DOCUMENTARY EVIDENCE

This involves the principles and rules that govern the admission of documents in
evidence. These are mostly contained in ss. 59-99 Evidence Act. We shall look at:
a) Classification of documents;
b) Proof of execution/ genuineness of a document;
c) Rules of proving contents of documents;
d) Presumptions relating to documents;
e) Admissibility of extrinsic evidence to prove the contents of a document
(parole evidence rule and exceptions).

What is a document?
S.2 (1) of the Evidence Act defines a document as any matter expressed or described
upon any substance by means of letters, figures or marks or by more than one of
those means, intended to be used or which may be used for the purpose of recording
that matter.
Documentary evidence means all documents produced for the inspection of court.
Today, tombstones, signposts, buildings, tape recordings are also referred to as
documents. According to the Tanzanian Evidence Act, a document is defined as any
handwriting, typewriting, printing, Photostat, any and every recording upon any
tangible thing, any form of communication or representation by one of those means
which may be used for the purpose of recording any matter, provided that such
recording is reasonably permanent and readable by sight.
Thus, in our law, the term ‘document’ means a lot more than its ordinary meaning
e.g. it includes signposts, tombstones, photographs and tape recordings. In Salau
Dean v R, tape recordings were considered documents.
R v Maksud Ali
Facts: A murder was discovered on 27th April 1964. The two appellants voluntarily
went to the town hall on 29th April 1964 in the company of a police superintendent
and a Pakistani liason officer. Unknown to them, a microphone had been installed
behind a waste paper basket in the room and it was connected to a tape recorder in
another room. The police superintendent and the liason officer left the room and the
recorder was connected to the tape recorder was stitched on. The appellants
engaged in a conversation which was recorded on the tape, but it was found as a fact
at the hearing when the prosecution sought to produce the tape as evidence.
Issue: Whether or not a tape recorder could be admissible as documentary evidence?
Argument: Although throughout, the tape was in custody of police, it was imperfect
since in addition to the appellants’ voices, street noises were also recorded. Not all
that the appellants said was distinguishable. An attempt was made to prepare
translations to the police, but it was difficult to do as the dialects used by the
appellants was limited to only a particular area of Pakistan, the same words could
have different meaning depending on the context, and before translation into
English, the recorded words had to be converted into Urdu which was the official
Pakistani language. It was argued that the tape recording was of vital importance
since it contained matters tantamount almost to a confession. This tape was played
to the appellants before trial and they were offered a chance to have their own
witnesses translate it.
Held: Evidence of the tape recording was in the circumstances admissible. The trial
judge, having properly warned the jury of the caution with which they should
consider the translations which were properly put before the jury, the recorder was
in substance, a mechanical eavesdropper therefore the recording was indifferent and
the judge had a right to exercise his discretion by not excluding the evidence of the
tape and the translators. Court laid out the following principles:
1. A tape recording is admissible in evidence, provided the accuracy of the
recording can be proved and the voices recorded can be properly identified
before the evidence is relevant and otherwise admissible. Such evidence should
always be regarded with some caution and assessed in light of all the
circumstances of each case. There can be question of laying down any
exhaustive set of rules by which the admissibility of such evidence should be
judged.

2. Provided that the jury are guided by what they hear from the tape recording
and on that they base their ultimate decision, there is no objection to a copy of
a transcript of a tape recording properly proved, being put before them.

All these principles were followed in the case of:

SALAU DEAN V R
Facts: The appellant was convicted of corruption and giving false information to a
person employed in the public service. The evidence was that the police was
informed by the appellant that a certain immigration officer had asked him for money
to refrain from prosecuting his friend under the immigration trap. Thereafter the
police trap was laid. When the appellant met the immigration officer, he had a long
conversation with him. This was tape recorded by various devices and when the trap
closed, the appellant and immigration officer were facing each other. The latter was
in the possession of money given the former by the police. Their conversation was
recorded in Punjabi and translated in English. The immigration officer consistently
asserted that the money was thrust into his pocket after prolonged and unsuccessful
efforts to accept it as a bribe. After the hearing, before judgment, the magistrate had
the tape played up in the privacy of his bedroom, but in the absence of the
applicants. The magistrate who was translating was interested in 2 Punjabi words
which were translated into English as ‘keep it’ but he held that the expression must
be construed as ‘take it.’
Issue: Whether the two tapes were properly admitted by court?
Held: The tape recordings were properly admitted and in so doing, it followed the
English case of R v Maksud where the admissibility of the tape recordings first arose
as an issue. Court held that the opinion of the interpreter on the subsequent playing
of the case of the tape recording which was adverse to the appellant and was given
the appellant in the absence of the appellant or the advocate. In accepting it, the
magistrate committed a fundamental error depriving the appellant not only of the
semblance but the absence of a fair trial.
See: Ug v Everisto Nyanzi
Classification of documents
There are 3 main types of documents. The purpose of this classification goes to the
method of proof.

1. Attested as opposed to unattested documents

To ‘attest’ means to witness any act or event and with regard to documents, means
to witness the signing or execution of a document. It must be witnessed by another
person, not the person who signed it.
Under the law, certain documents are required by law to be attested e.g. the wills per
the succession Act, otherwise it is void, powers of attorney, employment contracts,
land sale, etc.
Unattested documents refer to those documents which are not required by the law
to be witnessed in order to be valid.
Note: There is always a party or interest to protect, where the law requires
attestation. The main difference between those two documents is the method of
proof.
2. Private and public documents

Public documents are those available to public scrutiny or access. According to s. 73,
the following are public documents:
a) Documents forming the acts or records of the acts, e.g. minutes, registers of
transactions e.g. marriage certificate etc of the following people:
 i) A sovereign authority e.g. president;

ii) Official bodies and tribunals e.g. URA, Court proceedings;

iii) Public officers, legislature, judiciary and the executive of whether of

Uganda or any other part of the common wealth of the republic of
Ireland or of a foreign country.

b) Public documents are also public records of private documents kept in

Uganda.

Kafeero v Turyagenda
Facts: There was an agreement which was registered after 7 years.
Held: A document once registered becomes a public document. This makes it easier
to prove the authenticity of that document. One may register a document at any
point. If the parties do not register their private documents, it does not render the
document void and there is no time within which registration must be done.
The two classifications are not mutually exclusive.
See: Khaled Walusimbi v Jamil Kaaya
Uganda v Mukasa Deogratius
Private Documents
S. 74- All documents that are not specified in s.73
See: Tootal Bodhurst Co. v Ahmed on how to distinguish between a private and
public document.
The significance of this classification centres around the rules governing the
admissibility of the different documents e.g. with a public document, you may tender
a certified copy thereof and the court will act on it. However, with a private company
document, court usually insists on the original.
3. Primary and secondary documents/ evidence

S.60 – The contents of a document may be proved by either primary or secondary

evidence.
S.61 defines primary evidence of a document to mean the document itself produced
for the inspection of the court, i.e. primary evidence is the original document itself
and the section makes a number of explanations as to the two types:

1. Where a document is executed in several parts, each part is primary evidence

of the document. Where a document is executed in counterpart, each counterpart
being executed by one or some of the parties only, each counterpart is primary
evidence as against the parties executing it.
2. Where a number of documents are all made by one uniform process, as in the
case of printing, lithography or photography, each is primary evidence of the
contents of the rest; but where they are all copies of a common original, they are not
primary evidence of the contents of the original. (e.g. sub agreements towards a
main transaction/ agreement e.g. an agreement between Uganda and Japan to set
up lights in Wandegeya, that is primary evidence, but if Uganda signs with KCC, that is
secondary evidence)

3. Where a number of documents are all made by one uniform process e.g. in the
case of printing lithography and photography, each is primary evidence of the
contents of the rest, but where they are all copies of a common original, they are not
primary evidence of the contents of the original.

