LAW OF EVIDENCE CLASS NOTES 2019

Introduction
Meaning and Purpose of the Law of Evidence:
The law of evidence deals with both public and private law. It refers to the
statements or circumstances that the court uses to prove or disapprove a given
fact in dispute. It may be in form of oral testimony, surrounding circumstances or
a given case, documents, photos or physical objects (exhibits).

The law of evidence in Uganda is basically governed by statutory and procedural

law. Evidence as a subject is basically composed of the following;

1. Admissibility – That is; what sort of evidence will court allow? What court
will allow is what is relevant under the law of evidence.

2. Admissions and confessions - Admissions fall under civil law while

confessions fall under criminal law.

3. Opinion of experts - That is; evidence of experts.

The other part of evidence consists of proof that is; what must be proved and how
it must be proved. The law deals with facts which need to be proved. It covers
different modes of proof e.g. documentary, oral evidence.

It further deals with the burden of proof that is; who is has the duty or obligation
to prove certain facts both criminal and civil cases.

The law also deals with facts which need to be proved. It covers different modes
of proofs e.g. documentary or oral evidence. It further deals with the burden of
proof i.e. who has the duty or obligation to prove certain facts both in criminal
and civil cases. Other principle covered by the law of evidence which affect proof
such as presumptions are all clearly laid down in the Evidence Act.

Finally the law of evidence under proof deals with witnesses, how to summon
them, their competence and compatibility and how generally they should be dealt
with in courts of law.
Reference Cases:
1. Kimani vs. Gikanga (1965) E.A 735.
2. Ahmed vs. R (1962) E.A 345.
3. Kasaija vs. s/o Tibagwa v. R (1952) Vol. 19 E.A.C.A 265.
4. Singh vs. R (1954) Vol. 21 E.A.C.A 209.
5. Njoroge vs. R (1958) E.A 624.
6. The Katikiro of Buganda vs. Attorney General (1959) E.A 382.
7. Amkeyo v. R (1914).

The Development of the Law of Evidence:

The discussion of the law of evidence presupposes that courts seek to determine
facts by means of rational reasoning or processes. The law of evidence like all the
others originated from Britain, by the promulgation of the 1902 Order in council.
The procedures under the Evidence Act replaced the traditional forms such as trial
by battle and trial by ordeal.

Unfortunately, many of these foreign procedures were transported into the

protectorate without first considering whether they were actually in conformity
with the local circumstance in the protectorate.

The rules of evidence which were thus brought into operation like all other rules
of common law were elaborated by judges in the course of deciding issues that
were brought forward by litigants. While the rules advanced at this time as a
general principle of the law of evidence is the Best Evidence Rule.

According to Bentham, the law of evidence deals with persuasion concerning the
existence of the matters of fact. Bentham does not conceive evidence as a
concept only employed in courts of law, but as one relied on in all human activities
both scientific and non-scientific.

According to him therefore, evidence is defined as “a word of relation meaning

any matter of fact tendency, or design of which when presented to the mind, is to
produce a persuasion concerning the existence of some matter of fact.”

Evidence is part of procedural law, in that it determines the procedure to be

followed in order to arrive at justice. According to Sec. 52 (1) of the Evidence Act,
evidence denotes the meaning by which any alleged matter of fact, the truth of
which is submitted to investigation is proved or disapproved and includes
statements by accused persons, admissions, judicial notice, presumptions of law
and observations by the court in its judicial capacity.

The rules of evidence normally aim at achieving the following:

1. Establish as to who has the burden of proof in a given circumstances and is
the duty of the person bearing that burden to prove his facts.
2. Rules of evidence also prescribe facts which may be proved, determined or
admitted (relevancy and admissibility).
3. They also prescribe the status of certain evidence e.g. opinion evidence,
character evidence, confessions etc.
4. Rules of evidence further prescribe facts which are excluded from the
consideration of the courts e.g. privileged information.
5. They prescribe methods by which proof may be effected and some of these
are through testimony of witness, exhibits, visits of the scene, opinion
evidence documentary evidence etc.
6. Rules of evidence prescribe the extent of proof required in a particular
case.
7. They also prescribe the efficacy of certain pieces of evidence e.g. the
weight of proof required in criminal cases and in civil cases and matrimonial
causes.
8. The rules look at the effect of evidence for instance evidence of a child of
tender years, that of lunatics, and sometimes they insist on corroboration.

Uganda’s law of evidence is basically statutory and most of it is found in the

Evidence Act Cap 6 of the Laws of Uganda. The bulk of it was derived from Indian
Evidence Act of (1782) which was an attempt to codify the English Common Law.
Although our law of evidence is modeled on the English common law, we have
some slight differences between the English common law and the Indian Evidence
Act of 1872.
Admissibility and Relevancy:
Admissibility refers to the process by which courts will accept or reject particular
items of evidence depends on whether they are relevant or not and whether the
items are excluded by law from being taken as evidence.

1. Existence and non-existence of fact or fact in issue:

S.5 of the Evidence Act is to the effect that evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in issue and such other
fact as are declared to be relevant by law. This provision is subject to any other
provision of the law. (Refer to Section 4 of the Evidence Act as well). According to
Section 2 of the Act, ‘a fact’ is defined to mean and include anything, state of
things, capable of being perceived by the senses i.e. element or condition of which
a person is conscious.
.
2. Fact in issue:
Section 2 (1) defines ‘a fact in issue’ to mean and include any fact which either by
itself or in connection with others, the existence or non existence, nature or
extent of any right liability, or disability, asserted or denied, in any suit or
proceeding necessarily follows.

3. Factum prondends and factum probendum:

Factum probendum refers to the principle fact or fact in issue e.g. in a case of
murder, death will be the principle fact. On the other hand factum prondends
refers to other facts with evidential value which may help to explain the principle
fact or fact in issue. For instance in a case of murder if there is evidence that the
accused person was seen with a panga or iron bar at the scene of crime, prior or
after the commission of the crime.

Relevancy(S.6 of the Evidence Act):

Relevancy is the relationship between two facts, whereby the course of events,
one fact either by itself or in connection with other facts, proves or renders
probable the past, present or future existence or non existence or a fact in issue.
By virtue of s.6 the Evidence Act, the law is to the effect that facts that can be
given as evidence are those which have been declared by the Act to be relevant.
From Sections 2-46, the word relevant is constantly used to and the facts laid
down under these provisions, are the one which are legally relevant.
Legal relevancy under the Evidence Act is not necessity the same as logical
relevancy under common law. This is because under common law, all facts which
are logically relevant are admissible. Whereas under the Act, only facts which are
declared relevant, are admissible that is why Section 6 specifically provides that no
other facts shall be admissible. Ref. to sec. 7-16 Evidence Act.
Relevancy of Facts:

4. Evidence may be given of facts in issue and relevant facts:

Subject to 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
hereafter declared to be relevant, and of no others.

5. Relevancy of facts forming part of the same transaction:

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.

6. Facts which are the occasion, cause or effect of facts in issue, etc:
Facts which are the occasion, the cause or the effect, immediate or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things under
which they happened, or which afforded an opportunity for their occurrence or
transaction, are relevant.

7. Facts showing motive or preparation; conduct influencing or influenced by a

fact in issue or relevant fact:
(a) Any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.

(b) The conduct of any party, or of any agent to any party, to any suit or
proceeding, in reference to that suit or proceeding, or in reference to any
fact in issue in the suit or proceeding or relevant to it, and the conduct of
any person an offence against whom is the subject of any proceeding, is
relevant, if that conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent to the fact in
issue or relevant fact.

8. Facts necessary to explain or introduce relevant facts:

Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or
which establish the identity of any thing 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
insofar as they are necessary for that purpose.

9. Things said or done by conspirator in reference to common design:

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 those persons in reference to their common
intention, after the time when that 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 as for the purpose of proving the existence of the conspiracy
and for the purpose of showing that any such person was a party to it.

10. When facts not otherwise relevant become relevant:

Facts not otherwise relevant are relevant—

(a) if they are inconsistent with any fact in issue or relevant fact;

(b) if by themselves or in connection with other facts they make the existence
or nonexistence of any fact in issue or relevant fact highly probable or
improbable.

11. In suit for damages, facts tending to enable the court to determine amount
are relevant:
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.

12. Facts relevant when right or custom is in question:

(a) Where the question is as to the existence of any right or custom, the
following facts are relevant—

(b) 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;
 (c) particular instances in which the right or custom was claimed, recognised or
exercised, or in which its exercise was disputed, asserted or departed from.

13. Facts showing existence of state of mind or of body or bodily feeling:

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.

14. Facts bearing on question of whether act was accidental or intentional:

When there is a question of 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.

15. Existence of course of business, when relevant:

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.

Cases:
● Karuma vs. R (1955) Vol. 22 EACA 364.
● Ramathan Ismael vs. Republic (1972) TLR 36.

The general principles of Relevancy and Admisibility of Evidence:

The general principle of the Law of Evidence on relevancy and admissibility is that
once evidence is admissible, the method of its procurement does not matter
whether stolen. The manner of getting the evidence is immaterial. Evidence may
not be rejected on the ground that it was illegally obtained. E.g in a case of murder
using a gun if the police searches and vandalized the house of the accused to get
the gun and finally it is recovered, the accused may not plead right of privacy or
other breaches of rights.

See: Karuma S/o Kanui vs Uganda 1955 Vol. 22 EACA 364.

In this case a search was conducted by the police without a search warrant.
Evidence was subsequently obtained illegally. In the process of the search some
incriminating evidence was recovered from the appellant and tendered in
evidence. On appeal, the appellant argued that such evidence should not have
been admitted because it was illegally obtained. On appeal the Privy Council, held
that the method of obtaining evidence is irrelevant. That what is important is that
evidence was obtained.

NB:
This rule does not apply to confessions which must be legally and voluntarily
given. Refer to Gopa & Ors vs R.

Admissible Evidence:
Res gestae is used to connote acts, declarations, and circumstances constituting,
accompanying or explaining a fact or transaction in issue. In law, there is always a
principle fact or fact in issue factum probendum, and what constitutes the res
gestae are those other facts which are in a relationship with the fact in issue. The
general principles of res gestae are incorporated in Sections 5 to 16 of the Evidence
Act.

R vs Kurji Vol 7 EACA 58. In this case the accused stabbed the deceased’s brother
and immediately after he was seen in the go-down of a neighboring shop standing
over the deceased holding a knife. Court held: that, the two circumstances were
so interconnected that the wounding of the deceased’s brother must be regarded
as part of res gestae, at the trial of the accused for the murder of the deceased,
and the evidence of it was admissible.

General elements of Res Gestae:

● The statement or declaration must explain the main event of the fact in
issue.

● The statement or declaration must be natural growing out of the events and
must not be a mere narration of past events. i.e. The incident claimed to be
part of res gestae must not have occurred after the transaction.
Some aspects of res gestae:
1. Facts forming the same transaction-Sec 5:
The section is to the effect that facts though not in issue, which are so connected
with the facts 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. Here the principle fact comes about as a result of a transaction which can
be explained by secondary facts and this is what is called res gestae.
Under section 5, facts forming the same transaction will only be relevant for
purposes of explaining the fact in issue. This section is applicable in both civil and
criminal cases.

2. Facts which are the occasion, cause or effect for the facts in issue-Sec 6:

This section is to the effect that facts which are the occasion cause or effect
immediately or otherwise of relevant facts, or facts in issue or which constitute
the state of things, under which they happened, or which they afforded an
opportunity for their occurrence, are relevant.

Case: R vs. Clifford Brabi Casta Vol 14 EACA 80. In this case the appellant was
charged with obtaining a bribe. The prosecution adduced evidence to show that
the appellant had engaged in previous acts of bribery. The major issue was
whether or not evidence of previous acts of bribery was relevant. It was held
among others that the evidence of previous acts of bribery was admissible
because it showed the state of things explaining the fact in issue. The case
indicated that previous conspiracy could be taken into account to establish the
occurrence of things. The acts talked about in section 6, should have proximity in
terms of time. They should happen almost at the same time immediately before or
after.

3. Motive preparation, previous or subsequent conduct as part of res gestae-Sec

All these are dealt with under section 7 of the Evidence Act. Motive is what
actually influences a person to act in a particular way. It may be fear of the desire
which brings about a particular activity. If you want to establish motive you may
look at the mental state usually derived from the circumstance surrounding the
fact in issue e.g through ones utterances, it may be good depending on the
circumstances, but the means may be and
Makaindi vs R, evidence of previous beating was admitted tending to show motive
for revenge it showed ill-will, it amounted to previous conduct and it showed
causation of a commission of the offence.

4. Previous conduct: (this is conduct before the actual fact in issue is committed). It
may as well include motive to commit an offence but it could means the ways of
bringing a particular fact in issue and may involve preparation of opportunity or
bringing about the acts complains. It includes previous acts to commit the offence
and may include declaration of intent or threats.

In Lobo vs R Vol. 10 KLR 5 55 it was held among others that complainants of rape
and the like offences if made at the first reasonable opportunity after the first
reasonable opportunity after the offence had been committed are admissible. This
is because in such a state they are indicative of the complainant’s state of mind
and therefore the complaint’s conduct and therefore form part of res gestae.

5. Subsequent conduct:
This may explain the occurrence of the event i.e. what the person does, the way
he behaves soon after the crime, and what state of mind he is in. It may used to
implicate him in the commission of the crime for instance; certain changes in life
style may be explained by illegal acquisition of wealth. In some cases silence when
accused, giving false statements, evasive or inconsistent explanations, may
amount to subsequent conduct.
Consider:
1. Uganda vs. Twikirize (1985) HCB 37
2. Uganda vs Abdul Nassur (1982) HCB 1
3. Uganda vs Ssali (1981) HCB 41
4. R vs Karia Vol 16 EACA 116

6. Identity:
Any fact which shows the identity of anything is a relevant fact. Identification of a
thing or a person is an expression of an opinion that that thing or person
resembles another so much that it is likely to be the same thing or person.
Identification is therefore a question of comparison to find out resemblance. If a
crime is committed it must be established that the accused person or the suspect
is the one who committed it. refer to Abdul Bin Wendo vs R. (the case discusses
the rules of conducting an identification parade).
7. Time and place:
Normally the time at which a particular crime was committed may not be material
but it may be important to establish elements of a crime. E.g in the offence of
burglary the prosecution it must be proved that it was committed at night while
threat of house breaking must be committed during the day.

Time is also important in establishing whether a particular person committed a

crime or not. For instance if it is shown that a particular person could not have
committed a crime because he was physically unable. E.g. that he was not at the
scene of the crime. i.e. that is the defense of alibi.
The case of Kamya Wavamuno vs Uganda involving bank robbery, the accused
pleaded alibi and tendered documentary evidence in form of a passport duly
endorsed with a visa, which evidence pointed to the fact that he was at the time in
Kenya having crossed the Uganda-Kenya border much earlier before the
occurrence of the crime of robbery It was however later discovered that the
accused had actually forged the visa stamp in the passport. The accused was
convicted.
Time will be relevant as an aspect of res getae.

8. Common intention: S.9 Evidence Act:

This is relates to conspiracies where two or more persons agree to commit an
offence. It becomes an offence at the time of agreement. And under S. 9 of the
Evidence Act where two or more parties conspire to commit a crime, anything
done or said by these parties is a relevant fact against all the persons who are
parties to the conspiracy.
R vs Brake Tye 1884 vol 6 QBD 126.

