Documentary evidence.

As in the case of a document, a material object when produced must be proved. In the absence of
an admission, oral evidence to identify the object is necessary. Section 2 of the evidence Act
states a "document" includes any device by means of which information is recorded or stored,
and books, maps, plans and drawings; the definition went beyond the normal meaning of
document been just a paper but also a video for example.

In the case of r v daye it was stated that "There is a document whenever there is writing or
printing capable of being read, no matter what the material may be upon which it is impressed or
inscribed.

How to produce documentary evidence in criminal matters.

section 4 of the evidence Act describes when and how documentary evidence can be produced in
court during criminal proceedings [ look at the section and compare to process mentioned in
siwale notes]

 You first lay a foundation – The witness is asked to describe the features of the document
they want to produce before court giving details of the document. You then ask the
witness, “if the document was shown to you, how would you identify it?”
 You then get the document and show it to the witness, asking “tell the court what that
document is”
 After the witness has described and identified the document, the document is marked as
“Identified”, i.e. “ID1 or ID2’’. [The witness is then asked who has been the custodian of
the document and whether the person producing it is the author of the document?]
 The witness is then asked what they would want to do with that document – the witness
would then state that s/he would like the document to be part of their evidence
 You then show the document to the other party, because the defence must be given an
opportunity to see the document.
 An application is then made that the document form part of evidence
 The defence is then asked whether they have any objection for the document to be
tendered into evidence. There are various reasons for an objection.

They are a number of the defence can make an objection to evidence produced such as person
producing it is not the author document is not the original and so on were the evidence is not
objected the documents will be produced as P1 and P2
 Simulation [ from siwale notes :

You’re a prosecutor in a matter to do with theft of property. Amongst the evidence that you
have is a video footage which is on a flash stick. How would you present this evidence before
the court for it to be accepted? The footage is secondary documentary evidence[ secondary
evidence is evidence that has be reproduced in this case the copy of the video on the flash
disk] – need to meet the requirements to satisfy the court that it should be used…lay a
foundation as to why secondary evidence should be accepted as evidence by the court…if not
accepted, can apply for a viewing, for the court to view the original footage from the actual
system. Who is the author? Issue of custody?

PRODUCTION OF DOCUMENTS IN CIVIL MATTERS

Documentary evidence production in civil matters is explained in section three of the evidence
Act [ read section 3 and explain here when you understand the section highlight understanding]

Documents in civil matters are produced through a bundle the bundle of documents filled when
commencing the action in court. When the matter comes up at trial, a party cannot produce a
document other than what was in the bundle of documents. However, a party can file a
supplementary list of documents into court and subsequently file a supplementary bundle of
documents where a party wants to produce a document that was not contained in the bundle of
documents filed.

How do you refer a witness to a document that has been filed? The general practice is that the
witness will be led in the evidence to discuss or describe the document that the lawyer would
want the witness to bring to the attention of the court. This is usually done through examination
in chief.

A matter commenced before the Commercial Court, however, when a witness is about to testify,
other than the witness statement that the witness is relying on, the witness is usually asked if
there is any other document that the witness has brought to court. the witness will point to their
bundle of documents and request that it be admitted into evidence at that particular court. This is
because the order for evidence in a normal trial is examination in chief, cross examination, then
re-examination, but in the commercial court the witness prepares a witness statement as their
evidence which is regarded as examination in chief, so you go straight into cross examination.
Therefore, it is always prudent to tell the court

that you will rely on your bundle of documents if you have prepared one so that it can be
admitted into evidence.

TYPES OF DOCUMENTS

There are two types: private and public documents.

Private documents are documents which are not official, public, or judicial. A person intending
to rely on the words used in this kind of document must adduce primary evidence of its contents.
Primary evidence means that the evidence must be in its original form. Read MacDonald v E
1852 11 CB 930 As a rule the best

evidence of a document is the original document,

which is treated as "primary evidence" of its con-

tents. Such original must be produced unless its

absence is accounted for. Brief facts In an action on a bill of exchange, a witness,

called by the plaintiff,
was asked in cross-examination by the defendant's counsel, who pro-
duced a letter purporting to have been written by the witness : " Did
you not write that letter in answer to a letter charging you with
forgery ? " The counsel for the plaintiff objected to the question on
the ground that it was an attempt to get in evidence the contents of
a written document without producing the document itself. It was
held that the objection was a good one. and

R v Polly Trinity Hull 1872 7 B&C 611.; George Bianca v The People. There are exceptions to
the rule of adducing primary evidence:

 When the original is in the possession or control of the opponent of the party wishing to
rely on that document. For instance, somebody is dismissed from employment and
decides to sue the lawyer and the document that he has is a copy of the document (maybe
 a company document). How is he going to produce it and satisfy the court to produce a
copy? He can compel the other party to produce the document before court by way of a
Notice to Produce and indicate which document you what the other party to produce
before court.
 When the document is in possession of stranger who lawfully refuses to come to court or
to produce it before court even after being served with a subpoena destecum. E.g. people
who enjoy diplomatic immunity who are not answerable to the government
 When the original cannot be found after a due search – can rely on secondary evidence

 When though it is known to be in existence, the production of the original is for practical
purposes impossible. E.g. in the RB abuse of office case concerning the procurement of
oil from Nigeria. It was alleged that a letter was written from one President to the other.
During a police search in his house, the police officer came across a copy of the alleged
letter which raised suspicion. The police officer who found the letter was giving evidence
that he found the letter which had a State House letterhead and a signature of the
President which the witness alluded to when asked how he would identify the letter if he
saw it. DPP gave a copy of the letter to the witness who acknowledged that that is the
letter he found and asked what he would like to do. He said he would like to produce it as
evidence but there was an objection because it was not the original copy and a foundation
had not been laid. Through examination it became clear that the person in possession of
the original could not come before court.
 When the evidence is computer generated.

Documentary evidence and authentication of documents

What is authentication?
This is a process or means showing that something is true and valid
What is authentication of documents in evidence?
Legal definition on broad terms authentication ca be said to be the confirmation rendered by an officer of
the court that a document is what it says it. In the law of evidence, the act of establishing a statute record
or other document or a certified copy of any such document or instrument as genuine and official so that
it can be used in a law suit to prove an issue in dispute.
The admissibility of certain types of documents requires authentication. The authentication of documents
Act deals with matters of how documents out of Zambia ( foreign documents ) maybe used in the courts
of law in Zambia, section 3 stipulates that for a document out of Zambia to be used in Zambia such a
document should be authenticated.
The word authentication which is defined in section 2 of the Act and it means verification of any
signature on the document. For a documented to be accepted for use in Zambia the document should be
authenticated meaning signature needs to be verified.
HOW IS A DOCUMENT DEEMED TO AUTHENTICATED?
A documented executed in Great Britain its execution is done by notary I.e. notarization. any document
executed in any part of her majesties dominions the authentication is supposed to be done by the mayor or
notary public or by any government head of any department in any such part of her Britannic majesties
dominions. In any of her Britannic majesties territories in Africa such as southern Rhodesia it shall be
duly executed if it is signed by a notary public magistrate, permanent head of the government republic of
such territory. A document executed from a foreign place meaning any other country will be deemed
authentic by the signature and seal of the office of the British general or the council or the vice council of
such foreign place, the secretary of the state the governor or colonial secretary in such foreign place.
What does this say about authentication now lol
For a document o be used and relied upon in Zambia if executed out of Zambia should be authenticated.
The authentication of the documents Act has been subjected to a lot of judicial interpretations numerous
cases have been brought to the courts of law to discuss the authentication of the documents. HOW HAVE
THE COURTS INTERPRETATED THIS ACT ? the first case we will look at is the case
LUMUS AGRICULTURE COMPANY SERVICES LIMITED AND OTHERS V GWEMBE IN
RECIEVORSHIP 1999 ZLW 1 the question this case was trying to bring was if a person can produce a
document executed outside Zambia when the document was not authenticated and if the party can rely on
the documented when it was party to the to the agreement. The supreme court said if a document is
authenticated as provided for by the Acts it shall be deemed and presumed to be valid for the use in this
country and if not it will be deemed not to valid and cannot be used in the country (read what the Act
provides for on the authentication of documents) and it is worth noting that an instrument which is not
authenticated is valid between the parties to that document but is infective against third parties. The Act
does not limit the time within which a document maybe authenticated but such authentication shall not
have a retrospective effect it will only take effect from the time it is signed but not before.
A document that is not authenticated is valid between the parties to such document but it is not effective
to third parties in the case of rainbow tourism group Zambia limited v something hotel and another ZLR
240 a document will be valid on the footing of the last signature. READ MORE ON THIS UNDERTSNF
CASES AND FACTS IMPORTANT FOR EXAMS
READ CASES
AFRICAN Alliance Pioneers MASTER FUND V VIHICLE FINANCE LTD appeal number 20 of 2021
unreported
Stake ranch limited v stake ranches international 2012 zlr volume 2
Manda hill Centre power company limited v manda hill Centre limited 2014 350

