THE LAW OF EVIDENCE

LECTURES BY DR. NANGELA

(In Form of Notes)

Semester One

Presentation za Nangela Katika Mfumo wa Notes

As Arranged by P. T. O.

© 2015 Dr. Deo John Nangela

 THE LAW OF EVIDENCE
LECTURE SERIES
Lecture 1 (17/11/2015)
Dr. Deo John Nangela ©2015
“Law cannot be properly understood without some knowledge of the context in which it
operates.”

LECTURE 1: HISTORICAL BACKGROUND TO EVIDENCE LAW

Development of Evidence Law in England
Adducing evidence is largely acknowledged as a rational means of connecting facts to and or
proving or disproving them in a dispute.
This was not the case in the past since, in England, as in many other parts of the world, e.g. many
irrational means were used as way of proving the alleged matters of fact. - Such means were
numerous. We can give some examples as follows:
• Trial by battle: Contestants fought out in a battle with a hope that God would interfere on the
part of the innocent. Thus, the one who lost the battle was proved to be guilty.
• Trial by ordeal :
(i) Touching a corpse: A suspect was told to touch a dead body, which it was believed it would
react in certain waywinking, pointing a finger, or oozing blood. If he refused then he was guilty.
(ii) Retrieving a stone: The accused was to retrieve a stone or ring from a pot of boiling water
and if his arm emerged unscathed (unharmed), he was considered to have been protected by God
and thus innocent.
(iii) Walking while carrying a heated iron: The accused walked nine paces while carrying a piece
of heated iron. If he emerged to avoid burns he was innocent.
NOTE: These crude methods of proving or disproving alleged matters of fact were discarded
with passage of time and others, like trial by battle, were abolished by a statute. In England, trial
by battle was abrogated by a statute only in 1817. New rules thus developed. rules thus
developed.
Some of the common law principles of evidence can be traced to the Middle Ages. However, the
majority of them, including the rule against hearsay, were developed in the 17th and 18th
centuries.
One notable feature of common law was that it consisted, and still consists, of many
exclusionary rules. Exclusionary rules: are rules declaring that certain facts will not be accepted
by courts: a certain facts will not be accepted by courts: a body of defunct rules about
competency of witnesses; the rule against hearsay; evidence of character; rule excluding
evidence of opinion, etc.
Three factors are said to have contributed to exclusionary nature of the English law of evidence:
– The jury
– The oath
– Common law adversary system of procedure.
However, the fear that evidence might be manufactured contributed to the development of many
other rules.
NOTE:
A jury is a sworn body of people convened to render an impartial verdict (a finding of fact on a
question) officially submitted to them by a court, or to set a penalty or judgment. Jurors are
essentially the judges of facts and not law.

Development in the Pre-Colonial Evidence Law in Tanganyika

The pre-colonial societies in Tanzania had no formal system of courts we know today. Disputes
were solved by certain clan or community elders, in a village, etc. community elders, in a village,
etc. Normally, every member of a clan or community had the right to attend any session of
solving disputes and participate in the proceedings. There were various methods of proving cases
in such dispute solving sessions.
Examples:
–Calling witnesses to give evidence on behalf of a party or any member present during the trial
could volunteer to give oral evidence on behalf of a party.
– A party could be compelled to take an oath as an indication that he is innocent. Failure or
refusal to take an oath was a good proof that he refusal to take an oath was a good proof that he
was guilty.
– Proof by Ordeal: Trial by ordeal entails determining the guilt or innocence through some
supernatural means or judicium dei (judgement by God).