9. Sanity:
This may be important e.g. in cases of succession where sanity of the testator may
be called into question challenging his will.

10. Knowledge:
Some tort and contract case require knowledge and therefore it may be relevant
for purposes of determining liability of a person. For instance in a case of liability
for dangerous animals if you know that you have a dog and it has the propensity
to bite, even though it is not classified as being naturally dangerous, the owner
will be liable if the dog causes havoc. In contract cases, guilt will be imputed if the
parties know that they were contracting for an illegal purpose.
10. Intention:
Intention is relevant in both criminal and civil cases. E.g. mens rea in criminal
cases. In bankruptcy as a civil case keeping house for fraudulent transfer of
property may have the underlying intention of defrauding the creditors.

11. Good faith or badfaith:

In case where malice or fraud are alleged, then goodfaith or bad faith are relevant.
Case: Okethi Okale and Ors vs. Republic [1965] 1 EA 555.
STATE OF MIND OR BODILY FEELING
This is provided for under section 13 of the Evidence Act. A person may bring
about particular acts or may commit a particular crime because of the state of his
mind. The mental element in crime, tort and other legal conceptions often
becomes a relevant fact in issue. In certain crimes for example, it may be
necessary to prove mens rea while in certain torts, it may be necessary to prove
knowledge or negligence.

Section 13 provides that facts showing the existence of any state of mind or
showing the existence of any state of mind or bodily feeling are relevant when the
existence of any such state of mind or body or bodily feeling is in issue or
relevant .

State of mind under the section can include intention or sanity, knowledge for
example that particular actions will result in particular consequences, good or bad
faith and rashness or negligence.

Under the section therefore, all evidence which may disclose any of the above is
relevant.

However, a state of mind must be shown to exist in reference to a particular state

of things or activity. In other words, that state of mind must be specific to a
particular activity. The section explains that a fact that is relevant as showing the
existence of a state of mind must show that the state of mind exists not generally
but in reference to a particular matter in question.

The section makes relevant evidence of a bodily feeling i.e. anything that can be
physically felt by a person in as far as it may relate to the occurrence of a particular
action.

Sanity

Under Criminal law, sanity is relevant to prove the guilt or otherwise of an accused
person or to show criminal liability.

In succession matters, sanity is relevant to consider the validity of a will.

Knowledge

Knowledge can be relevant to rebut the defence of accident. In some tort or

contract cases, knowledge is a prerequisite in determining liability. Torts involving
liability for dangerous animals will normally take into account knowledge of the
ferocity of those animals and if parties know that they are contracting for an
illegal purpose, that contract will be void because of the knowledge they had.

Intention

Intention will be relevant in both civil and criminal matters. Similarly, ill will and
good will also be relevant in both civil and criminal matters and so will evidence of
fraud or malice.

R v Godfrey

Facts: The appellant was convicted of two offences under the Traffic Ordinance.
Evidence was allowed to be given at the trial to show that he had consumed
alcohol before the commission of the alleged offence. This evidence was objected
to and one of the issues was whether it should have been admitted.

Held: On a charge of careless or dangerous driving, evidence that an accused has

consumed a certain amount of alcohol during a certain period is admissible under
S 14 of the Indian Evidence Act (equivalent to S 14 of the UEA) not as evidence that
he has committed some other crime with which he is not charged but as tending
to show his probable mental and physical condition at a subsequent time when
such condition may be highly relevant to the issue as to whether such person has
exercised due and proper care.

Kiwanuka & Another v R

Facts: The plaintiffs were convicted on two counts of publishing defamatory

material concerning a chief. One of the issues was whether or not these two acted
maliciously.

Held: In a case of Criminal libel, evidence of suppression of matters favourable to

the person libelled was admissible to show malice on the part of the accused i.e. it
shows the state of mind of the accused at the time of publication and in this case,
the accused had omitted the good things about the chief.

Akrabi v R

Facts: The accused was charged with use of criminal force with intent to outrage
the modesty of two boys. The accused was a headmaster in a school which the
boys attended. The boys testified that one morning and at short intervals when
they went o the appellant’s room, the appellant took hold of their hands without
their consent and rubbed them up and down against his penis. There was no
corroboration of this evidence but the prosecution called three other boys in the
same form as the complainants who gave evidence that the appellant had on
previous occasions done to them exactly the same thing as what he had done to
the complainants. The trial magistrate admitted this evidence and on appeal the
appellant claimed that this evidence should not have been admitted.

Held: Evidence of similar offences not charged is admissible under s.14 to show
the intention of the appellant and under s.15 to rebut the defence of accident or
mistake and that in this case that evidence showed the intention of the appellant
to outrage the modesty of the boys and to rebut the appellant’s defence that the
boys were liars.
SIMILAR FACTS OR OCCURRENCES
Section 14 provides for evidence of similar facts or occurrences. Under the section,
all evidence which establishes whether or not a particular act was accidental is
admissible. The section provides that when there is a question whether an act was
accidental or not 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.

Evidence of similar facts generally refers to the rule that a court can use past
similar occurrences relating to a particular person to establish whether a person is
guilty or not or whether he or she is liable in a civil action.

This rule proceeds on the belief that persons do not easily change their habits and
that if they are shown to have done similar acts in the past, then they are likely to
repeat them.

The general principle was stated by the Privy Council in the following terms in the
case of:

Makin v Attorney General of New South Wales [1894] AC 57 at 65

“It is undoubtedly not competent for the prosecution to adduce evidence

tending to show that the accused has been guilty of criminal acts other than
those covered by the indictment for the purpose of leading to the conclusion
that the accused is a person likely from his criminal conduct or character to
have committed the offence for which he is being tried. On the other hand,
the mere fact that the evidence adduced tends to show the commission of
other crimes does not render it inadmissible if it be relevant to an issue
before the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment
were designed or accidental or to rebut the defence which would otherwise
be open to the accused.”

The Privy Council held that evidence of past similar acts is admissible but laid
down exceptions to that general rule.

As such, it is not competent for a person to prove his case on the basis of past
similar acts which the accused may have done. However such evidence may be
admitted where it is sought to prove whether the act was accidental or intentional
or to rebut the defence for example of mistaken identification.

R v Smith
Facts: The accused was charged with the murder of a woman who was found
drowned in a bath tub. It was made to look as if the woman died in an epileptic fit
but evidence on record showed that the accused had, just before the woman’s
death, encouraged her to make financial arrangements in his favour. He denied
the charge claiming that her death was accidental arising from a fit of epilepsy.
Evidence was admitted that two other women had died in similar circumstances
after the accused had gone through forms of marriage with them in turn and after
each of them had made financial arrangements in his favour. He challenged the
admission of this evidence and on appeal the issue was whether evidence of the
other two deaths was rightly admitted.

Held: Evidence of similar acts was admissible to show the guilty intent of the
accused and to rebut the defence of accident. That the challenged evidence was
admissible both to show that what happened in the case of the first woman was
not an accident and also to show the intention with which the accused did what
he did.

The same issue was discussed in:

John Makindi v R

Held: Evidence of previous beatings was relevant and admissible to explain and
substantiate the cause of death and to show the motive of the appellant for
revenge on the deceased i.e. it was relevant to rebut the defence of accident
which the appellant had put up.

Mood Music Publishing Co. v De Wolfe

Facts: The plaintiffs owned a copyright to a musical work. The defendants issued a
musical work for use in a TV play and the plaintiffs claimed that that work
infringed the copyright in their work. The defendants conceded a similarity in
between their work and the plaintiff’s work but they claimed that this similarity
was merely coincidental. At the trial, the plaintiffs adduced evidence to show that
the defendants had in the past published musical works similar to other people’s
works. The defendants challenged the admissibility of this evidence and the issue
was whether such evidence should have been admitted.

Held: In civil cases, courts would admit evidence of similar acts if it was logically
probative and if it was not oppressive or unfair to the other side to admit the
evidence. That since the case focused on whether the similarity between the two
works was a mere coincidence or the result of copying by the defendants, then
the evidence procured by the plaintiffs concerning the other three cases was of
sufficient probate weight to render it admissible.

Harris v DPP (1952) AC 57

Facts: The accused was charged with eight larcenies of money committed in May,
June and July 1951 from a certain office in an enclosed market at times when most
of the gates were shut and the accused, a police officer, might have been on
solitary duty there. In each case, the same means of access were used and only
part of the amount which might have been taken was taken. No thefts occurred
while the accused was on leave. The accused was found by two detectives in the
immediate vicinity of the office at the time of the last larceny. Though they were
well known to him, he avoided them for a period sufficient to hide marked money
taken from the office till. The money was found in a coal bin where he was first
seen. The accused was convicted on only the eighth count. He appealed against
conviction to the court of criminal appeal unsuccessfully and to the House of
Lords successfully on the ground that evidence of the first seven thefts was
irrelevant to the eighth. The court laid down the principles in Markin’s case [supra].

Held: Viscount Simon-

“Evidence of ‘similar facts’ cannot in any case be admissible to support an

accusation against the accused unless they are so connected in some
relevant way with the accused and with his participation in the
crime...But evidence of other occurrences which merely tend to deepen
such suspicion does not go to prove guilt.”

The Viscount added that it is not a rule of law governing the admissibility of
evidence but a rule of judicial practice followed by a judge who is trying a charge
or crime when he thinks the application of the practice is called for.

Such evidence is admissible if it is adduced to prove a system followed by the

accused, to rebut a defence of accident or mistake, to rebut a defence of innocent
intent, to show vicious or natural propensity, or to prove identity in a particular
offence so as to negative the claim of mistaken identification.

R v Scarrot

Facts: The appellant was charged with seven counts of committing offences
against young boys and the counts included burglary, attempted burglary and
indecent assault on several boys. The appellant applied, among other things, to
have similar facts evidence thrown out by the court. This application was
overruled and similar facts evidence was allowed. On appeal,

Issue: Whether the similar fact evidence adduced had probate value which was
sufficiently positive to assist court in determining whether the offence was
committed by the accused and what the test for admissibility of similar facts
evidence was.

Held: The test for the admissibility of similar facts evidence was one of striking
similarity or similarities. Such evidence had to reveal an underlined link between
the matters with which it dealt and the allegations against the defendant on the
count under consideration but that its admissibility depended not on whether it
was capable of showing corroboration of the evidence of the victim or accomplice
but on its probate value. In other words whether logically considered it possessed
probate value sufficiently positive to assist court in determining whether the
offence charged against the accused had been committed by him. That in the
instant case, the similar fact evidence adduced had a positive probate value
containing, as it did, striking similarities which taken together were inexplicable on
the basis of coincidence and that the judge had been right to admit such evidence.

Hales v Kerr [1908] 2 KB 601

Facts: A barber allowed the plaintiff to be shaved with an unclean razor and it was
thereby alleged that this negligently caused the plaintiff to be infected with
ringworms. Evidence that other persons so shaved in barber’s shops had
contracted that disease was admitted and the court held that that evidence went
to establish the existence of a dangerous practice carried on in the defendant’s
establishment i.e. it showed a system where the defendant was negligent or
lacked a proper hygienic system to ensure that his clients did not contact the
disease.

HEARSAY EVIDENCE
According to S.60 Evidence Act, it is provided that the contents of a document
may be proved either by primary or secondary evidence. S.59 is to the effect that
oral evidence must in all case be direct i.e. if it refers to a fact which was seen by a
witness, it must be that person who saw it, but not someone who was told. If it
refers to a fact which could be heard, then it must be the evidence of a witness
who says he heard it. If it refers to a fact which could be perceived by any other
sense or in any other manner then it must be by the witness who perceived the
fact. If it refers to an opinion or on the grounds upon which the opinion was held
then it must be evidence of that person, who actually holds the opinion and those
grounds.

It is therefore clear in S. 59 of the Evidence Act that the law only admits direct
evidence, and by exclusion whatever is left out is hearsay. The rationale for
admitting direct evidence is that it is the Best evidence as compared to hearsay
evidence. The Evidence Act does not define hearsay evidence but the implications
of sections 58, 59 and 60 give inference that hearsay evidence is excluded and
cannot therefore be admitted.

Under common law, hearsay has been defined as a third person’s assertions
narrated to the court by a witness for the purpose of establishing the truth, of
that which was asserted. It therefore leaves out the fact that the assertion was
actually made. The following may be said about hearsay evidence;

1. It may be oral or written.

2. The statement in point must have been made by a person who himself is not
before court.

3. The purpose of the statement alleged to be hearsay must be to prove what

was said or written; i.e. the purpose is to prove the truth of the assertion and
not that the assertion was made.

Oral or written statements:

Case: Chandvasekera vs. R (1937) AC 220.

In a murder trial, evidence was given to the effect that the victim was unable to
speak at the time of her death because of the wounds which had been inflicted on
her however she managed to indicate to the people around by nodding her head
when asked who had cut her throat. Among the issue was whether this evidence
was in itself inadmissible and whether evidence of conduct which was neither
written nor oral could be admitted.

It was held inter alia, that the evidence was admissible as an exception to hearsay
in that it amounted to a dying declaration. That conduct may at times be a mode
of communication which may either be hearsay or direct evidence which could be
admissible.

Statements of people who themselves are not witness before court.

Such may include:
1. Statements of parties to suits but which were made out of court. These
statements may be admissible if they form part of res gestae.

2. A statement may amount to hearsay only if it is introduced for the purpose of

establishing the truth of an earlier statement, for instance in case where
particular words were spoken of written e.g. in defamation case, cases of oral
contracts, undue influence, intimidation and misrepresentation. In such case,
depending on what the court is looking for, what was spoken will not amount
to hearsay if repeated by some other person.

In the case of Subraminium vs. DPP (1995) Vol 1 WLR 965, the accused was
charged with being in illegal possession of ammunition contrary to Emergence
Regulations obtaining in Malaysia and his defense was he came into possession
and was forced the weapons under duress. He wanted to adduce the words which
ware used by the terrorist to establish duress. This was rejected by the trial judge
as hearsay evidence. The court of Appeal held that it is only hearsay if is it adduced
for the purpose of establishing the truth of what was spoken and it would not be
hearsay if it adduced if is adduced to establish that the fact was made.

The rule against hearsay is exclusive and such evidence is not admissible either in
civil or in criminal proceedings.

In R vs. Gibson (1937) 18 QBD 537, the accused was indicted for the offence of
willful wounding amounting to grievous bodily harm. He was alleged to have
thrown a stone at the complainant’s house. Evidence for the prosecution was that
immediately after the complainant was hit by the stone, a woman nearby by
pointed at the accused person’s house and said; “the person who threw the stone
went in there”. The accused was arrested on the basis of that evidence. He was
tried and convicted and he appealed on the ground that, that was hearsay
evidence because that particular woman was not called as a witness. It was held
among others that; the woman’s evidence was hearsay and should not have been
admitted therefore when handling hearsay evidence, court has the discretion to
exclude it right from the beginning of the proceedings.

Parties to the case may also raise objections to that which is being adduced.

In the case of R. vs. Sparks (1964) A.C 964, the appellant (a whiteman) was indicted
for indecent assault of a girl aged between 3 to 4 years. Shortly after the assault, a
child who was not a witness at the trial told the mother that is was a “coloured”
boy who had assaulted the victim. The defence objected to the mother giving
such evidence because she was only repeating what another person had told her.
On appeal, the conviction was set aside on the grounds the mothers evidence was
he hearsay.

Hearsay evidence will still be excluded even if it has a high evidential value. In R. v.
Turner (1957) AC 957, a third person who was called as a witness had confessed to
having committed the crime for which the accused was being tried. This evidence
was adduced at the trial by the defense but court rejected it, on the ground that it
was hearsay.

