is the House of Lords decision in Khawaja v.
Secretary of State for the Home Department and Another."' The appellants, one
Indian and the other Pakistani, were alleged to have entered the United Kingdom
by practising fraud or deception on immigration officers and were therefore
"illegal entrants". They were ordered to be detained pending summary removal.
The House of Lords held that the correct standard of proof is that which generally
applies to civil proceedings but the degree of probability should be proportionate
to the nature and gravity of the issue. It was emphasised, especially by Lord
Scarman and Lord Fraser of Tullybelton, that because the liberty of the individual
was at stake the degree of probability required to satisfy the court should be high.
Applying that standard, the House of Lords held that the evidence proved
overwhelmingly that the Pakistani had obtained entry through deception on the
immigration officers and so his appeal was dismissed. The appeal of the Indian
was allowed as the evidence failed to prove that he was guilty of deception.

13. Idem, p.455.

14. [1967] 1 W.L.R. 1396.
15. [1979] Lloyd's Rep. 55. See also Nishina Trading Co. v. Chivoda Fire Marine
Insurance Co. Ltd [1969] 2 All E.R. 776.
16. [1983]11 All E.R. 765.

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160 International and Comparative Law Quarterly [VOL. 42
The significance of Khawaja is that the House of Lords clearly endorsed'7 the
approach taken by the Court of Appeal in Hornal. The law in England can thus be
stated as follows: where in civil proceedings there is an allegation of a crime such
as fraud, the correct standard of proof is that used generally in civil matters,
namely, balance of probabilities. However, due regard has to be paid to the
serious nature of the allegation-a higher degree of probability is to be applied
within the general civil standard.

C. The Law in Australia

It is interesting to note that Australia actually took the lead in this area of the
As far back as 1938, the High Court of Australia (the highest judicial bod
down the law in Briginshaw v. Briginshaw and Another." In that case,
appellant husband's petition for divorce on the ground of adultery was dism
by the trial judge because he was not satisfied that adultery had been p
beyond reasonable doubt. The High Court held that the appropriate stand
proof was the civil one. However, due regard was to be given to the seriousn
the allegation. As Dixon J (as he then was) pointed out:'9
It is often said that such an issue as fraud must be proved "clearly", "unequivoc
or "strictly" or "with certainty". This does not mean that some standard of pe
sion is fixed intermediate between the satisfaction beyond reasonable doubt req
upon a criminal inquest and the reasonable satisfaction which in a civil issue may
must, be based on a preponderance of probability. It means that the nature of
issue necessarily affects the process by which reasonable satisfaction is atta
When, in a civil proceeding, a question arises whether a crime has been commi
the standard of persuasion is, according to the better opinion, the same as upon
civil issues. But, consistently with this opinion, weight is given to the presumption
innocence and exactness of proof is expected.

The Australian position was put beyond argument by the High Cour
Australia in Rejfek and Another v. McElroy and Another.2" In that ca
appellants had sued the respondents for the rescission of a contract to purc
milk run in a suburb of Brisbane, and for damages, because of fraudulently u
representations inducing the contract. The trial judge, sitting in the Sup
Court of Queensland, gave judgment for the defendants because he wa
satisfied beyond reasonable doubt.
Having examined the leading authorities on the subject, the High Court
that, in the absence of statutory provisions to the contrary, proof in civil proc
ings of facts amounting to the commission of a crime has only to be establishe
a balance of probabilities. It stated: "No matter how grave the fact which is
found in a civil case, the mind has only to be reasonably satisfied and has no
respect to any matter in issue in such a proceeding to attain that degr
certainty which is indispensable to the support of a conviction upon a cr
charge.""2' The Court referred to its earlier decision of Helton v. Allen," in

17. The House had earlier approved Hornal in the divorce case of Blyth v. Blyth [1
All E.R. 524.
18. (1938) 60 C.L.R. 336.
19. Idem, pp.362-363.
20. (1965) 112 C.L.R. 517.
21. Idem, pp.521-522.
22. (1940) 63 C.L.R. 691.

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JANUARY 1993] Ghana: Crime and Civil Proceedings 161
it made it clear that the criminal standard of proof is inappropriate in determining
facts amounting to a crime, such as fraud, in civil proceedings.
The decision of the High Court of Australia has since been followed in a
number of cases, including Edelsten v. Deputy Commissioner of Taxation (NSW)
and Others"3 (a bankruptcy proceeding), and by the Australian Broadcasting
Tribunal in its landmark decision finding then media tycoon Alan Bond and his
television companies no longer fit and proper persons to hold television licences.24