Rex V. Palamba S/O Fundikira, 14 EACA 96 ( Tanganyika,1947)

The two appellants were jointly charged in the High court of Tanganyika at Kigoma.
They were found guilty of the murder of the woman Wamlunda d/o Kalyungumba and sentenced
to death. They appealed to The East African Court of Appeal.
The 1st Appellant had lost 11 Children. The two Appellants went to a particular medicine
man - a six hour journey-to get Mwavi.
On return they conducted what may be termed as a trial by ordeal. He made his two
wives, his mother and daughter to take Mwavi to find out whether they had not killed his
children.
The trial was organised and directed by the first Appellant. The four women of the family
were compelled to take this medicine and swallow large quantities of water – a certain amount of
formality being observed. The first Appellant presided with a gun and intimated to shoot anyone
who refused to take the medicine. Of the four women who took Mwavi, two vomited the four
women who took Mwavi, two vomited and survived; • the other two elder women did not vomit
and they died. Those who died were the first Appellant’s senior wife, Wamlunda d/o
Kalyungumba, and his mother.
When he was questioned about Mwavi, he said that Mwavi was a medicine (dawa) used
by witches. If a person takes Mwavi and he has done wrong, he dies, whereas if a person takes
Mwavi and he or she has done nothing wrong, he or she does not die but only vomits. •The
woman Wamlunda d/o Kulyungumba in respect of whose death the appellants were respect of
whose death the appellants were convicted of murder was the senior wife of the first Appellant
(Palamba Fundikira).
There was no evidence of what would constitute a fatal dose of Mwavi.
Development of law of evidence in India
• It is worth noting that our law of evidence in Tanzania is closely interlinked with India. That
being said we need to have some understanding about the development of law of evidence in
India.
• India was a colony of Britain. In 1726, the common law • India was a colony of Britain. In
1726, the common law and English statutes were introduced in India.
• Between 1835 and 1853, eleven attempts to enact a statute were made with a view to codifying
the law of evidence in India but all were found to be inappropriate to Indian conditions.
Successes were, however, recorded in 1872 when the Indian Evidence Act was passed
and came into force on 1st September 1872. The 1872 Indian Evidence Act codified the English
law of evidence with some modifications intended to make it suit to the modifications intended
to make it suit to the local circumstances. Consequently, the Act has some remarkable departures
from the English common law. The differences are that:
(i) Confession made to a police officer was not admissible. It showed distrust of the
Indian Police Force.
(ii) In England confession of an accused person was inadmissible as against anyone but
himself, but under the Indian Evidence Act 1872, confession could be admitted
against a co-accused.
(iii) Witnesses, as in England, may decline to answer questions that tend to incriminate
them. But witnesses in India may be corroborated by their own previous statements, if
made contemporaneously or before a competent authority.
(iv) Dying declarations as to the cause of death are admissible in India both in criminal
cases and civil suits, whether or not the declarant was in the expectation of death.
(v) There is no provision in the Indian Evidence Act that entries in the course of business,
to be admissible, as an exception to the hearsay rule, must be contemporaneous with
the act to which they relate.
(vi) The judge is permitted under Indian law to ask any question at any time and to insist
on production of any document, irrespective of the relevancy of the answer or
 admissibility of the document, although the judgment must be based on relevant the
judgment must be based on relevant facts properly proved.
Some of the above (not all) exceptions applied (and still apply) even in Tanzania (East Africa).

Evidence Law in East Africa

• In Uganda, the Evidence Act was drafted locally in 1909 and did not apply the Indian Evidence
Act 1872 but it reproduced verbatim the Indian Evidence Act 1872 except variations of sections
Act 1872 except variations of sections and few other provisions.
• In Zanzibar, the Indian Evidence Act 1872 was previously applied but subsequently the British
colonial government issued a Decree which promulgated the Evidence Decree, 1917 which of
course reiterated the Indian Evidence Act, 1872.

 In Tanganyika: The Indian Evidence Act 1872 was made applicable to Tanganyika in
December 1920 through the Tanganyika Indian Acts (Application Ordinance) until 1967 when
the Evidence Act was enacted. The Act is a statute in pari materia with the Indian Act.
NOTE:
(i) There have been significant changes to the Act since 1980 to date but most its provisions are
still in pari materia to the Indian Act.
(ii) The Tanganyika Order in Council 1920, which was the first Constitution, created the High
Court in its section 17 (1). Section 17 (2) of that Constitution enumerated laws that were to be
applied by the High Court, to wit: Civil Procedure, Criminal Procedure and Penal Codes of India,
other applied Indian Acts, Tanganyika Ordinances, substance of the common law, equity and
statutes of general application. By virtue of the aforesaid provision, the Indian Evidence Act
1872 and other Indian pieces of legislation were made applicable to Tanganyika.
Thus the Indian Evidence Act 1872 was also applicable by virtue of section 17(2) of the TOC
1920.