THE RATIONALE FOR THE HEARSAY RULE

The following are some of the reasons why hearsay evidence should be rejected:

1. The person making it cannot be present to be cross examined to established

the veracity of the statement and as such the person who reports to court
may do so carelessly.

2. There is a likelihood of distortion of the original statement. It may be

twisted depending on the interests of the witness.

3. There is lack of opportunity of judging the power of perception of the

person who made the statement. For instance, he may not have had the
capacity to memorize.
 4. It is not possible to establish the meaning of the words used because the
third party may have used the words in a special sense and the person
reporting may pick a false meaning;
5. There is no opportunity to judge the demeanor of the person who made the
statement. The person who made the statement may have been
contradictory, shy, evasive, rude, e.t.c but this cannot be ascertained by
court. Secondly his tone may affect the meaning of the words.

6. Admission of hearsay evidence is likely to lead to protracted litigation

because there might no end repeating what was said.

7. It may defeat the efficiency of investigations as there may be no end to it.

8. It has the tendency to surprise the opponent and this according to the law
is deemed to be an unfair advantage.

EXCEPTIONS TO RULE AGAINST HEARSAY:

Despite the existence of reasons which justify the exclusion of hearsay evidence,
situation arises where practice has shown that excluding such evidence may lead
to injustice. These are situations where courts are forced to rely on hearsay
evidence because there is no substitute and because to exclude it would defeat
the ends of justices. Common law thus developed a series of exceptions to the
rule to cater for such situations. Many of these exceptions are now contained in
the Evidence Act. These include:

1. Dying declarations
Under section 30 of the Evidence Act it is provided that statements which are
written or oral of relevant facts made by a person who is now dead are
themselves relevant in a number of situations:

When a statement is made by a person as to the cause of his/her death or as to

any or the circumstances of the transaction which resulted into his/her death, in
cases in which the cause of death of that person comes into question, and it is
immaterial whether or not that person was immediate expectation of death. A
dying declaration is therefore a statement uttered by a deceased person the
purpose of which is to establish the cause of death of that person. Normally, this
would be hearsay, but it is one of the exceptions to the hearsay rule provided for
under S.30 of the Evidence Act.

For court to rely on an act for evidence of a dying declaration here is need for
corroboration. Ref: Jasunga vs. R. 21 EACA 331. Where court held among others
that, in all case where dying declarations are used, courts have always insisted on
corroborative evidence. The need for such corroboration will always be there
unless there was clear evidence that the deceased could not have been mistaken
about the identity of his killer. Also refer: Mibinga vs. Uganda (1965) EA 71.

2. Statements made in the ordinary course of business

Under section 30 (b), statements made by a deceased person or any other person
in the ordinarily course of business, are admissible as an exception to the general
rule against hearsay evidence. These are statements made as part of a person’s
usual work by virtue of one’s employment, capacity or profession. Such
statements must be made by someone who is under duty to make them. Such
records are admissible because they are assumed to be true since people do not
anticipate that there will be a point in issue where the statements will come into
question. Secondly, since they are made in the ordinary course of business, it
assumed that the person made them truthfully.

NB: Such statements must have been made before the dispute arose
Under Section 32 of the Evidence Act, where entries are made in books of
accounts, which are regularly kept in the course of business, they are admissible
whenever they refer to a question in which court is interested.

3. Statements against the pecuniary or proprietary interest of the maker -30 (c)
Evidence Act.
Statements are admissible if made by a person who had an interest in the subject
matter, but made statement against his interest either proprietary of pecuniary.
For instance if “A” recognizes his indebted to “B,” such a statement will be
admissible if the maker is dead, or cannot be found or is incapable of giving
evidence of his attendance or cannot be ordered by court, or if his attendance will
involve unnecessary delay and expenses. Such statements include those which
would expose the maker to criminal prosecution or a suit for damages. Before
such evidence can be admitted it must be proved that the maker was aware of the
consequences of the statement. Ref; Taylor vs. Witham (1876) 3 CH 605.

4. Statements Concerning Public or General Rights or Custom -S.30 (b) Evidence

Act.
Section 30 (b) is to the effect that statements made by a person who is either
deceased or cannot be found, or cannot brought to court, where these
statements tend to establish a general custom, a public right, or any matter of
public interest is admissible.

Public rights are those rights which all citizens are entitled to or which affect
members of a particular community or society such as access to water, easement,
life, clean, health environments e.t.c.

5. Statements in relation to the existence of any relationship by blood or

marriage (pedigree): S.30 (e) Evidence Act.
When a statement relates to any relation by blood marriage or adoption or any
person, if it is made by a person with special knowledge at the time the statement
was made, then such a statement would be admissible. This is however only
relevant in establishing matters of blood relationships. Such declarations must
have been made before the proceedings were anticipated. Refer to Harris vs.
Guthie 1884 13 QBD 818.

6. Statements made in relation to will or deed S.30 (f):

Statements made in relation to will or deed S.30 (f): relating to the existence of
any relationship, by blood or marriage or adoption between the deceased and
other persons. Under this cause there is no need for special knowledge
ADMISSIONS (Ss 16-23 UEA)
Section 16 defines an admission as a statement, oral or documentary, which
suggests any inference as to any fact in issue or relevant fact, and which is made
by any of the persons, and in the circumstances.

This definition may not be conclusive. According to Phipson on Evidence, 9 th

edition, p.30, he defines admissions as,

“...in civil cases, statements made out of court by parties to proceedings or

by parties connected to him in chapter 9 [of this book] are admissions and
they are admissible against but not in favour of such a party to prove the
truth of the facts stated.”

The general rule of admissions is that they are admissible against the party who
makes them and they should not be in favour of the party who makes them.

Categories of admissions:

1. Those made in contemplation of or at the beginning of trial;

These are receivable against the maker as a waiver of proof, and when brought
to the attention of the court, judgment can be entered against the party who
made the admissions or on whose behalf they were made.

2. Those made without a view to the trial.

These have to be proven by the party who alleges that such statements were
actually made. Thus, their mere presentation is inadequate.

It is important to note that a statement containing an admission has to be

tendered in full and if the statement contains some parts which are favourable
to the maker and those against his case can therefore be used as admissions,
provided that the entire document is taken into account when analysing the
evidence.

S28 provides that admissions are not conclusive proof of matters in question,
but they may operate as estoppels under the provisions in the Act.

Rationale for receiving admissions against a person who made them:

1. Admissions are self-harming. The presumption of the law is that no one

wants to harm himself therefore if a person made an admission against
himself, then such declarations are probably true.
2. Looking at an analogy of contradictory statements by witnesses, admissions
are received against a party, not as evidence of their truth and therefore an
exception to the hearsay rule, but merely as being inconsistent with and so,
discrediting the case otherwise set out by the party, e.g. if A owes B 10m/=,
A paid 5m/=, which B acknowledged in a letter. A may bring such letter to
court to prove this. However, this will not be conclusive evidence according
to S28.

3. This is the most generally accepted rationale. A party’s declarations,

whether for or against his interests may always be taken to be true as
against himself.

Slatterie v Pooley 6 M & W 664

Held: According to Parker J,

“Whatever a party says is evidence against himself. What a party

admits to be true may be presumed to be so...”

R v Turner [1910] 1 KB 346 emphasizes the rationale for receiving admissions as

evidence.

In view of this rationale, Phipson gives the general rule on admissions: Subject to
certain exceptions, the general rule in both civil and criminal matters is that any
relevant statement made by a party is evidence against himself. The weight to be
attached to each admission is a different matter for later, but admissions are
generally admissible in court. If a declaration is made in favour of a party, then
such declaration is not receivable as an admission.

Brocklebank v Thompson [1903] 2 Ch 344, 352

Held:

“No presumption of truth arises with regard to declarations of a

party or his agents when tendered as evidence in his own favour,
otherwise everyman, if he were in a difficulty or in view of one,
might make declarations to suit his own case.”

Gilbert on Evidence, 1st edition, p.122:

 “No man can be a witness for himself, but he is the best witness
that can be against himself.”

There are exceptions to the general rule as regards who can make admissions, i.e.
that other persons (other than parties to the suit) which statements bind parties
to the suit as admissions.

S17 UEA provides that statements made by a party to the proceedings, or by an

agent of any such party whom the court regards in the circumstances of a case as
expressly or impliedly authorised by him to make them, are admissions.

Before such a statement is receivable in court, the relationship of agent-principle

must first be proven or established. In the CPR (See Order 3), there are authorised
agents e.g. advocates or people with powers of attorney or otherwise authorised.
However, if such evidence is already there, it does not have to be proven. E.g. if
one is a lawyer, it is automatic that s/he is the client’s agent; powers of attorney
duly signed, registered and presented to court are evidence of one being
another’s agent.

According to Order 1 CPR, a person can write a letter authorising another (co-
plaintiff or co-defendant) to conduct the matter on his behalf. In doing so, such a
person is not an agent in the strict sense of S 17; they are merely representatives.

It really all depends on the wording of the letter. If one says you will be an agent
according to S 17, so will you be. However, if not, you’re just a representative. The
agent must be impliedly or expressly made such.

S17 also refers to statements made by parties to suits suing or being sued in a
representative character. These are not admissions unless they were made while
the party making them held that character of representative.

The section also refers to persons with proprietary or pecuniary interest in the
subject matter of the proceedings and who make the statement in the character
of persons so interested, e.g. where partners in a business if one of the partners
makes an admission, it will bind the rest...co-shareholders, co-defendants, etc.

Prerequisites:

1. The admitting party must be in the capacity that links him to the suit when
making the admission, e.g. you must still be in partnership for your statement
to bind the co-partners;
 2. S 17 also speaks of persons from whom the parties to the suit have derived
their interest in the subject matter of the suit (e.g. in administration of the
deceased’s estate, statements by the deceased are admissible against the
estate administrator, a tenant, transferee of land, statements of the seller can
also be used against the transferee).

3. General qualifications are made at the end of S 17, i.e. admissions are such if
they are made during the continuance of the interest of the persons making
the statements, e.g.

a) Tenant and seller; the statement by the seller must have been made while
the seller was still owner, in order for it to amount to an admission;

b) If the defendant made a statement before he became owner of the land in

question, the statement cannot be admitted as against the administrator of
his estate.

Admissions by persons whose positions must be proved against party to the suit
(S18UEA)

Statements made by persons whose position or liability it is necessary to prove as

against any party to the suit are admissions, if those statements would be relevant
as against those persons in relation to such position or liability in a suit brought by
or against them, and if they are made while the person making them occupies
such position or is subject to such liability.

Example: A borrows money from bank B and C guarantees that should A fail, C will
pay. A fails to pay and B sues both A and C and at B’s option, B may choose to sue
C only depending on their obligations. To prove the debt against the guarantor,
you must prove the debt against A (principal debtor), i.e. because they are jointly
and severally liable. Statements made by A are admissible as against C.

Admissions by persons expressly referred to by party to the suit (S 20)

Statements made by persons to whom a party to the suit has expressly referred to
for information in reference to a matter in dispute are admissions. (If you’re party
to a suit, A sues B who says the 10m/= is not due, even C knows that it is not due, C
goes to court, acknowledges these truths and says 10m/= is due, that will be taken
as an admission as against B referred to C as a person who knows.)
Exceptions to the rule that admissions should be made against the maker (i.e.
where one can be a witness for themselves)

1. If the statements are made in the presence of the adversary party and are not
denied by him, then they can be used as admissions and to support the case of
the maker. (The presumption of the law is that whatever is in the affidavit has
been accepted by the adversary);

2. If the law allows it (by statute) e.g. in taxation law, assessment of tax is made
basing on returns paid by the tax payer. That can be used as evidence by the
taxpayer in case s/he is challenged, the tax records can be used as evidence in
court for themselves.

3. If it is in the case of public accounts, they can be presented by the public

officers concerned. See Ss 73-77;

4. If the statements are contemporaneous writings, e.g. those used to refresh

one’s memory (for instance in a meeting), those can be used by a party for
themselves;

5. Where the statements are not tendered as evidence but they are brought as
original documents of record or if they are part of the res gestae, if they are
proving acts of ownership or if they are showing good faith. For example
statements of account from business, bank statements, etc. It is known that
good faith is really a statement of mind, so are matters of fraud, therefore
those documents can reveal whether or not one was fraudulent. On questions
of ownership, the documents involved can be used to show this, e.g. letters
between tenants, receipts, etc.

When and to whom admissions may be made:

The principle rule is that when one is a party to a case, whether he’s suing or being
sued personally, any admission made by him on a former occasion is admissible
and can be used against him. According to case law, this includes statements
made while someone was a minor. O’Neil v Read 7 Ir.L.R 434

There are, however, qualifications to this. See Phipson on Evidence, p.432;

Halsbury’s Laws of England (on admissions).
Statements made when someone is acting in representative capacity are also
admissions, save that those made after a character exists are not admissions
against the other parties to the suit. See S 17& Trustees v Hunting [1897] 1 QB 611

It is immaterial to whom admissions are made, therefore, even statements made

to strangers are receivable as admissions. Admissions made to oneself are merely
soliloquy. See R v Simons.

Even admissions made to a legal advisor or a wife are receivable if proved by a

third party. The rationale is that the legal advisor or wife wouldn’t readily admit,
but if a third party’s word showed, then they are receivable.

On the other hand, lawyers’ admissions, in order to bind their clients must have
been made specifically to the adversary party and admissions made to support the
case of a creditor should also have been made to the creditor. They shouldn’t be
statements made to people who are privy to the creditor-debtor contract. (That
does not take out admissions made to the debtor’s agents, which are definitely
admissible.)

See:

Stamford Co. v Smith [1892] 1 QB 765

Shaw v Shaw [1935]2 KB 135-136

Uganda Kabandize

R v Simons (statements made to oneself)

Circumstances in which admissions are made (Are they relevant?)

The weight of admissions depends on circumstances under which they were

made. S20 gives the process of proving admissions made by persons themselves
or on their behalf. As a pre-condition, there are specific instances where
admissions can be considered by the court and be provable against the person
who makes them, or his representative in interest.

S 20 provides that an admission may be proved by or on behalf of a person making

it if such an admission would have been relevant between third parties if such
person who made it had died. The section makes reference to S30 which deals
with people who cannot be called as witnesses, including dead people.
 S 20 also provides that such statements can also be proved when they consist of a
statement which refers to the existence of any state of mind or body relevant, or
in issue when that statement was made at a time when the state of mind or body
existed and following which, certain events or conduct occurred which bring the
statement’s truthfulness in doubt. For example, if there were letters showing
one’s insanity and later, the person acts sanely, later those documents can be
admitted to prove that one was sane.

The section also provides that such statements are provable if they are relevant in
any other way than by way of admissions. Common law has added more
exceptions to the rule that one is not required to prove admissions made by them.
Admissions, unless amounting to estoppels, can be challenged by the party
against whom they are brought in evidence as being untrue.

Instances which may water down the weight of an admission

a) If one proves that there was a mistake of either fact or law;

b) Proof that one uttered the admission in ignorance, levity or an abnormal condition of
mind. See R v Hedges 3 Cr. App. R 262

On the other hand, the weight of an admission increases with the knowledge and
deliberation. For example the words of a Law Professor and those of an
auctioneer. See R v McGregor. The solemnity of an occasion on which a statement
was made also matters.

