Law of Evidence in Tanzania-88733988

CARDINAL RUGAMBWA MEMORIAL COLLEGE
LAW OF EVIDENCE
GUIDING NOTES
BY ALEX FRANCIS RWECHUNGURA

PHONE NO:0624014912
Email address: alexfrancis102@gmail.com
FOR
STUDENTS OF THE INSTITUTE
AND
LAW STUDENTS AND CANDIDATES
© 2021
These are merely Lecture Notes not to be cited as authority

LAW OF EVIDENCE 2021
TOPIC ONE; INTRODUCTION TO THE LAW OF EVIDENCE
Evidence is the mode of proving facts, without evidence, there is no proof, burdens are not met,
and convictions, verdicts(decision), or judgments are impossible, Evidence is what leads us to
the truth; it is a piece of life, a fact, a real tangible thing that elucidates a proposition.
It simply means “.anything which is necessary to prove a particular fact. It could be oral
testimony i.e by words of mouth, production of document or presentment of anything like the
instrument or weapon which is used while committing a crime etc. In other words is the means of
proof ”
Also evidence may bear two meanings or refer to
 MEANS – that tend to create a belief in the mind of judge; and

 BELIEF – that is created in his mind, which is also known as PROOF.
For this purpose Proof is the establishment of the existence of some fact to the satisfaction of the
tribunal or court charged with the duty of trying the matter under controversy
As we all know that the functions of Court of Justice are of fold:-
 To ascertain the existence or non existence of certain facts, and

 To apply the substantive law to the ascertained facts and to declare the
rights and liabilities of the parties.
Therefore for this, the court has to collect, peruse, analyze and sift the evidential material
brought before it. Therefore the means whereby the court informs itself of the existence of these
facts is called EVIDENCE
In Tanzania mainland The Law of Evidence Act, Cap 6 R.E. 2019 is the main law which is used
for evidentiary purposes and According to section 3 of the Evidence Act, Cap 6 R.E 2019
Alex Francis Rwechungura Page 1

"Evidence" denotes the means by which an alleged matter of fact, the truth of which if submitted
to investigation, is proved or disproved; and without prejudice to the preceding generality,
includes statements and admissions by accused persons.
This Act is not a locally developed statutory scheme. It was first introduced to Tanzania during
the British colonial period. The Act is a direct descendant of the Indian Evidence Act, 1872
which codified mid-nineteenth century English Law.
The Evidence Act has been organized along the following three main categories:
 What facts could be admitted at trial

 What proof is necessary for each set of facts, and
 Who could produce information for this proof
The Act is not applicable in Ward Tribunals and Primary Courts
The following are the general purpose of Law of evidence
a) To establishing who has the burden of proof in particular instances

b) To prescribe facts which may be proved
c) To prescribe facts to be excluded from consideration of the court e.g. privileged
information
d) To prescribe methods by which proof may be effected.
e) To prescribe the extent of proof required in a particular case.
f) To prescribe the effect of certain pieces of evidence.
Sources of law of evidence in Tanzania

The constitution; this is because the constitution is the mother law under Article 64(5) and all
other law are subject to it any Act that goes against the provision of the constitution be
unacceptable (Null and Void) also Article 13(6)(b) state clear that no person charged with
criminal offence shall be treated guilty of the offence until proved guilty of that offence .This
section is directly associated with the law of evidence which is used to prove or disapprove the
guiltiness of a person.

Statutes; this simply entails Acts of the parliaments and to mention few, some of them are
 The Evidence Act, Cap. 6

 Economic and Organized Crimes Control Act, Cap. 200
 The Wildlife Conservation Act, Cap. 283
 The Criminal Procedure Act, Cap. 20
Case Laws; which involve decisions of the higher courts of Tanzania as they are binding to the
lower court. Also Cases originating from common law countries are applicable in Tanzania but
only as persuasive and not binding.
Received laws. This includes the common law principles, doctrines of equity and such statutes
of general application. All these have been, and still are, useful in such matters involving
administrative disputes see Section 2(3) OF Cap 358
Other sources includes Books by prominent jurists and opinions from prominent jurists example
Sarkar on evidence law.
TOPIC TWO: KINDS OR TYPES OF EVIDENCE
Oral evidence; means all statements which the court permits or requires to be made before it by
witnesses being physically present at the time of making the statement or by use of other means
of communication including teleconference or video conference, in relation to matters of fact
under inquiry(to be proved) read Section (3) of the evidence Act.
Real evidence Means material objects or physical things which may be present to the court.
Opinion evidence; Is the evidence which is base on inference (mental impressions) is, for the
purpose of law of evidence, called opinion. According to section (47) of the evidence Act, the
opinion of expert is relevant on point of: foreign law, science, art and identity of handwriting and
finger impression.
Documentary evidence The phrase “documentary evidence” is defined under section 3(1) of of
the evidence Act cap 6 to mean all documents produced as evidence before the court.

It is evidence in written form which includes conventional symbols that may be used to prove or
disprove a certain fact in issue or relevant fact
According to ELLIOT; Documentary evidence consists of documents produced for inspection
by the curt. Documents are divided into two categories, public and private
See section (83) and (84) of the evidence Act Cap 6
Direct evidence; is the testimony of witness as to the existence or non existence of a fact or facts
in issue. As far as Section (62) of TEA is concerned, it means fact perceived by witness by his or
her own senses.
Circumstantial evidence .It is a testimony of witness to other facts (relevant facts from which
the fact in issue may be inferred. It is evidence which tends to prove factum probandum (fact to
be proved) It is also called “presumptive evidence.”
In t he cas e of Makame Junedi Mwinyi v. SMZ [2000] TLR 455 at 463C-E, Tumaka
D/CJ said: “What is circumstantial evidence? Simply put, these are circumstances in the
form of evidence which enable a court to reasonably infer or conclude the existence or non-
existence of a fact in issue or the guilt of an accused person. …”
.Suppose
A is charged with the murder of B. At the trial, a witness (C) may give evidence on behalf of the
prosecution that he saw A stab B.
Another witness (D), states that he saw A running away from a place where B’s corpse was found, with a
blood stained knife in his hand.
The evidence given by witness (C) is direct while the one given by witness (D) is “circumstantial.”
The following are some of the basic principles for consideration before convicting basing on
circumstantial evidence:
i. That the circumstances from which an inference of guilty is sought to be drawn must be
cogently and firmly established, and that those circumstances should be of a definite
tendency unerringly pointing towards the guilty of the accused, and that the

circumstances taken cumulatively should form a chain so complete that there is no

escape from the conclusion that within all human probability the crime was committed
by the accused and non-else (See Justine Julius and Others vs Republic, Criminal
Appeal No. 155 of 2005 (unreported)).
ii. That the inculpatory facts are inconsistent with the innocence of the accused person and
incapable of explanation upon any other reasonable hypothesis than that of guilt; and that
before drawing inference of guilt from circumstantial evidence, if is necessary to be sure
that there are no co-existing circumstances which would weaken or destroy the inference
[See, Simon Msoke vs Republic, (1958) EA 715A and John Maguia Ndongo vs
Republic, Criminal Appeal No. 18 o f2004 (unreported)].
iii. That each link in the chain must be carefully tested and, if in the end, if does not lead to
irresistible conclusion of the accused‟s guilt, the whole chain must be rejected, [see
Samson Daniel vs Republic, (1934) E.A.C.A. 154].
iv. That the evidence must irresistibly point to the guilt of the accused to the exclusion of
any other person, [See Shaban Mpunzu @Elisha Mpunzu vs Republic, Criminal
Appeal No. 12 of 2002(unreported)
v. That the facts from which an adverse inference to accused is sought must be proved
beyond reasonable doubt and must be connected with the facts which inference is to be
inferred. (See Ally Bakari vs Republic (1992) TIR 10 and Aneth Kapazya vs
Republic, Criminal Appeal No. 69 of 2012 (unreported)."
Hearsay evidence: Oral or written statements made by persons who are not parties and who are
not called as witnesses which are inadmissible to prove the truth of the matters stated.
Sometimes it is called unoriginal, derivative or indirect evidence.
Primary and secondary evidence: The terms are used in relation to the documentary evidence.
Primary evidence of a document is its original whereas the secondary evidence refers to a copy
or oral explanation of a document. Section 64(1) of the Evidence Act provides thus, “Primary
evidence means the document itself produced for the inspection of t he C ourt . ” See
section 65 on the “secondary evidence.

Corroborative evidence (corroboration);Although it has been said that “corroboration” is not a

technical term, but it is simply means “confirmation” or “support”, it remains the case that in
order to amount to “corroboration” evidence must emanate from a source independent of the
witness to be corroborated and must implicate the accused in particular. In Makame Junedi
Mwinyiv. SMZ [2000] TLR 455 at 463F, Tumaka, D/CJ remarked thus “corroboration is simply
independent evidence which supports or confirms as true, the principal evidence
Also according to Osborn’s Concise Law Dictionary, “corroboration means an independent

evidence which implicates a person accused of a crime by connecting him with it; that is
evidence which confirms in some material particulars not only that the crime has been
committed, but also that the accused committed it.”
When is corroboration required
The assessment of corroboration falls into two parts which are corroboration as question of law
and as question of fact, i.e. corroboration may be required in a certain circumstances as a matter
of law and/or sometimes as a matter of practice. There are some cases in which because of some
inherent risk of unreliability, the court must warn itself of the dangers of acting on
uncorroborated evidence. Other important principles regarding corroboration of evidence
include:
a) Where the complainant is of unreliable character corroboration is desirable [see

Mohamed Musoma v R [1989] TLR 227 (H].
b) Evidence of persons who have their own interests to serve cannot corroborate the
evidence of others – Asia Iddi v R [1989] TLR 174 (HC).
c) Evidence which needs to be corroborated cannot corroborate other evidence –
Mkumbwa Said omar v SMZ [1992] TLR 365 (CA)
d) Confession of a co-accused must be corroborated before founding a conviction on it –
Thadei Mlomo and others v R [1995] TLR 187 (CA)
NB; The purpose of corroboration is not to give validity or credence to evidence which is
deficient or suspect or incredible but only to confirm or support that which as evidence is
sufficient and satisfactory and credible

Statutory Requirement of Corroboration
Evidence of a Child of Tender Year
As a general rule the law requires that the evidence of a child of tender year should be
corroborated. However under section 127(2) of the evidence Act where the court is satisfied that
the child is telling nothing but the truth, and only after warning itself on the danger of convicting
on uncorroborated evidence of a child of tender years, it may proceed to convict. (See also the
case of Shozi Andrew v. Republic 1987 TLR 68 (CA).
Confession of Co-accused
According to section 33(2) of the evidence Act a confession by a co-accused cannot form the
basis of a conviction and this means that there must be other evidence to support it.( see the case
of Bushiri Amiri v. R,[1992] TLR 65.
Evidence on a Charge of Perjury
According to section 105 of the Penal Code, where a person is charged with perjury or
subordination of perjury the court cannot convict him solely on the evidence of a single witness.
Seditious Offences
According to section 34 of the Newspaper Act, Cap. 299, R.E. 2002, the court is not allowed to
convict any person charged with seditious offence upon the evidence of a single witness.
Corroboration as Required in Practice
Evidence of a Single Witness especially on identification
Generally, under section 143 of the evidence Act, there is no fixed number of witnesses required
to prove the fact. However, as has been practiced by courts, it is hard to find conviction on the
testimony of a single witness, unless the court warns itself on the danger of convicting without
corroboration. In Abdullah Bin Wendo v R (1953) 20 EACA 166 it was stated that there is
always the need for testing with greatest care the evidence of a single witness in respect of
identification.

Dying Declaration
Dying declaration under section 34 is in the category of the testimony of a single witness hence
the court will require corroboration. In the case of R. v. Mohamed Shedaffa and three others
[1983] TLR 95, the court said that it is possible for a conviction to proceed upon evidence
consisting of a dying declaration only, although it is a rule of practice that a dying declaration
requires corroboration before it can be acted upon
Sexual Offences
Under section 127(6) of the evidence Act, the court can convict a person charged with sexual
offence on uncorroborated evidence of the child of tender age if it satisfied that the child is
telling nothing but the truth. The court has to record its reasons for the decision. According to
this section the court will require corroboration where it finds that it is hard to believe the
witness after assessing his/her credibility.
Retracted/Repudiated Confession
As a matter of practice, courts do require collaboration where the accused at the trial retract or
repudiate his confession either made before the police officer or before the justice of peace
however the court may convict on such confession if it finds that confession were true. In the
case of Hamis Athuman and two others v. R. [1993] TLR 110, the court said that even though
the appellants repudiated or retracted their confession during the trial, the court is entitled to
convict them if it finds that those confessions were true. Thus where after analyzing the
repudiated/retracted confession the court is convinced that the confession is true, it may proceed
to convict.
TOPIC3: RELEVANCY AND ADMISSIBILITY
. The concept of relevancy/Relevance
The world relevancy/relevance is not defined in the Act. Instead, the act defines another related
word “relevant” under section 3(1) of the Evidence Act as follows

“as in relation to one fact and another, means the one is connected with the other in any of the
ways referred to in the provisions of this Act relating to the relevancy of facts”
D.W.Elliot,(1987),Elliot and phipson Manual of the law of evidence ,12th ed,Sweet and
Mxwell, London at pg 10 defines Relevancy as a “ relationship between one fact and another,
according to the rules of logic and common experience of menthe existence of the one renders
probate the existence or non existence of the other” i.e a fact which is not actually in issue but
it‟s in relationship(it relate) with fact in issue is a relevant fact
Relevancy is not a legal concept rather one of logic and common sense but the law insists on its
presence by ruling that all irrelevant facts are inadmissible
In English case of Dpp vs kilborne (1873)AC 729 at 759 the court had the following to say as
regard to the term “relevancy”
“Evidence is relevant if it is logically probative or dis-probative of the sane natter which

requires proof ….. Evidence which makes the matter which require proof more or less probable”
Thus when one talks of relevancy/relevance, in the context of law of evidence, he or she simply
referring to the logical connection or relationship of fact. Nothing more nothing less
The concept of admissibility
The term “admissibility” is nowhere defined in the Act
But it generally refers to the principle that determine whether or not or particular fact or evidence
may be received by the court of not
Admissibility of evidence is for the large part dependant on relevancy thus it is said that
“relevance is the test of admissibility”. For example in the case of Samwel Mkika v R, Criminal
Appeal No. 47 of 2001 (Unreported) at pp 11-13; the court said that
“The test to be applied in considering whether evidence should be admissible is whether it is

relevant to the matter in issue. If it is relevant, it is admissible and the court is not concerned
with how the evidence was obtained…”

“No doubt in a criminal case the judge always has discretion to disallow evidence if the strict
rules of admissibility would operate unfairly against the accused…”
This is simply means that in order for a certain fact to be admissible in evidence it has to be
a) Relevant
b) Declared relevant by the law of evidence (admissible)
However relevancy is not the only test of admissibility .Thus not every relevant fact is
admissible in evidence. Some facts which are relevant are excluded by law for example hearsay
evidence (because the law of evidence require evidence to be direct see section 62(1) of the
evidence Act), evidence of bad character under section (56) of the Act. These are some of the
evidences that have been excluded by law although they may be relevant to the fact in issue
Other relevant facts excluded are as follows
 Privilege relating to official records, section 132

 Information regarding the commission of offences. Section 133
 Professional communications .Section 134
A gain though admissibility is largely dependent on relevancy .sometimes the law declare certain
facts which are otherwise irrelevant as admissible for example facts that fall under bellow
sections are irrelevant but admissible for a certain purpose (11), (13), and, (155) which speaks of
lawful question in cross examination, here irrelevant questions may be asked and a witness
compelled to answer).
Admissibility of facts under section (7) of the Act.
Section (7) of TEA Act is a general provision on the admissibility of facts, it provides that
“Subject to the provisions of any other law, evidence may be given in any suit or proceeding of
the existence or nonexistence of every fact in issue, and of such other facts as are hereinafter
declared to be relevant, and of no others”.
This provision may be divided into three parts for an easy discussion

i. Subject to the provisions of any other law

ii. Evidence may be given in any suit or proceeding of;
a. The existence or non existence of every fact in issue,
b. The existence or non existence of such other facts hereinafter declared relevant
iii. And of no others
1. “Subject to the provisions of any other law”
This phrase indicates that the Evidence Act is not exhaustive as far as the law of evidence is
concerned.
There could be other laws that regulates production of evidence in judicial or other proceedings
Example
a. The criminal procedure Act cap 20 R.E 2019 regulates the orders of production of
evidence.
b. The civil procedure code cap 33 R.E 2019 is another law that regulates some evidential
matters ,the order of giving evidence, affidavits ,discovery and inspection ,framing of
issues ,admissions, etc
c. The law of marriage Act Cap 29 R.E 2019 regulates the orders of production of
evidence when it comes to the issue of marriage and family
2. What sorts of facts are to be proved or evidence to be given?
Part two of this section tries to answer this hugely important question. According to it, only two
types of facts are to be given;
a. Fact in issue and

b. Other facts as declared relevant by section 8 et sequente (and those that follow)
Therefore all facts which are directly in issue are admissible under 7 of the Act but other fact
which are collateral( connected) to the fact in issue are admissible under section 8 of the Act et
sequente( and those that follow)