DPP v Nathani
Facts: Nathani had been accused and convicted of fraud. He had a licence to sell air
tickets to the East African Airways in Zanzibar. He was alleged to have forged air
tickets in mainland Tanzania where he had no licence to sell them. The evidence
adduced by prosecution consisted of an official agency list for the IATA, which list
was contained in a loose leaf, cyclostyled volume which indicated all agents
authorised to sell tickets in Africa. The appellant challenged the administration of this
loose leaf cyclostyled volume claiming that it was secondary evidence and that no
circumstances had been shown, which warranted its admission.
Held: The official agency list was primary evidence since it was one of a number of
documents made by one uniform process, capable of producing many others.
Secondary Evidence s. 62
This means and includes:

a) certified copies given under the provisions hereafter contained;

b) copies made from the original by mechanical processes which in themselves

ensure the accuracy of the copy, and copies compared with those copies;

c) copies made from or compared with the original; (e.g. writing out a copy of
the Evidence Act or typing)

d) counterparts of documents as against the parties who did not execute them;
 e) oral accounts of the contents of a document given by some person who has
himself or herself seen it.

PROOF OF EXCUTION OF DOCUMENTS

General rule: S. 63- Documents must be proved by primary evidence except in cases
mentioned hereafter.

Primary evidence- s.61 - Primary evidence means the document itself produced for
the inspection of the court.

The aspect of proof of execution otherwise called proof of genuineness is important

because before a document is admitted in evidence, it must be proved to court that it
is a genuine document, i.e. it must be shown that it was duly executed by the
person(s) who appears on the face of the document as the signatories. This principle
was laid down in:

Stamper v Griffen

Held: “No writing can be received in evidence as a genuine writing until it

has been proved to be a genuine writing and none, as a forgery,
until it has been proved to be a forgery, that a writing, of itself, is
not evidence of the one thing or the other; a writing of itself is
evidence of nothing and therefore is not, unless accompanied by
proof of some sort, admissible as evidence.”

How can genuineness of a document be proved?

Proof of public documents

Generally, court admits or tenders in a certified copy in proof of such document and
its contents.

S. 75 grants a right to every person to access public records and to get certified
copies thereof. It says that every public officer, having the custody of the public
document which any person has the right to inspect, shall give that person, on
demand, a copy of it upon payment of the legal fees therefore, together with a
certificate written at the foot of such document. Such certificate shall be dated and
subscribed by such officer, with his name and official title. If it requires to be sealed,
it shall be sealed and thereafter, it is called a certified copy.

There are a number of presumptions, but s.76 provides that such certified copies as
provided for in s.75 may be produced in proof of the contents of public documents
of which they purport to be copies.

S.77 has specific methods for the proof of specific public documents. There is a
presumption under s.78 that the court shall presume every document purporting to
be a certificate, certified copy or other copy, which purports to be duly certified by
any officer in Uganda, to be genuine. This, however, is a rebuttable presumption,
which is why there is a proviso to s.78: provided that such document is substantially
in the form and purports to be executed in the manner directed by law.

Also, under s.78, the court shall presume that the officer by whom any such
document, purports to be signed or certified held, when he signed it, the official
character which claims in such paper. (Fraud, forgery, etc may be adduced to
overturn the presumption.)

Proof of private documents

1. Private documents required by law to be attested

S. 67 – If a document is required by law to be attested, it shall not be used as

evidence until at least one attesting witness has been called for the purpose of
proving its execution. The reason behind attestation is to protect the weaker party,
as a general rule.

Exceptions:

i) S.68 provides that if no such attesting witness can be found, it must be

proved that the attestation of at least one attesting witness is in his
handwriting and that the signature of the person executing the document is
in the handwriting of that person;

How is handwriting proven? See s.43; s.45; Salau Dean v R; Walusimbi v

Standard Bank
 ii) S.69- where there is an admission of a party to an attested document that he
himself executed the document, then that document shall be sufficient proof
of the execution against him;

iii) S.70- If the attesting witness denies or does not recollect the execution of
the document, then other evidence may be called to prove the genuineness
of that document.

a) Some of the evidence or methods that may be used to prove execution are:
Under s.90, which has been referred to as the 30 year-old rule. The section
creates a presumption that the documents purporting or proved to be 30
years old, if produced from custody that the court considers proper for the
particular case, then the court may presume that the signature and every
other part of that document, which purports to be in the handwriting of any
other person, is in that person’s handwriting and if it is an attested by the
persons by whom it purports to be executed and attested.

b) Evidence by estoppel – If the person against whom the document is sought

to be adduced has be prior conduct, relied on that document, then he is
stopped from denying its genuineness.

2. Documents which do not require to be attested

S.71- An attested document not required by law to be attested may be proved as if it

were unattested. Thus, it would be proved under s.66 which provides that if a
document is alleged to be signed or to have been written wholly or in part, by any
person, the signature or the handwriting of the document which is alleged to be in
that person’s handwriting must be proved to be in his handwriting. (See ss.44 & 45)

S.72, for this purpose, gives court, power to compel any person to provide a sample
of his handwriting for purposes of comparison.

Rules for proof of contents of documents

General rule: Documents must be proved by primary evidence, i.e. anyone who
wishes to rely on a document must produce and exhibit the original document in
court. See s.63
Rationale and historical background of general rule

It has been argued by many authors that the rationale for the rule that documents
must be proved by primary evidence is based on the best evidence rule. According
to Phipson on evidence, the rule states that the best evidence which the nature of
the case permits must be given, e.g. if the original document is easily available, it
must be produced, however, if not, court will allow the nest best evidence through
court procedure. This rule was re-stated in:

Omychund v Barker

Held: Lord Harding J, “The judges and sedges of the law have laid it down
that there is but one general rule of evidence, the best
that the nature of the case will allow.”

Brewster v Seawall

Held: Court explained the best evidence rule in regard to the documents:

“The reason why the law requires the original instrument to be

produced is that the other evidence is not satisfactory, that
where the original instrument is in possession of the part and
where it is in his power to produce it, if he does not produce it
or take the necessary steps to obtain its production, but
resorts to other evidence, the fair presumption is that the
original document would not answer his purposes and it
would differ from the secondary evidence that the person
adduces.”

The rule is made out in somewhat general terms in the sense that whatever is
admitted by court is the best evidence available.

1. Part of it is convenient to the public e.g. not to bring a whole register from
the registry;

2. It is speedy, bearing in mind that justice delayed is justice denied;

3. Public policy (state secrets-relevant facts).

According to Wigmore, there are two reasons for the best evidence rule:
 “As between the original and a copy, the latter is bound to have
inadvertent or wilful errors on the part of the copyist. Secondly, as
between the original and oral testimony, there are added risks and
errors of recollection due to the difficulty of carrying in memory,
literally, the tenor of the document.”

Wigmore’s reasoning was supported in:

Vincent v Cole 1828 ER

Held: “I have always acted most strictly upon the rule that what is in a writing
shall be proved only by the writing itself. My experience has taught
me the extreme danger of relying on recollections of witnesses as to
the contents of written instruments, that they may be so easily
mistaken that I think, the purposes of justice require the strict
enforcement of the rule.”

Historical origin of the best evidence rule

It has been said that the law of documentary evidence originated from the primitive
way of trial by document where, if a person produced a document, it was viewed
almost as sacrosanct and that person would definitely lose and in those days, only the
original document became very unfair therefore a number of exceptions to the rule
were developed:

1. Equitable remedy called an order for discovery. If the other side has
documents which are helpful to your litigation, you apply to court which then
orders that other party to discover those documents, i.e. produce them.

2. A number of exceptions developed by common law where, if the document is

proved to be lost, the other evidence may be admitted.

The above 2 have been codified in the UEA and are mostly found in s.64. The basis of
these exceptions is found in s.60- The contents of documents may be proved either
by primary or by secondary evidence.