Admissions made conditionally are receivable in evidence if the condition is

fulfilled, but not otherwise. In the same way, if an admission is made when the
maker has in his mind a particular hypothesis of facts.

Powell v McGlynn 1902 Ir.L.R 154

Offers “without prejudice”

Offers of compromise made without prejudice expressly or impliedly cannot be

admitted in evidence as admissions. The term “without prejudice” acts as a sort of
exclusion clause to excuse the letter writer from liability from something, as long
as it was written “without prejudice” for example in a lawsuit where a lawyer
agrees with his client that at 100m/= he can drop the suit yet they can continue at
180m/= and later the suit breaks down, the lawyer can write such letter.
Offers may be taken to have been written “without prejudice” even when it is not
expressly stated. See Oliver v Nautilus Co. [1903]2 KB 639. These are offers
especially showing that a party was making a bonafide attempt to settle without a
dispute. It will be taken as such even if it was not expressly stated as such. For
example, if you agree to settle a dispute outside of court at a certain amount, it
doesn’t mean that one is banned from suing another.

Even if the statement won’t be received as an admission, the fact (of the existence
of the letter) and date of the letter are admissible, to prove elements like delay,
unreasonable conduct.

Walker v Wilsher 23 QBD 335 (Court of Appeal decision)

Stotesbury v Turner [1943] KB 370

For an offer to amount to one “without prejudice” apart from that statement in
the letter or its being adducible from the construction of the statement, there are
certain pre-conditions which must be fulfilled:

1. There has to be a dispute or negotiations between parties and the statement

must have been written bonafide to settle that dispute. Re Daintrey exparte
Holt [1893] 2 QB 116. E.g where people write, “private and confidential” meant
to be inter-parties, if it contains threats or other statements not in line with a
settlement or resolution of the conflict, it can be brought as evidence of those
other elements. Watt v Watt 1905 AC 115

2. If the alternative to accept what was written was the committal of an act of
bankruptcy, then the letter may be admitted to prove that act, e.g. hiding away
from your creditors in an act of bankruptcy (keeping house). If the debtor
writes a letter to his creditors “without prejudice” and the creditor accepts,
court will consider that the debtor is saved from liability. However, if the
creditor refuses, whether or not the words “without prejudice” were written,
the debtor will be liable and considered to have committed an act of
bankruptcy. See Re Daintrey (supra)

3. If independent facts were admitted during the negotiations, such independent

facts are admissible as admissions even if a letter without prejudice follows.
Also, if an offer without prejudice has been accepted by the adversary or if the
protected condition has been fulfilled, then the letter without prejudice will be
taken as an admission.
 4. A notice “without prejudice” to annul a sale following failed acceptance of a
given condition is void and unacceptable. (E.g. if one fails to fulfil their side of
the contract and gives notice, then tries to turn around and say they didn’t,
claiming it was written without prejudice, then you’re estopped). Re Weston
[1907]1 Ch 244

5. Criminal libel “without prejudice” is receivable in evidence. The rationale is to

avoid people hiding under this cover to defame others. Stretton v Stubbs [1905]
ALLER

6. Letters “without prejudice” are brought as admissions if they are used in a

different action than the dispute which was being settled and also, if they are
used by third parties (e.g. if there are negotiations between two people and it
contains relevant facts in another case concerning different people, not you,
then the court will admit it for purposes of proof or evidence in that other
case). The protection applies only in the same action and between them and
the third parties. Thus, third parties can rely on offers without prejudice.

7. Letters or negotiations between lawyers are inadmissible as against themselves

as well as against their clients. La Roche v Armstrong [1922] 1 KB 485

Admissions made under compulsion or coercion

In a civil trial, there is legal compulsion and an admission made under compulsion is
admissible e.g. a witness may answer to interrogatories and the evidence got out
of the interrogatories would be admissible both in the case where the
interrogatories have been conducted and in subsequent civil trials. This also
applies to admissions made during testimony where the speaker or his lawyer had
objected to the question being asked or the answer given by the speaker at the
time might have been irrelevant or the witness was prevented from fully
explaining the statement. All this notwithstanding, the statement can be used at a
future trial as an admission.

When admitting statements, the whole statement must be taken, including hearsay and
opinion evidence. Shariff & another v Sethna & others. It must be noted though
that the general rule on weighting of hearsay evidence is that it is not admissible.

An admission is receivable when founded on hearsay although its weight will be very
slight. This applies to admissions based on the party’s declaration of opinion or
belief. But where the admission is a mere inference from facts not personally
 known to the declarant, the court may disregard the inference and look to the
facts. A bare statement that a party is informed without the addition of his or her
belief in the information will not amount to an admission.

The Form of admissions

Admissions may take on many forms, e.g. affidavits, which must first qualify as an
admission before being accepted as evidence. It is immaterial what form
admissions are made in, therefore, they can be made by way of affidavits or even
answers to interrogatories.

Re Cohen [1924] 2 Ch 515

Held: Admissions can be declarations in wills (See Re Hoyle [1894] 1 Ch 34), recitals and
descriptions in agreements, receipts, accounts, passbooks, maps, etc.

With regard to pleadings, unless they are sworn e.g. affidavits , or adopted in future
proceedings, they aren’t admissions and even judgments in previous cases are not
admissions of facts.

Matters provable by admissions

Admissions can prove both law and facts, or a mixture of both. However, admissions
which tend to prove law or a mixture of law and fact will have very little weight
unless they amount to estoppel.

In cases of adultery, the burden of proof is ordinarily high, however, the admission of
adultery, although uncorroborated, has been held to be sufficient evidence where
it is considered trustworthy e.g. where it is seen as having been made to obtain
forgiveness as opposed to obtaining a divorce. See Robinson v Robinson

See:

R v Naguib [1917] 1 KB 359

Gopa & others v R
Kasule v Uganda
Russell v Russell [1924] AC 681
Chilcott v Chilcott [1904] TLR

Admissions from documents

Unless excluded by the Evidence Act, a party’s admissions out of court being primary
evidence against him are receivable to prove the contents of a document without
notice to produce or explain the absence of the originals of such documents.
Similarly, oral admissions as to the contents of such a document may be relevant
in certain situations. S 21

The above is based on the general rule of parole evidence that documentary evidence is
the best, i.e. it speaks for itself therefore there is no need for one to prove the
contents of the documents when they are clear.

Instances of admissibility of oral evidence

1. Where one is required to give secondary evidence (S21) and where one is
entitled under S62 (See also Ss 60 & 69)

2. Where an admission is made in attestation of a document. See S 69

3. If the genuineness of the document produced is in question (S21) e.g. if the

other party challenges the genuineness of the contents of the title, if either
party ever made an oral statement concerning that document, such can be
used as an admission, and therefore evidence against him or her. Although
the contents of a document may be proved in that fashion, they cannot be
varied or contradicted in that manner. See Doe v Webster

See S22. An admission made under an express condition or intention that it should not be
allowed in evidence or if from the circumstances of the case, the parties agreed as
such, then it should not be admitted as evidence.

Ambiguous admissions
Where the facts admitted are capable of 2 different interpretations, both of which being
equally possible, it will then be up to the court to decide which of the two
meanings is taken.

Davey v London & South Railway 12 QBD 70, 76

Transami v Roadmaster Cycles

Held: Arach J- For Court to give judgement for an admission, under Order 11 CPR, the
admission must be unequivocal.
CONFESSIONS
The Uganda Evidence Act does not define confessions nor does the Interpretation
Act. One can however, borrow the definition of the Kenyan Evidence Act which
indicates that confessions comprise of words or conduct or a combination of
words and conduct from which whether taken alone or in connection with other
words lead to an inference that may reasonably be drawn that the party making
the confession has committed an offence.

It is important to note that confessions have several ingredients. These have been
spelt out by court in different cases. In Uganda under s. 24, it is indicated that a
confession is irrelevant if it appears to court that having regard to the state of
mind of the accused in all circumstances surrounding it, the accused made it out
of violence, force or threat, inducement or promise calculated in the opinion of
the court to cause an untrue confession. In the case of Swami v The Emperor
(1939) 1 ALL ER 396, the principle was confirmed that a confession must either
admit in terms the offence or all facts which constitute the offence. The same
decision was upheld by the court in Uganda v Yosamu Mutahanzo (1988-90) HCB
4 where it was held that a confession connotes an unequivocal admission of
having committed an act in law that amounts to a crime and must either admit in
terms the offence or at any rate substantially all the facts which constitute the
offence. The accused’s extra judicial statement was an exculpatory statement in
the sense that the 4 accused threw blame on the accused and his statement could
not amount to a proper confession. Instead of being convicted for murder the
accused was convicted for manslaughter.

An admission of a gravely incriminating or even conclusively incriminating fact is

not in itself a confession. In an accused person admits that he owned a fire arm at
the murder of someone, this does not mean that he has confessed to the murder
of the deceased. Therefore a confession must be an unequivocal admission of
having committed an act which in law amounts to a crime and must either admit in
terms the offence or at any rate substantially all the facts which constitute an
offence. Thus in Gopa &others v R (1953)20 EACA 318, it was stated that the
accused’s extra judicial statement was exculpatory in the sense that it explained
the act of stabbing and therefore the blame on the deceased person. Also in the
case of Uganda v Lakot (1986) HCB 27, it was held that the confession was
equivocal since the accused admitted to having assaulted the complainant but
went ahead to explain why he did so.
In the case of Gopa the Judge said that a confession is a direct acknowledgement
of guilt on the part of the accused which is sufficient to convict him. The judge
held that although an extrajudicial statement contains self exculpatory matter it
can still be a confession if the self exculpatory matter does not negative the
offence alleged to be charged. It is important to note that this is different from
admissions. An admission may be equivocal as long as it contains matters relating
to the liability of the maker.

Self Exculpatory Matters

The definition is in Swami v The Emperor. It is clearly indicated that it is a matter

adopted or intended to free the maker from blame for the act admitted in the
confession. The same was discussed in the case of Uganda v Kamalawo & Others
(1983) HCB 25.

The other ingredient is that a confession must be admitted as a whole. If it

contains some parts that are inadmissible then it cannot be taken as a confession.
In the case of Uganda v Yosefu Nyabenda (1972) 11 ULR 19, the judge clearly stated
that the court was to receive the confession of the accused as a whole and not in
several parts and since it contained lies and half truth then the confession could
not be admitted as a true one. A confession has to be taken as a whole although it
does not have to be believed as a whole. The case of Uganda v Sebuguzi & others
(1988-1990) HCB 18 clearly stated that as regards the value of a confession against
the maker it is trite law that a confession should be taken as a whole. It was also
stated that a confession need not be believed as a whole or disbelieved as a
whole. It was open to the trial judge to accept part or reject the whole of it.

Retraction of Confessions

An accused person can retract or repudiate a confession. A retracted confession

occurs when an accused makes a statement or a confession which he later seeks
to take back on the ground that he either made it out of mistake or did not do it
voluntarily. Ss 24, 25 and 276 should be read together on this. An accused person
may retract a confession in two ways:-

1. By clear and positive express repudiation.

2. By implication.
In Polo v R 17 EACA 150 the policemen arrested a Congolese and they made a
conversation in Kiswahili. During the trial the accused said there was a
misunderstanding between them during the conversation. The Court took this as a
retracted confession. In R v Kengo & Another (1930) 10 EACA 123, the accused
made a statement before a magistrate and confessed the murder but during the
trial he made an unsworn statement in which he denied the previous statement,
he said he had only heard from someone else that the deceased had died. The
general rule regarding repudiated and retracted confessions is that the
confessions are admissible in evidence provided the court is satisfied that the
confession was made voluntarily. In the case of Tuwamoi v Uganda (1967) EA 84,
the court said that there is no clear distinction between repudiated and retracted
confessions and for any of them to be accepted by court it should be done with
great caution and the court should first satisfy itself that all circumstances
surrounding the confession do not negative it. To amount to a retracted
confession the accused person admits having made the statement recorded but
he now wishes to take it back on the ground that it was made involuntarily
whereas a repudiated confession is a statement which the accused person avers
he never made. All this is discussed in the Tuwamoi case.

In Uganda V Kanunini Edward (1976) HCB 159, Judge Allen held that with regard to
retracted confessions, the court should direct itself on the dangers of acting on it
in the absence of corroboration and some material particular except where the
court is fully satisfied in the circumstances of the case that it must be true. In
Zenon Zavuru (1993-1993) HCB 7, the Court of Appeal stated that once the
appellant had repudiated the confession the trial judge ought to have directed
himself and the assessors to the effect that court had to accept a confession with
caution and had to be satisfied that in all circumstances of the case the confession
was true.

What happens when someone has retracted or when the accused denies the
confession or challenges its admissibility?

If the confession is denied by the accused person then the trial judge should
conduct a trial within a trial . This in accordance with case of Major John Kazoora v
Uganda (1994) 1 KALR 143. The purpose of the trial within a trial is to decide upon
the evidence of both sides as to whether the confession should be admitted.
Court cannot by simply looking at the statement conclude that it was made
voluntarily. A statement that is made voluntarily is one made absolutely free from
inducement influence of whatever nature. In the case of Commissioner of
Customs and Excise versus Harz & others (1967) 1 ALL ER 172, the court held that it
is true that many of the so-called inducements have been so vague that no
reasonable man would have been influenced by them, but one must note that not
all accused persons are reasonable men and women. Therefore, a statement
made involuntarily is inadmissible. The same was held in the case of Uganda v
Kalema & others (1974) HCB 142. In Binuge & others v Uganda (1992-93) HCB 29,
the court held that the 1 st appellant was prejudiced when his objection to the
admissibility of his extra judicial statement was summarily dismissed by the trial
judge. It was held that it is trite law that when the admissibility of an extrajudicial
statement is challenged, then the objecting accused must be given chance, to
establish by evidence, his grounds of objection through a trial within a trial.

Section 25 UEA gives an exception to the general rule of involuntariness. The

confessions referred to in section 24 if made after the impression caused by any
such inducement, threat or promise has in the opinion of the court been fully
removed, then it is irrelevant.

R v Smith (1959) 2 ALL ER 193

Facts: There had been a fight between persons of two companies and one of them
was stabbed to death. On the same day the police put members of the company
on parade and while interviewing them a police officer made a statement to one
of the accused persons that, “I am not leaving, I am staying until you give me an
answer to this fight”. After saying this the accused confessed that he was the one
who stabbed the deceased and the following day police referred to that
statement made by the accused and asked him whether he wanted to make a
confession about it. He was cautioned and he made a written confession. He was
convicted and made an appeal.

Held: The court of Appeal held that the words were threats i.e. on the previous
day and the confession was inadmissible. On the following day the first threat was
operating on the accused’s mind and the confession was inadmissible. According
to Dau v R (1962) EA 9 the effect is that if the original inducement or threat has
disappeared then a later confession is admissible.

In Dau v R

Facts: A mother left the girl with the appellant. When her mother returned, the
child had disappeared. The next day the girl was found drowned in a river and the
medical evidence showed that she had been interfered with sexually. The
appellant was arrested and three days later taken by police sergeant to the river.
Without charging or cautioning him the policeman asked the appellant to point
out where he had pushed the deceased into the river. The appellant said it was
where people draw water. The next day the sergeant said to the appellant “You
are going to say what you told me yesterday but I am not going to force you to do
so”.

Issue: Whether the sergeant’s words constituted a threat?

Held: The words “You are going to say what you told me yesterday…” did not
constitute an order or threat in the mind of the appellant as they were tempered
by words which followed and any possible effect they might still have had on the
appellant would have disappeared by the words of caution which followed.