3. “Of no other”
This means that Section 7 excludes everything which is excluded by the purview of other
sections that follow t in the Act. All evidence tendered must therefore be shown to be admissible
under this or some other of the provisions of sections that follows or provisions of some other
statutes or one which will be enacted after this Act
The use of the word “relevant” in the Act
The word “relevant” is used in the evidence Act in two different senses
a. fact connected to another

b. Admissible
Admissibility of a fact depends on whether it is declared to be relevant by the law i.e the law of
evidence decided not to employ the term “admissible” but instead used the term “relevant”
For example section 13 of the evidence Act says “when facts not otherwise relevant, become
relevant.
a) if they are inconsistent with any become fact in issue or relevant fact; or
b) if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable”.
The other way of stating this is “when facts not otherwise relevant become admissible if
a) if they are inconsistent with any become fact in issue or relevant fact; or
b) if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable”
TOPIC 4: RELEVANT FACTS CONNECTED WITH THE FACT IN ISSUE
SECTION 8-18 OF THE EVIDENCE ACT [CAP 6 R.E 2019]
N.B section 8-18 deals with admissibility of facts connected to the fact in issue
1. Section 8; Relevancy of facts forming part of the same transaction

This provision provides that “Facts which, though not in issue, are so connected with a fact in
issue as to form part of the same transaction, are relevant whether they occurred at the same
time and place or at different times and places”.
Illustration
a) A is accused of the murder of B by beating him. Whatever was said or done by A

or B or C (the by-stander) at the beating, or so shortly before or after it as to
form part of the transaction is relevant fact.
b) A sues B for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the subject out of whom the libel arose, and
forming part of the correspondence in which it is contained, are relevant facts
though they do not contain the libel itself.
c) The question is, whether certain goods ordered from B were delivered to A. the
goods were delivered to several intermediate persons successively. Each delivery
is a relevant fact
The evidence admissible under section 8 of the evidence Act is what is known as “res
gestae”(singular) or “res gesta”(plural). It is a Latin word which means “things done”
Although the literal meaning of that term is “things done”, it is used in the law of evidence to
include “things spoken”
Transaction
The law says that “res gestae” are facts closely related to the fact in issue as to form “part of the
same transaction”. What is transaction?
Sir James Stephen in Article 3 of hid Digest of the law of Evidence, defines a transaction in
the following words
“A transaction is a group of facts connected together as to be referred to by a single legal name,

as a crime, a contract. a wrong, a wrong or any other subject of inquiry which may be in issue”

Therefore in order to determine transaction, the following aspects must be taken into
consideration
a. Proximity(nearness) of time
b. Unity of place
c. Community of purpose or design
d. Continuity of action
Res gestae is taken as an exception to the hear say rule As general rule, hear say evidence (i.e.
evidence which is not direct) is not admissible under section 62 of the evidence Act unless it falls
under one or more of the recognized exceptions to the rule
Read the case of Cosmas s/o Herman vs R Criminal appeal no 72 of 2019 at pg 17.
(available at tanzlii.org)
For example A statement made by a person at the time when the fact in issue was in process
may be produced by another person as res gestae in evidence as an exception to the general rule
against hear say. In the case of Kamara(or susu) v R.(1950-56) ALR 309 a Sierra Leonean
case .The appellant was convicted of murder on the strength of the evidence of one person who
heard the words uttered by the deceased while the crime was actually being committed and
another who heard her dying declaration. On appeal WACA (West African Court of Appeal)
considered whether the evidence was admissible.
The facts of the case were that the witness heard the statement which was made by the deceased
that “Sister Posseh, although you‟re going, Susu is killing me”. The witness was scared, she ran
away to narrate what she heard to other people. Later on the deceased came out holding her gut
and cried before another witness “my husband has killed me”
The court said that “In our opinion the statement alleged by witness Posseh to have been made
by the deceased while crime was actually being committed was admissible as part of res gestae
and …. The statement that she is alleged by the town chief to have made –“my husband has
killed me”-was admissible as dying declaration

In the case of R vs premj kurj (1940) EACA 58. The appellant killed the deceased who was
the brother of one jamnadas. Before killing the deceased the appellant had wounded Jamanadas
who was working at his brother‟s shop, The deceased was in the go down of the shop nearby.
After wounding jamnadas the accused is alleged to have said “I have finished you and I’m
going to show your brother” or according to another witness Tulsidas “I’m going to finish
your brother”
Immediately after wards the accused was seen at the godown standing over the deceased with
dagger in hand. The court held that the evidence of the attack on the deceased’s brother was
admissible in the circumstances as part of the re gestae.
In Ramadhani Ismail v. The Crown (1945) 7 Z.L.R.36, a young child having been raped went
crying straight to her home, only two or three houses away, had some conversation with her
parents and then led her father to the house where she had been assaulted. On arrival at the
accuser‟s house she said “That is the Bwana”. It was held that this utterance could not be
considered part of the res gestae; “When it comes to a matter of res gestae minutes are a matter
of the utmost importance.”
Section 9; facts which are the occasion, cause or effect of facts in issue
Section 9 provides that
“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or
facts in issue or which or constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transactions, are relevant.”
Section 9 unlike section 8, admits facts which though do not form part of the same transaction
but are connected to the fact in issue in the specified modes
These modes are
a) As being the occasion of the relevant facts

b) As being the cause or effect of the fact in issue
c) As giving opportunity for the occurrence of fact in issue
d) As constituting the state of thing under which it happened

According Srkar, these modes of connection arte actually different aspects of causation
a). As being the occasion of the relevant facts
Occasion is the happening or event which is connected to the fact in issue
Consider the following illustration
 The question is, whether A robbed B.
The facts that, shortly before the robbery B went to a fair with money in his possession, and that
he showed it or mentioned the fact that he had it, to third persons, are relevant. (These facts give
occasion (event) which is connected to the fact in issue (robbery)
b). As being the cause or effect of the fact in issue
These are facts that are the cause of the fact in issue or effect of the fact in issue
Consider the following illustration
 The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was
committed, are relevant fact (these facts constitute an effect of the act alleged to have been
committed (murder).
In an Indian case Sidik v R, (1941) Kar 525 it was held that evidence that there were footprints
at or near the scene of offence or that the foot prints came from a particular place is admissible
Also In the case of John Makindi vs. R (1961) EA 327, the appellant (Makindi) appealed
against conviction and sentence for manslaughter of a small boy by beating him so severely that
he died. It was established in evidence that the appellant had told the deceased “as you made me
to be imprisoned, i will beat you until you die”. Evidence of the previous beatings of the
deceased boy the appellant was led by the prosecution. On appeal it was considered whether such
evidence was properly admitted.

Held The evidence was admissible under section 7 of IEA (S.9 of Tanzania Evidence Act) in
explanation and substantiation of the cause of death and also under section 8 and 14 of the
IEA(s.10 and 16) of Tanzania evidence Act) as showing the motive in the appellant for revenge
on the deceased and appellant‟s ill will towards him.
c). As giving opportunity for its occurrence
Facts that show that a person had an opportunity to cause the fact in issue are relevant and
admissible under section 9
Example The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to poison and habits of B, known to A,
which afforded an opportunity for the administration of poison, are relevant facts.
d). As constituting the “state of things” under which it happened
also in this aspect illustration on whether A poisoned B describe the state of things under which
it happened i.e there was habits of B known to A which afforded A an opportunity for the
administration of poison
In the case of James Clifford Brabin and Another vs. R (1947) 14 EACA 80, the appellants
were convicted of corrupt transactions. It was established in evidence that that the appellants
had received shs 1000/=as a bribe from one Kara .it was shown that that the appellants had
previously (five months ago) received bribe from the same Kara.
Held. Evidence of previous transactions was rightly admitted as constituting part of the “state of
things”
Section 10.Facts showing motive, preparation and previous or subsequent conduct
Section 10. Provides as follows
(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.

(2) The conduct of any party, or of conduct any agent of any party, to any suit or proceeding, in
reference to such suit or proceeding or in reference to any fact in issue or relevant thereto in the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
(3) When the conduct of any person is relevant, any statement made by him or in his presence
and hearing which affects such conduct is relevant.
(4) The word “conduct” in this section does not include statements, unless those statements
accompany and explain acts other than statements; but this provision shall not affect the
relevancy of statements under any other section of this Act.
The section essentially admits facts related to three things
i. Motive
ii. Preparation
iii. Conduct
a) Antecedent(previous ) to the fact in issue or
b) Subsequent (after)to the fact in issue
Motive
Motive simply means a fact which moves or prompts a man to do a particular act.
Motive should not be confused with intention. While intention is deliberate desire to achieve a
certain result, motive answer the question why one aims to achieve
Consider the following example
X walks along the street, he finds a starving kid, almost dying of kwashiorkor. He feels pity of
him and went into a supermarket where he steals a loaf of bread and a bottle of milk and feed the
starving kid, in this example
a) The motive is to feed the kid

b) The intention is to steal a loaf of bread and the bottle of milk
From criminal law point of view, intention is of the most importance and not the motive, it is the
intention that form the necessary mens rea in such proceedings therefore prosecution‟s failure
to establish the motive for the crime will not bar the conviction where other clear evidence
points to the guilty of the accuse.
However in evidence, motive assume importance, it is important for the prosecution to explain
motive behind the commission of particular crime example murder though sometimes it may not
be easy to establish motive since this is an internal matter within a person‟s heart known to
himself and to god.
In the case of John Makindi vs. R (1961) EA 327 which has been cited above, it was
established in evidence that the appellant had told the deceased “as you made me to be
imprisoned, i will beat you until you die”. This was held to be admissible under section 8 and 14
of the IEA(s.10 and 16 of Tanzania evidence Act) as showing the motive in the appellant for
revenge on the deceased and appellant‟s ill will towards him
Preparation
Preparation consists of arranging necessary means for the commission of the offence and it
includes the means of accomplishing it. Example preparation on the part of the accused to
accomplish the crime charged or to prevent its discovery or to avoid his escape or to avert
suspicion from him are relevant on the question of his guilty.
Example; A is tried for the murder of B by poison. The fact that before the death of B, A
procured poison similar to that which was admitted to B is relevant.
Conduct
Conduct is simply the way a person acts. According to section 10(2), conduct of the following
persons is relevant
a) Parties to the suit or proceedings or their agents

b) Persons, an offence against whom is the subject of the proceedings

Also conduct as stated by section10 (2) is divided into antecedent and subsequent
Example
A is accused of a crime, the fact that either before or at the time of or after the alleged crime, A
provided evidence which would tend to give to the facts of the case an appearance favourable to
himself, or that he destroyed or concealed evidence or prevented the presence or procured the
absence of person who might have been witnesses or suborned persons to give false evidence
respecting it, are relevant
For facts subsequent to the fact in issue read the case of Miraji Idd Waziri@ Simwana and
another vs Republic criminal appeal no 14 of 2018 available at https://tanzlii.org
Section 10(3) answers question as to when silence could be regarded as a conduct. Silence may
in a certain circumstances amount to conduct under that provision
Example; the question is whether A owes B Shillings 10.000
The fact that A asked C to lend him money and that D said to C in A‟s presence and hearing
“i advise you not to trust A for he owes B 10,000shillings and that A went away without
making an answer are relevant facts.
In law of evidence consensus can be presumed to exist until disagreement become evident
however this presumption does not apply in contract when it comes to the issue of acceptance
of an offer i.e until the acceptor explicitly state that to be so.
This presumption is based on the maxim “Qui tacet contentire videtur ubi loqui debuit ac
potuit” ( He who is silent, when he ought to have spoken and was able to, is taken to agree).
For example in examination of witness, if a party fails to cross-examine a witness on a certain

matter the above maxim will estopp him from asking the court to disbelieve what the witness
said, and this is seen in the case of juma kasema @ nhumbu vs the republic criminal appeal
no. 550 of 2016( unreported ) where the court said at pp 14-15 that “It is trite law that, a party
who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter

and will be estopped from asking the court to disbelieve what the witness said, as the silence is
tantamount to accepting its truth.
In the case Zakaria Jackson Magayo vs Republic, criminal Appeal no 411 of

2018(unreported) the court said that the rule is not absolute as it focus on the material evidence
adverse to the other party including incredible evidence.
For example in the case Elia johnson kiwia(trading as kiwia agrovet) vs Kafoi estate (t) ltd,
civil case no. 06 of 2018( unreported) where the defendant had a debt to settle with the
plaintiff, the defendant suggested that they should enter in an agreement upon which the debt
will be settled and the plaintiff agreed, the contract was made by the advocate of the defendant
and signed by the defendant‟s employee( known as Omari Hussein) in front of both the
plaintiff, defendant and his advocate, The defendant could not fulfil the term of an agreement
and the plaintiff decided to sue ,
Before the court the defendant claimed that the contract was not valid since the one who signed it
was not authorised to do so. The court said
“....The question in the mind of the court is, if at all DW1 was present when Mr. Omari signed
the agreement then why didn’t he stop him from doing so. Given such a scenario for any sane
person or for any stretch of imagination one could not doubt Mr. Hussein Omari’s participation
and this is what happened to the Plaintiff who believed the presence and authority of DW1 had
in the matter given authority for Hussein Omari to sign the Agreement....”
Therefore the court said that the defendant had a duty to justify through evidence that Mr.
Omari Hussein had fraudulently without justifiable reasons signed the contract after the Plaintiff
had led evidence that the same was signed by Mr. Omari Hussein in the presence of The
defendant and his Advocate, in which the defendant failed to do so. The court held that the
agreement was valid
Section10 (4) states that the word “conducts” does not include statements. In this respect, it has
been noted partly that “what this explanation means is that statements are not admissible as
conducts unless they accompany and explain acts other than the statement”

The statement which accompanies and explains acts other than statements are
1) Complains.
2) Pointing out the police the various places connected with the commission of the crime
The difference between a mare statement and complain is that to be a complaint the statement
must express some grievance
Example the question is whether A was raped
The facts that shortly after the alleged rape she made a complaint relating to the crime, the
circumstance under which, and the terms in which the complains was made are relevant
The fact that, without making a complaint, she said that she had been raped is not relevant as a
conduct under sectiobn10 (4) though it may be relevant as a dying declaration under section
34(a) or collaborative evidence under section 166.
Section 11.Facts Explaining or introducing fact in issue
Section 11 provides as follows
“Facts necessary to explain or introduce a fact, or which support or rebut an inference

suggested by a fact in issue or relevant fact, or which establish the identity of anything or person
whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact
happened, or which show the relation of parties by whom any such fact was transacted are
relevant in so far as they are necessary for that purpose.”
Facts made relevant by this section may be classified as follows;
i. Facts necessary to explain or introduce a fact in issue.

ii. Facts which support or rebut an inference suggested by a fact in issue or relevant fact.
iii. Facts which establish the identity of anything or person whose identity is relevant.
iv. Facts which fix the time or place at which any fact in issue or relevant fact happened.
v. Facts which show the relation of parties by whom any such fact was transacted.