Evidence Law in Tanganyika after independence

• Whereas the application of Indian penal and Indian penal and criminal procedure codes were
discontinued in 1930 criminal procedure codes were discontinued in 1930 and replaced by local
codes, the Indian Evidence Act 1872 continued to be applied during the whole period of British
colonialism. during the whole period of British colonialism. It continued to be applied even after
independence.
• In 1967, Parliament enacted the current Evidence Act, 1967 [now Cap 6 RE 2002]. The Act is
almost a replica of the Indian Evidence Act 1872with minor changes.
The history above is important in so far as interpretation and understanding of the
provisions of the Act are concerned. The courts in Tanzania, and indeed in all East African
countries, have established a tradition of adopting interpretations put by Indian courts on similar
provisions. Such Indian decisions though not binding are of great persuasive though not binding
are of great persuasive value. Again, for the same reasons there is a pronounced use of Indian
textbooks on the law of evidence. E.g. Sarkar On Evidence or Monir, M., (1994), Law of
Evidence, 5th ed., The University Book Agency, Allahabad.

GENERAL OVERVIEW OF THE LAW OF EVIDENCE

Lecture 2 24/11/2015
In the previous lecture we alluded to the fact that; “Law cannot be properly understood
without some knowledge of the context in which it operates.” Indeed, just as the student of
commercial law needs to understand something of what is commercial law needs to understand
something of what is involved in ordinary commercial transactions, so the student of evidence
needs some understanding of what is involved in ordinary processes of proof.
In this topic we will continue and look at the processes relating to Proof. Later we will
look at a more traditional topic: the definition of ‘evidence’. Next, point of discussion contains a
short glossary of some of the technical terms commonly encountered in studying evidence. The
fourth we will discuss some key concepts frequently used in this subject: relevance, admissibility
and weight. These are fundamental to the consideration of all aspects of our subject. Then, fifth
point will discuss some characteristics of evidence law which it is helpful to appreciate at the
outset: its limited application and the way in which it is constructed. We, will however begin by
defining what is law?
What is law?
One commentator is quoted of saying: ‘obviously law can never be defined.” (see: M.D.A.
Freeman, (2001), Lloyd’s Introduction to Jurisprudence , 7th ed., Sweet & Maxwell, London,
p.39. Austin: “Law is a command of the sovereign.” (Even so this definition has sovereign.”
(Even so this definition has been criticised).
Cater: Law is “a body of rules for regulation of human conduct.” (James Carter, (1907), Law: Its
Origin, Growth and Function. G.P. Putnam’s Sons, New York and London, p.7.)
So there is no agreed definition of law.
The entire corpus juris (body of laws) is broadly categorised into two:
(i) Substantive laws
(ii) Adjective (procedural) laws.