Thus where a magistrate or police officer takes a special precaution before taking
a statement the lapse of time between the previous inducement and the taking of
the statement and the lack of any allegation by the accused person that there was
any threat or inducement at a later stage after the caution is given, the confession
is admissible. See R v Nanta (1944)11 EACA 83 and section 25 of the evidence act.

THE EFFECT OF INDUCEMENTS AND THREATS

This is governed by Section 24 of the Evidence Act. The section is to the effect that
the confession made by an accused person is irrelevant if taking into account the
state of mind and the circumstances surrounding the confession - it was caused by
violence, threats, force, inducement or promise calculated in the opinion of the
court to cause an untrue confession. It is important to note the salient elements
referred to in the section.

1. The court has to consider the state of mind of the accused during the time
the alleged confession was made. It is therefore mandatory that when the
accused person alleges that he made the confession in any of the
circumstances mentioned by the section then the court should make a
finding as to whether the accused person voluntarily made the confession
therefore the state of mind of the accused has to be clearly stated. This is in
line with the position in the case of Emmanuel Nsubuga v Uganda (1992-
1993) HCB 24.

2. The circumstances in which a confession was made have to investigated to

find out whether such circumstances amount to any of the aspects
mentioned in the section. It is important to note that although the section
appears to say that both the state of mind and the circumstances have to
 be looked at proof of the items indicated in the section by any of the two
means would suffice.

3. The Violence, force, threat, inducement or promise must be of a nature

calculated in the opinion of the court to cause the making of an untrue
confession. It must have been made to a person in authority i.e. a police
officer or magistrate. The nature must be relating to the commission of an
offence according to case of R v Norahma 9KLR 12. The onus of proving
threats, violence, inducement or force lies with the person alleging such.

Section 24 reflects the position which was taken in the case of:

Uganda v Wabwire (1976) 212

Facts: The accused was charged with murder and the prosecution sought to
produce a confession statement allegedly made by him on 16 th October 1975 to a
magistrate Grade 11 at Iganga. At the commencement of the trial Counsel for the
accused intimated that he intended to challenge the confession statement and so
the trial Judge ordered a trial within a trial to be held. During the trial within a trial
the Magistrate Grade 11 (PW4), the only witness called by the prosecution during
this trial, testified that the accused was brought to his Chambers at Iganga Court
by a police Constable for purposes of making a statement.

Held: The magistrate cautioned the accused in the following terms:

“If you have been forced or threatened or induced in any way by the
police to come here and make this statement you should say so. But
whatever you will say shall be recorded down and may be brought as
evidence at your trial at the High Court.”

The accused told the Magistrate that he had not been forced and wished to make
a statement voluntarily. A statement was then recorded in the language of the
accused; it was read back to him and he said it was true and correct. A translation
was made in English and the accused thumb marked both statements and the
Magistrate countersigned them.

On Cross examination, when it was suggested to the magistrate that the caution
administered was improper and that the accused had not volunteered the
statement as he had been beaten prior to being taken to him, he (the magistrate)
said he did not know what happened to the accused prior to being brought before
him but as far as he could see the accused was normal and fit. He did not complain
of any beating or threat.
The accused, who gave sworn evidence, said that he had been arrested on 8 th
October 1975 and kept in Police custody until 16 th October 1975 when he was taken
to the court to make a statement. During that time he was subjected to
interrogations and merciless beatings (he showed court some scars to
substantiate these allegations) and was told to admit having killed the deceased.
Before he was taken to the magistrate he was told to admit or else he would face
further beatings. The statement he made was untrue and it was because he
feared the police beatings that he made a confession; he made it out of fear for
his life.

Counsel for the state submitted that even if the allegations of the accused that he
was beaten were true, that was not enough to exclude the statement; the
accused must prove that the beatings and the threats were intended to cause an
untrue confession to be made.

Court held as follows interalia:

1. Once a confession is properly recorded it is primafacie admissible. However,

the accused is entitled to challenge such a statement if prior to being made
he was induced to make or made it through fear or threats or through
promises and under section 24 of the Evidence Act. It is for the
prosecution to prove beyond reasonable doubt that a confession is
voluntary and the accused need only raise objections to it for there is no
requirement in law that he must prove his allegations of threats or
promises.

2. Where the defence challenges a confession a trial within a trial is held and it
is during this trial within a trial that the prosecution must adduce all the
evidence relied upon to prove the voluntary nature of the statement. The
prosecution must therefore call witnesses for purposes of proof and
witnesses who have testified before or who might be called later must be
called for the purpose of proving the statement if their evidence is relevant
and in fact for purposes of the trial within a trial any witness whether on
the summary of evidence or not is relevant. The accused is then entitled to
give evidence on oath or not on oath and to call witnesses if any.

3. In a trial within a trial the evidence must be complete by itself but the
evidence in the main trial is not before the court at that stage and although
it may be looked at, it cannot be relied upon to the prejudice of an accused.
 4. In the instant case, the prosecution did not comply with the standard
procedure in proving the alleged confession for they did not lay before
court all the evidence that as necessary for it to decide on the issue of
admissibility of the confession. The prosecution called only the magistrate
as a witness for purposes of proving the alleged confession yet the accused
made damaging allegations of brutal beatings against the police in his
sworn evidence and showed the court some scars to substantiate these
allegations. Since the prosecution did not call anybody from police to deny
these allegations it was extremely difficult to assume that the accused had
lied against the police.

5. The accused in instant case, ought to have been charged and taken to court
as soon as he was arrested and in the absence of police evidence denying
the accused’s allegations of long interrogations, beatings and threats by
the police it could not be said with certainty that these allegations were
without merit, which doubt in the circumstances of the case and the
evidence before court would be resolved in favour of the accused.

6. The confession was inadmissible since it was made as a result of threats.

7. A confession is generally received by court with caution because the motive

of the person making such confession is often not clear; it is doubtful
whether the legislature intended to enact that the end justifies the means
when in section 24 maximum safeguards were made against extracting
confessions made by use of force.

The exception to section 24 is found in section is found in section 26 of the

Evidence Act. Under section 26 confessions otherwise relevant do not become
irrelevant because of promise of secrecy, deception, drunkenness or failure to be
warned that such a person was not bound to make a confession. According to the
case of Mwangi v R (1954) EA 377 the general principle is that the court must have
regard to the state of mind of the accused and all circumstances of the case in
admitting confessions.

Confession Against Co accused (section 27 Evidence Act)

Under section 27 when more persons than one are being tried jointly for the same
offence, and a confession made by one of those persons affecting himself or
herself and some other of those persons is proved, the court may take into
consideration such confession as against that other person as well as the person
who makes the confession. Under this section the general rule is that an accused
person’s confession can be used against his co accused. However, there are
exceptions to the rule in section 27. According to the case of Nsubuga v Uganda if
the statement intends to exonerate its maker and implicates the co accused then
the weight attached to it is very small. In the case of Abdu Kasujja v Uganda
Criminal Appeal 596 of 1964 Justice Keating said that a confession by an accused
person can be used as a basis of the prosecution’s evidence against the co
accused however such evidence needs corroboration and the accused must
implicate himself to the same extent he is implicating the other and he should be
exposing himself by making such a confession to the same risk or even greater risk
than the others. The same principles are contained in the case of Uganda v
Kamusuni &Another (1976) HCB 159.

Uganda v Sebuguzi & Others (1988-1990) HCB 18

Facts: The three accused were indicted with murder of the father of A1. In this
case all the evidence of the 7 prosecution witnesses was admitted including an
extra judicial statement recorded from A1 by a grade 11 magistrate who was also a
witness for the prosecution. The extra judicial statement produced as an exhibit at
the trial contained the gist of all the prosecutions’ evidence of five witnesses
called to testify in court. PW1 a son of the deceased and brother to A1 testified
that his brother (A1)who had been staying with A2 moved to the deceased’s
house in December 1984 but soon thereafter started selling the deceased’s
property as a result of which a report of the theft was made to the police before
whom A1 admitted the sales. Later, the disappearance of the deceased was
reported to the Chiefs who convened a meeting at which A1 stated that his father
had gone to Bukakata and he was asked by the gathering to bring proof of this
statement on an appointed day. A1 never turned up on the appointed day but
later turned up alleging that his father had given him authority to look after his
house. He was taken to the Sub county Chief before whom he denied the
whereabouts of his father. The search for the deceased started in June 1988, A1
who had in the meantime disappeared from the village reappeared and was taken
to police before he admitted killing the deceased together with A2 and A3.
Through A1’s direction the body of the deceased was dug up from where it had
been buried.

In the meantime co accused 2(A2) was arrested. Other evidence was of a land
dispute between the deceased and A2&A3, evidence of the police officer in charge
of the case who on top of arranging the exhumation of the deceased, arranged
for medical examination by a doctor and recording of A1’S extrajudicial statement
before a grade 11 magistrate. Medical examination revealed a fracture of the scale
ones and a large crack extending to occipital bones. The cause of death was
bleeding to brain damage.

The extrajudicial statement was in the nature of a confession in which A1 narrated

how he got involved in the plot to kill his father. It started he said, when he moved
to live in the house of A2 as a paying guest as his father was mistreating him.
When staying with A2, he was told by A2 about the land already mentioned and of
the previous unsuccessful attempts to kill the deceased by A2 &A3 and that he
agreed to facilitate the death of his father by A2&A3. That this happened on one
evening when he was digging in his father’s garden where A2 dug a pit and when
the deceased came at about 7.pm to check on his work A2&A3 who were hiding
nearby jumped out; A3 caught the deceased while A2 seized the hoe from A1 and
hit the deceased with it twice on the head. The deceased was pushed into the pit
and buried.

A1’S statement was a denial of involvement in the crime and an explanation of

how some properties of the deceased came to be in his house.

During submissions Counsel for A2&A3 argued that the evidence of the
extrajudicial statement needed corroboration or support by independent
evidence.

Held: It was held interalia:-

1. Although a confession of a co accused could be taken into consideration

against a fellow accused person, this being of the weakest kind, could only
be used as lending assurance to other evidence but could not be used to
form the basis of the case against another accused. The reason for
considering such evidence as the evidence of the weakest kind was that it
was not only hearsay, but it was evidence of such a nature that the co
accused couldn’t test in cross-examination of the maker against him.

2. Credible and independent evidence was required to support such a

confession.

3. As regards the value of a confession against the maker, it is trite law that a
confession should be taken as a whole it was also clear law that it needed
not to be believed as a whole or disbelieved as a whole. It was open to the
trial judge to accept part of the statement and reject all of it. A1 was found
guilty while A2&A3 not found guilty.
In the case of Gopa & others v R (1953) 20 EACA 318 it was held that the weight of
evidence of a confession by an accused against co accused is lessened where he
obviously intends to implicate his co accused and not himself although actually he
does fully implicate himself.

Procedure for recording confessions.

The question is to whom and how the confession is made. According to section 23
of the Evidence Act no confession made by any person while he or she is in the
custody of the police shall be proved against any such person unless it is made in
the immediate presence of a police officer of or above the rank of Assistant
Inspector or a magistrate. The section goes ahead to provide that no person shall
be convicted of an offence solely on the basis of a confession unless the
confession is corroborated by other material evidence in support of the
confession implicating that person.

The procedure for recording confessions is found in the Evidence (Statement to

Police Officers) Rules and case law. The procedure for magistrates is illustrated in
the case of Uganda v Doyi Wabwire Kyoyo (1976) HCB 213. Justice Sekandi laid
down the following procedure.

1. When an accused person or suspect is brought to a magistrate the

magistrate should ensure that the police or prisons officer escorting the
accused leaves the chambers.

2. The magistrate should ask his court clerk to sit in the chambers with him so
as to guard against unnecessary allegations and to act as an interpreter
where necessary.

3. The Magistrate should use court paper in recording any statement from the
accused.

4. The accused should be informed of the charge against him if in fact he has
been charged. If he has not been charged before, the magistrate should
inform him of the allegations brought by the police as clearly as possible so
that the accused is in no doubt as to the nature of the charge which he is
likely to face and upon which the statement is likely to be adduced as
evidence at the trial.
 5. Immediately upon being informed of the charge, the magistrate should
caution the accused in the following terms:

“You need not say anything unless you wish but whatever you do say will
be taken down in writing and may be given in evidence”

6. Then the accused should be informed that he has nothing to fear or hope
for in making a statement before the magistrate.

7. If the accused volunteers a statement then this should be recorded in the

language used by the accused and an English translation made of it. Both
statements should be read back to the accused who should signify his
agreement with the contents with his signature or thumb mark. Then the
magistrate should countersign both statements and date them.

According to the case of Njuguna & others v R ( 1954) 21 EACA 316 it was held that
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
accused. According to the case of Uganda v Kalema & Another (1974) HCB) 142, it
is clearly indicated that such a section means that the accused should appear
before an impartial person who knew nothing about the background of the case.
This means that the courts have to be on their guard to see that the purpose of
the exercise was not defeated by backdoor practices. The accused was
interrogated by a police officer who briefed the magistrate and here the
magistrate could not be regarded as an impartial person.
IDENTIFICATION
Meaning of Identification

Identity of a thing or person is an expression of opinion that that thing or person

resembles another thing or person so much so that it is likely to be the same thing
or person. It is a comparison that looks for resemblances.

In criminal law, the identity of an accused must be established and that person has
to be shown to be the one who committed the particular offence. Therefore,
there has to be a process through which the accused is connected to the crime
and this process is referred to as identification.

Likewise in civil cases, identity is important. Any person who wishes to institute a
case against another must clearly describe the identity of that other person and
where the person is found.

The process of identification in criminal law usually seeks to ensure the following:

● The person identifying must have seen or observed the person being
identified.
● The identifying person must have had a settled impression in his/her mind
at the relevant time i.e. he or she must not have been in panic.
● The mental picture a person has at the time of identification must be the
same as that he or she had when he or she first saw the accused. It must
not be tainted by other factors or opinions of third parties.
● The time taken in identifying the accused person is important. If for
example it is a short period such as a few seconds, it may not be enough for
a person to notice.
● Consideration must also be given to those opportunities allowing for
proper identification. This is generally referred to as the conditions and
circumstances ideal for identification such as time taken, amount of light,
distance between the identifier and the accused person and whether the
suspect was known to the identifier before or is a complete stranger.

An accused person may be identified in court, at an identification parade or

through previous conduct.

Identification parade

Identification parades are normally conducted by the police during investigations

in an attempt to identify the accused or suspect with the offence for which he or
she is charged or suspected. The purpose of the parade is to find out from the
witness who claims to have seen the accused or suspect at the scene of the crime
whether he can identify the accused or suspect as the person he or she saw
previously at the scene of the crime or actually committing the offence. The
witness must have seen the suspect previously, lest the parade will be of no
evidential value. In addition, the witness should not have seen the suspect
subsequent to his or her arrest, as his or her identification at the parade may be
said to be based on his or her having seen the suspect after arrest and not at the
time the crime was committed.

In order to ensure that identification parades are conducted fairly, the High Court
of Uganda has approved certain rules for conducting identification parades.