Facts necessary to explain or introduce a fact in issue.
In giving evidence it is not practically possible to the fact in issue. The court require certain
introductory facts so as to have a correct and a proper understanding of facts in issue
 The following examples are instances of facts that tend to introduce the fact in issue
Example ;(1) the question is whether a given document is the will of A
The state of A’s property and of his family at the date of the alleged will may be relevant
facts.
Example; (2) A sues B for libel imputing disgraceful conduct to A .B affirms that the matter
alleged to be libellous is true. The position and relations of the parties at the time when libel
was published may be relevant facts as introductory to the fact in issue.
 The section also admits facts which explain the facts in issue or relevant facts and the
following example show facts which explain facts in issue
Example ;A sues B for inducing C to break a contract of service made by him with A.C
on leaving A‟s service says to A “ i am leaving you because B has made me a better offer”.
This statement is a relevant fact as explanation of C conduct which is relevant in fact in issue
Facts which support or rebut an inference suggested by a fact in issue or

relevant fact.
Facts which support or rebut an inference suggested by the fact in issue or relevant are
admissible
Example; A is accused of a crime.
The fact that soon after the commission of the crime, A absconded from his house, is relevant
under section 10 as conduct subsequent to and affected by facts in issue. The fact that at the
time when he left home he said that he had sudden and urgent business at the place, to which
he went, is relevant as tending to explain the fact that he left home suddenly which may also
rebut or support the presumption that he committed the crime

Facts which establish the identity of anything or person whose identity is

relevant.
Identity may be thought of as quality of a person or thing, the quality of sameness with
another person or thing.
The provisions under this aspect deals with identification of
1) person and
2) things
Identity of a person may also mean peculiar features pertaining to him which distinguish that
person from others, height, his colour, sound, clothes, identifiable marks on the face etc
Similarly identity of a thing may also denote peculiar features pertaining to it. It make, serial
number, and other distinctive marks
Identity may be established in various ways and some these include identification by
photographs, identification parade, and identification by fingers, thumb or palms,
impressions, identification by comparisons of hand writings, marks of blood, hair, or fibre of
clothes etc
Identification parade is usually conducted by the police in cases where identification of the
accused by the victim of crime or other person is important. The purpose of identification
parade is to confirm the evidence of a witness who claims to have identified the accused
person .the purpose of identification parade is of two folds
First, is to enable the witnesses to satisfy themselves that the prisoner who they suspect is
really the one who was seen by them in connection with the commission of the crime.
Second. Is to satisfy the investigating authorities that the suspect is the real person whom the
witness had seen in connection with the offence
NB; It is to be observed that the evidence resulting from an identification is only

collaborative but not substantive (Refer the case of Moses Charless Deo vs R.(1987) TLR
134)

In the case of Dickson Kamala v.R. Criminal Appeal No. 422 of 2018(unreported) the
court said “....evidence of visual identification as courts in East Africa and England have
warned in a number of cases, is of the weakest kind and most unreliable .It follows therefore,
that the court should act on evidence of visual identification unless all possibilities of
mistaken identity are eliminated and the court is fully satisfied that the evidence before it is
absolutely watertight....”
The principles guiding visual identification was stated in the case of Waziri Amani V. R
(1980) TLR 250 that The court should consider the following ;
One; The time the witness observed the accused.
Two; The distance at which the witness observed the accused.
Three; The conditions when the observation occurred, for instance whether it was during day
or night time and whether there was good or poor light at the scene.
Four; whether the witness knew or had seen the accused before.
However the guideline provided in the case of Waziri Amani is not exhaustive and that each
case has to be considered in its own circumstances.(see the case of Khalid Mohamed
Kiwanga & Another vs Republic Criminal Appeal No.223 of 2019(unreported)
Facts which fix the time or place at which any fact in issue or relevant fact
happened
Facts which tend to show a place or time at which a certain event happened are admissible
under this provision
It is sometimes of the most importance to fix accurately the exact time of the occurrence of
the event and the difference of even a few minutes may be of vital importance. This is so
because accused persons often raise the defence of alibi
Facts which show the relation of parties by whom any such fact was transacted

Facts that establish the relationship of parties to the dispute are admissible under this section.
In case of administration of estates, for instance establishment of facts that the disputants are
brothers who are entitled to property or that they were wives of a deceased man is vital
For example in a suit where a party wishes to dispute a contract on account of lack of consent
due to vitiating factors like undue influence. Facts of their relationships becomes important
Section 12 Things said or done by conspirator in reference to common design
The provision states as follows
Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by any
one of such persons referring to or in execution or furtherance of their common intention,
after the time when such intention was first entertained by any one of them, is a relevant fact
as against each of the persons believed to be so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing that any such person
was a party to it.
This section can be interpreted as to admit the following facts
i. Reasonable ground to believe in the existence of conspiracy ; Here one should be

give evidence that two or more person agreed to commit an offence or an actionable
wrong
ii. The connection as each of the accused with the conspiracy charged must then be
proved i.e that the person charged were parties to it (refer also explanation in paragraph
(i) above )
In the case of Asira v. R (1986) KLR 227, The court of appeal of Kenya held that
“....where a conspiracy is reasonably believed to exist between two persons, then under
section 10 of the Evidence Act ( Section 12 of Tanzania Evidence Act), the actions of
one of them can be considered against the other for the purpose of showing that there
was a conspiracy and that the other was party to it, but that aspect cease to exist after
conspiracy is not found to exist......”

iii. The acts, declarations, and writings of each conspirator in reference to the common
design or intention after the time when such intention was entertained by any of the
persons are admissible against each other, whether the acts were done or the words
were spoken in their presence or absence or before or after they entered into
combination for the purpose of
 Proving the existence of the conspiracy as also as showing
 Proving that the accused were parties to it
Example
A and B are charged with an offence of theft;
A letter written by A to B, classifying on how they could go about to acquire new car licence and
subsequent registration are relevant under Section 12 to prove conspiracy
Similarly any statements or declaration made by either of them at the time of receiving the
vehicle is relevant to prove conspiracy
In the case of John Moody Lawrence Brown & Another v. R. [1957] E.A. 371, the appellants
were convicted of conspiracy to defraud, the court said that entries in one of the conspirators
cheque book indicating the payment of sums to another of the conspirators were evidence not
only against the owner of the cheque book but against his fellow conspirators as to the existence
of the conspiracy and as to the parties to it.
Also the case of Ogandia & Karma vs. R (1067) EA 137 it was stated that “ a person who
joins conspiracy is liable not only for that acts done during conspiracy but also for acts done by
other conspirators after his acts have ceased and this is evidenced
Also read section 384 to 386 of the penal code
Section 13; when facts not otherwise relevant becomes relevant
The section provides as follows;
Facts not otherwise relevant are relevant-

(a) if they are inconsistent with any become fact in issue or relevant fact; or
(b) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable
Section 13 of Tanzania Evidence Act commence with the following wording “Facts not
otherwise relevant are relevant”. it means that facts which are not strictly legally relevant ( not
relevant in other provisions ) acquire their relevancy by virtue of their ability to cause the
probability or improbability of existence or non existence of the facts in issue and become
provable . Or if they are inconsistent with the fact in issue or relevant facts. It is also known as
“residuary section”
To be admissible under this Section two condition need to be fulfilled that is the facts must
a) Be inconsistent with the fact in issue

b) make the existence or non-existence of any fact in issue or relevant fact highly
probable or improbable by themselves or after being connected with other facts
Example The question is whether A committed a crime at Bukoba on a certain day.
The fact that on that day A was at Mwanza is relevant. The fact that near the time when the
crime was committed, A was at a distance from the place where it was committed which would
render it highly improbable though not impossible that he committed the offence is relevant.
Example 2; The question is whether A committed the crime
The circumstances are such that the crime must have been committed either by A, B, C or D.
Every facts which shows that the crime could have been committed by no one else and that it
was not committed by either B, C or D is relevant.
In the case of Batongwa John vs. Republic CRIMINAL APPEAL NO. 450 OF
2017(unreported) the appellant, was facing a charge of raping of 17 years girl contrary to
section 130 (1) (2) (e) and 131 (I); abduction, contrary to section133, both of the Penal Code
(Cap. 16 R.E. 2002) and; marrying a school girl contrary to Rule 4 (2) of the Education
Imposition of Penalties to persons who marry or impregnate school girls Rules No. 265 of 2003,

the District Court of Bariadi sentenced him to 30 years in jail for the offence of rape charged in
the first count and acquitted him of the second and third counts. He then appeal to the High
Court without success. Aggrieved with the decision of the subordinate courts he decided to
appeal to the court of appeal.
In this case PW2 (victim of rape) claimed that on material date when she was heading home
from buying her exercise books, she ran into the appellant who was accompanied by another
man. These two men stopped PW2 and snatched the exercise books from her. She kept on
demanding her exercise books back without success till nightfall where the two men took her
hostage and stayed with her for two weeks to Mwaswale village . After the two - week stay in
Mwaswale village in Bariadi District, the appellant took PW2 to Mpanda District where she
stayed with him for three weeks.
PW2 stated that during her stay with the appellant, she was sleeping with him and having sex
with him as his wife until PW2 brother one Ngasa Galuji(PW3) accompanied by another man
known as Michael, got her
The appellant put to PW2 a gruesome question to tell if she knew him to be a circumcised or
uncircumcised person, to which she replied that he was circumcised then the appellant
demonstrated in court that he was uncircumcised.
The court had this to say
“…….. issue whether or not the appellant was circumcised…… would not necessarily be
relevant in proving rape. However, we understand that there are occasions when facts otherwise
irrelevant may become relevant. This is what section 13 (b) of the Tanzania Evidence Act, [Cap
6 R.E 2002 now 2019] (The TEA) provides”.
The court considered the fact that “the appellant is not circumcised while PW2 said he is
circumcised” raised doubt in the prosecution case and allowed the appeal
The following are the common cases of facts that may be inconsistent with the facts in issue
 The absence of a person charged when the crime was committed

 The absence of the husband when the child was begotten
 Survival of the alleged deceased person after supposed time of death
 The commission of crime by a third person

 Self infliction of the harm alleged
Generally, sometimes it is not easy to prove all facts in issue by direct evidence. Thus, courts
sometimes rely on probabilities, this provision thus admits facts which are not relevant but
become relevant when they make a fact in issue or relevant facts highly probable or improbable
Section 14; Facts that enable the court to determine amount of damages are relevant
This provision provides
in suits in which damages are claimed, any fact which will enable the court to determine the
amount of damages which ought to be awarded is relevant.
Damages denote compensation or indemnity for a loss by a person after his or has rights has
been infringed.
Section 14 admits into evidence any facts that assist the court in the course of determining the
amount (quantum) of damages which the court ought to award in civil case. In such cases
damages are pleaded as pecuniary compensation for the loss suffered on account of let‟s say
breach of contract etc
In suits in which damages are claimed, the amount of damages is a fact in issue which has to be
resolved by evidence. And mostly this claim is evidenced in civil proceedings where damages
are claimed and the court is confronted with the issue of “what amounts or quantum of damages
is to be awarded by the plaintiff”?. Such an issue rises at the end of proceedings when a case
against the defendant has been established and the court seeks to measure the amount or quantum
of such damages.
Section 15; Facts affecting existence of rights or custom
The section provides
Where the existence of any right or custom is in question, the following facts are relevant-
(a) any transaction by which the right or custom in question was created, claimed, modified,
recognised, asserted or denied, or which was inconsistent with its existence;

(b) Particular instances in which the right or custom was claimed recognised or exercised, or in
which its exercise was disputed, asserted or departed from.
Example; The question is whether A has a right to a fishery. A deed conferring the fishery on
A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s
father, irreconcilable with the mortgage, particular instances in which A’s father exercised the
right or in which the exercise of the right was stopped by A‟s neighbours are relevant.
According to this section whenever there is a question as the existence of any (1) right or (2)
custom, the following facts would be admissible
a) Transaction by which the right or custom in question was created, claimed, modified,
recognised, asserted, or denied, or which was inconsistent with its existence.
b) Particular instances, in which the right or custom was claimed, recognized or exercised,
or in which its existence was disputed, asserted or departed from.
Section 16; Facts showing existence of state of mind or of body, of bodily feeling
The section states as follows
-(1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill will or good will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling is in issue or relevant.
(2) A fact relevant within the meaning of subsection (1) as showing the existence of a relevant
state of mind must show that the state of mind exists, not generally, but in reference to the
particular matter in question.
(3) Where, upon the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of subsection (1), the previous conviction
of such person shall also be a relevant fact.
This section admits facts showing existence of
a) State of mind

b) State of body or bodily feeling
Example 1. A is accused of receiving stolen goods knowing it to be stolen. it is proved that he

was in possession of a particular stolen article, The fact that at the same time he was in
possession of many other stolen articles is relevant as tending to show that he knew each and all
of the articles of which he was in possession to be stolen
Example 2.A sues B for damages done by a dog of B which B knew to be ferocious .the fact
that the dog had previously bitten X,Y and Z and that they had made complaints to be are
relevant as they show knowledge of the damage tend to be caused by his dog
Example 3; The question is whether A’s death was caused by poison. Statements made by A
during his illness as to his symptoms are relevant facts as they tend to show state of body and or
bodily feeling
The case of John Makindi vs Republic[1961] EA 327 falls also under this section as it was
partly established in evidence that the appellant had told the deceased that “as you made me to
be imprisoned, i will beat you until you die. This was held to be admissible under section 8 and
14 of the IEA(s.10 and 16 of Tanzania evidence Act) as showing the motive in the appellant for
revenge on the deceased and appellant‟s ill will towards him.
Also read the case of Awadhi Gaitani@ Mnoma vs Republic Criminal Appeal no 288 of
2017 ( pg 28) available at https://tanzlii.org/
Section 17; Facts bearing on question whether act was accidental or intentional
This section states that
“When there is a question whether an act was accidental or intentional, or done with a
particular knowledge or intention, the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned, is relevant”
Example.1; A is accused of burning down his house in order to obtain money for which it was
insured.

The fact that A lived in several houses successively each of which he insured and each of which
a fire occurred and after each of which fires A received payment from a different insurance
office are relevant to show that the fires were not accidental.
Like section 16. this section also deals with a state of mind but unlike section 16., which is a bit
wider ,section 17 is narrow. It admits facts which solve the question whether a certain act was
intentional or incidental. It admits facts which are in most cases used rebut the defence of
accident, mistake, ignorance etc. When and act is repeated again and again, the chances of it
being accidental is reduced
Therefore the difference between section 16 and section 17 is that, under section 16, all facts that
establish state of mind of body or bodily feeling are admissible. Whereas under section 17, it is
only one pieces of state of mind namely intention which is allowed to be proved
Section 18: Existence of course of business when relevant
The sections states that
“When there is a question whether a particular act was done, the existence of any course of
business, according to which it naturally would have been done, is a relevant fact”
Example The question is whether a particular letter was dispatched.
The fact that it was the ordinary course of business for all letters put in a certain place to be
carried to the post and that the particular letter was put in that place are relevant.
TOPIC 5: CONFESSION & ADMISSION
ADMISSION
According to Black’s Law Dictionary, admission is a voluntary acknowledgement made

by a party of the existence of certain facts which are inconsistent with his claim in an
action. For instance a person is sued for the recovery of a loan and there is an entry in his
account book recording the fact of the loan, that is an admission on his part of his liability or, if
he makes any statement to the effect that, “he does owe the money” that will also be an
admission being a direct acknowledgement of liability

Also according to section 19. Of the evidence Act An admission is:
“A statement, oral or documentary, which suggests any inference as to a fact in issue or relevant
fact, and which is made by any of the persons, and in the circumstances hereinafter mentioned
Admission may also means conceding something against the person making admission. That is
why it is stated as a general rule, that admission must be self harming; and because a person is
unlikely to make a statement which is self- harming, unless it is true, evidence of such
admissions is received in court
Making of Admissions and their Admissibility
Who can make admissions? According to the TEA admissions may be made by three categories
of people.
a) Statements by parties to suits, agents or interested parties (section 20)

The first group of persons who can make admissions are parties to a suit or agents or any
interested persons. An admission made by a party to any suit is admissible in evidence. Where a
party used an agent in the relevant transaction then a statement of his agent can be proved against
him. All actions of agents that are done within the scope of their authority bind their principals.
This means that all admissions made by agents are binding on their principals and can be proved
against them
It is pertinent to emphasize that statements made by parties to a suit made in a representative

character are not admissions unless they were made while the party making them held that
character (Section 20(2) of the TEA). For example a statement made by a trustee is not
admissible against him when sued as a trustee if they were made before he became a trustee. The
same applied for an agent
In addition Persons jointly interested in a suit a statement made by one of them is an admission
against himself and the other or others as the case may be, provided the admission is in respect of
the subject matter of the dispute and it is made when the person making it is interested in the suit.
Under this circumstance therefore parties to the suit are the makers of statement and the burden
of proof rely on their statement. (Section 20(3)) same applied to Persons having proprietary or

pecuniary interest in the subject matter include such relationships as partners, co-sharers, joint-
contractors, etc
b) Statements of persons whose position or liability must be proved as against a party

to a suit (sect. 21 of TEA).
When liability of a party to a suit depends upon the liability of a third person, then a statement of
the said third person regarding his liability amounts to an admission as well against the said party
to the suit. This can be illustrated by the following example;
Juma undertakes to collect rent for Alli; Alli sues Juma for not collecting rent from Yusufu.
Juma denies that rent was due from Yusufu to Alli. A statement by Yusufu that he owe Alli
rent is an admission and is admissible as against Juma, if he denies that Yusufu owed this rent.
c) Persons expressly referred to by a party to a suit (sect. 22 of the TEA).