S.64 provides for the particular instances when secondary evidence may be admitted:

Secondary evidence may be given of the existence, condition or contents of a

document in the following instances:
a) S.64(a)- Where the original is shown or appears to be in the possession of the
person against whom the document is sought to be proved, or of any person
legally bound to produce it, but who, after being given notice to do so, does not
produce it. This section has 3 main circumstances under each of which, the
requirement of the original may be dispensed with:

i) Where the document is in possession of the adversary who refuses to

produce it on notice;

ii) Where the original is in the possession of a person out of the reach of
court and its processes;

iii) Where the original is in the hands of a person legally bound to produce
it but does not do so after being given notice.

Lakmani Ramji v Shejji & sons [1965] EA 125

Facts: The appellant sued for payment for extra work done under a building
contract. The respondents’ defence was that the parties had discussed the matter
and had agreed on a fixed sum for payment for all work done and that later, a
cheque was sent to the appellant, with a covering letter which stated that the
cheque was in full payment of the appellant’s dues. The appellant said that he
received the cheque but never saw the letter. The respondent produced a carbon
copy of the letter as evidence, which the trial court allowed, but the appellant
appealed on the grounds inter alia, that the trial court had not properly admitted
the carbon copy in evidence.

Held: The carbon copy was properly admitted in accordance with s.64 (a) which
must be read with s.65. The latter section provides that in order for one to
adduce secondary, it must be shown that the party proposing to give such
secondary evidence has previous notice to the party in possession or power over
the document or to that person’s advocate to produce the document.

There is a prescribed form in which the notice must be if proceedings are done
under the Civil Procedure Rules. However, in criminal matters, there is no
procedure, however, court requires written notice.
 b) S.64 (b) When it is proved that the contents of the original have been
admitted in writing by the person against whom they are sought to be proved
or by his representative. In such a case, secondary evidence may be admitted,
but it must be the writing of the admission;

c) S.64(c) contains 3 main circumstances:

i) When the original has been destroyed or lost;

ii) Where the original is in the hands of a person not legally bound to
produce it and who, after being given to do so, does not produce the
document;

iii) Where the person seeking to adduce the document cannot, for any
other reason, not arising from his own fault, produce the document in
reasonable time.

To proceed under the first circumstance, one must prove that the original document
existed and show court that a diligent search for the document was conducted, but
that one failed to find it. One must also show destruction by e.g. swearing an affidavit
as to the burning of a house.

This is the most widely used exception to the best evidence rule because it is the
most accommodating.

d) S.64 (d) If the original is of such a nature that it is not easily movable, then
secondary evidence may be admissible e.g. if it is a building with certain marks
on it, court may accept photographs of marks on such a building as
documentary evidence. Alternatively, court may decide to visit the scene of the
locus in quo;

e) S.64 (e) Where the original is a public document. See ss.75 & 76;

f) S.64 (f) Where the original is a document of which a certified copy is permitted
by the Act. See s.77;
g) S.64 (g) When the original consists of numerous accounts or other documents
which cannot be conveniently examined in court and the fact to be proved is
the general result of the whole collection, e.g. a fraud case, documents
showing withdrawals on the account, etc. Here, court accepts a summary of the
collection of such books, however, a professional in that area must be brought.

John Baptiste D’sa v R

Facts: The appellants, bank clerks were convicted of fraudulent false accounting and
stealing from their employer. At trial, a bank inspector gave evidence for prosecution
concerning his searches. On appeal, the admissibility of this evidence was contested,
the appellants arguing that neither the original books of accounts referred to by the
Inspector were produced in court, nor were copies of them, therefore his evidence
was secondary and as such, not admissible.

Held: The evidence was properly admitted under s.63 (g) and it laid down 4 main
requirements which must be satisfied for secondary evidence to be admissible under
that section:

i) The witness must be skilled in the examination of the documents in question;

ii) The witness must have examined the documents;
iii) The documents consist of numerous accounts or other kinds of documents
not capable of being conveniently examined in court;
iv) The secondary evidence must be for the purpose of proving the general result
of the whole collection of books.
In this case, all the circumstances were fulfilled.

S.64 (g) has an element of convenience, is tailored to avoid unnecessary delay and
court may not have the professional skills to examine the books therefore a
professional is brought in to help.

Brown v R [1957] EA 371 (Who is a person skilled in the execution of documents?)

THE EVIDENCE BANKERS BOOKS ACT cap7

This Act creates privileges in favour of banks and their books in as far as giving
evidence in Court is concerned.
What are the bankers’ books with privileges?
These include ledgers, day books, cash books, accounts books and all other books
used in the ordinary business of the bank.

See s.2 for the definition of a bank.

S.3 provides the mode of proof of entries in bankers’ books. There is no need to bring
an original document, but you may produce a copy of the banker’s book. However, it
must fulfil certain requirements:

1. It must be verified as a true copy of the original;

2. S.4 of this Act requires that an officer of a bank must prove that the bank in
which the entry is found was one of the ordinary books of the bank and that the
entry in issue was made in the ordinary course of business.

Under s.6, special privileges are created for bankers. A banker is not compellable to
produce documents in his books or to appear as a witness about their contents in a
case to which he is not a party unless the court orders him to do so for a special
cause.

See ss. 63(a), (c) and (g) of the Evidence Act (Special cause: A person skilled in
examination)

With documentary evidence, if you feel that the other party is relying on
documentary evidence, court will admit it if you do not refute this as it would imply
acquiescence; or that you concur or wish to use the document yourself. This matter
was considered in:

Popatalal v Nanji

Held: If there is no objection to the admission of secondary evidence, the party failing
to object is presumed to have waived the right to object and cannot later object to
the document having been admitted.

PRESUMPTIONS PERTAINING TO DOCUMENTS

A presumption is an inference which the court makes, of the existence or non-

existence of certain facts.
There are both rebuttable and irrebuttable presumptions. If it is the former, evidence
may be adduced, however, where it is the latter, no evidence is adducible in as far as
that presumption is concerned.

S.4(1)-Whenever it is provided by the Act that the court may presume a fact, it may
either regard such fact as proved unless and until it is disproved or it may call for
proof thereof.

However, in s.4(2), where it is directed by the Act that Court shall presume a fact,
then the court shall regard such fact as proved unless and until it is disproved. (Note
the use of mandatory language.)

S.4(3)- If one fact is declared conclusive proof of another and if the first fact has been
proved, then the court shall presume that the other fact has been proved. For
example a decree absolute in a divorce case is conclusive proof as to the end of the
marriage.

Particular presumptions in documentary evidence

1. S.78 is on the genuineness of documents;

2. S.79 Presumption as to document produced as record of evidence.

R v Mitha
Facts: The accused was charged with perjury and as part of the evidence, prosecution
adduced the trial court’s record of proceedings as the main proof of false statements
allegedly made by the accused. The accused challenged the admission as being
improper, i.e. that although it was adduced, he did not say it and the record was
defective.

Held: Court may presume that the evidence recorded was that given and used
against the accused.

3. S.80- Presumptions as to the genuineness of gazettes, newspapers, Acts of

Parliament, etc.
4. S.81- Presumptions as to documents admissible in the UK and Ireland. These
are genuine and admissible in Ugandan courts. If documents would be
admissible in those countries without proof or authentication, then Ugandan
 courts will admit them too. All one has to prove is that before the UK and Irish
courts, they are admissible without proof or authentication.

Venn v Venn

Facts: A document was sworn before a Commissioner of Oaths in England and it was
sought to be used in Kenya.
Issue: Whether the document was admissible in Kenyan courts?
Held: Since it was admissible in the UK without proof, it was admissible in Kenya.

See: Tootal Bodhurst Co. v Ahmed

5. S.82- Presumptions as to maps or plans made by the authority of Government.

Court will presume that they are accurately made and therefore admit them
as genuine.

Magoti s/o Matofali v R

Facts: This concerned sketch maps drawn by policemen.
Issue: Whether or not they came under the presumption of the equivalent of s.82:
Held: A sketch plan drawn by a policeman must be proved to be accurate.
Rationale: The policemen were not experts in map drawing. The documents must
therefore be proved to be accurate and in any case, a policeman is not authorised by
Government to draw maps.