See: Sentale v Uganda (1968) EA 365

R v Mwango (1936) 3 EACA 29
Simon Musoke v R (1958) EA 715

The police officer conducting the parade is required to ensure the following:

1. That the accused person is always informed that he may have an advocate
or friend present when the parade takes place;
2. That the officer in charge of the case, although he may be present, does not
carry out the identification;
3. That the witness does not see the accused before the parade;
4. That the accused is placed among at least eight persons as far as possible,
of similar age, height, general appearance and class of life as himself or
herself;
5. That the accused is allowed to take any position he or she wishes after each
identifying witness has left if he so desires;
6. Care should be exercised that the witnesses are not allowed to
communicate with each other after they have been to the parade;
7. Exclude every person who has no business there;
8. Make a careful note after each witness leaves the parade, recording
whether the witness identifies, or other circumstances;
9. If the witness desires to see the accused walk, hear him speak, see him with
his hat on or off, see that this is done. As a precautionary measure, it is
being suggested the whole parade be asked to do this.
10. See that the witness touches the person he or she identifies.
11. At the preparation of the parade or during the parade ask the accused if he
or she is satisfied that the parade is being conducted in a fair manner and
make a note of his or her reply.
12. In introducing the witness, tell him or her that he or she will see a group of
people who may or may not contain the suspected person. Do not say “Pick
out somebody” or influence him or her in any way whatsoever.
13. Act with scrupulous fairness, otherwise the value of the identification as
evidence will depreciate considerably.

The following extract is from the case of Kurong Stanley v Uganda (Court of
Appeal Civil Appeal No. 314 of 2003) [2008] UGCA 11

“We now turn to the merits of the appeal. We find it convenient to begin with the
evidence of the identification parade. The learned trial judge considered the
evidence at length and came to the conclusion that the parade was conducted in
accordance with the rules laid down in Republic vs Mwanga s/o Manaa (1936) EACA
29. It is this conclusion that was challenged by the appellants’ counsel at the trial of
the appeal. We begin with his submission that the appellant was never informed of
his right to request that a lawyer be present at the parade and that this omission
was fatal to the whole parade. Counsel relied on the case of Ssesanga Stephen vs
Uganda Civil Appeal No.85 of 2000 (CA) in which this Court held that the right of the
accused to be informed that he could have his lawyer present was mandatory and
failure to inform him would be fatal to the parade. In the instant case, the appellant
was asked whether he had an advocate whom he wished to attend and he answered
in the negative. In our view, the fact that the appellant was asked whether he had
lawyer should have alerted him to the possibility that he could have a lawyer present
if he wished to have one present. He could have asked there and then whether, if he
had one, he would be allowed to attend. Instead, he simply answered that he had no
lawyer and never complained thereafter about the absence of one at the
identification parade. We think that this case is distinguishable from the Ssesanga
case where the appellant was never alerted to the possibility that he could require
that an advocate or a friend attends the parade.
The second objection to the parade is that witnesses at the parade were shown the
appellant before the exercise was conducted. We have read the evidence of PW7,
the officer who carried out the parade, and the appellant’s own evidence on the
matter. We do not find any evidence to support that claim. The learned trial judge
can be forgiven for rejecting the appellant’s evidence on the matter because, on the
whole, she found that he was an “inveterate liar”. As the trial judge who had the
opportunity to see all the witnesses, including the appellant, in the witness box, she
was entitled to make that finding.

The third objection was that at the parade, the appellant was lined up with people of
dissimilar appearance in size and height which made it easy to be identified.

The rules in Mwanga case (supra) require that the accused should be placed as far as
possible with persons of similar age, general appearance and class of life of himself
or herself. According to PW7 Ojok Bona who conducted the parade, most of the
volunteers who participated in the parade were “almost of same size” with the
suspect. We also note that most of the volunteers were aged between 18 and 31
years except one who was aged 37 which was also the age of the appellant. It is not
always an easy matter to assemble eight volunteers of similar age, height and size,
but all effort should be made towards that direction so that the suspect does not
stand out as manifestly distinct from all other participants. We accept the evidence
of the police officer (PW7) that he lined up eight people of similar appearances of the
appellant save that only one of them was of his age. However, since the witnesses
did not know the age of the appellant, this could not have occasioned a miscarriage
of justice or prejudice the judgment of the witnesses. Moreover, this was not one of
the reasons that the appellant advanced against the fairness of the whole exercise
when he was asked whether he was satisfied with the conduct of the parade. We
hold that the irregularity on age differential is minor and did not prejudice the
fairness of the whole exercise.

Finally, counsel challenged the fairness of the conduct of the parade on the ground
that it was suggested to the witnesses that the man whom they saw in Gulu at the
scene of crime was definitely one of the nine men paraded. According to DW7, he
was instructing the identifying witness to walk along the parade and to touch the
person he/she saw in Gulu if he/she recognised one. Four witnesses were told the
same thing and they picked out the appellant. The appellant himself agrees that this
was the procedure used. Counsel for the appellant did not tell us the words PW7
used that suggested that the suspect would be in the parade. We do not agree that
the instructions PW 7 gave the witnesses suggested what counsel for the appellant is
complaining of. All he said was that if you recognise among these people the man
you saw in Gulu, then touch him. The use of the word IF clearly left the possibility
that the suspect may be there and you don’t recognise him or he may not be there at
all. This objection to the fairness of the parade is unfounded and we reject it.

On the whole, we find that there were a few minor irregularities in the exercise but
on the whole they did not prejudice the fairness of the identification parade. Both
PW7 (the police witness) and the appellant himself agree that four witnesses picked
out the appellant from the line. We agree with the trial court that there was no
credible evidence that three Gulu lodge witnesses who picked the appellant from the
line were shown the appellant before the exercise began. It is unfortunate that two
of them did not testify in court but the appellant himself testified that they picked
him out of the parade of eight volunteers. We hold that the identification parade
was conducted properly and fairly.”

Conditions necessary for a proper identification

The leading authority is the case of:

Abudala Nabulere & 2 Others v Uganda, Court of Appeal Cr. App. No. 12 of 1981;
[1979] HCB 77

Held: The court observed the following:

“Where the case against the accused depends wholly or substantially on the
correctness of one or more identifications of the accused, which the defence
disputes, the judge should warn himself and the assessors of the special need
for caution before convicting the accused in reliance on the correct
identification or identifications. The reason for the special caution is that there
is a possibility that a mistaken witness can be a convincing one, that even a
number of such witnesses can all be mistaken. The judge should then examine
closely the circumstances the identification came to be made, particularly the
length of time, the distance, the light, the familiarity of the witness with the
accused. All these factors go to the quality of the identification evidence. If the
quality is good the danger of mistaken identity is reduced, but the poorer the
quality the greater the danger.”

Abdallah bin Wendo & Another v R 20 EACA 166

Facts: The appellants were convicted of murder of a plantation watchman on a

very dark night.

Held: The trial judge convicted the appellants feeling it safe to accept evidence of
one man M as to their identity.

Identification by a single witness

See: Areet Sam v Uganda Supreme Court Criminal Appeal 20/2005

 Amooti Immaculate v Uganda High Court Criminal Appeal 27 of 2007

Under s. 133 of the Evidence Act, no particular number of witnesses is required to

prove any fact. Accordingly, even a single witness can be called to prove a fact.
However, because of the dangers associated with such testimony, the courts have
set out certain rules in this regard.

Uganda v George Wilson Simbwa Sct. Cr. App No. 37 of 1995

Facts: The respondent was tried and acquitted of murder. The DPP appealed
against the acquittal arguing that the appeal involves a point of law of public
importance. It was alleged that one night while the deceased and his son guarded
their banana plantation against thieves who used to steal their bananas, the
respondent, armed with a spear and a panga went to the plantation to steal. The
deceased’s son saw him and the deceased went forward to confront him but was
speared by the respondent. The son raised an alarm which many villagers
answered. When they arrived at the scene the deceased was still alive and told
them that he had been stabbed by the respondent. The respondent lived on the
same village as the deceased and was well-known to the deceased’s family. The
trial judge found the conditions in the banana plantation unfavourable for easy
identification. That it was in a valley, no evidence was given to show that the two
cell torch held by the deceased’s son gave out light of sufficient intensity, no
evidence was led to show how the clusters in the plantation were spaced ,
interalia.

Held: (Supreme Court): The law regarding identification by a single witness is now
well settled and quoted a number of cases,

“Briefly, the law is that although identification of an accused person can be

proved by the testimony of a single witness this does not lessen the need for
testing it with the greatest care especially when the conditions favouring
correct identification are difficult. Circumstances to take into account include
the presence and nature of light, whether the accused person is known to
the witness before the incident or not, the length of time and the
opportunity the witness had to see the accused and the distance between
them. Where conditions are unfavourable for correct identification, what is
needed is other evidence pointing to guilt from which it can be reasonably
concluded that the evidence of identification can safely be accepted as free
from possibility of error. The true test is not whether the evidence of such a
witness is reliable. A witness may be truthful and his evidence apparently
 reliable and yet there is still a risk of an honest mistake particularly in
identification. The true test is...whether the evidence can be accepted as free
from the possibility of error.”

The Supreme Court further observed that the deceased’s son was carrying a torch
containing two dry battery cells (two weeks old), had flashed the torch at the
respondent who was only six metres away from the witness, the witness had
known him for seven years and lived in the same village and was even able to
describe the clothes the accused was wearing which evidence was unchallenged.
That although the trial judge had properly directed himself on the law applicable
to evidence of identification by single witness but misapplied the law thereby
reaching a wrong conclusion. The evidence of identification was also corroborated
by the dying declaration which ruled out any mistaken identity.

Identification through previous conduct

See generally similar fact evidence.

OPINION EVIDENCE
An opinion is a statement as to what a person thinks about an alleged fact,
whether or not it took place, who caused it, why or when it occurred.
Matters of opinion are conclusions drawn by a person in reference to particular
inferences. Ordinarily, witnesses are invited to testify in Court whenever it’s
necessary to give testimonial evidence and when this happens, they are asked to
give evidence of facts as they perceived them. This is because of the general rule
that opinions of witnesses as to the existence of facts-in-issue or relevant facts are
inadmissible.

Reasons why opinion evidence is inadmissible:

1. The opinion of a witness will most likely be partial to the party who called
him to give evidence;

2. Opinion evidence in most cases is likely to be influenced by matters of

hearsay.

However, as with all general rules, there are instances of exception in which
opinion evidence will be admissible. See Ss. 43-49 Evidence Act, which recognise 2
categories of opinion evidence as admissible:

1. Expert evidence

2. Opinions of ordinary witnesses (non-expert evidence)

Expert evidence

S.43 Evidence Act: When the 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 impressions, the
opinions upon that point of persons specially skilled in that foreign law, science or
art, or in questions as to the identity of handwriting or finger impressions, are
relevant facts. Such persons are called experts.

How does one become an expert?

The decision as to whether a witness is qualified to give evidence of opinion as an

expert is made by the Judges who are thus the expert of experts. It must,
however, be noted that an expert cannot bind the court. The court listens and
decides for itself which expert’s evidence to accept. A number of factors are
considered in determining whether or not one is an expert:

1. Educational background

S. 43 of the Evidence Act makes reference to ‘special skill’. How is this acquired?
Possibly through educational background. Ordinarily, one would be regarded as
an expert if he has an educational background which enables him to become
conversant with the subject he is expected to testify on. However, before
evidence of such person’s evidence is regarded as expert, his educational
background must first be put on record and each field of expertise will require
definite qualifications.

R v Gatheru

Held:

“Court has on several occasions said that when a trial court has to
form an opinion upon the question whether a home-made gun or
part thereof, is a lethal barrelled weapon, it must have the
assistance of expert opinion that we think that such special skill is
not confined to knowledge acquired academically, but would also
include skill acquired by practical experience that in the present
circumstances, even though a police officer employed on
operational or investigation work, acquires a sufficient practical
knowledge to qualify him as an expert, his competence as an expert
should in all cases, be shown before his testimony is properly
admitted. ”

Mohammed Ahmed v R

Court in regard to the issue in the Gatheru case held:

“The rule in Gatheru requiring competence of a witness to be

established was one of practice, omission of whose observance
would not in all cases, render the evidence inadmissible. That rule
will be applied more strictly in criminal than in civil proceedings
where it can be overlooked.”

Oundo v R

Facts: The appellant was convicted of driving a motor cycle while under the
influence of alcohol. It was not disputed that the man was found helpless
on the road. At the trial, a police officer testified that when he found the
man, he could not stand on one leg, give his name and in answer to the
questions, could only crow like a cock. In the officer’s opinion, the
appellant was too drunk to be capable of controlling the vehicle. A doctor
also gave evidence regarding his professional opinion about the
appellant’s mental state at the time.
Issue: Whether the opinion of the police officer was admissible as expert
evidence or as evidence at all?

Held: The police officer was not an expert witness at all; He couldn’t give
his opinion as to what he thought the mental state of the accused was,
since he was not qualified in such matters (i.e. didn’t have the mental
training). However, the doctor’s evidence was admissible since he had the
necessary educational background to be able to give an authoritative
opinion on the mental state of the appellant.

2. Experience

Expert witnesses may not necessarily have formal training in the areas they testify
upon as such a person presented as an expert needn’t be an expert or specialist in
the professional or academic sense of the word. They may just be skilled or
experienced in the branch of knowledge concerned even if the exercise of such a
skill or the acquisition of such knowledge is not part of his general occupation, in
which case, experience means that the person will have been active in a certain
field for some time. The period for which a person is required to be active is
relative, depending on the circumstances of each case.

R v Silverlock

Facts: There was a dispute as to the identity of handwriting of the accused. A

solicitor was called to testify to that identity. His relevance in the matter was that
he’d been in the habit of perusing old parish bills and registers drafted by various
individuals for over 30 years. He claimed to be an expert as to handwriting. An
objection was raised claiming that since the solicitor had no formal training in the
field of handwriting, he couldn’t give expert evidence.

Held: Court allowed the solicitor to testify and held that his experience in perusing
documents partly for professional use and partly for private purposes enabled him
to acquire experience in handwriting although he hadn’t acquired any formal
education.

Uganda v Ntura

Facts: There was an accident caused by a Uzi gun. In a bid to establish the
characteristics of a Uzi gun so as to show if it could have caused the accident, a
police officer was called to testify as an expert on guns. It was established that he
was an expert since 1949 and that he’d had a habit of training on firearms.
Issue: Whether the accident could have been caused by such a gun?

Held: The policeman’s professional experience coupled with some specialised

study of firearms qualified him to be an expert witness in the matter of guns.

R v Oakeley [1979] 70 Cr. App Reports 7

Facts: A police man was called as an expert in an accident. He had worked 15 years
in road traffic service, taken as a qualifying exam in accident investigation and it
was shown that he had investigated more than 400 cases of traffic accidents.

Held: He qualified as an expert.

Uganda v Ogwang

Facts/ Held: A medical assistant was held to be an expert for purposes of

classifying harms as dangerous or not dangerous and injuries as fatal or minor. In
ordinary practice, such are the duties of a medical doctor. This case also considers
judges as experts.

A person who qualifies as an expert after he has established his expertise is

expected to testify by giving his opinion before court. Oral evidence must
therefore be direct. However, in the proviso to s.59 gives exceptions:

Provided the opinions of experts expressed in any treatise commonly offered for
sale, and the grounds on which those opinions are held, may be proved by the
production of those treatises if:

i) the author is dead;

ii) cannot be found;

iii) has become incapable of giving evidence;

iv) Cannot be called as a witness without an amount of delay or expense

which the court regards as unreasonable. (For example if Prof. Harris, an
authority on the law is required to give evidence and it is impossible for
him to travel to Uganda, you can use his writings or book as authority.)
In practice it is not good to quote a person who’s alive, the rationale
being they could change their mind on the matter.