This section deals with vicarious admissions. It stands on a general principle that when a party
refers to another person for some information or opinion on a matter in dispute the statement
made by the third person is receivable as admission against the person referring. The argument
for this is that by referring to a third person the particular party indicates that he trusts that other
person and approves his utterance in anticipation and adopts it as his own. However, before that
statement is taken in evidence, as an admission, there has to be evidence that there was an
express reference for information by the concerned party.
For example the question is whether a generator sold by Jumbe to Kacheche is in good
running condition or sound. In such a case if Jumbe says to Kacheche “go and ask Dogo
because he knows all about it” then Dogo’s statement on the issue is an admission and it can be
used against Jumbe.
Then Section 23 of the same Act provides two important circumstances under which admissions
can be admitted these are;
(a) The first rule is that an admission is generally relevant when it is proved against the
person who made it or his representative in interest.
(b) The second is that an admission can be proved by or on behalf of the person who made it.

This Section however, provides three exceptions to the general rule; that an admission can be
proved against the interests of the maker. The exceptions are stipulated in Section 23 (a) (b) and
(c) of the same Act, i.e
Section 23 (a) provides that, if a statement made and that statement is in a nature that if the
maker of that statement was dead then that statement will be qualified as evidence in an activity
between third parties under Section 34 of The Evidence Act which says statement of persons
who cannot be called witness.
For example John is accused of killing Allan in Mwanza city at 8.00 am on 17th May 2002. In
his defense he produces a business letter he wrote on the material day and time while he was in
Tanga and bearing a post mark (stamp) of Tanga. The statement on the date of the letter is
admissible, because if John were dead it would be admissible under section 34(b) of TEA
Also, Section 23 (b) provides that when a statement given to court as an admission is one which
relates to existence of mind or body. If the statement was made at the particular period when the
state of mind or body was in existence and is accompanied by conduct rendering its falsehood
improbable, such facts or statements may be proved on behalf of the maker of an admission. This
exception focuses on a person‟s state of mind or body of a party when the same is in question.
The existence of facts showing the state of mind or body is also admissible under section 16 of
the TEA. However when such statement is sought to be proved in favor of the maker it must be
accompanied by conduct rendering any falsehood improbable.
Lastly section 23(c) permits the court to admit a statement which is not qualified to be admitted
as an admission but in some other Sections of the Evidence Act such statements may be
admitted.
For example B is accused of knowingly being in unlawful possession of counterfeit coin. He

offers to prove that he asked a skilful person to examine the coin as he doubted whether it is
counterfeit or not, and that that person did examine it and told him it is genuine. Here B is
seeking to establish his innocence by adducing facts that are incompatible with his guilt i.e. he
had no mens rea. This is relevant under section 16. In such a case B may prove this admission in
his favor under section 23(c).

In summary admissions may be made by:
 parties;
 agents of parties;
 parties suing in a representative character e.g. trustees, administrators etc‟
 Interested parties e .g. co-shares etc.
 Persons from whom the parties have drawn interest
 Persons expressly referred to by the parties to a suit.
There are three important things to note on the admissibility of admissions under the TEA.
First, oral admissions on the contents of documents are not relevant unless the party proposing
to prove them shows that he is entitled to give secondary evidence of the contents of such
document or the genuineness of the document is in question (section 24 of TEA). The rule laid
down by this provision is that the contents of a document cannot be proved by oral admissions
unless: the party proposing to give such evidence can show that he is entitled to give secondary
evidence or the genuineness of the particular document is in question.
Second, in civil cases no admission may be proved if it is made on the express condition or in
circumstances in which it can be inferred that the parties agreed that the evidence of it should not
be given (Sect. 25 of the TEA).
Parties in civil suits, for the sake of putting an end to litigation, may make admissions of liability
under an express or implied condition that evidence of it should not be given. In such a case such
admission is irrelevant and inadmissible in evidence
This provision does not, however, exempt an advocate to give evidence where he is required to
do so under section 137 of the TEA
Third, admissions are not conclusive proof of the matter admitted but they may operate as
estoppel (Section 26 of the TEA).
That the Section admits that an admission does not constitute a conclusive proof of the facts
admitted. It is only a prima facie proof. The expression “conclusive proof” as defined under
Black’s Law Dictionary means that when a fact has been conclusively proved the court shall

not allow evidence to be given for the purpose of disproving it. An admission being not
conclusive proof of the fact admitted evidence can be given to disprove it but until evidence to
the contrary is given, an admission can safely be presumed to be true.
CONFESSION
The term confession has been defined by different authors, statutes and as well as derived from a
number of cases.
According to J.H. Wigmore, A Treaties on the Anglo-American System of Evidence in Trial

at Common Law, 8th Ed, vol. 1 “ confession is an acknowledgement of guilt in express words
by the accused person”
Also the word confession has been defined in the case of songwe ngedelele vs. republic (1968)
hcd no 178
as “A confession is a direct acknowledgement of guilty on the part of the accused … an
admission … is a statement by the accused, direct or implied, of facts pertinent to the issue of
tending, in connection with proof of other facts to prove his guilty, but of itself is insufficient to
authorize a conviction.”
In the case of mathei fidoline haule v R [1992] TLR 148 at 151 , the Court of Appeal
of Tanzania stated that; “A confession within the context of criminal law is one which
admits in terms the offence charged. It is one which admits all the essential elements or
ingredients of the offence. An admission of one or only some of the ingredients of the
offence is not sufficient”
In R v. bampamiyki 1957) EA 473 a statement should be regarded as a confession only when it

contains ingredients of the crime with which the accused person is charged, so that the accused
person could be properly convicted on his own plea.
From the above definitions and explanations, the term confession is generally restricted to
acknowledgement of guilt. This position is also true in the TEA
The term confession is defined in section 3(1) of the TEA to mean:

“(a) Word or conduct, or a combination of both words and conduct, from which, whether
taken alone or in conjunction with the other facts proved, inferences may reasonably be drawn
that the person who said the words or did the act or acts constituting the conduct has committed
an offence; or
(b). A statement which admits in terms either an offence the person making the statement has
committed an offence; or
(c) A statement containing an admission of all the ingredients of the offence with which its
maker is charged; or
(d) A statement containing affirmative declarations in which incriminating facts are admitted
from which, when taken alone or in conjunction with other facts proved, an inference may
reasonably be drawn that the person making the statement has committed an offence.”
For example, if A, who is charged with house breaking and stealing, admits that he was found in
possession of goods alleged to have been stolen but claims that he bought them on the open
market the statement is an admission of possession which is against him. It is not a confession
ADMISSIBILITY OF CONFESSIONS
The admissibility of a confession depends on the circumstances in which it was made and to
whom it was made. The TEA provides for situations in which a confession can lawfully be made
The first one is that, such confession must be made to an authorized person or a person in
authority Section 27 and Section 28 of TEA, provides the list of persons who can receive
confession to include police officer, justice of peace and magistrates respectively. Hence the
confession made to other person than the above, will be invalid under the law.
With this regards Section 27 (1) must be read together with section 3(1) of TEA which defines a
term police officer
Confession made to police officer proved to be voluntarily is admissible. Where the relevant
confession made to a police officer, then the rank of the said officer must be that which is
prescribed by law.

In the case of GERVAS KILONGOZI vs. R[1994] TLR 39 CA the appellant was charged and
convicted with murder. The trial court based the conviction on a confession that the appellant
made to a police officer whose rank is not shown on the evidence. On appeal the conviction on
confession was challenged as being on inadmissible evidence.
It was undisputed that there was nothing on record to show that the police officer to whom the
appellant made the confession was of the rank required. It was held that,
“Confession was inadmissible in evidence and that the case was not proved beyond reasonable
doubt”. For these reasons appeal allowed.
On the meaning of “a person in authority” the court in Deokinanan v. R. [1969], AC 20 the
court said:
“A person in authority means, generally speaking, anyone who has authority or control over the
accused or over the proceedings or prosecution against him. And the reason that it is a rule of
law that confessions made as a result of inducement held out by persons in authority are
inadmissible is clearly this, that the authority that the accused knows such persons to passes may
well be supposed in the majority of instances both to animate his hopes of favor on the one hand
and on the other to inspire him with awe….”
And in the case of Shihobe Seni and Another v Republic [1992] TLR 330 (CA). The
appellants were convicted of murder and sentenced to suffer death by hanging. They appealed
against both conviction and sentence attacking the evidence on the basis of which they were
convicted. The appellants were said to have made confessions that they later repudiated. Some of
the confessions were made to the village chairman.
The court held a view that a village chairman is a person in authority under section 27(3) of the
Evidence Act and so a confession made to him is involuntary if the Court believes that it was not
induced by any threat, promise or other prejudice.
Second ingredient confession will be the valid if made freely and voluntarily. Voluntariness
of a confession is a key component in the admissibility of a confession.
A confession is not voluntarily made if it was induced by threat, promise or other prejudice held
by the police or any other person in authority. Voluntariness of the confession is provided under
Section 27 of The Evidence Act.

The onus of proving the voluntariness of Confession lies upon the prosecution and this is
provided under section 27(2) of the Act
This position was also stated by the court in the case of Njuguna Kimani & Others V R [1954]
21EACA 316 where the accused was charged with the murder of their employer. One of the
issues was whether the confession was voluntary as to be admissible. The court held that:
i. It is the duty of every judge or magistrate to pay close attention to confession obtained
from an accused person particularly when the person has been in custody for a long
time, and;
ii. Onus is on the prosecution to show voluntaries of confession and that if third degree
measures were applied they had ceased to operate in the mind of the accused at the
time he was making the confession.
iii. It is inadvisable, if not improper, for the police officer who is conducting the
investigation of the case, to charge and record the cautioned statement of the suspect.
The provision of Section 29 of TEA is to the effect that “No confession which is tendered in
evidence shall be rejected on the ground that a promise or threat has been held out to, the
person confessing unless the court is of the opinion that the inducement was made in such
circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be
made”
The above provision is reflected in the case of JOSEPHAT SOMISHA MAZIKU V R,
[1992]TLR 227 at 230, the High Court of Tanzania stated that; “While it is trite law,
that the condition precedent for the admissibility of the confession, is its voluntariness, the
said confession is not automatically inadmissible, simply because it resulted from threats,
or promise; it is inadmissible, only if the inducement or threat, was of such a nature as was
likely to cause an untrue admission of guilt,”
The logic of Section 29 of the TEA is that a confession obtained by inducement or threat is
admissible if there is evidence that the confession is saying nothing but the truth. Some of the
things which the court would take into consideration, in deciding this, include the nature of the
promise or threat and the circumstances in which the confession was made. In addition where a

confession is made after the impression caused by the inducement has been fully removed the
confession is relevant and need not be rejected (section 30 of TEA)
In the case of Thadei Mlomo and others vs Republic 1995 TLR 187 (CA) the court held that
involuntary confession is admissible if the court believes it to be true
Last ingredient which makes the confession to be valid is that it must be made by an
accused person himself. However, there is the situation whereby the accused make the
confession against his co-accused. However no person can be convicted solely on the basis of the
confession of co-accused. In order for a confession of co–accused to be admitted there are
conditions to be fulfilled.
These conditions are; they must be jointly charged from the beginning to the end, the offence
which was charged is the one which the co–accused confessed and must be accompanied by
collaborated evidence This was stressed in the case of Asia Iddi vs. R. [1989] TLR 174 HC
RETRACTED AND REPUDIATED CONFESSION
A retracted confession occurs where the accused admits that he or she has made the confession
and then denies the truth to what is stated therein. While
A Repudiated confession is one which the accused person contend that he never made
Where the prosecution applies to tender a confession then the accused must first be asked
whether he disputes the admissibility of the confession. If the accused retracts or repudiates his
confession or maintains that it was not voluntary the court must conduct an inquiry (trial within
a trial) to determine its voluntariness or admissibility. In the case of Daniel Matiku VS
Republic (Criminal Appeal No. 450 of 2016 CAT (unreported) the court stated that.
"…… a confession or statement will be presumed to have been made voluntarily until objection
to it is raised by the defence”,
Furthermore the Court in the case of Twaha Ali and 5 Others VS Republic, criminal appeal
no. 78 of 2004 (unreported) held that
"... if that objection is made after the trial court has informed the accused of his right to say
something in connection with the alleged confession, the trial court must stop everything and

proceed to conduct an inquiry (or a trial within trial) into the voluntariness or not of the alleged
confession. Such inquiry should be conducted before the confession is admitted in evidence..."
In some cases where the court is fully satisfied that in the circumstances of the case the
confession is nothing but the truth a retracted or denied confession cannot support a conviction
unless corroborated
However corroboration is not necessary in law and the court may act on a confession alone if it is
fully satisfied that the confession is true.
However in the case of Tuwamoi v. Uganda (1967) EA 84 courts said:
“…a trial court should accept any confession which is retracted or repudiated…with caution,
and must, before founding a conviction on such confession, be fully satisfied that in the
circumstances of the case that the confession is true….”
And in the case of Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No.317 of
2013 (unreported), the court appreciated the case of Tuwamoi v. Uganda and stated the
following
“Judge was certainly correct in saying that under normal circumstances a conviction could
safely lie so long as the court warns itself on the danger of acting on the statement without
corroboration. It is trite law that as a matter of practice, a conviction would not necessarily be
illegal but it is a matter of practice in such cases for a trial court to warn itself and if the trial is
with the aid of assessors to direct them on the danger of convicting without corroboration”
Read the case of Hamisi Athumani and two Others V R [1993] TLR 110 (CA).
WHEN AND TO WHAT EXTENT THE COURT CAN ACT UPON REPUDIATED OR
RETRACTED CONFESSION
The question may arise that at what point in time the court may find it safe to act upon
repudiated or retracted confession without occasioning the dangers discussed above. The answer

to this question had been long time settled. Therefore the following are the circumstances which
the court must take into account
a) the confession is leading to discovery of the subject matter

According to section 31 of the TEA when any fact is deposed as discovered in consequence of
information received from a person accused of any offence in the custody of a police officer so
much of such information, whether it amounts to a confession or not, as relates to the fact
thereby discovered, is relevant. In Nanyalika v. R. (1971) HCD n 314 the appellant was
convicted on three charges of stealing, entering a dwelling house with intent to steal and stealing.
The appellant made statements to a police officer leading to the discovery of several stolen
articles. On appeal Biron J Said:
“…the appellant showed the police the spot where the complainant‟s stolen box was recovered,
and also his leading the police to the laundryman from whom the complainant‟s stolen shirt was
recovered is admissible…”
b) where reasons for retraction are remote

Section 29 of the Evidence Act is out rightly stating that confession tendered in evidence shall
only be rejected where inducement or threat made is likely to cause an untrue admission of guilt.
This means when inducement or threat complained about are far remote from a confession itself,
and no longer can the motive force behind such confession, the court proceed to act on it.
This rule was also supported by Katiti, J. in the case of Josephat S. Maziku vs. R (1992) TLR
227 , among other things, the Judge said, “Where you have threat and a confession far apart
without a causal connection, and no chance of such threats inducing confession, such confession
should be taken to be free of inducement, voluntary and admissible.”
c) where confession is nothing but truth

This position was demonstrated in the case of Hemed Abdallah vs. R (1971) HCD 314 the
court said inter alia that, “Once the trial court warns itself on the dangers of basing a conviction
on uncorroborated retracted confession and having regard to all the circumstances of the case,
it is satisfied that the confession is true it may, convict on such evidence without any further
ado.”