D. The Position in Ghana

Returning to the question posed by the judge in Kwame Ampadu v. Joseph

Dankwah and Others,25 it is clear that the standard applied in that cas
variance with the position in the older Commonwealth countries. It i
imperative to examine closely the authority on which that case is based.
In In Re Agyepong (Decd.); Poku v. Abosi and Another2' P claimed to
lawful wife of A, who had died intestate. She brought an application in th
Court, Kumasi, for letters of administration in respect of A's estate. Bu
caveats were entered, each of the caveators claiming specific properties
those listed in A's estate. The trial judge found that none of the cave
disputed P's right to administer the estate and therefore discharged the ca
and granted the orders sought by P, a decision later upheld by the Cou
Appeal.27
Subsequently, K, the head of family of A, issued a writ in his capacity as head of
family in the High Court, Sekondi. K sought a declaration that (a) as head of
family and A's successor, the self-acquired and family property which A pos-
sessed at the time of his death were vested in him; (b) the marriage of P (claiming
to be the lawful wife of A and already granted letters of administration) to A was
not in accordance with the Marriage Ordinance, Cap. 127 (1951 Rev.), and that
she should be restrained by injunction from interfering with the property of A;
and (c) P should surrender the property and render account. More relevant to our
enquiry, K contended that the grant of letters of administration to P was irregular
and fraudulent because, first, P had falsely described herself as a wife married
under the Ordinance. Second, P did not disclose that A had other wives and many
children.
P countered with an application for an order striking out the writ on the ground,
inter alia, that the Court lacked jurisdiction and also that since K did not challenge
her status as the lawful wife of A in the earlier proceedings, although he had the
opportunity to do so, he was estopped. The trial judge dismissed the application
to strike out the writ, holding that there were "triable issues of substance" and
that K was not estopped from challenging the status of P as the lawful wife of A.

23. (1989) 86 A.L.R. 257, 264. A decision of the Full Federal Court of Australia.
24. See Bond and Others v. Australian Broadcasting Tribunal (1989) 89 A.L.R. 185, 191.
This was confirmed by the High Court of Australia. For a discussion see N. L. Wallace-
Bruce, "How Are the Mighty Fallen-in the Most Obscure Places" (1991) 7 Queensland
University of Technology Law Journal 41.
25. Supra n.2.
26. Supra n.3.
27. In Re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326, CA.

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162 International and Comparative Law Quarterly [VOL. 42

The learned judge found that P had been fraudulent in her application for grant of
letters of administration and therefore ordered the revocation of the grant. P
appealed to the Court of Appeal.21
The Court of Appeal allowed the appeal, concluding that the evidence estab-
lished conclusively that at the time of the marriage of P and A, the latter had
divorced all his other wives. Franqois JA, who dealt with the issue of the standard
of proof, stated the law in these words:-"
A grant obtained by fraud, malafide or by concealing information which should have
been disclosed to the court might also be revoked. However, fraud must not only be
pleaded but clearly and distinctly proved by the man who alleged it. Fraud in civil
proceedings required a higher standard of proof than an ordinary civil matter; there
must be proof of criminal deception. In the instant case, there could be no relief
unless the allegation of fraud to nullify the marriage under the Ordinance after the
death of one of the parties and also the allegation of fraud on the court in the
application for grant of letters of administration were proved strictly and clearly. The
circumstances surrounding the fraud must be inconsistent with any other view but
that of fraud.

His Lordship concluded: "In the result, the respondent and co-respondent failed
miserably to prove the fraud alleged and there could be no revocation of the grant
of letters of administration without such proof."'03 According to the Digest,
Franqois JA cited as his authority the dictum of Denning LJ (as he then was) in
Bater v. Bater.3
With all due respect to his Lordship, his statement of the law is contradicted by
the leading authorities both in England and Australia. In Bater v. Bater a wife
appealed a Commissioner's dismissal of her petition for divorce on the ground
that the charges of cruelty made by her were not proved beyond reasonable
doubt. A careful reading of the Court of Appeal's decision will reveal that Bater
cannot be relied on as authority for a general proposition that a crime such as
fraud requires "proof of criminal deception" in a civil proceeding.
Although the Court dismissed the appeal, the learned judges seemed to say that
the term "beyond reasonable doubt" was not used by the Commissioner with the
same strictness as it is used in the criminal jurisdiction. Denning LJ explained:32
If the Commissioner had, however, put the case higher and said that the case had to
be proved with the same strictness as a crime is proved in a criminal court, then he
would, I think, have misdirected himself because that would be the very error which
this court corrected in Davis v. Davis. It would be adopting too high a standard. The
divorce court is a civil court, not a criminal court, and it should not adopt the rules
and standards of a criminal court.