S.49: Whenever the opinion of any living person is relevant, the grounds on which
that opinion is based are also relevant, i.e. the reasons for such opinion are part
and parcel of the evidence being given.
S.44: Facts, not otherwise relevant, are relevant if they support or are inconsistent
with the opinions of experts, when those opinions are relevant, i.e. expert
evidence is not conclusive on any matter because it is in court’s discretion to
decide whether or not to take it and also, expert evidence is open to question and
challenges.

The Value of Expert Evidence

Expert evidence helps court understand matters of fact which in turn enable court
decide on legal issues involved.

Sutton v R

Issue: Whether evidence of an expert is subject to examination?

Held: It’s the duty of a court to critically examine all the evidence before it
whether it is given by an expert witness or any other witness. The trial magistrate
misdirected himself when he attached a lot of weight to the bold statement of the
pathologist in presuming without any evidence that the appellant’s resistance to
the effects of drink was law.

See s.49

Hussein v R

Facts: This case concerned the determination of the ages of 2 sons of the
appellant. It was initiated by the Immigration department charging the appellant
with making a false statement. He had stated his sons as being born in 1940 and
1944. An expert radiologist was brought in to determine the age.

Held: Evidence given by the radiologist about the age of the 2 sons established by
x-ray examination indicated that the one son was born in 1937 and the other in
1915. Although such evidence was not infallible, it was most unlikely to be wrong
by 3 and 6 years respectively.

De Souza v Sharma

Issue: Whether the construction board had a right to reject or question expert
evidence?

Held: Court considered the evidence of the expert witnesses and rejected their
estimates as in the view of the board, they were very high. Referring to s.49 at the
time, court said that had the board done this without giving reasons, their
rejection might have been unjudicial, but gave it 2 reasons based on lower figures
admitted by the appellant. The court is not bound to accept the evidence of
experts if it finds good reason for not doing so.

Salum v R

Facts: This case concerned identification of handwriting by experts. The expert

said in his evidence that he had no doubt that the forged signature had been
written by the appellant.

Held: The most that a handwriting expert can properly say in an appropriate case
is that he does not believe a particular writing was by a particular person, but not
so positively that the 2 writings are the same. The handwriting expert should have
pointed out the particular features of similarity or dissimilarity between the
forged signature on the receipt and the specimens given and consequently,
because of his failure to do so, his evidence was of no value.

Principles: A handwriting expert is not a person who tells you ‘this is the
handwriting of such and such a man or woman.’ He is a person who habituated to
the examination of handwriting practised in the task of making minute
examination of handwriting directs the attention of others to things which he
suggests are similarities. That and no more than that, is his legitimate province.

Court, however, distinguishes between identification of handwriting and finger-

print or impression identification. It says they are not the same; that there is a
presumption when dealing with fingerprints that no 2 persons have identical
fingerprints. Court says there is no such presumption that no 2 persons have
similar handwritings.

See Walusimbi v Standard Bank (Leading case on handwriting)

R v Smith

Facts: The appellant was charged with assaulting a person who interalia, put up a
defence of automatism (sleep walking). 2 psychiatrists brought evidence that he
suffered from automatism.

Issue: Whether the psychiatrists’ expert evidence was relevant to determine

automatism?
Held: Since the question whether the applicant had acted in a state of automatism
was in issue and since automatism was a condition outside the experience of the
ordinary lay person, the psychiatrists’ expert evidence was relevant and necessary
to help the jury determine whether the applicant’s defence of automatism was
valid. In reference to s.44, the judge had rightly exercised his discretion to permit
the cross-examination of the appellant and the psychiatrists to be called as
witnesses.

Uganda v Opio Richard [1986] HCB 19

Held: In sexual offences, the complainants ought to be subjected to medical

examination whenever that is possible as it often turns out to be crucial to the
case.

Uganda v Indibarema

Facts: Evidence of a gombolola askari was tendered to identify an exhibit (a gun).

No police officer was called to identify the exhibit and there was no record as to
what type of firearm it was.

Issue: Whether or not the gombolola askari was an expert on fire arms?

Held:

1) Court cannot accept the gombolola askari as being in any way sufficiently
knowledgeable in matters concerning firearms since their training and
experience is very inadequate and they aren’t really capable of investigating
a crime.

2) Special skill in a particular science is not confined to knowledge acquired

academically, but it would also include skill acquired by practical
experience.

3) Court established that in Uganda there was no ballistics expert at the time.
However, in cases concerning firearms, expert evidence must be adduced,
and it was available in Uganda.

Opinion Evidence of Lay persons (See ss. 45-49)

A. S.45 Opinion as to handwriting, when relevant

When the court has to form an opinion as to the person by whom any document
was written or signed, the opinion of any person acquainted with the handwriting
of the person by whom it is supposed to be written or signed that it was or was
not written or signed by that person is a relevant fact.

Note the difference between s. 43 and 45. S.43 speaks of special skill while s.45
refers to acquaintance.

A person is said to be acquainted with the handwriting of another person when:

1) he or she has seen that person write;

2) he or she has received documents purporting to be written by that person

in answer to documents written by himself or herself or under his or her
authority and addressed to that person;

3) in the ordinary course of business, documents purporting to be written by

that person have been habitually submitted to him or her.

See R v Silverlock

B. S. 46 Opinion as to right or custom

When the court has to form an opinion as to the existence of any general custom
or right, the opinions as to the existence of that custom or right, of persons who
would be likely to know of its existence if it existed, are relevant.

The expression “general custom or right” includes customs or rights common to

any considerable class of persons. This section seems wider than s.47.

Case v Ruguru

Held: Special expertise was not needed to prove the existence of a marriage in the
Embu custom, however, you must be likely to know, e.g. by being a member of
that tribe or group of people. It must have been in existence for 6 or more
months.

C. S. 47 Opinion as to usages, tenets, etc., when relevant.

When the court has to form an opinion as to:

a) the usages and tenets of any body of men or family;

b) the constitution and government of any religious or charitable foundation;

 c) the meaning of words or terms used in particular districts or by particular
classes of people, the opinion of persons having special means of the
knowledge thereon are relevant facts.

D. S.48 Opinion as to relationships

When the court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of the
relationship, of any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact.

The proviso to s.48 prohibits the use of such opinion from being sufficient to
prove a marriage in proceedings under the Divorce Act, or in prosecutions under
section 153 of the Penal Code Act on adultery. Proof in those two cases must be
evidence of fact not opinion. However, other relationships like parentage,
affiliation, etc may be proved by opinion evidence. Reasons for opinions must be
given, e.g. in customs and rights.

Cases:

Mugisha v Uganda

Facts: There were 4 counts of issuing threats with murder and demanding
menaces. There was evidence of a handwriting expert which sought to link the
accused with the offence, but this evidence was not scrutinised by the trial
magistrate. The appellant was convicted.

Held: An expert’s opinion is opinion evidence and it can rarely, if ever, take the
place of substantive evidence that opinion is only a piece of evidence and it’s for
the court to decide the issue one way or another upon such assistance as the
expert might offer. Although the general rule requires an expert to state in
evidence the grounds for his opinion, there may be cases in which it is necessary
for the expert to lay a proper foundation for his opinion.

James Katende & 2 others v Uganda Railways Corporation

Held: The value of medical evidence in court is to give a clear picture of the
plaintiff’s condition at the time of the accident and at the time of the trial so that
the court can assess the appropriate damages to be awarded. Doctors ought to
refrain from relying on the stories given by their patients or other litigants. Theirs
is supposed to be expert evidence which should be supported by scientific
investigations.

Francis Ocoke v Uganda

Facts: The appellant was convicted of murder and part of the evidence adduced
against him was a post mortem report which, it was alleged, could be used to
show malice aforethought. It was alleged that the appellant stopped his lorry
between a tractor and a trailer and ran over the deceased’s ribs, crushing him to
death.

Held: The post mortem report contains findings as to the state of the body, the
injuries found on it and an opinion as to the cause of death. It is not capable by
itself of proving malice aforethought, the existence of which, is not a question of
opinion, but that of fact, to be determined from all available evidence.

Musisi Dirisa v Sietco (U) Ltd

Held: A doctor’s opinion may be rejected for being only superficial where it lacked
scientific backing.

CHARACTER EVIDENCE
This is covered by sections 50-54 of the Evidence Act. The term character is not
expressly defined by the Evidence Act however, it is explained by the proviso to
section 54 which states that in sections 50, 51, 52 and 54 the word character
includes both reputation and disposition; but, except as provided in section 52,
evidence may be given of general reputation and general disposition, and not of
particular acts by which reputation or disposition were shown. Disposition under
character evidence refers to the tendency of a person to act or behave in a
particular way whereas reputation refers to the opinion of the members of the
public about a particular person.

General Principles in Character Evidence

The general rule is that evidence of character is not admissible. However, this rule
has many exceptions and the admissibility of character evidence will depend on a
number things e.g.

1. The nature of the case

2. Nature of the parties for instance is it evidence of the character of the

accused, character of plaintiff or character of defendant?

Character evidence in reference to an accused person (Criminal Proceedings).

(Sections 51, 52 and 53)

According to section 51 of the Evidence Act it is provided that I criminal

proceedings the fact that the person accused is of good character is relevant. This
is in line with the presumption of innocence but character evidence is given
pursuant to section 53 whereby it should be given in relation to the offence
charged.

Yowana Setumba v R (1957) EA 35

Held: Character evidence is admissible against the accused if the prosecution

shows him as a person of bad character. According to section 52 it is the general
rule that in criminal proceedings the bad character of the accused person is
irrelevant. However, you can show it as part of resgestae as evidence of past
similar occurrences under section 14 of the Evidence Act. Section 52 provides
circumstances when bad character would be admissible. The bad character
referred to here is normally evidence of reputation and before such evidence can
be admitted it must be established that a substantial part of the community holds
that view pre case of R v Rowton (1965) 10 Cox 25

Exceptions to the general rule in admission of character evidence

Section 52(a) provides that the fact that an accused person has a bad character is
irrelevant unless evidence has been given or a question or questions asked by the
accused person or his or her advocate for the purpose of showing that he or she
has good character. This means that the accused will have put his character into
issue and therefore the issue of his bad character can be determined by allowing
the prosecution to adduce evidence to show that his character is bad. It is only the
accused to put his character into issue. He cannot put the prosecutions character
in issue. If the accused alleges evidence of good character, it is an issue to be tried
by court. The accused can safely adduce the evidence of good character at
mitigation level so as to reduce sentence in case the accused is convicted. If the
evidence of good character is introduced early the prosecution can call evidence
to rebut it according to the cases of R v Bulterwasser (1947) 2 ALL ER 415 and
Maxwell v DPP (1935) A.C 309

Stirland v DPP (1944) A. C 315

Facts: The rules determining bad character were discussed in this case. The
accused person was charged with forgery and he gave evidence of his good
character. He called a witness to say that he was a person who had never been
convicted before and he was very moralistic.

Held: The court allowed the prosecution to adduce evidence of his bad character
and on appeal the following guidelines were laid down by the court:-

1. An accused person may be cross-examined as to his claims of good character in

any evidence he has given in chief and that a result of such cross-examination
can prove his bad character and that they are a way of testing his velocity that
such accused past record can be put in evidence, but this should be the whole
of the accused’s past life, mere suspicion that someone has ever committed a
crime is not enough and it is not relevant to establish his bad character and this
is not enough to deny him his claim of good character.

2. During the trial the evidence of witnesses who can establish bad character may
be adduced.

Another exception is governed by section 52(b) of the Evidence Act. It is provided

that in criminal proceedings the fact that an accused person has a bad character is
irrelevant unless, the proof that he or she has committed or been convicted of
another offence is admissible to shoe that he or she is guilty of the offence with
which she is charged. This is in relation to offences of a similar nature. There has to
be a relationship between the previous and present crime. See the cases of R v
Rodley (1913) 3 K.B 468 regarding previous convictions and Makindi v R (1961) E.A
327 (previous beatings)

The 3rd exception is found in section 52(c) of the Evidence Act. It is provided that
the fact that an accused person has a bad character is irrelevant unless the nature
or conduct of his or her defence is such as to involve imputations on the character
of the complainant or the witnesses for the prosecution. In such a case
prosecution will be free to adduce evidence to show that the accused is of bad
character and therefore lacks the credit to judge other people’s character. This
was discussed in the case of Royston v R (1953) 20 EACA 147 where it was stated
that if the imputations of bad character are an integral part of the defence of the
accused without which he cannot put his case fairly and squarely then he cannot
be cross-examined on previous criminal history.

Katwe v Uganda (1964) EA 477

Rex v Turner (1944) 30 Cr. App. R 18

Facts: The appellant was convicted of rape, his defence was that of consent, on
cross-examination the complainant said that she did not see the appellant take
out his person but she admitted he took it out and she knew he was seeking
sexual intercourse with her as he was struggling at her clothes and he did not
release her in any shape or form. The appellant gave evidence himself to the same
effect but he also said the complainant took hand of his person and said I will do it.
The trial judge held the above evidence was an imputation on the character of the
complainant and the prosecution was entitled to cross-examine the appellant on
his previous convictions. The prosecution then enlisted the fact that the appellant
had been previously convicted of assault on a female with intent to rubbish her
and he was sentenced to a months’ imprisonment. On appeal;

Issues: Whether evidence of such previous convictions was admissible in this case
and whether evidence of character was properly admitted?

Held: Under the Criminal Evidence Act of 1880 of UK a person charged and called
as a witness under the Act shall not be asked and if asked shall not be required to
answer any question tending to show that he has committed or been convicted or
been charged with any other offence other than that which he is currently
charged or is of bad character unless the nature and the conduct of the defence is
such as to involve imputation on the character of the prosecution or witnesses for
the prosecution of bad character. Court further said putting forward a defence of
consent does not amount to making an imputation on the character of the
complainant where the accused charged with rape put forward the defence that
the complainant consented to the act he does not make an imputation on her
character so as to render himself liable to cross-examination on previous
convictions or bad character.

Abdulla Katwe v R (1964) E.A 477

Facts: The appellants were charged with conspiracy to commit robbery, the
evidence being that acting on information received, an Inspector of Police with
five other officers all in plain clothes went to patrol a road and they saw a car
some yards in front of them trying to broke them, five men with stones
descended upon the Inspectors car. When the officers emerged the five men
withdrew but they were arrested and stones were found in their car and the
number plate was smeared with sand. At the trial Counsel for the appellants in
cross-examination suggested to the Inspector that he had fabricated the
evidence, and the prosecuting officer applied for leave to cross-examine one of
the appellants on his previous convictions, the magistrate ruled that the
appellants had put their character in issue and therefore the prosecutor was
entitled to cross-examine the appellants on previous convictions. The 3 rd and 5th
appellants admitted previous convictions and all the five appellants were
convicted. On appeal the issue was whether the evidence of bad character of the
appellants was properly admitted at the trial?

Held: It was suggested to the Inspector that he had fabricated evidence, by

planting stones into the appellants car and he had obscured the number plates of
the car Counsel for the appellants went beyond what was necessary for the
proper and fair presentation of his clients’ case before the court. Accordingly the
magistrate had properly exercised his discretion in admitting evidence of bad
character of the 2nd appellant. It would have been otherwise if the appellants had
simply said the evidence was untrue such suggestion would not entitle the
prosecution to cross-examine any of the accused as to their character.