ADMISSIBILITY OF CONFESSION BOTH IN CAUTIONED STATEMENT AND

EXTRAJUDICIAL STATEMENT
According to Osborn concise law dictionary 18th ed at page 63, Caution is a warning to a
person that his answer to the questions may be used in evidence.
Cautioned statement are statement made by a police officer to a person suspected to an offence
to be cautioned before any question put to him for the purpose of obtaining evidence which may
be given to a court in a prosecution, such confession is admissible whether it was made before
the arrest or after arrest in case of a juvenile, must be cautioned in the presence of his guardian
and unsound mind or handicapped person must be interpreted till understood the matter.
Cautioned statement is given in the case of Balbisain Josh. (1951) 18 EA CA 208, that whether
that police takes a statements of the accused person he must caution him by saying that you‟re
not obliged to say anything unless you wish to do so, but what you say may be put in writing
and given in evidence.
Confession is extrajudicial statement when made by the accused person elsewhere other than
before the court, such a statement made under the person with authority or to the justice e of
peace. The term embraced not only express confession of a crime but also those admission and
acts of the accused from which guilt may be implied. It is sufficient to warrant a conviction
By starting with cautioned statements, the law governing in Tanzania are the Evidence Act
and The Criminal Procedure Act as shown hereunder;
According to section 10(3), section 57 of TEA which read together with section 58 of The
Criminal Procedure Act [CAP 20 R.E 2019] provides for admissibility of confession made
by an accused person to the police officer that is when a police officer makes an investigation ,or
interview to person ,must record the statement in full language used unless it in all
circumstances impracticable to do so and emphasis to made a cautioned statement to a person
before he made the confession.

Also under section 27(1) of The Evidence Act, the Act provides for the same admissibility of
confession of cautioned statement that is, a confession voluntarily made to a police by a person
accused of an offence may be proved against that person.
Police officer must be of or above the rank of constable, as prescribed by the law( see Section 3
of Evidence Act ) otherwise the evidence will be inadmissible, this is supported in the case of
Gervas Kilongozi VS R [1994] TLR 39 in this case it was held that the confession was
inadmissible in evidence and that case was not proven beyond reasonable doubt due to the
failure to show the rank of a police officer.
On the other hand the law governing the admissibility of confession on extrajudicial
statements are based on the Magistrate’s Court Act and The Evidence Act.
According to section 51 and 57 and 59 of The Magistrate’s Court Act [CAP 11 R.E 2019]
provides that officer of district, town, municipal or city council are justice of peace who has
assigned the power to hear, take and record the confession of a person in custody of a police and
such confession in admissible. It further stated under section 28 of The Evidence Act that a
confession which is freely and voluntarily made by a person accused of an offence in presence of
the magistrate or justice of the peace is admissible as an extra judicial statement.
THE GENERAL RULE AS TO THE ADMISSIBILITY CONFESSION (CAUTIONED

STATEMENT AND EXTRA JUDICIAL STATEMENT)
Voluntaries of a confession together with the status of a person to whom it was made are the
key component in the admissibility of any confession, therefore as a general rule a confession
must be freely and voluntarily made as it is provided under section 27 and section 28 of The
Evidence Act that a confession voluntarily made to a police or justice of peace are admissible
and shall be held to be involuntary if the court believes that it was induced by any threat, promise
or other prejudice held out by the police officer or any other person in authority, this was
supported in the case of (refer the case of Shihobe Seni And Another VS R [1992] TLR 330)
CONFESSION OF A CO-ACCUSED & ACCOMPLICE

Co-accused is accused person charged with other accused person on the same charge on
indictment.
A accomplice is a person who in one way or another has participated in commission of an

offence but the prosecution has not decided to charge him, and he /she has summoned in court to
testify against charged person
According to section 142 of the evidence Act An accomplice shall be a competent witness
against an accused person; and conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice
According to section 33(2), a conviction cannot solely be based on the confession of a

co-accused. There must be other evidence. (read the case of Asia Iddi v. R[ 1989] TRL )
However the case of Bushiri Amiri v. R,[1992] TLR 65 , the court said that, “the
evidence of a co-accused is on the same footing as that of an accomplice, that is it is
admissible but must be treated with caution and as a matter of prudence, would require
corroboration and that it would be unsafe to found a conviction of the appellant on the
uncorroborated evidence of the co-accused”.
Also in the case of DPP v ACP Abdallah Zombe & Others, Criminal Appeal No. 358 of 2013
(Unreported) CA the court said
“We fully subscribed and find as correct the observation made by the High Court that the
evidence of a co-accused given on oath and on the defense implicating other accused should be
treated as evidence of an accomplice. Such evidence, owing to its inherent danger, requires
corroboration as a matter of a well established practice but not in law as provided under s. 142
of the Evidence Act, Cap 6. R.E of 2002 (now R.E 2019)
What is the rationale for requiring corroboration for accomplice or co-accused evidence?
a) Their evidence is untrustworthy before court as they are likely to tell lies in order to shift
guilt from him.

b) As a partner in crime with accused, an accomplice or a co-accused is not likely to value

his oath.
c) A co-accused or accomplice is likely to gives evidence because of the hope or promise
to be pardoned or treated leniently by the prosecution.
All confessions are admissions but the reverse is not the case
A statement is not admissible as a confession, but the same statement may yet for other purposes
be admissible as an admission as against the person who made it because for admission to be a
confession it must acknowledge the guilty on the part of the person who makes it
According to Avatar Sigh The law of evidence 15th Ed, p.133 a confession is defined as an
admission made at any time by person charged with a crime stating or suggesting the inference
that he committed that crime.
Hence it is well known as all confessions are admissions but all admissions are not confessions.
The differences between admission and confession are based on the nature of the proceedings.
That is, Admissions are generally made in both criminal and civil cases while Confessions are
made only with respect to the criminal cases. In criminal cases admissions are applied in those
matters which have no criminal intent
Confession always goes against the person against the person making it while admission may in
certain circumstances be proved in favour of the person making it example under Section 23 of
the Evidence Act
Confession must be in affirmative in both ingredients of the offence which is actus reus and
mens rea while admission may lack one of this ingredients which may lead to different
interpretation. It can be illustrated as follows;
Where A upon separating B and C who were fighting in a train compartment, A pushed B who
dropped in the joint which separated the compartment and died instantly. Before the, court A
admits that he caused the death of B in due process of separating him from C. That admission
cannot amount to a confession of an offence of murder since there is no proof as to the mens rea.

Both admissions and confessions have some features which appear in the two. These include the
fact that both can be made as judicial or extra judicial, can be made by words or conduct or
combination of both, as a general rule the burden of proof in both lies on prosecution with
respect to criminal matters This was stated in the Case of Jonas Kize V R [1992] TLR 213
where the High Court observed that the general rule in criminal prosecution that the onus of
proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part
of our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking. The court
observed further that failure to rely on prosecution evidence is to read upside down the
authorities, and if it is by design, then it is strange and un-judicial behaviour. And also in both
there is a conditional precedent that they should be made voluntarily however the court may
admit involuntary confession if finds that it is the truth
TOPIC 6: STATEMENTS OF PERSONS WHO CANNOT BE CALLED AS WITNESSES
The Rule against Hearsay
The general rule is that oral evidence must be direct i.e. evidence referring to a fact which could
be seen, heard or perceived by our senses. It must be evidence of a witness who saw, heard or
otherwise perceived the fact in question (section 62 of TEA).
Therefore no witness is allowed to give evidence on the basis of what he was informed by a third
party. This will be regarded as hearsay and will not be admissible. The term hearsay does not
appear in section 62 of the TEA although the courts refer to it as hearsay. However the rule
concerning hearsay is embodied in section 62 of the evidence Act .The term hearsay, in simple
words, means that a witness says in court what he heard from a third person.
For example a witness says: “ I heard Chiku saying that he (Chiku) saw the accused stabbing
the deceased to death.” Such a statement is hearsay and not admissible as it conflicts with the
requirements of section 62. The witness is required to give best evidence in court and Hearsay
evidence is no best evidence since best evidence rule require all evidence to be direct
The reasons why hearsay evidence is not received as relevant evidence are:

i. The person giving such evidence does not feel any responsibility. If he is concerned he
has line of escape by saying” I do not know, but so and so told me.”
ii. it is intrinsically weak because it is subject to distortion, human memory tend to fade with
passage of time and errors of transmission
iii. It may not be possible to establish the meaning of the words used because the third party
may have used the words in a special sense. The persons reporting may give a false
meaning
iv. There is a likelihood of distortion of the original statement. It may be twisted depending
on the interests of the witness
v. There is no opportunity to judge the demeanour of the person who made the original
statement. You cannot judge the tone of the voice used, looks on the face of the person
Exceptions of the Hearsay Rule in the Tanzania Evidence Act
The Tanzania evidence Act makes provision that under certain circumstances hearsay evidence is
admissible. These cover admissions and confessions, statements made by persons who cannot be
called as witnesses, statements made in special circumstances etc. This part is intended to
elaborate on the admissibility of statements of persons who cannot be called as witnesses
One of the main provisions is Section 34 of the TEA that deals with statements of persons who
cannot be called as witness. The provision makes admissible statements of persons:
 who are dead or unknown;

 who cannot be found or who cannot be summoned owing to diplomatic immunity or
other privilege;
 those who have become incapable of giving evidence or
 Persons whose attendance cannot be procured without delay or expense which is
unreasonable.
These statements are admissible only in circumstances specified in section 34 and no others.
Statements made by the mentioned people are admissible in the following circumstances;

i. when the statement is made by a person as to the cause of his death or circumstances
leading to death – dying declaration (section 34(a)
ii. . When it is made in the course of business, such as an entry in books, or
acknowledgment or the receipt of any property or date of a document. section 34(b)
iii. When it is against the pecuniary or proprietary interest of the person making it or
when it would have exposed him to a criminal prosecution or to a suit for damages
section 34(c)
iv. When it gives opinion as to a public right or custom or matters of general custom
had arisen section 34(d)
v. . When it relates to the existence of any relationship between persons as to whose
relationship the maker had special means of knowledge and it was made before the
question in dispute arose section 34(e)
vi. When it relates to the existence of any relationship between person deceased and is
made in any will or deed or family pedigree, or upon any tombstone or family
portrait and was made before the question in dispute arose. section 34(f)
vii. When it is contained in any deed, will or other document section 34(g)
viii. . When it is made by a number of persons and expresses feelings relevant to the
matter in question. section 34(h)
Clearly section 34 restricts the admissibility of statements of persons who cannot come to court
and give evidence. The purpose of the provision is to ensure the admission of the truthful
information in the course of criminal and civil proceedings. The exceptions are allowed on the
basis of necessity in that where the particular person is dead or cannot be found or easily
summoned by the court there is no possibility of getting better evidence. The first exception
appearing in section 34(a) is what is commonly called a Dying Declaration.
What is dying declaration?
Section 34 (a)
Section 34(a) of the TEA constitutes what is called “dying declaration” at common law. A
dying declaration is defined in the Oxford Companion to Law to mean:

“A verbal or written statement made by a dying person, which although not made on oath or
in the presence of the accused, is admissible in evidence on an indictment for murder or
manslaughter of that person, provided the person making it had a belief, without hope of
recovery, that he was about to die shortly.”
However this definition explains the English position of the law. In Tanzania a dying
declaration is relevant if it is made by a person regarding the cause of his death or it relates
to any of the circumstances of the transaction which resulted in his death where the question
of death is in issue
It is emphasized, that for such a statement to be admissible the following conditions must be
fulfilled:
i. that the maker of the statement is, in fact dead, and

ii. the statement relates to
a) the cause of his death or
b) the circumstances of the transaction which resulted in his death and,
iii. That the cause of that person‟s death is in question in the case.
The general principle is that a dying declaration once believed to be true, free from falsehood,
consistent, coherent and where no likelihood of prompting is present can be accepted and acted
upon. It is not necessary that the same be corroborated. However there are only a few
declarations of such good quality. As far as dying declaration is concerned, in evidence
corroboration is highly desirable though not always necessary to support a conviction.
Such corroboration, as indicated above, may either be by direct evidence or circumstantial

evidence.
In the case of R. v Mohamed Shedaffa and Three Others [1984] TLR 95 (HC) the High
Court held:
i. It is possible for a conviction to proceed upon evidence consisting of a dying

declaration only, although it is a rule of practice that a dying declaration requires
corroboration before it can be acted upon;

ii. the mere fact that the deceased consistently made precise and substantially identical
statements on several occasions is not evidence that such statements are accurate
but only that the deceased was consistent in his belief that the accused had assaulted
him.
Corroboration is thought necessary because the deceased may have been uncertain or mistaken
on the identity of the assailant.
N.B; Credibility of a dying declaration is the matter of discretion of the court. However the court
may take into consideration the following factors;
 Capacity of a witness who seeks to submit dying declaration to remember the chain of
events during the declaration.
 Consistence of the contents of the dying declaration with other circumstances relating to
death.
 Opportunity of a person adducing dying declaration to identify the accused person.
NB; If the crime occurred in dark place (Mid-night)-extra caution may be taken by the court.
Statements and entries in the course of business
Section 34(b)
Statements of persons who are dead or unavailable as elaborated under section 34(b) are
admissible if the particular statement or entry is made in the ordinary course of business. or duty.
The basis of this position is that such statements are assumed to have been given without a
particular motive other than the fulfillment of ordinary duty in human life. Such statements,
therefore, can safely be assumed to be true. What is important to understand is that the particular
statement or entry must be relevant to the facts of the case in question. In addition the particulars
given in the provision are not exhaustive but fairly indicate the nature of statements made in the
course of business.
When the statement is against pecuniary or proprietary interest of the maker
Section 34(c)

Under section 34(c) statements of persons who are dead or unavailable that have been made
against their own interests are admissible. The principle upon which such statements are
regarded as admissible in evidence is that a person is not in the ordinary course of affairs likely
to make a statement which is to his own detriment unless it is true
A good example of a statement against the pecuniary interest of the maker Example Kiduchu
writes in his accounts book that he has received a loan of shillings 100,000 from Dogo such entry
will be evidence in case of the death or absence of Kiduchu.
When it gives the opinion of a person on the existence of a public right or custom (section
34(d)
Declarations of opinion of deceased or those persons who cannot be found are admissible in
proof of any public or general right or custom or a matter of public or general interest. Public
rights concern all members of a particular community or country e.g. the right to collect road toll
in a particular highway pinions are admissible if three things are fulfilled:
first, that the statement having such opinion must be on any matter of public or general interest,
second, the declarant must be a person who would have been likely to be aware of the existence
of the right in question and
third the declaration must have been made before the controversy to such right or custom arose.
Statements as to Existence of Relationship
Section 34(e)
According to section 34(e) a statement relating to the existence of any relationship between the
person alive or dead is declared as relevant. However, the person making the statement must
have special means of knowledge. Conditions for admissibility:
 The statement must relate to the existence of any relationship by blood, marriage or
adoption.
 The person making the statement must have special means of knowledge about the
relationship.