6. S.90- Documents that are 30 years old are presumed to be genuine.

7. S.89- Court shall presume that every document called for and not produced
after notice to produce is genuine, i.e. if it required, a stamp attestation, it was
well done.
8. – A presumption with regard to dispositions. A disposition is where s
witness for whatever reason, cannot be present in court, but instead sends
written information. Court nay decide that a disposition be made, i.e. that a
group is sent out to record what that person says e.g. affidavit, people to
cross examine, render oath and that evidence is brought back as a disposition.
It is presumed to be genuine without calling the recorder or the witness to
prove whatever is in the disposition. Court also would not call the
commissioner for oaths to prove the contents.
See Magoti s/o Matofali v R
See other presumptions in ss. 83-88
EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

This refers to the admissibility of extrinsic evidence to prove or vary the terms of a
document. The issue is always- whether or not you can admit other evidence to affect
what is already contained in that other document?

The general rule is that where there is a written document, any other evidence to
substitute or to vary or contradict the terms of the document is not admissible.

This principle mainly applies in 2 situations:

1. If you have a contract reduced to writing, in which case, the terms of that
contract must be proved by reference to the document itself. No oral evidence
to vary or contradict the terms is admissible. See Kilonzo s/o Kanyanya v
Purshotam brothers
2. With regard to transactions which are required by law to be in writing e.g. a
number of statutes require that certain transactions must be in writing, in
which case, the transaction can only be proved by the writing. Under the law of
contract, contracts of guarantee, contracts of money lending under the money
Lenders Act, etc must be proved by adducing the written contract itself.
See:
Damodar Jamada v Noor Mohammed (money lending)
Choitram v Lazar (sale of goods)

The Parole Evidence rule (Ss. 91-100 UEA)

This is the rule that excludes oral evidence by documentary evidence. According to
s.91, when the terms of a contract, grant or any other disposition of property have
been reduced to the form of a document and in all cases in which any matter is
required by law to be in the form of a document, no evidence shall be given in proof
of the terms of such contract, grant or disposition of property except the document
itself. See the other exceptions accepted under the section.

S.92- When the terms of any such contract, grant or disposition of property have
been proved in accordance with s.91, no evidence of any oral agreement or
statement shall be admitted as between the parties for the purpose of varying,
contradicting, adding to or subtracting from its terms. S.92 thus sets out the rule.
Both sections in effect, prohibit one from adducing oral evidence to the affect that
the terms of a contract, grant or disposition of property. However, if oral evidence
does not affect the terms and conditions, then it may be adducible e.g. dates, time if
they are not of essence to the contract.

Folkes v Tharkar

Facts: The appellant sued a company and the respondents as guarantors, for a sum of
money in respect of 2 consignments of goods delivered to the company on April 18 th
and May 11th 1956 respectively. It was alleged that the respondents who were 2 of the
directors of the company had, on 18th April guaranteed payment of all the moneys
due by the company for the goods delivered to them by the appellant and they
promised to sign a written guarantee within a few days and that such written
guarantee was delivered on May 22nd, bearing the same date. At the trial, the
appellant sought to establish that the written guarantee had been signed, not on 22 nd
May but in April before the delivery of the first consignment of goods and that it was
preceeded by an oral guarantee.

Trial Court holding: Such evidence was inadmissible. On appeal against this, the
appellant argued that the evidence was to prove that a written guarantee wasn’t
signed before May 22nd. It was contended for the appellant that the written
guarantee covered both past and future credits and that the consideration for
guarantee was a promise for future credit.

Issue: Whether oral evidence was admissible to prove that the guarantee was signed
before the date it bore?

Held: The date was not a term of the contract therefore oral evidence could be
admitted to prove that the date appearing on the document was not correct.

Rationale for the rule:

1. It is based on the agreement that parties have made a contract of their own
free will and that the court’s only duty is to enforce the said contract. It is
based on the sanctity of the contract. (i.e. a contract can only come in to
interpret and enforce the terms the parties have contracted on.)
2. The best evidence rule- The document itself is the best evidence of what the
parties intended.

Exceptions to the parole evidence rule

1. S.91- When a public officer is required by law to be appointed in writing, if it is

shown that any particular person has acted as such officer, then the writing by
which he was appointed, needn’t be proved, e.g. a company registrar who must
be appointed in writing. If such person is sick or not around, if it can be shown
that another was acting as such, written evidence does not have to be adduced.

2. In the proof of wills (s.91) - If a will has been admitted to probate in Uganda, it
may be proved by the probate. In applying for probate, you must attach the
will, prove the genuineness of the will in court after which, if you are successful,
court grants you the probate. If you then need to prove the will elsewhere, the
grant of probate is evidence of the genuineness of the will and you needn’t
prove it again.

The rest of the exceptions are embodied in s.92- provisos a-f:

3. S.92(a)- Any fact may be proved which would invalidate any document, or
which would entitle any person to any decree or order relating thereto, such
as fraud, intimidation, illegality, want of due execution, want of capacity in any
contracting party, want or failure of consideration or mistake in fact or law.

Patel v Patel

Facts: This was a suit on a bond. The defendant argued that the contract was in fact a
money-lending contract and since the plaintiff was not licensed as a money-lender as
required by law, then the contract was void. The plaintiffs contended that the
defendants’ oral evidence was inadmissible.

Held: The facts invalidating a contract may be proved by oral evidence. Money-
lending transactions by an unlicensed money-lender are illegal and void therefore
evidence was admissible to prove that the consideration recited in the bond was
unlawful and the bond therefore void.
Twentsche Overseas Trading Co. v Jamal Kanji

Facts: The respondents entered into a Hire Purchase agreement for a van. When the
respondents wanted to transfer it into their names, the appellants refused. The
matter went to court and the appellants adduced oral evidence to show that the
respondent had not paid the full value for the car. On appeal:

Issue: Whether oral evidence was admissible in light of the written contract and
receipt?

Held: It was open to the appellants to show what the true consideration was and
whether there had been a failure of consideration. The evidence adduced by the
appellants was an explanation of the conditional nature of the receipt and was
admissible. S. 92 prevents the admission of oral evidence for the purpose of
contradicting or varying the terms of a contract, but does not prevent a party to a
contract from claiming that there was no consideration or that the consideration
rendered was different from that described in the contract, or that it was agreed to
be paid in a different manner.

Uganda Timber Produce Co. Ltd. v Registered Trustees (Oral evidence pertaining to
mistake)

4. S.92 (b)- the existence of any oral agreement constituting a condition

precedent for the coming into effect of a contract is admissible. This was
considered in the case of:

Ghai v Mandal

Facts: This case concerned a post-dated cheque which the respondents gave the
appellant. The parties had agreed orally that the cheque would not be cashed until
the firm for which the respondent worked paid certain monies into his account. The
firm went bankrupt and did not pay the monies into the respondent’s account. The
respondent then stopped payment of the cheque due to lack of funds, but the
appellants presented the cheque which was dishonoured and they sued the
respondent on it. The respondent tried to adduce oral evidence of the condition that
had been agreed upon, that the cheque would not be presented for payment until
after his firm had paid him. The appellants objected to the oral evidence arguing that
the cheque contained all their contract.

Held: The evidence tendered in proof of the oral agreement was admissible. It was
tendered to establish that it was the intention of the parties that the cheque wasn’t
to be operative at all until after a certain event had happened. Court stated the
following principle:

“When, at the time of a written contract being entered into, it is orally

agreed between the parties that the written agreement shall not be of
any force or validity until some condition precedent has been
performed, parole evidence of such oral agreement is admissible to
show that the condition had not been performed and consequently
that the written contract has not become binding and that until the
condition is performed, there is in fact, no written agreement at all.”

5. S.92 (d)- The existence of a separate and distinct, subsequent oral agreement
to rescind or modify any contract is admissible, provided it is not a contract,
grant or disposition of property which is required by law to be in writing.

Ishakiya v Jusub
Held: Where it is to be in writing, then it can only be modified in writing thus the
exception in s.92 (d) does not apply.