In a dictum which has since been frequently quoted in many cases,"3 but which
directly contradicts Frangois JA's formulation of the law, Denning LJ stated:34

28. In Re Agyepong (Decd.) Abosi v. Poku [1973] 2 G.L.R. 456.

29. Supra n.3, at p.74 (emphasis mine).
30. Ibid.
31. [1951] P. 35, 37.
32. [195012 All E.R. 458, 460. See also [1951] P. 35.
33. E.g. by Lord Pearce in Blyth, supra n.17, at p.539; by Lord Scarman in Khawaja,
supra n. 16, at p.783; by Hodson LJ and in part by Morris LJ in Hornal, supra n.8, at pp.263
and 266.
34. Supra n.32, at p.459 (emphasis mine); [19511 P. 35, 36-37. It is noted that Denning LJ
referred to the Australian case of Briginshaw v. Briginshaw.

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JANUARY 1993] Ghana: Crime and Civil Proceedings 163
It is true that by our law there is a higher standard of proof in criminal cases than in
civil cases, but this is subject to the qualification that there is no absolute standard in
either case. In criminal cases the charge must be proved beyond reasonable doubt,
but there may be degrees of proof within that standard. Many great judges have said
that, in proportion as the crime is enormous, so ought the proof to be clear. So also in
civil cases. The case may be proved by a preponderance of probability within that
standard. The degree depends on the subject-matter. A civil court, when considering
a charge of fraud, will naturally require a higher degree of probability than that which
it would require if considering whether negligence were established. It does not adopt
so high a degree as a criminal court, even when it is considering a charge of a criminal
nature, but still it does require a degree of probability which is commensurate with the
occasion. (Author's italics.)

It is curious that in In Re Agyepong (Decd.) the Ghana Court of Appeal did not
advert to the cases of Hornal v. Neuberger Products Ltd and Reffek and Another
v. McElroy and Another. As we have already seen, those cases not only clarified
but indeed settled the law in England and Australia respectively. Moreover, they
have been followed subsequently in a number of cases.
Whilst cases decided in England, Australia and elsewhere are not automatically
binding on the Ghanaian judiciary, they have strong persuasive force. This is
especially so with English precedent, which invariably becomes the law in Ghana
unless there is contrary local legislation on the particular subject. Apparently, this
is the case throughout the British Commonwealth.
Reverting to our discussion, it would appear that the law as stated by the Ghana
Court of Appeal is a misreading of English case law rather than an interpretation
of local legislation. Serious doubt must therefore be cast on the value of In Re
Agyepong (Decd.) as authority in Ghanaian law on the issue of the correct
standard of proof in civil proceedings where there is an allegation of criminal
conduct such as fraud, arson or even murder.

E. Conclusion

In conclusion, some comments should be made on the case of Halford v. B

and Another" decided in 1991 by the English Queen's Bench Division
early afternoon of 3 April 1978 a girl aged 162 went for a walk with the
defendant, a neighbour, who was a year younger. During that walk
murdered "in a brutal and horrible fashion". Besides being strangled w
tained and considerable force, her body had been stabbed over 40 time
then dragged through water and left in a thicket until it was discovered
days later.
The plaintiff, mother of the deceased and administratrix of her estate, brought
the action some 13 years later to recover damages on behalf of the estate. The
claim was made in battery against both defendants, who were respectively step-
father and stepson, in effect alleging that one or both of them were the girl's
murderers. The case presented a number of interesting, and even novel, features
not relevant for present purposes. Regarding the issue before us, Rougier J
stated: "where the burden of proof is concerned it is my view that I should adopt
the equivalent of the criminal standard"." The judge had no difficulty in announc-
ing that he was adopting that standard, despite being "sternly warned" by senior

35. Supra n.4.

36. Idem, p.5 of the judgment.

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164 International and Comparative Law Quarterly [VOL. 42
counsel for the first defendant that he would be misdirecting himself. Senior
counsel had submitted that "the correct approach was to regard the burden of
proof in civil cases as a sort of sliding scale according to the moral turpitude
involved in the allegation".37
Having applied the equivalent of the criminal standard of proof, Rougier J was
"left in no reasonable doubt" that the first defendant killed the girl. The learned
judge concluded that what he described as "a dreadful crime" was the result of a
large number of deep wounds inflicted by the first defendant who then strangled
the girl. So, for the claim for unlawful battery and damage consisting of physical
injury causing pain, terror and ultimately death with consequential economic loss
to the estate, the judge fixed the second defendant's liability at 20 per cent; the
first defendant bearing the larger part of the liability.
A number of observations can now be made. First, it is disappointing that
senior counsel for the first defendant, who pressed the issue, cited to the court
only the case of Bater v. Bater. It is all the more disappointing that neither the
judge nor counsel on either side appeared to be aware of the cases which we have
discussed in this article, especially the English Court of Appeal decision in Hornal
v. Neuberger Products Ltd and the House of Lords' in Khawaja v. Secretary of
State for the Home Department and Another.
Second, the submission made by senior counsel for the first defendant on the
issue would seem to be the correct statement of the law. It would have been more
convincing, however, if he had supported it with some more case law. Rougier J
sidestepped the argument by saying that he did not find Bater "of great
assistance".