 The statement must have been made before the question in dispute was raise
Statements in a will or deed relating to Family Affairs
Section.34 (f)
Section 34(f) provides that statements relating to the existence of relationship between
deceased persons made before the question in dispute was raised are admissible when they
are contained in a will or deed or in a family pedigree or upon a tomb-stone. It is not
necessary that the person who made the statement should have special means of knowledge.
Statements in Documents Relating to Certain Specific Transactions
Section 34(g)
Section 34(g) provides that statement contained in a deed, will or other documents which
relates to any such transaction as is mentioned in section 15 are admissible. (Section 15
allows facts affecting existence of right or custom). This section includes private rights as
well as public rights.
Statements Made by Several Persons Expressing Feelings
Section 34(h)
According to section 34 (h), general reputation prevailing in the community and the opinions,
inferences or beliefs of individuals (whether witnesses or not) are admissible in proof of fact.
To this there are important exceptions. Witnesses in some cases are allowed to testify to the
opinions of third persons who are not upon oath, e.g. when the opinion is that of the
community. The concurrence of many voices among those most favorable situated for
knowing raises a reasonable presumption that the facts concurred in are true.
TOPIC 7: BURDSEN OF PROOF AND STANDARD OF PROOF

The cardinal principle of the law of evidence is that he who alleges must prove. He has a duty to
produce evidence sufficiently in a quantity and quality to justify his allegations, the legal burden
of proof is provided for in section 110(1) of the TEA in the following words:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of facts, which he asserts, he must prove that those facts exist.”
The legal burden of proof never shifts. In criminal cases it lies on the persecution to show that
the accused committed the specific offence beyond reasonable doubt. In civil matters it lies on
the party who could lose the case if no evidence at all were to be produced i.e. in order to win he
must establish his case by preponderance (balance) of probability (See section 2 of the TEA.).
That is the reason why Section 111 of the TEA provides:
“The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all
were given on either side.”
The second sense of “burden of proof” refers to one party‟s duty of producing sufficient
evidence for the court to call on the other party to answer. It is an obligation to adduce sufficient
evidence on a particular fact to justify a finding of fact in favor of a party who is under
obligation to do so. This type of burden may be termed as the “burden of adducing evidence” or
the “evidential burden.” Or onus of proof .Others refers to it as the duty of “passing the judge.”
It is in this context that section 112 of the T EA provides:
“The burden of proof as to any particular fact lies on that person who wishes the court to believe
its existence, unless it is provided by any law that proof of that fact shall lie on any particular
person.”.
This burden also relates to the duty of proving admissibility of certain [specific] evidence (s.113
of TEA).
Standard of Proof

The term standard of proof refers to the extent or degree to which the burden of proof must be
discharged. It is the standard to which the tribunal of fact must be convinced by the evidence
before the party bearing the burden of proof becomes entitled to succeed in the particular case.
In criminal cases, except where any statute or other law provides otherwise, the standard of
proof is „beyond reasonable doubt’ (section 3(2)(a) of the TEA)
In the case of Mohamed Haruna & Another v The Republic, Criminal Appeal No. 25 of 2007
(Unreported) CA, the court said
“Of course in cases of this nature (criminal in nature) the burden of proof is always on the
prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an
accused person can only be convicted on the strength of the prosecution case and not on the
basis of the weakness of his defense…”
What then is “reasonable doubt”? This has been clearly elaborated in the American case of
Holt v. United States 218 U.S. 245, 254, 54L, Ed. 1021, 31 ct. 2 6-7 where the Supreme Court
said:
“A reasonable doubt is an actual doubt that you are conscious of after going over your minds
the entire case, giving consideration to all the testimony and every part of it. If you then feel
uncertain and not fully convinced that the defendant is guilty, and if you believe that you are
acting in a reasonable manner and if you believe that a reasonable man in any matter of like
importance would hesitate to act because of such a doubt as you are conscious of having, that is
a reasonable doubt of which the defendant (accused) is entitled to have benefit.”
As regards the standard of proof expected from the accused, in the circumstances, Section 114(1)
of the TEA provides in part: “… the defense creates a reasonable doubt as to the guilt of the
accused person in respect of that offence.”
In civil cases including matrimonial causes and matters, the standard is proof on preponderance
of probability or balance of probabilities (section 3(2)(b) of the TEA) and this was also
stated in the case of Registered trustee of joy in the Harvest vs Hamza K. sungura .Civil
appeal No. 149 of 2017(unreported ) the court said “the burden of proof lies in one who assert
existence of certain fact and standard of proof in civil cases is on balance of probabilities”

Burden of Proof in Criminal Cases
The constitution of Tanzania, as is the case is in other countries, provides for the presumption of
innocence until the contrary is proved. In law the accused has no duty to prove his innocence. It
is for the prosecution to satisfy the court beyond reasonable doubt (section 3(2)(a) of the
TEA)that the accused committed the offence with which he is changed. The prosecution has
duty to prove:
(i) that a crime has been committed

(ii) That the accused is a person or one of the persons who committed the offence.
The duty of the accused is to raise doubts. In the case of Woolmington V. DPP [1935] AC 462
the House of Lords said:
“… just as there is evidence on behalf of the prosecution so there it may be evidence on behalf of
the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit
of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such
burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as
to this guilt; he is not bound to satisfy the jury (court) of his innocence.”
Section 114 of the TEA provides for situations where the accused pleads certain defenses or
exceptions or qualifications. This section by placing the onus of proving any exceptions in the
penal statutes on the accused forms on exception to ordinary rule in criminal cases.
This section by placing the onus of proving any exceptions in the penal statutes on the accused
forms on exception to ordinary rule of “he who alleges must prove” in criminal cases. i.e
When The accused pleads certain defences like intoxication or Insanity the burden is on
him to prove the same; Intoxication is not a general defense but it can be a defense in any
criminal charge if it amounts to insanity or it negatives mens rea. Placing of the burden on the
accused to prove intoxication applies to Section 14 (2) of the Penal Code. that is, where the
accused pleads temporary insanity due to intoxication. in the case of Joseph John Makune v
The Republic [1986] TLR 44 at pg 49 (CA)

“The cardinal principle of our criminal law is that the burden is on the prosecution to prove its
case; no duty is cast on the accused to prove his innocence. There are few well known exceptions
to this principle, one example being where the accused raises the defense of insanity in which
case he must prove it on the balance of probabilities
when accused person raises the plea of alibi as per section 194 of Criminal Procedure Act,
Alibi is a plea that when an alleged act took place the accused was somewhere else. As indicated
in part one of this series the defense of alibi is admissible under section 13 of the TEA
The burden of proof lies on him to substantiate that fact at least to the extent of a reasonable
probability. Even if the evidence produced is capable of creating a doubt whether the accused
was there at the time of the happening, he becomes entitled to benefit of a doubt. It is the duty of
the prosecution to show that the alibi is false.
In the case of Salum v R. (1968) H.C.D. No. 142 the accused was convicted of shop breaking
and stealing. At the trial the accused denied having been at the scene of crime but did not say
where he had been. The trial magistrate, in his judgment, stated: “as the accused was raising the
defense of alibi, it is required of him to raise some evidence which could satisfy the court that his
alibi is reasonably true.” On appeal to the High Court Georges C.J clearly stated:
“The accused does not have to establish that his alibi is true. All he has to do is create doubts as
to the strength of the case for the prosecution. It follows therefore that where the evidence for the
prosecution is itself thin, an alibi which is not in itself particularly strong may very well serve the
purpose of raising doubt as to the guilt of the accused.”
Where the Burden is Placed upon the Accused by a Statute
Apart from pleading particular defenses a statute may specifically Place the burden of proof on
the accused person. Among such statutes is National Park Act cap 282; section the Protected
Places and Areas Act of 1969 etc. Where the law casts the burden of proof on the accused the
application of section 114 of the TEA is normally excluded and the general principles of English
law become applicable. In such cases the standard or proof expected form the accused will be
“raising a reasonable doubt.”

When the accused has been found in possession of property In the case of maruzuku
hamisi v republic [1997] TLR 1t was stated that; “Once the accused has been found in
possession of property which may reasonably be suspected of having been stolen or
unlawfully obtained then the burden shifts on him of satisfying the Court as to how he
came by the same. But the burden is not a heavy one”.
When an accused repudiates or retracts his confession, the onus shifts on him to prove that
the confession was obtained through threat or he never made any confession. In the case of
krisnas vs. state (1998) cr l.j 785, in the offence of rape, the accused and the victim were
residents of the same village. The accused confessed to his crime in the presence of his parents
and others. The accused contended that the confession was obtained from him by exercise of
pressure. It was held that the onus was on him to prove that the confession was obtained by
exercise of coercion or inducement
When a rebuttable presumption of law exists in favor of a party The onus is on the other
party to rebut it ;( section, 113)
When The prima facie case has been established as per section 231 of Criminal Procedure
Act, that is, when a case has been made out against he accused at the close of the prosecution
case, the accused person is given a chance to plead his defenses, the burden of proof shifts from
the prosecution side to the defense to raise a reasonable doubt. This section by placing the onus
of proving to the accused forms an exception to the ordinary rule in criminal cases that it is the
duty of the prosecution to prove the case beyond reasonable doubt
The phrase “prima facie case” has mostly been used, in some case law, at the close of the
prosecution case. Normally, in criminal procedure, at the close of the prosecution case the court
is required to consider whether or not a case has been made out against the accused sufficiently
to require him to make his defense If the court is satisfied that a case has been made out against
the accused sufficiently to require him to make his defense, there is said to be a prima facie case.
Burden of Proof in Civil Cases
As stated earlier the burden of proof in a suit proceeding lies on that person who would fail if no
evidence at all were given on either side (section 111 of the TEA). On this ground the burden of

proof in civil matters lies on the plaintiff. In order to win his case he has to establish the truth of
what he asserts on the balance of probabilities (Section 3(2)(b) of the TEA).
Section 115 of the TEA provides that In civil proceedings when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him. So it may happen that in
the course of proceedings, there are certain facts that happen to be within the special knowledge
of the respondent and the burden on prove will be on the respondent hence an exception to the
general rule.
Also similarly to the criminal proceedings ,in civil cases, Where there is rebuttable
presumption of law exists in favor of a party The onus is on the other party to rebut it;( section
, 113) read section 160 of the law of marriage Act
Standard of proof is not uniform in all civil cases. In a few cases there is a variation. In some
cases the standard is a bit higher. In cases where something akin to a crime is alleged such as
fraud or forcible taking of property, something more than mere balance of probabilities will be
required. In addition, in case of proof of certain grounds for divorce such as adultery and
desertions, for example, the burden is more akin to that in criminal than in civil cases
For example in case of election petitions the standard of proof is beyond reasonable doubt In the
case of Chabanga H. Dyamwale V. Alhaji Musa Masomo & AG [1982] TLR.69.Sisya J
stated clearly: “the standard of proof required for avoidance of an election is proof beyond
reasonable doubt. Any other measure below that will not suffice.”
Also in Professional Misconduct Cases: In such cases the standard of proof beyond reasonable
doubt read the case of Akena Adoko V. The Advocates Committee [982] TLR 291.
TOPIC 8: FACTS WHICH NEED NOT BE PROVED
Generally speaking every fact on which a party relies must be proved, either by oral or
documentary evidence. However, there are three exceptions to this general rule, vis
1. Facts judicially noticeable (sec 58 and 59 of TEA)

2. Facts admitted (sec 60 of TEA),
None of these classes of facts need to be proved

1. Facts Judicially Noticeable (Sect. 58 and 59 of the TEA)

Section 58 of the TEA clearly states that no fact of which the court shall take judicial notice need
to be proved. This rule is based on the ground that there are many facts of public and universal
nature that are so well known that the courts have to take judicial notice of them without any
further proof.
Generally matters directed by the statute to be judicially noticed or which have been so noticed
by a well-established practice or precedents of the courts must be recognized by the judges but
beyond this they have a wide discretion and may notice much which they cannot be required to
notice.
For example, laws passed by the parliament, official seals and signatures, the meaning of
ordinary words, division of time, weights and measures, facts regularly recurring in ordinary
course of nature of business etc. fall within this rule. The matters noticeable may include facts
which are in issue or relevant to the issue as well as contents of documents and their methods of
proof. However the fact that judicial notice is taken of a fact merely dispenses with proof but it is
not conclusive and a party is not prevented from disputing its correctness by offering evidence.
The list of facts, which the court is permitted to take judicial notice are given in section 59 of the
TEA.
Section 59(3) of the TEA provides:
“If the court is called upon by any person to take judicial notice of any fact, it may refuse to do
so unless and until such person produces such book or document as it may consider necessary to
enable it to do so.”
2. Facts amitted by Parties (Section 60).

Section 60 of the TEA relates to civil suits. This section deals with admissions of the parties,
oral or documentary, during trial in civil suits i.e. at or before the hearing. Proof of such facts is
dispensed with on the ground that the facts admitted need no further proof. They are commonly
known as judicial admissions or stipulations dispensing with proof. Such admissions may be
made on the records that are actual i.e. either on the pleadings or in answer to interrogatories or
implied from the pleadings. In addition they may be made between the parties e.g. by agreement

in writing before hearing, and at the hearing by a party or his lawyer. In short the section lays a
rule that proof need not be given of facts which the parties or their agents agree to admit at or
before the hearing in writing or which by any rule of pleading they are deemed to have admitted
by their pleadings.
The proviso to section 60 gives power to the court to require a fact admitted by the parties to be
proved in court. This is intended to guard against un-authentic or fictitious admissions.
Therefore the court cannot be compelled to accept an admission and it may require any fact to be
proved by evidence in the ordinary way as laid down in the proviso.
TOPIC 9; WITNESS
Competency, compellability and privilege of witnesses
A person cannot give evidence in court unless he/she is competent to testify. In some situations a
competent person may be compelled to give evidence but in others this is not possible.
Incompetent people are not allowed to testify in court.
Witnesses play a very important role in the administration of criminal and civil justice. The term
witness, here, must be taken to include parties to proceedings. Judgments are normally made on
the basis of evidence given by witnesses. However not every witness is allowed to testify and
sometimes law compels other witnesses, to testify
Witnesses, generally, can be classified in three groups
a) witnesses who are competent and compellable to testify;

b) witnesses who are competent but not compellable; and
c) Witnesses who are competent, but for some reason or another, the court will not allow
them to testify.
This brings us to the three important notions used in the law relating to witnesses namely,
“competency”, “compellability” and “privilege”.
A witness is competent if he may lawfully be called to give evidence. This means those people
who can testify. Such person is expected to be Conversant with the facts of the case. More
precisely a witness is competent to give evidence if his testimony is admissible. The competency

of a person to testify is a condition precedent to the taking of a witnesses‟ testimony.

Competency being a condition precedent to the administration of an oath or affirmation, a
determination of competency must be made before the oath or affirmation is administered. The
responsibility for determining competency lies with the court. Where the court, for some reason,
suspects that a potential witness may not be able to understand questions posed and give rational
answers to the same it should ascertain whether or not the witness is in fact competent.
A witness is compellable if, being competent; he can lawfully be compelled to give evidence.
Generally, except for the accused and his/her spouse, all competent witnesses are compellable. In
other words a witness is compellable if he can be obliged to go into a witness box and to answer
questions put to him or else sanctioned for contempt of court if he refuses to do so. However a
witness may refuse to testify on the ground of privilege.
Therefore the general rule of testimony and witness may be reduced to two simple propositions:
a) Any person is a competent witness in any proceedings; and

b) All competent witnesses are compellable
However, an exception lies under section 127(1) of the TEA i.e, all persons are competent to
testify, unless the court considers that by reason of tender years, extreme old age, disease or
infirmity they are incapable of understanding the questions put to them and of giving rational
answers. It is clear from the foregoing that competency of a witness in the rule and in-
competency is the exception. The court having the conduct of the case has the duty to determine
the question whether a particular witness is competent to testify in court. If the court suspects, for
any reason, a potential witness may not be able to understand the questions put to him or give
rational answers in the best way possible it has duty to ascertain whether or not the witness is in
fact competent. The manner of such ascertainment would depend on the nature of weakness
noted. However the fact that a person is a lunatic or suffering from mental disorder does not in
itself make him incompetent or prevent him from giving rational answers on matters in issue.
(See section 127(6)).
Competency in Special Cases

In certain situations some persons are allowed to give evidence only if certain requirements are
met. Some of such situations are discussed below.
i) Children of Tender Age

The general rule is that a child is a competent witness unless the court considers that he is not
prevented from understanding the questions put to him or from giving rational answers to those
questions by reason of tender age (sect. 127 (1) of TEA). For this purpose a child of tender
years is a child of or below the apparent age of fourteen years (sect.127 (4) of TEA).
Where in any criminal matter a child of tender age does not, in the opinion of the court,
understand the nature and value of an oath, his evidence may be received though not on oath or
affirmation, if in the opinion of the court, to be recorded in the proceedings, he is possessed of
sufficient intelligence to justify the reception of his evidence and understands the duty of
speaking the truth (sect. 127(2) of TEA) and such evidence does not need collaboration
That means understanding the nature and duties attached to an oath is not a mandatory condition,
although the same is desirable, before a child is allowed to give evidence. The minimum
condition needed to allow a child to give evidence in court is possession of sufficient intelligence
and the understanding of the duty of speaking the truth. The term „duty of speaking the truth‟
means the duty to tell the truth, which is an ordinary duty of normal social conduct.
Note When a child does not understand the nature of the oath, the court must determine two
points
 Whether the child possesses sufficient intelligence to justify reception of

the evidence
 The child understands the duty of speaking truth
 Finding on the two points must be recorded
The investigation into whether the meaning of an oath is understood was discussed in the
case of Kibangeny Arap Kolil v. R [1959] E.A. 92 where it was held that “the investigation
need not be a length one, but it must be made and when made the trial judge must record
it…the investigation should precede the swearing and the evidence and should be directed to

the particular question whether the child understands the nature of an oath rather than to the
question of his general intelligence”.
If the court is satisfied that the child understands the nature of an oath it may proceed to swear or
affirm him for the purpose of giving evidence. It has to be made clear that the competence of a
child of tender years to give sworn evidence in either criminal or civil proceedings depends upon
whether the child understands the nature of an oath or child understands the duty of speaking
truth. As a matter of law in criminal proceedings such evidence need no corroboration especially
where a child is the victim of sexual offence as provided under s.127 (6) because of notion that
“in sexual offence best evidence comes from the victim” as it was stated in the case of
Mohamed Said vs The republic Criminal Appeal No 145 of 2017(Unreported) (p.14)
In practice however, courts normally do not convict on unsworn evidence without a warning
itself and in the case of Nguza Vikings @ Babu Seya & 4 Others v. Republic, Criminal
Appeal No. 56 of 2005 (unreported): the court had this to say ;
"From the wording of the section, before the court relies on the evidence of the independent child
witness to enter a conviction, it must be satisfied that the child witness told nothing but the truth.
This means that, there must first be compliance with section 127(2) before involving section
127(7) (now section 127(6) under cap 6) of the Evidence Act; "Voire dire" examination must be
conducted to ascertain whether the child possesses sufficient intelligence and understands the
duty to speak the truth. If the child witness understands the duty to speak the truth, it is only then
its evidence can be relied on for conviction without any corroboration otherwise the position of
the law remains the same, that is to say that unsworn evidence of a child witness requires
corroboration. "[Emphasis added]
According to section 127(3), the evidence of a child of tender years may also be used by the
court as material evidence to corroborate the evidence of another child of tender years or may
also be used to corroborate the evidence of an adult. However, it is to be noted that the unsworn
or un-affirmed evidence of a child of tender years need to be corroborate, thus if not
corroborated, cannot be used to corroborate other evidence
ii) Persons with Decease of Mind/ Unsound Mind