6. S.92(e)- The existence or any usage or custom to which a particular type of

contract or transaction is usually subject, is admissible only if allowing it would
not be repugnant to or inconsistent with the express terms of a contract.

Brown v Byrne
Held: Evidence of custom and usage is admissible in order to get at the true meaning
of what the parties agreed on in the document.

7. S.92 (f) - Any fact may be proved which shows in what manner the language of
the document is related to the existing facts. This is another rule of
interpretation to help court establish what the parties intended.
8. Ss.93-100 – contain rules for the interpretation of documents by the court, the
most important being s.93 which is in concert with ss91 and 92. It provides that
where a contract is, on its face vague, ambiguous, defective on the face of it,
 the court may not resort to extrinsic aids to interpret its meaning, i.e. evidence
may not be given of facts which would show its meaning. See ss. 91-92.
9. S.94- When the language used in the document is plain in itself and if it applies
accurately to the existing facts, evidence may not be given to show that it was
not meant to apply to such facts. Note the use of ‘may’ e.g. s. 92(a) on mistake.
10. S.95- A document which is not meaningful. If it is plain on its face but it is not
meaningful with reference to the existing facts, evidence may be given to show
that it was used in certain terms.
11. S.96
12. S.98- Evidence may be given to show the meaning of illegible or not commonly
intelligible characters of foreign, obsolete, technical, local and provincial
expressions of abbreviations and of words used in a peculiar sense.
13. S.99- The persons who are not party to a document or their representatives in
interest may give evidence of any facts tending to show a contemporaneous
agreement varying the terms of a document e.g. where 3 parties sign an
agreement.
14. S.100- Nothing in ss.91-99 shall affect the provisions of the Succession Act as to
the construction of wills, i.e. those sections do not apply to wills.
 ESTOPPEL

This has been described as an evidentiary rule which when in consequence of some
previous act or statement to which he is either party or privy; the person is precluded
from denying the existence of a particular set of fact.
It is a rule by which a party to litigation is stopped from denying or asserting a fact
therefore it is a rule of exclusion making evidence in proof or disproof of a relevant
fact inadmissible.

According to Ernest Cockle in ‘Cases & Materials on the Law of Evidence,’ it happens
where a man has done some act or executed some deed which estops or precludes
him from averring anything to the contrary. It is so called because a man’s own act or
acceptance stops or closes up his mouth to allege or plead the truth.

The rationale for this rule is to provide certain means by which a man may be
concluded, not from saying the truth, but from saying that that which, b the
intervention of himself or his representatives or privies has once become accredited
for truth, is false.

The doctrine of estoppel is dealt with in the Evidence Act under ss. 114-115 and was
also defined in the case of:

Nurdin Bandali v Lombank

Held: It is a primary rule of evidence whereby a part to litigation in certain
circumstances is prevented from denying something which he had previously
asserted to be true.

Estoppel has sometimes been said to be almost similar to an irrebuttable

presumption of law since it prevents a party from rebutting facts alleged by the other
party. Indeed, sometimes, it is referred to as a conclusive admission, the difference
from the latter being that an estoppel may be waived by the party who would
otherwise benefit from it.

Characteristics of estoppel
1. It must be reciprocal and mutual, i.e. must bind both parties to the litigation;
2. It must be certain. This is especially so with regard to estoppel by conduct
which must be clear, precise and unambiguous;
3. It cannot be used to circumvent the law, i.e. to evade statutory and legal
provisions.

Leslie v Sheill
Held: The contractual capacity of a minor cannot be evaded by any estoppel against
him preventing him from asserting his infancy even though he has obtained a loan
through a false representation that he was an adult.

Likewise, the statutory rights of an individual cannot be lost through an estoppel, e.g.
if a tenant fails to raise a defence that his rent is in excess of the standard rent
prescribed by statute, he is not estopped from making a subsequent application to
determine the lawful rent. This was considered in the case of Griffith v Davis [1943]
KB 118

4) Conflicting estoppels cancel each other. Is has been said that ‘an estoppel
against an estoppel doth put the matter at large.’ It has also been said that if
such a situation were to occur, there might be no operative estoppel, just like
there might be no operative presumption if presumptions were to conflict.
5) Estoppel can only be used as a shield and not a sword, i.e. you cannot found
an action on estoppel, or rather, estoppel cannot be a cause of action, but a
defense.

Dawson Bank Ltd. v Japan Trading Cotton Co. [1935] AIRPC 79

Held: Estoppel is not a cause of action, however, it may assist a plaintiff in enforcing a
cause of action by preventing the defendant from denying the existence of some fact
which is essential to establish the cause of action or by preventing the defendant
from asserting the existence of some fact, the existence of which, if proved, would
destroy the cause of action.

Mbarara Coffee Curing Works v Grindlays Bank Ltd.

Issue: Whether estoppel is a sword or defence?
6) Estoppel only arises on a matter of fact, not of law, i.e. every person is
presumed to know the law therefore no misrepresentation can be claimed on
a question of law.
Allgar v Middlesex T.C
Held: Humphreys J,
“One realizes, of course, that in dealing with the doctrine of estoppel, one
must always be careful to see that the court is not saying that a man is
stopped from that. If all that happened was that a certain view of the law was
taken by the defendants and they made a mistake in what after all, on the part
of anybody, even a judge, can only be an expression of opinion as to what the
law is if all that happened, was that somebody said, well, in my view of the
law, this result follows, then no law of estoppel can prevent him from
asserting what the law is.”

It should be noted, however, that sometimes, questions of fact arise out of

questions of law, i.e. a question of law may be involved, but the representation is
essentially one of fact.

Categories of estoppel
There are three recognized categories of estoppel:
1. Estoppel by conduct;
2. Estoppel by deed;
3. Estoppel by judgment/ record.

Sometimes, however, estoppels are created by law, e.g. ss.115 and 116 Evidence Act.

Estoppel by conduct
This occurs when a person represents that a particular fact exists and thereby
includes another to enter into a transaction and courts have been held, in such cases,
that it shall be as represented, i.e. that person cannot turn around and claim anything
to the contrary.

This category of estoppel has also been referred to as equitable estoppel by virtue of
its original deriving from principles of equity. These principles were embodied in the
judgment of Pickard v Seers and are restated in s. 113.

For one to rely on this kind of estoppel, he must prove the following:
a) That there was conduct in question, which led or caused him to believe
something to be true;
b) That he acted on such belief by doing or omitting to do something and
thereby altered his position to his detriment;
c) That as a result, denying the representation would be prejudicial to him.
Estoppel by conduct may arise in a number of ways – by representation or by
negligence. In many cases, representation is based on an agreement:

a) Estoppel by representation
It may be by a party to an agreement. This occurs when a person willfully represents
a certain fact to be true. The term ‘wilfully’ was first used in the case of Pickard v
Seers and was later explained in:

Freeman v Cook (1848) 2 Ex. Ch 654

Facts: A man had moved his furniture to his brother’s house in order to forestall his
own creditors who later caused him to be adjudged bankrupt. Unknown to him, his
brother’s financial condition also became very bad and one of the brother’s
judgement creditors had the furniture seized in execution. However, before the
seizure, the owner of the furniture had told the sheriff conflicting lies about the
ownership of the furniture with the design of preventing execution against it.
Subsequently, the owners’ assignees in bankruptcy sued the sheriff for conversion of
the furniture.

Issue: Whether there was an estoppel preventing the owner through the creditors
from stating the true ownership of the furniture?

Held: There was no estoppel because the false representations of the owner to the
sheriff weren’t made with the intention of causing the furniture to be seized.