Third, although the judge's formal adoption of the criminal standard is open
criticism, and certainly contrary to the leading authorities on the issue, his act
application of the standard is perhaps not far off the mark. He stated:31
I have proceeded, as indeed Mr Scrivener invited me to, on the basis that no on
whether in a criminal or a civil court, should be declared guilty of murder, certain
not such a terrible murder as this, unless the tribunal were sure that the evidence did
not admit of any other sensible conclusion.

In other words, if one puts aside for a moment the correct terminology, Rougi
J's approach was to be "sure" of the evidence. This is not inconsistent with wh
has been said in the cases discussed in this article, but with a proviso that t
standard should not reach the criminal standard. For example, as Denning
stated in Hornal: "The more serious the allegation the higher the degree
probability that is required: but it need not, in a civil case, reach the very hig
standard required by the criminal law."''3 Similarly, in the Australian case
Briginshaw v. Briginshaw and Another Dixon J reminded us that, even if the cour
uses such terms as "certainty", "strictly" and the like, the standard should still
rise to the criminal standard.4"
In the case itself, the judge had to decide between only two stories. His task w
not so much to determine whether there had been a murder, but rather to cho

37. Ibid.
38. Ibid.
39. Supra n.9.
40. Supra n.19.

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JANUARY 1993] Ghana: Crime and Civil Proceedings 165
between the accounts of a stepfather and a stepson. The first story was that the
murder of the girl was the work of the second defendant alone. The second was
that the strangulation and most, if not all, of the serious knife wounds were
inflicted by the first defendant with the second defendant playing a minor,
reluctant role at the command and under the emotional domination of his
stepfather.
In the end, Rougier J accepted the second account because he was "sure" of it.
The question that arises is whether the result would have been any different if he
had adopted the civil standard but with a very high probability. Perhaps not. Yet,
the resultant confusion of importing elements of the criminal law into the civil law
could have been avoided. The cumulative effect of the evidence was "massive", to
use his own words. The court heard that on two separate occasions the first
defendant had admitted the killing. Evidence was also placed before the court of
the first defendant's attitude to knives and women. In the final analysis, it is
doubtful if Halford v. Brookes will be of much precedential value, considering
that there are cases handed down by the Court of Appeal and the House of Lords
which are clear but point in the opposite direction. All the same, it has to be read
in the context of its history. Rougier J went to the trouble of saying: "I am told that
this is the first occasion when such a claim has been brought and contested in a
civil court. Let us hope it is also the last.""'
From the foregoing discussion, it can be stated that the correct standard of
proof in civil proceedings where there is an allegation of a crime, or some other
grave matter, is: unless there are statutory provisions to the contrary, proof on the
balance of probabilities-that is, the general civil standard. In Ghana's Evidence
Decree 1975 (N.R.C.D. 323) it is called "a preponderance of the probabilities".42
However, the degree of probability must be proportionate to, or commensurate
with, the nature and gravity of the particular allegation in question. Thus where
there is, for example, an allegation of minor assault, the degree of probability
need not be very high. On the other hand, where the allegation is that of fraud or
arson, the degree of probability must necessarily be very high so that the tribunal
of fact will be certain that the allegation has been proved. However, the standard
of proof should in all cases be within the general civil standard.
The higher courts in England and Australia have held consistently that the
criminal standard of proof is inappropriate in the civil area. We should bear in
mind the warning of Lord Scarman in Khawaja: "There is no need to import into
this branch of the civil law the formula used for the guidance of juries in criminal
cases. The civil standard as interpreted and applied by the civil courts will meet
the ends of justice."43 It is clear then that the law as currently applied in Ghana is

41. Supra n.4, at p.2 of the judgment.

42. S. 12(1) of the Decree defines the standard as "that degree of certainty of belief in the
mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is
more probable than its non-existence".
43. Supra n. 16, at p.783. At p.784 he said: "A preponderance of probability suffices; but
the degree of probability must be such that the court is satisfied. The strictness of the
criminal formula is unnecessary to enable justice to be done; and its lack of flexibility in a
jurisdiction where the technicalities of the law of evidence must not be allowed to become
the master of the court could be a positive disadvantage inhibiting the efficacy of the
developing safeguard of judicial review in the field of public law."

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166 International and Comparative Law Quarterly [VOL. 42
not consistent with the approach taken in the older Commonwealth jurisdictions.
To the extent that the law in Ghana has been stated by Franqois JA as being the
law in England, it would seem to be incorrect. There is a need for clarification of
the legal position in Ghana.

Nil LANTE WALLACE-BRUCE*

* Barrister and Solicitor (Australian Capital Territory, Ghana and Victoria); Solicitor
(New South Wales and High Court of Australia); Lecturer, Department of Management,
University of Western Australia.

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