The term disease of mind applies to idiocy and lunacy. An idiot is a person who was born
irrational and a lunatic is a person who was born rational but subsequently became irrational.
Under normal circumstances an idiot can never become rational but a lunatic can entirely recover
or have some lucid moments. According to the TEA a person of unsound mind is competent to
testify unless prevented by his condition from understanding the questions put to him and giving
rational answers (Section 127(6) of TEA). In summary a mentally disordered person or a lunatic
is a competent witness if he:
(i) can understand the questions put to him; and (ii)

(ii) Is capable of giving rational answers to such questions. From the foregoing one can
say that in lucid moments a mentally disordered person or a lunatic may testify before
a court of law. It follows logically, therefore, that such person must also be capable of
understanding the nature and obligations of an oath
iii) Dumb Witnesses
A person is not necessarily incompetent to testify because he is dumb. A dumb person may give
evidence in any other manner in which he can make it intelligible such as by writing or signs
provided that such writing is recorded and the sign are made in the open court. Evidence given in
this way is deemed to be oral evidence (sect. 128(i) &(2) of the TEA). In such cases the court
should satisfy itself that the witness has the requisite amount of intelligence and that he
understands the obligations of an oath. Section 128 of the TEA, however, does not mention those
witnesses who are both dumb and deaf. This situation was discussed in the case of Salum V R.
(1951) 18 EACA 217. The general position in the case is that such evidence may be admitted at
the discretion of the court.
In this case the court stated that a person having both infirmities could testify if he can be made
to understand the nature of an oath and if his intelligence can be conveyed to and from him by
means of signs. If the court is satisfied that the witness is fit to testify he may be sworn or
affirmed and allowed to give evidence by means of an interpreter. What is important, the court
added, is the fact that the interpreter must be competent and sworn before assisting the witness.
Moreover there must be a record of the signs and not the interpretation of the signs. In the above
case the court excluded the evidence of a person having both infirmities because the method of
interpretation was found to be crude and unreliable.

iv. Married persons
In civil proceedings if parties to the suit are the husband or wife or wives of any party to the
suit, shall be competent and compellable witnesses as provided under S.131 of T.E.A, that,
In all civil proceedings the parties to the suit and the husband and wife or wives Of any party to
the suit, shall be competent and compellable witness.
Husbands and wives are competent and compellable witness for or against each other in civil suit
therefore their testimony is to be scrutinized in the same manner as that of any other witness
In criminal trials general rule is stated under section 130(1) of the Tanzania Evidence Act that ,
“Where a person charged with an offence is the husband or the wife of another person that other
person shall be a competent but not a compellable witness on behalf of the prosecution…”
That is to say the husband and the wife are competent witnesses against each other but they are
not compellable. But in connection to the above discussion, section 130(3) of the TEA does not
close the room for the spouse who desire to testify against the other spouse or in favor of the
prosecution side as the section states that
Where a person whom the court has reason to believe is the husband or wife or, in a polygamous
marriage, one of the wives of a person charged with an offence is called as a witness for the
prosecution the court shall, except in the cases specified in subsection (2), ensure that that
person is made aware, before giving evidence, of the provisions of subsection (1) and the
evidence of that person shall not be admissible unless the court has recorded in the proceedings
that this subsection has been complied with.
In the case Akech v.R (1971) H.C.D 384. the appellant was charged and convicted of arson
contrary to section 319(a) of the Penal Code. At the appellant‟s trial, his wife was called as a
witness for the prosecution. Before she gave her evidence the trial magistrate asked the appellant
whether he had any objections to his wife giving evidence against him and the appellant said he
had none. The wife then gave her testimony. In that effect the High Court held that this was not
in accordance with the provisions of section 130(3) of the TEA. That sub-section requires the

court to address not the appellant but his wife and to inform her that she was under no obligation
to testify against her husband but she may give evidence against him if she chooses to do so.
The above cited section deals with criminal proceedings and the rationale behind the section is
that if communications between the spouses are disclosed by either of them it may disturb the
peace of the family and it will promote quarrel between the spouses.
The privilege stated in section 130(1) of the TEA has two exceptions. A husband or a wife is a
competent and compellable witness in the following cases as provided under Section 130(2) of
TEA That;
Any wife or husband, whether or not of a monogamous marriage, shall be a competent and
compellable witness for the prosecution-
(a) in any case where the person charged is charged with an offence under Chapter XV of the Penal
Code or under the Law of Marriage Act;
(b) in any case where the person charged is charged in respect of an act or omission affecting the
person or property of the wife or husband, or any of the wives of a polygamous marriage of that
person or the children of either or any of them.
Spouse is a competent witness for the defense if the other spouse is charged jointly or solely with
other accused persons but this is only on the application of the spouse charged. This is well
provided for under section 130(4) of the TEA and also in the case of mtoakodi v. Republic.
1969) E.A 42 In this case it was held that the appellant suffered an injustice in being deprived of
the right to call his wife as the assessors in the Primary Court had based their opinion as to the
appellant‟s guilty, at least in part, on his neglecting to call his wives as witnesses. Also in literal
interpretation section
However where, upon an application by the accused, a spouse fails or refuses to give evidence
the court and the prosecution may comment upon such failure or refusal to give evidence for the
other spouse (sect. 130(5) of the TEA).

Object and purpose of S.130 particularly subsection (1) subject to its exceptions under subsection
(2) is to give protection to the communications made during marriage and thus provides domestic
peace and conjugal confidence between the spouses
v. Accomplice
An accomplice is a competent witness against an accused (sect. 142 of the TEA
Compellability of Witnesses
Compellability means that a witness is required by law to attend the court after being summoned
to give evidence and answer questions on any matter relevant to the facts of the suit or
proceeding. In civil as well as in criminal cases a witness may feel that if he answers a particular
question or questions he will incriminate himself or expose himself to a civil action, directly or
indirectly. Such fear is not a sufficient excuse for answering questions in a witness box. A
compellable witness must answer relevant questions whether or not the answers incriminates
him/her or may directly or indirectly expose him to a penalty or forfeiture of any kind but such
answers which the witness is compelled to give shall not subject him to any arrest or prosecution
save for giving false evidence by such answer. This position is provided in sect. 141 of the TEA
Privilege of Witnesses
The attendance of a witness in court can be enforced under the pain of penalty for non-
compliance. As noted above a witness is not excused from answering questions on the
ground that the answer will incriminate him or expose him to a penalty or forfeiture of any
kind. There are, however, certain situations where a witness cannot be compelled to give
answers to questions asked. The categories of such people include
a) judges, magistrates, and police officers;

b) advocates,
c) Public officers with knowledge of official communication.
d) witness who are not parties to the suit

Section 129 of the TEA deals with privilege of judges and magistrates. It is against public
policy to allow disclosures of matters in which judges or magistrates have been judicially
engaged. Under this section a judge or magistrate cannot be compelled to answer questions:
(a) as to his own conduct in court as a judicial officer and, (b) as to anything that came to his
knowledge in court unless ordered by a superior court. This judicial privilege extends only to
the court‟s own conduct while in court, and anything which came into his knowledge while
he/she was acting as a magistrate, and this again in court.
The privilege does not extend to other collateral matters or incidents occurring in his
presence while acting as a judicial officer. In other words, if the matters about which the
judge or magistrate is to be examined concern occurrences in his presence while acting as a
judge or magistrate, there is no privilege. For example where in the course of trial the
accused assaults the prosecuting officer the trial judge or magistrate may be examined on the
incident.
Section 132 of the TEA takes care of privilege relating to official records and
communications. Under the section no public officer can be compelled to disclose any
unpublished official record or communication made to him in the course of his duty when a
Minister or Secretary General of the Community has stated that such disclosure would be
against public policy or public interest. It has to be noted, however, that for this privilege to
be effective there must be an official statement on oath by the Minister or the Secretary
General of the Community that the production of such communication would be prejudicial
to public interest
Section 133 deals with privilege relating to information on the commission of an offence.
The provision protects judges, magistrates, police officers and revenue officers from
disclosing information as to where information relating to the commission of an offence was
obtained. The rationale of this rule is that the names of persons who assist in the detection of
crimes through giving information should not unnecessarily be disclosed. In Normal
circumstances if this practice is allowed no one would volunteer to give information on
commission of offences. It has to be understood that this privilege applies only to the identity
of the informant and not the contents of the information given.

Sections 134-137 of the TEA deal with the law relating to professional communications
between clients their legal advisors and their clerks. Communications between a lawyer and
his client made in confidence for the purpose of a pending litigation or for the purpose of
obtaining professional advice cannot be disclosed without the client‟s consent. This applies
whether the client or lawyer is a party to a litigation in which the question arises or a mere
witness and it applies as much to the production of documents containing such
communications as to oral evidence about them. The rule is established for the protection of
the clients not the lawyer. The essence of the privilege is that the client may avoid disclosure
of his instructions to his lawyer and of his lawyer‟s advice to him. It is found in the
impossibility of conducting legal business without professional assistance and on necessity in
order to render that assistance effectual and securing full and unreserved intercourse between
the two.
Finally, sections 138-140 of the TEA offer a measure of protection to witnesses who are not
parties to suits and other persons possessing documents. Sections 138-139 provides that a
witness who is not a party to a suit shall not be compelled to produce: (i) his title deeds or
documents in the nature of title deeds, or (ii) any document the production of which might
tend to incriminate him, unless he has agreed in writing to produce them. These two sections
relate to cases where the document is the title deed of the witness
EXAMINATION AND QUESTIONING OF WITNESSES
When a witness is brought to court he/she is expected to give some information that would assist
the court to reach the decision of the case. This is done through the questioning of witnesses. The
questioning of witnesses is ordinarily done in three stages namely, examination-in-chief, cross-
examination and re-examination. Only in exceptional circumstances that witnesses are re-
examined in chief and re-cross examined. These stages are very important in gathering
information from witnesses
Examination-in-Chief
The examination of a witness by a party who calls him is called examination-in-chief or direct
examination and it has been provided under section 146(1) of TEA

The object of examination-in-chief is to get from the witness all material facts within his
knowledge relating to the case.
Questions in examination-in-chief must be confined to facts in issue or relevant facts. Inferences,

opinions, or beliefs, unless they come within sections 47-53 (these sections talks about expert
opinion)of the TEA, they must be excluded. As regards documents a witness may, in general, be
asked about the execution but not on the contents, which must be proved by the production of the
document itself see ss. 63 & 100 of the TEA
In examination-in-chief the general rule is that a witness should not be asked leading questions,
except with the permission of the court section 151(1) of the TEA) however the court may, in its
discretion, permit leading questions in the course of examination-in-chief especially in matters
which are introductory, such as his name and address, or undisputed or have already been
sufficiently proved (section 151 of the TEA.
The basis of this rule that In examination-in-chief, a witness should not be asked leading
questions is that normally a witness is biased in favour of the party who calls him i.e the witness
will be likely to answer in affirmative with the leading questions asked to favour the party
calling him
Cross-Examination
When examination-in-chief has been completed the opposite party is given an opportunity to
question the witness. This is called cross-examination. Ordinarily cross-examination follows
immediately upon examination-in chief unless the court for some reason postpones it. The
essence of cross examination is that it is the interrogation, by one party, of a witness called by his
adversary with the object either to obtain from such witness admissions favourable to his cause
or to discredit him.
The failure to afford opportunity to exercise the right to cross-examine is a fatal error. In Issa
Jakala V R (1968) HCD no. 100 the accused was convicted of cattle theft. At the trial the
magistrate did not give him an opportunity to cross-examine the prosecution witnesses. On
appeal the High Court stated two things:

i) The failure to extend to the accused the right to cross-examine was a fundamental error and
the conviction cannot stand despite the apparent strength of the prosecution case;
ii) If the accused does not desire to cross-examine a particular prosecution witness after he has
been given the opportunity to do so, a note to that effect should be embodied in the record. For
this reason the High Court quashed the conviction.
Also denying a party the right to cross-examine a witness on important matters of the case is
fatal. In the case of Bhandari v Gautama [1964] EA 606 (C.A.) the court held that the denial of
the right of the appellant‟s counsel to cross examine the respondent on vital issues rendered the
trial unsatisfactory, resulting in the appeal being allowed. the right to cross-examine has been
provided under section 146 and it is mandatory
The extent of cross-examination is governed by section 147(2) of the TEA and Leading
questions are permitted in cross-examination (section 152 of TEA) The basis of this rule is that
normally a witness is biased in favour of the party who calls him. Leading questions asked by the
adverse party would, under normal circumstances, be a good instrument to get important facts of
the case from the witness
The general rule is that all witnesses are liable to be cross-examined. However there are three
main exceptions to this i.e
i. A person summoned to produce a document cannot be cross-examined unless and until

he is called as a witness (section 148 of the TEA).
ii. A witness who is not examined-in-chief because he has been called by mistake – see the
case of Wood V Mackinson (1840) 2 Mood & R 27
iii. A witness giving replies in answer to questions by the court, however, he can only be
cross-examined with the leave of the court (section 176 of the TES). Ordinarily leave of
the court to cross-examine is given if the evidence is adverse to either party. See Coulson
v Disborough [1894] 2 QB 316.
Hostile witness

The general rule is that party is not allowed to cross-examine or impeach the credit of his own
witness however. a party is allowed to impeach the credit of his own witness is when such
witness is hostile, i.e. he tries to defeat the party‟s case by suppressing the truth
Who then is a hostile witness? Justice Chipeta B. D in his book A Handbook for Public
Prosecutors says:
“A hostile witness is one who tells lies about what he obviously knows or who deliberately
changes his story and, from his demeanour and manner, is clearly biased against the party
calling him”
Stephen in his book Digest of the Law of Evidence defines a hostile witness to mean:
“…a witness who, in the opinion of the judge, shows no desire to tell the truth at the instance of
the party calling him, to whom he displays a hostile animus.”
Despite of showing apparent hostility a witness cannot be cross-examined by the party calling
him unless leave of the court is obtained. The party seeking to cross-examine his own witness on
the ground of hostility must first apply to the court to do the same and this has been provided
under section 176 of TEA . The court, upon satisfying itself that the contents of the former
statement and what the witness has told the court are substantially inconsistent, my grant leave to
cross – examine a party‟s own witness
In deciding whether a witness is not merely unfavourable but should be treated as hostile, the
court may take into account
 the attitude and demeanour displayed by the witness,

 his willingness to cooperate, and
 The extent to which any prior statement made by him is inconsistent with his testimony.
In such circumstances the witness should first be given opportunity of explaining the alleged
inconsistencies. In the case of Jumanne Athman Mketo V R [1977] LRT n. 63 the court stated
three important things. First, before a court permits a party to put questions to his own witness by
way of cross-examination,

i. It should call for the previous statement of the witness so as to determine whether an
application to declare a witness hostile has any factual basis.
ii. Second, the question whether a witness has in fact turned hostile is to be determined by
the court and not by the party.
iii. Third, as a general rule, when a witness is treated as hostile the effect of it is to make his
evidence unreliable.
Also the court in the case of Teddy Lucas V R [1977] LRT n. 33 the court said that it is a fatal
irregularity for the court to treat the statement of a hostile witness as evidence and rely on it to
convict
Re-Examination in Chief and Re-Cross examination
Normally it is not necessary or permissible to allow a witness once examined and dismissed by a
party to be re-called. The reason for this is that it is presumed that by the time such witness is
dismissed the parties have extracted all material points touching on his case. Nevertheless
unforeseen situations may develop or there may have been an inadvertent omission. Another
possibility is where the prosecution substitutes a charge or a particular count after taking the
evidence of some witness
In such cases section 147(4) gives power to the court to recall the witness for further
examination-in-chief. Where a witness is called for that purpose the right to cross-examine and
re-examine him exists
Apart from the aforesaid, there may be situations where a subsequent witness brings new facts
upon which the prior witness may throw some light. As the case is with re-examination in chief
the court has power to recall the witness for re-cross-examination. In such a case the party whose
witness is re-cross-examined has the right of further re-examination (section 147(4) of the TEA)
Testing the Credibility of Witnesses
When a person presents a witness he expects the court to believe him and so decide the particular
case or issue(s) in his/her favour. One of the important things to a witness is his trustworthiness.