Nviri v British East African Corporation & Rukiya

Facts: Rukiya had sold a plot of land to a partner who sold it to the Corporation. Later
the plaintiff (Nviri) brought an action to recover land, claiming that Rukiya had only
possessed by inheritance, a 1/3 of the plot and that the remaining 2/3s belonged to
one Abubaker and the plaintiff was suing as his representative. This was established
as a fact, but it was also established that Abubaker had, before the instant sale,
negotiated another sale to a one Jaffer Devji, however, when Devji tried to enforce
the agreement, Abubaker participated in a fraud by which, after altering the title
deed, Rukiya was held out to be the sole owner. As a result of this fraud, Devji
dropped his action and thereafter, Rukiya dealt with the property as though it was
hers. Because of this, the defendant Corporation regarded Rukiya’s title as genuine.
Held: The plaintiff, as representing Abubaker, was estopped by law, Equity and the
Shariat, from succeeding in his claim, i.e. because they held out Rukiya to have title.

Estoppel by representation must be an unambiguous assertion of fact or private

right.

Jiwani v Pandya
Held: Court relied on the holding in London County Territorial Association v Nickells
[1949] 1 KB 35
Runda Coffee Estates v Singh

Estoppel by deed;
Estoppel by judgment/ record
BURDEN OF PROOF

The purpose of the Law of Evidence is to limit the scope of investigation as well as
establish that scope. For this reason, there are certain rules which have been
prescribed to help in the establishment of the liability or otherwise of parties.

The general rule is that facts must be proved unless they are admitted. The Law of
Evidence inter alia prescribes:

a) How facts may be proved;

b) Who must prove those facts;
c) Procedure of proving facts

The sum total of these 3 attributes is called ‘Burden of proof.’ Burden of proof
denotes a number of things:
1)The obligation to prove certain facts sometimes, called the evidential or provisional
burden, i.e. the duty to adduce evidence at a certain stage of the proceedings. This
is constantly shifting;
2) It could also mean the duty to prove a case, or the legal burden which is the duty
to establish a case against the other side or to finally prove the case. This does not
shift and is always on the plaintiff.

General Principles governing Burden of proof (Ss 101-106)

According to s.101, it is provided that whoever desires any court to give any judgment
as to any legal right or liability dependant on the existence of facts which he asserts,
must prove that those facts exist and when one is bound to prove the existence of
any fact, it is said that the burden of proof lies on that person. In practice, s. 101
generally refers to the legal burden of proof. It follows the common law principle
that whoever asserts must prove, but he who denies needn’t prove. Very often,
however, the extent of the burden of proof will depend on the nature of the case e.g.
in civil cases, a person who asserts is usually the plaintiff and he is therefore one who
is expected to prove, while in criminal cases, this burden is on the prosecution.

S.102 makes further provision for burden of proof. The burden of proof for suit/
proceeding lies on that person who would fail if no evidence at all were given on
either side. If the prosecution has made out a prima facie case, if the accused does
not say anything, he will be at a loss therefore has a burden to prove otherwise.

Burden of proof in Criminal cases

Under Art. 28 of the 1995 Constitution, the prosecution has the duty to prove the
case against the accused, i.e. this is the legal burden.

Woolmington v DPP
Facts: A man was charged with the murder of his wife. He pleaded accident, but the
trial court held that once the prosecution had proved an unlawful killing, it was the
duty of the defense to prove circumstances which would reduce the killing to an
accidental one. The accused appealed against this judgment.

Held: The House of Lords quashed the conviction for murder saying that it was
wrongly held that the accused was guilty because he had failed to prove that the
killing was innocent. Court said that in criminal cases, it is always the duty of the
prosecution to prove the case against an accused beyond reasonable doubt that
where a man raises the defense of accident, he has already cast doubts on the
prosecution case therefore the prosecution has a duty to clear that doubt.

The prosecution must prove because of the constitutional presumption of the

innocence of an accused person and the right of the accused not to incriminate
themselves – to remain silent. However, the general principle has exceptions; most
of them are statutory exceptions, although others derive from common law, e.g. the
defenses of insanity and intoxication.
In all those cases where the accused is required to prove defences e.g. insanity and
intoxication, the burden is upon him to do so although the standard or degree of
proof is not as high as that placed on the prosecution.

See:
Kagoro v R
Cheminingwa v R
Kayemba v Ug
Saidi v R
Ug v Ssebalya

An accused who raises an alibi does not have the duty to prove it- the prosecution
must prove otherwise.

Sometimes, there are statutory offences wherein, the burden is upon the accused to
show that they did not commit the relevant statutory offence, i.e. they have offences
of strict liability and it is up to the accused to show that you are not guilty or liable.
See s.105 of the Evidence Act. Where the law places the onus on the accused to prove
innocence e.g. the Mining Act, Children’s Act, is this contrary to Art, 28(4)(a) of the
Constitution. Facts within the personal knowledge of the accused; If you can bring
the case within the exception of s.105 of the Act.

Burden of Proof in Civil cases

S.101 places the burden of proof on a person who desires any ruling or judgment. It
provides for the legal burden of proof on the prosecution.

S.102 provides for the evidential burden of proof in civil cases where ordinarily the
burden of proof is on that person who is asserting or states the affirmative, although
it is not usually necessarily used in the grammatical sense, but refers to that person
who makes the allegations. The use of the word ‘asserting/ affirming’ was considered
in the case of:

Joseph Constantine Ltd v Imperial

Held: The burden lies on that person who affirms and not the person who denies, but
the term ‘affirmation’ is wide enough to include every allegation, whether positive or
negative.

Souard v Legadd
Alimadi v Mohammed
CIT v Bapoo

Sometimes, especially in income tax cases, the rule may be somewhat different from
the general rule i.e. in most cases, it becomes the tax payer who is under duty to
prove that the assessment against him was excessive. See s.103 of the Income Tax
Act.
If matters of customary law have been alleged to exist, it is the person alleging their
existence who must prove.

Case v Ruguru
Kimani v Gikanga

However, in civil proceedings generally, where evidence is so scanty that it is difficult

to find a conclusion on either side, the burden is on that person who will suffer most
if no evidence is adduced at the time. See s.102 Evidence Act.

Wakling v London & South Western Railways

Facts: This was an action by a widow under the Fatal Accidents Act. She alleged that
her husband had met his death through the negligence of the defendants. The only
evidence available was that the defendant’s body was lying at the side of a railway
line, near a crossing. She did not adduce further evidence but invited court to say that
it was due to the railway’s negligence.
Held: The plaintiff could not succeed unless she brought further evidence to show
that her husband actually died at the hands of or through the nei gligence of the
railway authority.

STANDARD OF PROOF

This is sometimes called the degree of persuasion. Once a legal burden is imposed on
a particular person, the law also prescribes a certain degree to which he must aspire
and until the degree is attained, the burden is not discharged. The standard of proof
normally depends on the circumstances or nature of the case, with a clear
demarcation between what is expected in criminal and civil cases.

Under Common law, two basic standards have been identified for criminal and civil
actions. In civil cases, the general standard is on the balance of probabilities or the
preponderance of doubt/ evidence, i.e. the party who bears the burden simply has to
show that his case is more probable than not, i.e. that it is more likely to be more
correct than the other person’s case. However, in criminal cases, the duty of the
prosecution is to prove the case against the accused beyond reasonable doubt. The
term was considered in some cases. It is a general view of jurists that it is better not
to define things, as it leads to being side- tracked.
Miller v Minister of Pensions

Issue: What is the concept of proof beyond reasonable doubt?

Held: Denning MR distinguishes proof beyond reasonable doubt from conclusive

proof. He says that proof beyond reasonable doubt does not mean proof beyond all
shadow of doubts, that the law would fail to protect the community if fanciful
possibilities were allowed to displace a finding of ‘beyond reasonable doubt.’
If doubt is not reasonable, on the facts, then you cannot say the case has not been
proved by the prosecution.

R v Yap Chuan Ching [1956]63 Cr. App57

Held: The case concluded by saying that the concept of ‘beyond reasonable doubt’
was a complicated one and that the court should not attempt to define it.

In defining the issue of ‘beyond reasonable doubt’ the East African courts are
unanimous that that standard is the one to be applied in criminal cases. They have
also decided that the term ‘beyond reasonable doubt’ suggests s high degree of
proof that it will be discharged the moment the court is satisfied that the evidence
adduced is inconsistent with the innocence of the accused.