FACTS IN ISSUE
These are facts which a plaintiff or a prosecutor must prove in order to establish his claim. For example,
in civil matters Produce the facts that there is a contract and it was breached and in criminal matters
murder the facts in issue must prove that the was murder
FACTS RELEVANT TO THE ISSUE
These are facts which render probable the existence or un existence of the fact in issue or some other
relevant facts
Extrinsic Evidence
The best evidence rule which is the general principle of evidence is that a party seeking to prove a fact
must adduce the best form of evidence that the circumstances allow (computer generated evidence study
this to be ahead of lecture) the reasoning behind the best evidence rules lays in the exclusiveness and
conclusiveness of the contexts of the documents.
Extrinsic evidence is generally inadmissible and if accepted would have the effect of adding to or vary
and contradicting the terms of the document or prove the contents of a document and meaning intended
by the author of the document. Homes limited v build well construction company limited ZLR 97

COMPUTER GENERATED EVIDENCE

The electronic communication and transactions Act of 2021 currently guides on the admissibility of
evidence, primary evidence is what is admissible in court however in its absence secondary evidence is
admissible.
Because the internet took over in conventional means of communication solutions needed to be found to
deal with problems created by technology, the most important part of the Act is part 4 that is sections 4-
19 this relates to evidence and the production of evidence
Section 5 states that the requirement in law that a document should be is met if the document;

 Is in the form of a data message

 Accessible or capable of been retained in a manner usable for subsequent reference
The above qualifies a data message to be a document section 6 allows for an electronic signature this is
however if they are no law the specifically requires a physical signature on the document section 7
explains further how an electronic signature has legal binding in different circumstances in relation to
electronic transactions and agreements. This turns down what was stated in the Amanita case read case
later and put facts here
Section 8 discusses the requirement that an electronic massage meets in been said to be in its original
form
Section 9 discusses production of evidence discusses the admissibility of a data massage and some of the
requirements it should meet in order for it to be admissible it concludes by stating evidence will not be
denied admissibility on the mare fact that they are in electronic form
Section 11 has allowed electronic massages to be produced in court and used as evidence.

WITNESSES COMPETANCE AND COMPELLABITY

The general rule is that everyone is a competent and compellable witness in any proceedings however a
witness can effuse to answer questions on grounds of privilege or public policy.
A competent witness is on who is one who is free from personal characteristics which would disable him
from giving evidence before the court
A compellable is not only competent but may be lawfully required to give evidence on pain of been in
contempt of court.
Accused persons been witness
A person who is tried or an accused will not be compelled to give evidence at his trail this is provided for
in Article 18(7) of the constitution. This is also an example of a witness who refuses to talk or is not
required to talk. This was further stated in the case of Mumba v the People an accused Peron in a
criminal trail connate be compelled to give evidence in his defence
Another example is provided for by the criminal procedure code in section 157 which provides that the
wife or husband of an accused shall not be called as a witness for the prosecution unless on application by
the person. They are allowed to be a witness for the defense at any point of the proceedings ( the act goes
in depth in other parts of the same section).
Naweji v the people it was stated that an unsworn stated made by an accused person against a co accused
is not evidence against a co accused it was stated in the case that it is trite law that an accused statement
not made on oath in the course of trail is evidence against himself and as such the evidence is ineffective
to his co accused.
In the case of shamwana v the people dpp offered deal to one of the accomplices and he turned state
witness and his evidence was admitted he was said to be a competent witness. Basically an accomplice
can turn into a competent witness the case of R V PIPE may also be used in such circumstances a person
can only be called to be a witness for the prosecution under special circumstances one of which is if they
have offered in a him a deal. Such as entering nolle prosequi or something. Similarly, the case of R V
Brayan James Turner accomplices may give evidence, however it was buttressed in his case that a person
who has been charged jointly or alone or an indictment has been prepared or though not given to him
shall not be called by the prosecution except in certain limited circumstances which have been explained
above to re state entering nolle prosequi, omitting him from indictment and to offer no evidence and
permit his acquittal. The shamwana case concluded that the only that was wrong with accepting this
evidence was it moral ground however a judge will not throw out evidence based on this
fact(paraphrasing).

SPOUSES AND WITNESS EVIDENCE

The general rule is that an accused persons spouse is an incompetent witness for the prosecution. It is
however subject to important exceptions

Section 151 of the CPC permits a spouse to give evidence in certain circumstances without the consent of
the person that is a witness for both the defence and prosecution so according to this section a spouse is
only a competent witness if the firstly the accused consents and secondly it should be provided for by any
other law lke part XV of the penal code e.g. or the provisions provided for in the section.