The principle is that a clear line should be drawn between words that are denial of
evidence and words which attack the conduct or character of a witness. It is one
thing for the appellant to deny that he performed the act, but it is another thing
to say that the whole thing was a deliberate and elaborate concoction on part of
the prosecution which seems to be an attack on the character of a witness. Court
finally said in making imputations on the character of the prosecution witnesses
the defence had gone so far as to bring the imputations outside the scope of
protection under the rule in Royston’s case.
R v Rodley (1913) 3 K.B 468

Facts: This case discusses section 52(b) of the Evidence Act regarding previous
convictions. The appellant was indicted for having broken into a dwelling house in
the night with intent to lavish a woman. Prosecution’s evidence was to the effect
that the appellant broke into the house and went downstairs where he seized her,
he pulled down her clothes and upon the woman’s father coming downstairs the
appellant went away. The defence at the trial was that evidence of the
prosecution was not true since the appellant went to the house for purposes of
courting the complainant with her consent and he did not intend or attempt to
ravish her. Prosecution tendered evidence that the appellant at about 2.00am on
the same morning went to the house of another woman about three houses from
the complainant’s house gained access to her bedroom and had a connection with
her. It was contended that this evidence was admissible to show the state of the
appellants mind and body at the time when he broke into the complainant’s home
and coupled with the evidence of what happened when he was in the house was
admissible to show the intent of the appellant. This evidence was admitted and
the appellant was convicted on it and he appealed.

Held: This evidence was not relevant to any of the issues in the case and therefore
not admissible and citing the case of R v Fisher (1910) 1 K.B 149 court said the
principle is that prosecutors are not allowed to prove that the accused has
committed the offence with which he is charged by giving evidence that he is a
person of bad character who is in the habit of committing crimes, for that is
equivalent to asking the court to say that because an accused has committed
other offences he must therefore be guilty of the particular offence for which he is
being tried, but if the evidence of other offences, does go to prove that he did
commit the offence charged, it is admissible because it is relevant in issue and it is
admissible because it proves that the accused committed another offence. Court
finally said that the governing rule must always be that any evidence to be
admissible must be relevant to the issue.

Ali Bin Hassan Alias Mgwengwe v R (1960) E.A 121

Facts: The same issue of previous convictions was considered. The appellant was
convicted by a magistrate of aiding a prisoner to escape and obstructing a police
officer in the due execution of his duty. At his trial the appellant conducted his
own defence, and in cross-examination of a police constable he got from him the
following answer ” Yes I know that you have recently come out of jail where you
were sent for being found in possession of a big quantity of wine “. Later the
appellant was cross-examined as to his bad character and previous convictions.
On appeal;

Issue: Whether evidence of bad character and previous convictions was wrongly
admitted?

Held: The magistrate should not have committed the appellant to cross-examine
the police constable in the way he did for it was obvious that the appellant was
bringing his bad character in issue and at that stage his bad character was
inadmissible in evidence. The Magistrate should have stopped him and warned
him of the danger he run in continuing with that line of questioning.

The 4th exception is found in section 52(d) of the Evidence Act. Under that
provision it is provided that in criminal proceedings the fact that an accused
person has bad character is irrelevant unless he or she has given evidence against
any other person charged with the same offence as that which he or she is
charged. The term giving evidence against co accused has been a subject of
debate in a number of cases as well as the term giving evidence which undermines
the defence of co accused. In all cases the courts have said that there is an
objective test that may be employed in such cases and that is what is the effect
that evidence and if the answer of such evidence is to lead to the conviction of the
co accused then an accused would be said to have given evidence against co
accused. This was considered in the case of:

Murdock v Taylor (1965) 1 ALL ER 406

Facts: The appellant Murdock was charged jointly with one Linch with the offence
of receiving cameras knowing them to have been stolen. In cross examination the
appellant said that he had nothing to do with stolen cameras and that they were
entirely linch’s responsibility. Further answers of the appellant pointed to the
conclusion that Linch alone was in control and possession of the box containing
the stolen cameras. Linch’s counsel was allowed to cross-examine the appellant
who admitted a number of convictions for theft. On appeal;

Issues: Whether the appellant gave evidence against Linch and whether therefore
cross-examination as to his previous convictions was rightly allowed?

Held: The evidence given by the appellant in cross examination was evidence
against Linch because it supported the prosecution’s case against Linch in a
material particular and therefore questions as to the previous convictions were
properly allowed because they were relevant and directed to the appellants
credibility. In this case court laid down the following principles

1. The evidence against co accused means evidence which support the

prosecution’s case against co accused in a material respect, or which
undermines the defence of co accused, it also means positive evidence
which would rationally have to be included in any summary of evidence in
which the case which if accepted would warrant conviction of co accused.

2. Both must be charged with the same offence.

3. The material considerations in determining whether such evidence has

been given is the effect of the evidence in the minds of the court and this is
an objective test. Evidence against co accused is not limited to evidence
given with hostile intent, once an accused has given evidence against his co
accused a trial judge has no discretion whether or not to allow the former
to be cross-examined by the co accused as to his previous convictions
although the trial judge must rule as to the relevancy of the proposed cross-
examination. This means that it should go to the credibility of the accused,
who has given evidence against co accused. The same matter was
considered in the case of:

R v Bruce (1975) 1 W.L R 1252 (meaning of ‘evidence against’)

Facts: In this case 8 youths surrounded a passenger on a train and when they
realized that he was frightened they took money from him. They were all charged
with robbery, one accused called Mc Guinness said that there was a plan to rob
but he said that he had played no part in it. His Counsel was allowed to cross-
examine another accused Bruce about his previous convictions on the basis that
Bruce had given evidence against Mc Guinness by denying that there was a plan to
commit robbery.

Issue: Whether evidence of Bruce’s previous conviction was admissible. Whether

he had given evidence against Mc Guinness?

Held: ‘Evidence against’ means evidence which supports the prosecution’s case in
a material respect, or which undermines the defence of co accused. That evidence
cannot be said to be given against co accused if its effect if believed is to result not
in his conviction but his acquittal of that offence. Court went ahead to say that
Bruce’s evidence undermined the defence of Mc Guinness. The previous
convictions of Bruce were wrongly admitted. The appeal was dismissed on the
ground that if such evidence leads to an acquittal then it is not evince against co
accused.

R v Davis (1975) 1 W.L R 345

Facts: The defendant and co accused were charged jointly with theft of a number
of items including a cross. The co accused gave evidence accusing the defendant
of stealing that cross, the defendant denied the theft and upon cross-examination
by co accused he said that as he had not stolen the cross and it was missing the co
accused must have stolen it but that he was not saying that he did. The defendant
was cross-examined upon his previous convictions on the ground that he had
given evidence against co accused, he was convicted and he appealed and on
appeal;

Issue: Whether the defendant’s denials were evidence against co accused?

Held: Since the circumstances of the theft were such that either the defendant or
co accused or both had stolen the cross the defendant’s denial of the co accused’s
accusation went to the root of the case and must have undermined the co
accused’s defence. The defendant’s denials were evidence against co accused and
that evidence of previous convictions was rightly admitted.

Character Evidence in Civil Cases (sections 50 and 54 of the Evidence Act)

This can either be the character of the plaintiff, defendant or the character of the
witness. Section 50 of the Evidence Act provides that In civil cases the fact that
the character of any person concerned is such as to render probable or
improbable any conduct imputed to him or her is irrelevant, except insofar as that
character appears from the facts otherwise relevant. This is subjective. The
defendant may adduce the plaintiff’s evidence of bad character in order to
mitigate damages.

Evidence of bad character may be adduced to as well to establish that a particular

instance of bad behavior was not an accident but part of a series which were
related. Evidence of bad character is also important under section 54 of the
Evidence Act which provides that in civil cases the fact that the character of any
person is such as to affect the amount of damages which he or she ought to
receive is a relevant fact. This question was raised in the case of:

Goodry v Oldham’s Press (1967) 1 Q.B 333

Facts: In August 1963, the great train robbery occurred, in the United Kingdom
where 2.5 million pounds was stolen from the mail train. In March 1964, the
plaintiff was convicted of being armed with an offensive weapon and that of
robbery of 120 mail bags, he was sentenced to 30 years imprisonment, in July
1964, the defendant’s newspaper published a story which was entitled A
suburban house maid reveals how she was caught up in a great mail bag plot and
the article contained many references to the plaintiff and described the leading
role played by her. In September 1964 the plaintiff brought an action against the
defendants claiming damages for libel in the article. The defendant at first pleaded
full justification but they amended their defence to plead partial justification and
also pleaded mitigation of damages, saying that in July 1964, when they published
the article, the plaintiff already had a bad reputation as a thief and a robber and in
support of the allegation, they gave evidence of her previous convictions which
amounted to seven including the dismissal of her appeal, against the conviction
for March 1964.

Issue: Whether evidence of bad reputation was admissible?

Held: Convictions with in a relevant period of the plaintiff’s life were cogent
evidence that the plaintiff had a bad reputation and were admissible in evidence in
mitigation of damages and therefore the defendants were rightfully allowed to
give evidence of March 1964 conviction.

The same issue was raised in the case of:

Walters v Sunday Pictorial Newspaper (1961) 2 ALL ER 758

Facts: The defendants in their Sunday times referred to the plaintiff (A) as a
notorious dodger operator of land slum properties, B as a wile dodger and C the
man whose estate agency was described by Lord Godard then the Lord Chief
Justice, as a fraudulent business man from the beginning to the end. In their
defence for libel the defendants admitted that the words were defamatory but
they pleaded the following defenses

1. Justification

2. Fair comment on a matter of Public Interest

3. That the words against C were a fair and accurate report of Judicial
Proceedings.
 4. In mitigation of damages that as a result of certain judicial proceedings
the plaintiff had already been brought into scandal odium and contempt
and cited three Judicial Proceedings one of them criminal and two civil
actions involving fraud.

Issue: Whether those judgments referred to were admissible to establish bad

reputation?

Held: The plea in mitigation of damages that the plaintiff had already been
brought into the public odium by the judgments in the proceedings referred to did
not go beyond what was permissible as evidence of bad reputation in a section of
life relevant to the alleged libel. Relying on Scott v Sampson (1882) 8 .Q.B.D 491,
Court said that in mitigation of damages only general evidence of reputation may
be adduced and it is not permissible to adduce evidence of specific facts but
however, it is permissible to plead such matters as directing attention to the
relevant sector of the plaintiff’s life.

Scott v Sampson

Facts: This was an action brought for publication in a paper called Referee a libel
imputing to the plaintiff that by threatening to publish in a journal called the
theater defamatory statements with reference to a deceased actress he had
extorted a sum of money from one Green. The defendants adduced in mitigation
of damages evidence that the plaintiff had already a bad reputation based on the
evidence of rumours before the publication of the libel that the plaintiff had been
guilty of misconduct imputed on him in addition to evidence of previous acts of
the plaintiff which were said to have been of a discreditable character and called
witnesses to show that before publication those rumours had been told.

Issue: Whether evidence of rumours that the plaintiff had done what was charged
against him should have been admitted?

Held: Evidence of rumours before publication of the libel that the plaintiff had
committed offences charged and evidence of publication facts and circumstances
tending to show the misconduct of the plaintiff could not be admitted in reduction
of damages. The following principles were laid down:-

1. The law recognizes in every man a right to have the estimation in which he
stands in the opinion of others affected by the false statements to his discredit
if such false statements are made without lawful excuse, and damages result
 such damaged should be calculated entirely on the estimation in which he was
previously held. If he complains of any injury to his reputation and he seeks to
recover damages, before such damages can be awarded the court should know
if in fact he is a man of no reputation, to deny this would be to decide that a
man of the worst character is entitled to the same measure of damages with
one of good reputation.

2. On the question of rumours, court said that to admit evidence of rumours and
suspicion is to give anyone who knows nothing about the plaintiff or who may
have a grudge against him question opportunity of spreading what he may
have picked from the most disreputable source and what no man of sense who
knows the plaintiff’s character would believe. Unlike evidence of general
reputation, it is particularly difficult for the plaintiff to rebut such evidence for
his witnesses can only say that they have not heard such rumours.

Character of the defendant

In civil proceedings this is not ordinarily an issue although it may become so under
the circumstances of section 54 of the Evidence Act. However it is the general rule
that the character of the defendant may not depend on whether the defendant
has been convicted of a criminal offence. What has to be established is his
behavior, in respect of civil matters at issue. This is unlike in criminal matters
where past conviction is relevant. In practice courts have been reluctant to accept
character of the defendant based on past conviction. This matter was discussed at
length in the case of:

Hollington v Hew thorn (1943) K.B 58

Facts: In an action arising out of a collision between two motorcars on the high
way the plaintiff alleged negligence on the part of the defendant driver, he sought
to give evidence of a conviction of the defendant of careless driving arising out of
the same facts in a criminal matter.

Issue: Whether the evidence of the conviction was admissible? Court said that
both on principle and authority evidence of conviction was inadmissible as being
res intarious acta (evidence of previous conviction in not admissible in civil action
for being contrary to justice) that the issues before court in the criminal action are
different from those in a civil action and it would therefore be improper to use
conviction in a criminal case to establish liability in civil proceedings. This particular
case has been strongly criticized not for the principles laid down but about the
decision in a particular case. It is as on principle that you cannot use a criminal
conviction to establish liability in civil proceedings. This was a traffic offence and
the decision has been highly criticized.

Character of Witnesses

It applies to both criminal and civil cases. Generally the character of the witnesses
is not material in both criminal and civil cases. However, the nature of the
adversarial system which we operate involves competition and for this reason
both sides strive to discredit the credibility of each other’s witnesses. Witnesses
are therefore usually subjected to serious searching and scrutiny to establish
whether they are telling the truth or not. A party to litigation is normally a witness
and as such is treated like any other witness. Under section 153, of the Evidence
Act permits a person who calls a witness to put any question to him or her which
might be put in cross-examination by the adverse party and under section 154 of
the Evidence Act the credibility of a witness may be impeached by calling
witnesses to testify that he is untrustworthy of credit. Under section 137 of the
Evidence Act witnesses to the opposite side may be discredited by bringing in
their bad character and this usually happens during cross-examination as provided
under section 137(2) of the Evidence Act, Where it is provided that the
examination and cross-examination must relate to the relevant facts, but the
cross-examination need not be confined to the facts to which the witness testified
on his or her examination in chief. A witness may be cross-examined as to his
veracity or credibility and it is during this time that evidence of bad character is
usually brought up. Under section 137(3) a party who calls a witness is allowed to
re examine his witness for the purpose of clarifying evidence he may have given
during cross-examination or to repair any damage which may have been done to
his credit. Evidence commending good character of the party’s own witnesses is
rarely led even though as going to the credibility of the witness. Although in
general evidence can be called to impair the credibility of a witness it is not led in
chief to booster up that credibility. Where evidence of character of an opponent’s
witness is led it is subject to conditions. The matter must be relevant at least to
the witness’s credibility and secondly the judge has the duty to prevent
questioning of an unduly offensive, vexatious or embarrassing character and also
should prevent oppressive cross-examination. This is provided for under sections
150 and 151 of the Evidence Act. Questions asked must be relevant not indescent
or scandalous and should not be intended to insult or annoy the witness. Under
section 148, courts can stop irrelevant questions.

Hobbs v Tinoign &Co. Ltd (1929) K.B 1

Held: Questions are proper only when the answers would seriously impair the
credibility of the witness and that they are improper if they relate to matters so
remote in time or of such character that if true, they could not seriously impair the
credibility of a witness.