In order to win the trust of the court a party is required to present witnesses who are trustworthy.
In practice the court will not normally trust witnesses without checking their credibility.
The TEA provides for two main ways of testing the credibility of a witness:
a) By impeaching the credit of the witness, and;
b) By observing his/her demeanour in court
Impeaching the Credit of a Witness
In order to know that a witness is credit worthy he/she is normally tested. As indicated above one
of such tests is impeaching the credit of the witness. Such credit may be impeached in four main
ways
 By cross-examination. This is done by cross-examining the witness on his knowledge of

facts deposed to: opportunities of observation; powers of memory and perception; dis-
interestedness (section 147 TEA); his veracity, position in life; injuring his character by
incriminating questions (sections 155, 156, and 141 of the TEA); examining his errors,
omissions, mode of life etc, (sections 155 and 158 of the TEA
 By discrediting the witness using independent evidence i.e. by evidence of persons
who testify that they, from their knowledge of the witness, believe to be unworthy of
credit (section 164(1) (a) of the TEA) or by proof that the witness has received a bribe or
an offer of a bribe to give evidence (section 164 (1) (b) of the TEA).
 By confronting the witness with his/her previous conflicting statement, written
(section 154) or oral (164 (1) (c).
Section 154 of the TEA provides:
“A witness may be cross-examined as to previous statements made
by him in writing or reduced into writing and relevant to matters in question, without
such writing being shown to him or being proved, but if it is intended to contradict him by
the writing, his attention must, before the writing can be proved, be called to those parts
of it which are to be used for the purpose of contradicting him.”

 By contradicting him/her on relevant matters i.e. by calling witnesses or offering

evidence to contradict the witness on all relevant matters. (Section 154 and 164(1) (3) of
the TEA). There is no specific provision on the impeachment of credit by contradiction
of relevant facts stated by the witness but under section 7 of the TEA evidence may
always be given of the existence or non-existence of any fact in issue or a fact relevant to
the issue(s). Therefore where the facts stated by the witness are relevant to the issue,
independent evidence may always be given to contradict them
Observing the Demeanour of the Witness in Court
Apart from impeachment, another method of testing the credibility of a witness is by observing
his demeanour and this is normally done by the court Demeanour is conduct or the manner in
which a witness comport(conduct) himself while on the witness box. Unless a witness is a skilled
actor, his demeanour frequently furnishes a clue to the weight of his testimony.
The court in the case of Yasin Ramadhan Chang’a vs R (1999) TLR 489. Made a general
observation in regard to demeanour of a witness, when it stated thus:
"Demeanour is exclusively for the trial court. However, demeanour is important in a situation
where from the totality of the evidence adduced, an inference or inferences, can be made which
would appear to contradict the spoken words."
Also there are other ways in which the credibility of the witness can also be assessed as the
Court held in Shabani Daud Vs Republic, Criminal Appeal No. 28 of 2001 that:
" The credibility of a witness can also be determined in other two ways that is, one, by assessing
the coherence of the testimony of the witness, and two, when the testimony of the witness is
considered in relation to the evidence of other witnesses —”
TOPIC 10:RELEVANCY OF CHARACTER
According to section 57 “character includes both reputation and disposition. In sections 54 and
56 evidence may be given only of general reputation and general disposition and not of
particular acts by which reputation or disposition were shown”.

According to Webster’s Dictionary “Character is a combination of the peculiar qualities

impressed by nature or by habit of the person which distinguish him from others; these constitute
his real character. The qualities which he is supposed to possess constitute his estimated
character or reputation”
Character is what a person actually is; whereas reputation is what neighbours would say what he
is. In other words reputation is what is reputed. Thus reputation involves certain amount of
hearsay. As an exception to the hearsay rule, evidence of reputation can be given under specific
circumstances mentioned in these sections (sections 54 and 56)
Character in Civil Cases
It is a general principle that evidence of character is irrelevant in civil suits except in two
situations:
(i) Where the character of a party appears from relevant facts e.g. where the character of a party
is in issue (section 54(1) of TEA), and;
(ii) Where the character of a party affects the amount of damages Section 54(2) of the TEA
Section 54(2) is a corollary to section 14 in cases where damages are claimed. Section 14 states
that in suits in which damages are claimed any fact which will enable the court to determine the
amount of damages which ought to be awarded is also relevant. Thus in civil cases where the
court has to determine the quantum of damages, evidence of character becomes relevant.
In civil cases good character being presumed may not be proved in aggravation of damages, but
bad character is admissible in mitigation of damages provided that it would not if pleaded
amount to a justification for example, in cases of defamation the general bad reputation of the
plaintiff may be proved. In cases of breach of promise of marriage, the plaintiff‟s general
character of immorality is relevant. In cases of seduction, evidence of a general character of
immorality on the part of the person seduced is relevant. The argument in favour of considering
reputation is that the person should not be paid for the loss of that which he never had
Character in Criminal Cases

(a) Good character of Accused
In criminal cases the fact that the accused is of good character is relevant (section 55) read
Yowano Settumba v. R. [1957] EA 35.
N.B Good character is not a defense, for no-one would then be convicted, as everyone starts with
a good character. The defendant is, however, entitled to rely on the fact that he is of previous
good character as making it less likely that he would have committed the offence. If there is any
room for doubt, his good character may be thrown in the scale in his favour.
(b) Bad character of Accused
As a general rule the fact that the accused has bad character is irrelevant i.e. inadmissible.
Where, for example, the accused is cross-examining a witness and in the course of this begins to
bring his own bad character he should immediately be stopped by the court and warned of the
danger of pursuing this line of cross-examination (see Alli bin Hassan V.R. [1960] EA 71).
Section 56(1) also provides that “In criminal proceedings the fact that the accused person is of
bad character is irrelevant, unless evidence has been given that he has a good character in
which case it becomes relevant”. See also section 55 of E.A
Therefore this general rule has its exceptions i.e Evidence of bad character of the accused may be
admissible:
i. where evidence has been given that the accused is of good character (section 56 (1) of
TEA)
ii. where the bad character of any person is itself a fact in issue (section 56(2) of the TEA)
Where the character of the accused is a fact in issue or relevant fact then such evidence may be
admitted under sections 9, 10,11,13 16 and 17. The case of John Makindi v.R. (1961) EA 327
is an example where evidence was admitted under Section 9 & 10 of the TEA showing previous
and subsequent conduct
Another possibility on the admission of bad character is to show the state of mind of the accused
under sections 16 and 17 of the TEA. In this case intention, knowledge, good faith, ill-will,

rashness are relevant when the existence of any such state of mind, body or feeling is in issue or
relevant. In Mohamed Saeed Akrabi v. R. (1956) 23 EACA 512 the accused was charged with
the use of criminal force with intent to outrage modesty in respect of two boys. Evidence that on
previous occasions the accused had committed similar acts in respect of other boys was admitted
under Sections 16 & 17 to show the intention of the accused and to rebut the defence of accident
or mistake.
According to Section 56(3) a previous conviction is evidence of bad character. For this reason
its admissible, apart from the provisions of the proviso to Section 56(1), depends on the general
rules relating to the admissibility of bad character. Under the said proviso conviction becomes
relevant after conviction for the purpose of affecting sentence.
Section 56(4) protects persons charged and called of witness under section 130(4) that he shall
not be asked, if asked he is not obliged to answer any question which shows that he has either
been charged or convicted of any offence other than the one which he is being charged under this
section, also the person is not required to answer any question which tend to show that he is of
bad character. Unless
a) The proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence with which he is charged.
b) he has personally or by his advocate asked questions of the witness for the prosecution
with a view to establishing his own good character, or has given evidence of his own
good character, or the nature or conduct of the defence is such as to involve imputations
on the character of the complainant or the witness for the prosecution;
c) He has given evidence against any other person charged with the same offence
TOPIC 11; RELEVANCY OF OPINION OF THIRD PERSON
In the law of evidence opinion means any inference from observed facts and opinion held must
be proved by direct oral evidence of the person who hold that opinion on those grounds. There
are two broad spheres of evidence of opinion admissible under the TEA. Ie
a) Expert opinion which is governed by provisions of sections 47, 48 and 53

b) Non expert opinion which is governed by provisions of Sections 49-52
The Tanzania Evidence Act provides for four types of opinions where no special expertise is
required. ie
a) Opinion as to handwriting (s. 49 of TEA).

b) Opinion as to existence of right or custom (section 50 of TEA)
c) Opinion as to usage, tenets, etc (section 51 of the TEA)
d) Opinion on relationships (Section 52 of the TEA).
Expert opinion
In Tanzania, expert witness is admissible under section 47 of the Evidence Act. The section
states that “When a court has to form an opinion upon a point of foreign law, or of science or
art, or as to identity of handwriting or finger or other impressions, the opinion, upon that point
of persons (generally called experts) possessing special knowledge, skill, experience or training
in such foreign law, science or art or question as to identity of handwriting or finger or other
impressions are relevant facts.”
Therefore from the above provisions opinion evidence of an expert is only admissible on a
matter calling for expertise. In the case of Folkes v Chadd Lord Mansfield CJ in 1782 in
formulated an exception to the general rule when he stated:
“On certain matters, such as those of science or art, upon which the court itself cannot form an
opinion, special study, skill or experience being required for the purpose, “expert” witnesses
may give evidence of their opinion.”
Then who is an expert?
In short an expert is a person who has devoted time to study a special branch of learning and
therefore is especially skilled in those points on which he is asked to state his opinion. However
such study may as well be accompanied with practical experience. In Gethern s/o Njagwa v. R.
(1954) EACA 384 the Court of Appeal stated:

“We think that such special skill is not confined to knowledge acquired academically, but would
also include skill acquired by practical experience…”
In Kimari s/o Mihindi v. R. (1955) 22 EACA 472, a police officer while testifying in court
stated that he had one and a half years‟ experience on home made weapons and had seen about
one hundred such guns. His evidence was held to be that of an expert
The court is, however, not bound to accept the opinion of an expert if there is good reason for not
doing so but should not reject expert evidence without assigning reason .This matter was also
examined in the case of Hilda Abel V R. [1993] TLR 246(CA) where the appellant was
convicted of murder and sentenced to death. At her trial, she raised the defense of insanity. The
doctor who examined her reported that she was insane at the time of the alleged murder as she
was suffering from defective reasoning due to delusion of thought and imperative hallucination.
After analyzing and evaluating the evidence and directing himself on the cautioned statement of
the appellant in which she admitted killing the deceased and gave a detailed account of the
incident, the Trial Judge held that though the appellant was mentally disturbed at the time, she
was not sane within the meaning of s 13 of the Penal Code. The appellant appealed. On this point
the Court of Appeal of Tanzania stated clearly that courts are not bound to accept medical
expert's evidence if there are good reasons for not doing so.
Before a witness gives expert evidence there is the need for the court to satisfy itself, first, that
the particular witness is in fact an expert. See the case of Omari Ahamed v. R [1984] TLR 52
(CA). Under normal circumstances the testimony of an expert is likely to carry more weight in so
far as the same relates to the issues of the case than that of an ordinary witness. For this reason
higher standards of accuracy and objectivity are required when an expert is testifying.
According to section 53 of the TEA whenever the opinion of any living person is relevant the
ground on which such opinion is based is also relevant. This means that whenever an expert is
giving his evidence in that capacity he should give reasons for holding the particular opinion
…………………..I HOPE THESE NOTES ARE HELPFUL…………………………….

REFFERENCES
Sarkar ,M.C.Mahim Chadra ).1993.Sarkar‟s law of evidence in

India,Pakistan,Bangladesh,Burma and Ceylon.Agra,India:Wadhwa and co.,
Hedydon, J. D., Evidence: Cases and Materials, London: Butterworths, 1984.
Cross, R., Cross on Evidence, London: Buttertworths, 1985.
Morris, H.F., Evidence in East Africa, London Sweet & Maxwell, 1968.
Best, W.M., The Principles of the Law of Evidence London: Sweet & Maxwell, 1911.
Durand, B.P., Evidence for Magistrates, Part 1 & II.
Chipeta B.D, Magistrate Manual, Law Africa, Dar es salaam 2010.
Mapunda B.T., Evidence Part one, Two & Three, 1st Ed., The Open University of Tanzania, Dar
es Salaam, 2004.
Murphy P, A practical Approach to Evidence, 4 Ed, Blackstone Press Ltd, London, 1992.
Monir, M (2006), Textbook on The Law of Evidence, 7th Ed, Universal Law Publishing Co,
New Delhi.
Charanjit, L., & Mohamed, R. (2014). The Law of Evidence. In Unlocking: Evidence (2nd ed.,).
Routledge
Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence. London: Sweet
& Maxwell
For unreported cases visit https://tanzlii.org/


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CARDINAL RUGAMBWA MEMORIAL COLLEGE

BY ALEX FRANCIS RWECHUNGURA

These are merely Lecture Notes not to be cited as authority

TOPIC ONE; INTRODUCTION TO THE LAW OF EVIDENCE

Also evidence may bear two meanings or refer to

 MEANS – that tend to create a belief in the mind of judge; and

As we all know that the functions of Court of Justice are of fold:-

 To ascertain the existence or non existence of certain facts, and

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 What facts could be admitted at trial

The Act is not applicable in Ward Tribunals and Primary Courts

The following are the general purpose of Law of evidence

a) To establishing who has the burden of proof in particular instances

Sources of law of evidence in Tanzania

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 The Evidence Act, Cap. 6

TOPIC TWO: KINDS OR TYPES OF EVIDENCE

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circumstances taken cumulatively should form a chain so complete that there is no

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Corroborative evidence (corroboration);Although it has been said that “corroboration” is not a

Also according to Osborn’s Concise Law Dictionary, “corroboration means an independent

When is corroboration required

a) Where the complainant is of unreliable character corroboration is desirable [see

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Statutory Requirement of Corroboration

Evidence of a Child of Tender Year

Evidence on a Charge of Perjury

Corroboration as Required in Practice

Evidence of a Single Witness especially on identification

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TOPIC3: RELEVANCY AND ADMISSIBILITY

. The concept of relevancy/Relevance

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“Evidence is relevant if it is logically probative or dis-probative of the sane natter which

The concept of admissibility

The term “admissibility” is nowhere defined in the Act

“The test to be applied in considering whether evidence should be admissible is whether it is

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Other relevant facts excluded are as follows

 Privilege relating to official records, section 132

Admissibility of facts under section (7) of the Act.

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i. Subject to the provisions of any other law

1. “Subject to the provisions of any other law”

2. What sorts of facts are to be proved or evidence to be given?

a. Fact in issue and

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The use of the word “relevant” in the Act

a. fact connected to another

TOPIC 4: RELEVANT FACTS CONNECTED WITH THE FACT IN ISSUE

SECTION 8-18 OF THE EVIDENCE ACT [CAP 6 R.E 2019]

1. Section 8; Relevancy of facts forming part of the same transaction

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a) A is accused of the murder of B by beating him. Whatever was said or done by A

“A transaction is a group of facts connected together as to be referred to by a single legal name,

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Section 9 provides that

These modes are

a) As being the occasion of the relevant facts

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