In as far as defenses are concerned in criminal law, the standard expected of the
accused is proof on the balance of probabilities. There are some English cases which
suggest that the standard for some defenses e.g. inanity, is higher than on a balance
of probabilities. However, in East Africa, the view is that all defenses raised during
criminal proceedings are provable on the balance of probabilities.

What is the standard in Matrimonial Causes?

This is an arguable matter. There is no settled rule, depending on whatever

jurisdiction you may be looking at. The problem is that the allegations have a quasi-
criminal nature, e.g. adultery, cruelty, bigamy, etc. The question has always been
whether to employ the criminal standard of proof or the civil standard. In addition,
controversy stems from the provisions of s.9 of the Divorce Act which provides that
court will grant a divorce if it is satisfied that the grounds alleged exist.
Two different views have been advanced with regard to the meaning of the term
‘satisfied’.

Stjerholm v Stjerholm

Held: It was laid down that the word ‘satisfied’ is used in that section to imply a high
degree of ‘satisfaction’ which must be attained therefore that implies that the
standard is beyond reasonable doubt.
There are some cases that have supported this view. These cases say that the
standard in matrimonial causes is higher than in normal civil cases.

See:
Mallinson v Mallinson
Patel v Patel

Another line of argument regarding the word ‘satisfied’ is that it is used in the
Divorce Act to imply a burden of proof, i.e. that it implies who bears the burden of
proof, i.e. the petitioner must bear it and satisfy the court therefore it should not be
interpreted to mean that it requires a high degree of proof, that since it is a civil case,
the standard must be on the balance of probabilities.

The compromise position is that since matrimonial causes are neither purely criminal
nor purely civil, but are in between, the standard should be in between. The most
popular view in Uganda is that the standard in matrimonial causes should be higher
than the balance of probabilities, but not as high as beyond reasonable doubt.
COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence refers to the capacity of a person to give evidence. Not all people have
that capacity, e.g. old people, insane, children, etc.

Compellability means whether a particular witness can be subjected to the

compulsory process of court to induce him to testify, i.e. can that person be
summoned? If such person refuses, can he be arrested and imprisoned for contempt
of court? Sometimes not all witnesses are compellable especially if they enjoy certain
privileges.

COMPETENCE OF WITNESSES
Rules governing competence

S.117- The general rule is that all persons are competent unless they suffer from a
certain disability. All persons shall be competent unless the court considers that they
are prevented from understanding questions put to them or from giving rational
answers to those questions put to them or from giving rational answers to those
questions by tender years, or extreme old age, disease of body/mind or any other
cause of the same kind. A lunatic is not incompetent to testify unless he is prevented
by his lunacy from understanding the question rational answers thereto.

Competence of special categories of witnesses

1. Dumb witnesses

A dumb witness (one who is unable to speak) may still be a competent witness. Being
a deaf mute does not render a person incompetent per se. He may give his or her
evidence in any other manner in which he can make it intelligible as by writing or
signs but such writing but such writing must be written and the signs must be made
in open court. Evidence so given shall be deemed to be oral evidence as in the case
of:
Hamisi s/o Balum v R
Facts: This case involved a deaf mute witness who would, however, make some
noises. He was called as a witness and the trial Magistrate allowed this. The witness
gave evidence with the help of a sister who said that she understood the noises. The
sister was then sworn in as an interpreter. The case went on appeal because of the
witness’s form of evidence and the use of the sister as an interpreter.

Held: Court of Appeal- Such a witness was competent but in this case, the method of
interpretation was so crude that the witness should not have been allowed to give
evidence. Where there is need for interpretation, an expert should be called; the
sister could have been biased.

2. Accused persons
An accused person is a competent witness for the defence or for himself, but he is
not compellable to give evidence at his trial. There are a number of options at his
trial. He can give evidence on oath by way of application; where he does so, the
prosecution can examine him. Cross examination is the only time during which an
accused person may be compelled to answer questions. See s.131. In practice,
whether an accused gives sworn evidence or not, should not be used against him in
judgment.

3. Accomplices
An accomplice is one charged with, but not for the same offence as the accused. An
accomplice is a competent witness against an accused person and a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice. In practice, however, few courts convict on uncorroborated evidence of
an accomplice. During trial, when a witness other than the accused stands before
court, such evidence must be on oath. See s.12 of the Oaths Act.

4. Spouses

S.120 of the Evidence Act. In criminal proceedings, the following provisions shall have
effect:
S. 120 (1) (b) - The wife or husband of the accused shall be a competent and
compellable witness for the defense and whether the accused is charged alone or
jointly with another person. The rationale for this is to protect the confidentiality in
marriage, i.e. any marriage recognized by the laws of Uganda.

In ss120 (2) and 121, the terms ‘husband’ and ‘wife’ mean respectively the husband
and wife of a subsisting marriage as such under any written or customary law. The
principle laid down in R v Amkeyo was changed in the case of Alai v Uganda where it
was sought to use evidence of the accused’s wife. Court recognized her as a wife and
she could not therefore testify against her husband. Because of this ruling, s.120 was
amended to have s.120 (2).

As to whether spouses can testify against each other is still a big question, e.g. in
Kenya, where the spouse is being charged with bigamy, incest or any moral offence,
stealing property of the spouse, a spouse may be compelled.

English cases, however, have applied these instances selectively:

R v Lockworth [1931] 1 KB 117

Facts: The husband was accused of inflicting grievous bodily harm on the accused.
The wife was called to testify against her husband and she refused.

Held: When a husband is indicted for inflicting harm on the wife, she is a compellable
witness for both the defense and the prosecution. If she refuses continuously, she is
incompetent in court.

Hoskyns v Metropolitan Police [1912] AC 474

Facts: The wife was unwilling to testify against her husband.

Issue: whether or not the wife could be compelled to testify against her husband
despite her unwillingness?

Held: She could not be compelled to testify against her husband even if she is the one
on whom the harm was inflicted.

In civil proceedings, however, spouses are both competent and compellable. S. 121 of
the Evidence Act- In civil proceedings, the parties to the suit and the husband and
wife of any party to the suit shall be competent and compellable witnesses.

5. Children of tender years

All persons are competent to testify, however, under s.117 of the Evidence Act, a child
of tender years may not be a competent witness if by reason of his or her age, the
child cannot understand the questions put to him or her, or if s/he cannot answer
rationally. For this category, they may not always be considered as competent
witnesses. There is no statutory definition of who a child is, but a number of cases
have considered this:

Kibagenyi v R 1959 e.a

Facts: The appellant was appealing against a conviction for murder. The main
evidence against him at the trial court had been given by his 2 sons, one aged
between 12-14 years and the other between 9-10 years. He challenged the
admissibility of their evidence on the grounds that they were children of tender years
and therefore incompetent witnesses.

Held: The phrase ‘child of tender years’ refers to any child of the average or apparent
age of 14 years. Whether or not a particular child is of tender years depends on the
good sense of court.

Omukono v Uganda [1979] HCB 171

Procedure of court with regard to child witnesses

Where the court is faced with a child witness, it is expected to voire dire, which
involves an attempt to determine if the child understands the nature of an oath,
whether the child has sufficient capacity or intelligence to give reliable evidence and
whether the child knows the duty of telling the truth, i.e. can the child distinguish
right from wrong or even know the consequences?

Uganda v Oloya s/o Omoke [1977] HCB 4

Held:
i) When a court is confronted with a child of tender years as a witness, it should
question the child whether s/he understands the nature of an oath. If court
finds that the child does not understand the nature of an oath, it may not
allow the child to give evidence.
ii) If the child understands, the child may give sworn evidence. If the court does
not allow the child to swear, it is up to the court whether in its opinion, the
child is possessed of sufficient intelligence, to justify the reception of his or
her evidence and whether the child understands the duty to tell the truth.
iii) Special note must be taken that where a child is a prosecution witness, the
court should also direct itself that the child’s evidence needs corroboration,
but in all cases of child witnesses, court must conduct a voire dire. If court
does not, that is a good ground for appeal and quashing such evidence.
If a child gives unsworn evidence, it must be corroborated. However, in practice, all
evidence given by children must be corroborated. The rationale is to ensure the
reliability of their evidence. If they cannot swear, they must affirm that they will tell
the truth and nothing but the truth. If a child witness gets tongue-tied ordinarily, the
advocate or person representing the child may ask for an adjournment.
See s.12 of the Oaths Act.