Law of Evidence
The law of evidence is that branch of the law that regulates production and admissibility of
evidence in judicial and other proceedings.
Substantive rules: stipulate rights and duties of individuals.
Procedural rules or adjectival law: consists of rules that are used to enforce private or public
duties and enforce private or public duties and the public discipline: writs, process, trials,
judgments, executions, and so forth. Thus, the Law of Evidence belongs to the
adjective/adjectival or procedural law.
Evidence and Proof
Proof is the establishment of the existence of some fact to the satisfaction of the tribunal charged
with the duty of trying the matter under controversy.
In 1910 one Dr. Crippen was charged with the murder of his wife.According to the
prosecution, Crippen had fallen in love with his young secretary, Ethel Le Neve, and had decided
to kill his wife to leave himself free to marry Ethel. One night, therefore, he put poison in a glass
of stout – his wife’s regular nightcap. The poison might have been sufficient to kill her, or it
might merely have made her unconscious.
At any rate, by the time Crippen had finished with her she must have been dead, because
he drained the blood from the body, dissected it, and separated the flesh from the bones. He
buried the pieces of flesh in the cellar of the house where they lived. The bones and the head
were never found; it was assumed that they had never found; it was assumed that they had been
burned. To explain his wife’s absence, Crippen at first told her friends that she was staying with
her sister in America; later he said that she had died there.
When the police began to make inquiries, he told them that his wife had left him and that
he had been too embarrassed to tell the truth to friends and neighbours. -Crippen had not yet
been arrested, and shortly after his interview with the police shortly after his interview with the
police he hurriedly left the country with Ethel Le Neve. Meanwhile, the police dug up the cellar
floor and discovered the human remains buried there. Crippen was followed and brought back to
stand trial.
Imagine yourself now in the position of a lawyer for the prosecution in that case. You know, of
course, what constitutes murder in law.
a) Given these facts and that law, what had to be established before a jury had to be
established before a jury could find Crippen guilty of murder?
b) What should be the first thing to prove?
c) What other facts that needed to be established given the story?
The first thing that had to be proved was that Mrs Crippen was dead.
Since Crippen had maintained when questioned by the police and later at trial that his wife had
left him and that he knew nothing of the remains in the cellar, the other thing to prove is whether
the remains found in the cellar were those of Mrs Crippen.
They also had to show that it was her husband who had killed her and that he had done so
intentionally.
This meant they had to prove that Mrs Crippen had died from poison administered by the
accused with the intention of causing her death.
 OVERVIEW OF THE LAW OF EVIDENCE (Continued)
Lecture 3 1/12/2015
Consider the following figure:
1
5 4 3 2
•Number 1 is ‘the thing that has ultimately to be proved.’ i.e., Dr Crippen murdered his wife
(Wigmore calls it: “ultimate probandum”).
Number 2- 5 inclusive represents what Wigmore called “penultimate probanda”. In other words:
These are the propositions which, taken together, go to prove the “ultimate probandum”. They
include:
•No.2 - that Mrs Crippen was dead.
•No. 3 - Poison had caused her death.
•No.4 - Dr Crippen had administered the poison.
•No.5 - He had done so with the intention of causing death.
You must note that:
Unless there was some evidence to support each one of the penultimate probanda, a defence
submission that there was no case to answer would have been likely to succeed.
Proof is made by establishing several sets of inferences which ultimately converge on item 2.
Each set of inferences rests on a foundation.
There are three types of foundation on which sets of inferences can be based:
–The testimony of a witness at trial, e.g. the testimony of the forensic scientists (expert)
–An item of ‘real evidence ’, i.e., something which the jurors can examine something which the
jurors can examine for themselves. E.g. a piece of flesh collected with the other pieces from the
cellar and said by the prosecution to bear an identifying scar.
–A generalisation about the way things are in the world.
All three types of foundation have in common the fact that the members of the jury rely
on their own perception for experience of them. The jurors can see and hear the witnesses giving
oral evidence in the witness box. They are able to see the items of real evidence. They rely on
their own previous perceptions, that is, their experience, when deciding whether or not to accept
the truth of a proposed generalisation.
 If they recognise it as something that is either already part of the way in which they
understand the world, or as something that at least fits with their understanding, they are likely to
accept it. Otherwise, it is likely to accept it. Otherwise, it is likely to be rejected. Just as a set of
inferences is based on a foundation, so each inference in the set is based on those immediately
below it.
This basing relationship is hard to define, but for these purposes it will be enough to say
that a basing item, often taken in conjunction with other items of evidence, makes another item