COMPELLABILITY OF WITNESSES

Compellability means whether a particular witness can be subjected to the

compulsory process of court to induce him to testify.

General rule: All ordinary witnesses are compellable to testify on matters asked of
them during proceedings. S.131 Evidence Act- A witness shall not be excused from
answering any questions as to any matter relevant to matter in issue in any suit or
civil/ criminal proceeding upon the ground that the answer to such question will
incriminate or may tend directly/ indirectly to incriminate such witness or that it will
expose such witness to a penalty or forfeiture of any kind or that it may establish or
tend to establish that he owes a debt or is otherwise subject to a civil suit.

There are, however, special categories of persons who are not compellable, e.g. an
accused (with a constitutional right to silence). However, the exception is under s.131
where the accused gives sworn evidence, the accused is compellable to answer
questions.

Swearing means taking an oath to tell the truth therefore you cannot be heard not to
answer a question asked. What happens when a witness gives evidence different
from what was in his statement to the Police? How about those who refuse to give
evidence in court yet they have been called as witnesses? Such people may be
charged with contempt of court for 7 days until they give evidence before court.
(Refractory witnesses).

A hostile witness is a witness on the accused’s side but when giving evidence, starts
giving evidence against the accused and in favour of the prosecution. How do you
deal with such a witness? You may apply to court to declare such a witness hostile.
You then have a right to ask court to allow you to cross examine your witness in this
manner:
a) Examination-in-chief
You encourage the witness to tell their story, during which you treat them very
calmly and gently to speak without fear or intimidation. At this point if you find him
hostile, you may indulge court to declare him as such.
b) Cross examination
This is done by the other side, to destroy or impeach the credit of the witness by
showing that their evidence should be taken with less weight and that it should not
be believed. Once court rules that he is unreliable, no side can use him. If this step of
cross examination is skipped, court will still consider the evidence adduced.

c) Re-examination
During this time, whatever else a witness has to say is heard although the court has
the final say. The party who called the witness tries to repair the damage that was
caused during examination in chief and cross examination. At this point new
evidence cannot be introduced unless it is to clear any damage that had been caused
at those previous stages.
If it is found that the witness told lies, such witness may be prosecuted for perjury.
See s.131 Evidence Act.

Exceptions to the general rule as to the compellability of witnesses

Most of these are based on the privileges granted by law, e.g. public privilege,
professional privilege and private privilege. These privileges are based on public
policy, i.e. a spouse cannot testify against another his/ her spouse due to the desire
to protect the marriage institution. A witness may be competent but not
compellable.

Private privilege
This is the privilege or immunity enjoyed by private persons as a result of their
personal status, e.g. husband and wife. See s.120. The communication between
spouses during the subsistence of the marriage is deemed to be privileged therefore
a spouse cannot be compelled to testify against the other during criminal
proceedings. The aim is to protect the sanctity of the marriage relationship. The
parties are still bound even after divorce/separation.
Professional privilege
This refers to the privileges enjoyed by professionals not to disclose any
communication between them and their clients, e.g. doctors cannot be compelled to
testify about matters that come to their knowledge in the course treating their
patients. They are bound by their Laws and Ethics not to disclose, which if they do,
amounts to misconduct.

The Evidence Act specifically provides for the protection of Advocates and Legal
Advisers against compulsion from testifying about matters between them and their
clients. S.125 provides that no Advocate shall at any time, be permitted, unless with
his client’s express consent to disclose any communication made to him in the course
and for the purpose of his employment as such Advocate by or on behalf of his client
or to state the contents or conditions of any document with which he has become
acquainted in the course and for the purpose of his professional employment or to
disclose any advice given by him to his client during the course of and for the purpose
of his employment. It would amount to professional misconduct if such advocate
failed to disclose although there is an exception where the client gives express
consent to disclose.

Omari s/o Salum v R [1956] 22 EACA

Held: Court restated the provisions of s.125, that it is professional misconduct for an
advocate to disclose any communication made to him by his client, unless the latter
has consented, that the only exception is when the client has consented or when the
communication is for an illegal purpose.

S.125 has exceptions to this rule. The proviso- provided that nothing in this section
shall protect from disclosure:
a) any such communication made in furtherance of an illegal purpose;
b) Any fact observed by any Advocate in the course of his employment as such
showing that any crime or fraud has been committed since the commencement
of his employment. The section also says that the obligation not to disclose
information unless it is for an illegal purpose continues even after the
employment relationship has ceased.
S.126 - the obligation not to disclose as well as the privilege of not being compellable
extends to the interpreters, servants and clerks employed by the Advocate. This is in
recognition of the fact that the advocate does not know of the facts or act on them
alone. They are bound even on termination of the contract.
Under s.127, even if a party volunteered the evidence in court on the communication
between him and the Advocate, he shall not be deemed to have consented to
disclosure by the Advocate, i.e. you cannot waive a privilege as attached to the
communication. This provision also attaches to legal advisors- s.128. The difference
between an Advocate and a Legal Advisor is that the former is LDC trained with a
PGDP while the latter may not possess those qualifications.

Judges and Magistrates also have professional privilege. S.119 provides that no judge
or magistrate shall, except upon the specific order of some court to which he is
subordinate, be compelled to answer any questions as to his own conduct in court, as
such judge or magistrate or as to anything which came to his knowledge in court
while in such position, but s/he may be examined as to other matters which occurred
in his presence while acting as such e.g. Her Worship Alividza and the accused,
Arinaitwe…she could testify.

S.124 provides for both professional and public privilege- no magistrate or political
officer shall be compelled to say where he got any information as to the commission
of any offence and no revenue officer shall be compelled to say where he got any
information as to the commission of any offence against the public revenues. This
section protects informers.

Public Privilege
This protects Government secrets from disclosure during court proceedings. It deals
with Diplomatic and Presidential immunity. These categories of people cannot be
compelled to give evidence in court. See ss122-123. From these sections, the issue is-
who has the authority to determine whether the public interest and security would
be in danger? In court the issue is usually whether the court can compel a public
officer to explain why he thinks a public document must be confidential.

Duncan v Cammell-Laird
Facts: A British sub-marine was sunk during World War II, killing 99 men. The
dependants of the deceased persons sued for damages due to negligence. They
applied for the discovery of certain documents relating to the accident. Government
refused to disclose the documents contending that their production would injure
public security. The plaintiffs counter-argued that the claim for privilege should not
be final, but should be investigated by the court to avoid injustice.
Held: HOL- The court should accept the claim for privilege on face value and should
not inquire into the reasons for not disclosing the documents.

Conway v Rimmer
Issue: The issue was the same as in the Duncan case; however, the HOL overruled
their decision in the Duncan case.
Facts: The plaintiff was a former Police Constable. He sues the department for
malicious prosecution and false imprisonment and he applied for discover of certain
documents in the possession of the defendant who claimed privilege.
Held: Court laid down a number of principles:
i) The documents should be provided for inspection in court and if court finds that
disclosure will not be prejudicial to public interest or that any possibility of such
prejudice was insufficient to justify its being withheld, then disclosure should be
ordered.
ii) In all cases, the court should balance the two conflicting public interests in such
cases, i.e. that no harm should be done to the state by disclosure against the
public interest in the proper administration of justice, by ensuring that all relevant
evidence is adduced.
A number of East African cases have followed the ruling in this case:
Rukare v Universal Trading Co. [1974] AC 395
Rachure v Sondi [1967] EA 624