in the chain of proof to some degree likely. E.g., if you probably feel instinctively that once it is
established that a piece of the abdomen bore the mark of an operation scar, and that Mrs Crippen
had an operation scar on her abdomen; it is likely that the remains came from the body of Mrs
Crippen.
The significance of an item of evidence lies in the fact that it makes a particular inference
either more or less likely to be true. E.g. The prosecution needed to show that the remains found
in the cellar were those of Mrs Crippen. The hope here is to establish this by proving that Mrs
Crippen had an operation scar on her abdomen and that an identical scar was to be found on one
of the pieces of flesh found by the police expert called to that establish that fact.
BUT, the defence can counter it as well by calling expert evidence to the effect that the
mark on the flesh was not a scar, but a fold that had developed after burial. So, whether the jury
accepted the truth of the inference represented by that item inference represented by that item
(piece of flesh with a scar) would depend on which expert they found the more persuasive.
The above analysis is one way of thinking methodically about the facts of any case in
which you, as a lawyer, may be instructed. As an advocate and a State Attorney, you must be
able to ensure, so far as possible, that your client has available all the evidence needed to
establish or rebut a claim. You have to be aware of the strength but also weaknesses in your own
case and in that of your opponent.
You may ask: Does too much depend on the evidence of one witness? What grounds
might there be for questioning that person’s reliability? As it will very rarely be the case that one
particular inference must inevitably be made from certain facts; what other possible inferences
might be made which would do your client less damage or your opponent more harm?
To what extent are you or your opponent relying on the truth of hidden and hitherto
unconsidered generalisations about the way things are in the world as the basis for making
inferences?
So having referred to the term “Evidence”, what does this term mean?
Defining the term “Evidence”
There have been several attempts. For instance “Evidence” is regarded as:
‘That which makes evident a fact to a judicial tribunal’
‘Information by which facts tend to be proved’ proved’
‘Any material which tends to persuade the court of the truth or probability of some fact asserted
before it’
‘Something which may satisfy an inquirer of [a] fact’s existence’
In our law, the term evidence has been defined under section 3 of The Evidence Act, [Cap 6 RE
2002] as follows;
“’Evidence’ denotes the means by which an alleged matter of fact, the truth of which if
submitted to investigation, is proved or disproved; and without prejudice to the preceding
generality, includes statements and admissions by accused persons.”
One author defines “Evidence” simply to mean: “anything, which is necessary to prove a
particular fact. It could be oral testimony, i.e., by the words of mouth, production of document or
presentment of anything like document or presentment of anything like the instrument or
weapon, which is used while committing a crime, etc. In other words, evidence is the means of
proof.”
Another, D.W. Elliot said: “evidence is anything which tends to persuade of the existence or
non-existence of some fact or situation which he is inquiring about. It need not in fact persuade
the inquirer; it is enough that it tends to persuade him. The inquirer may disbelieve it or prefer
other contrary evidence which he finds other contrary evidence which he finds more persuasive.
But anything, which, if accepted would tend as a matter of logic to render it more probable than
before the inquired about fact or situation exists or does not exist is evidence.”
The above explanations are useful to a point but the term evidence is context specific as
well. It can thus be used in different ways. Consider the following statements:
1. ‘In August of last year, Nduto, according to the evidence, made a statement to his mother
about the unhappy life of Mrs Thom.’
2. ‘The damp mud on his boots was evidence that he had left the house earlier that evening.’
3. ‘“You must not tell us what the soldier, or any other man, said, Sir, “interposed the judge,
“it’s not evidence”.’
Notes:
In the first of these examples, ‘evidence’ was used to refer to what had been said in court by one
or more witnesses.
In the second, ‘evidence’ referred to a relationship of relevance between the fact of there being
damp mud on boots and the fact that he had left the house earlier the fact that he had left the
house earlier that evening.
In the third example, ‘evidence’ was used in a restricted sense to cover only those legally
admissible things that a witness could say in court.
As lawyers, you will be concerned with evidence in all these senses.
You may have to advise on what information should be obtained from potential witnesses to
substantiate or rebut a claim at trial.
You may have to challenge the evidence of an opponent’s witness on the basis that it is
irrelevant, or construct an argument to irrelevant, or construct an argument to demonstrate the
relevance of what your own witnesses have to say.
You may have to consider whether the law permits an admittedly relevant item of information to
be given in evidence, or whether the item is caught by some rule or principle of exclusion.

KINDS OF EVIDENCE AND GLOSSARY OF SOME OF THE TECHNICAL TERMS

COMMONLY USED
Lecture 4 08/12/2015
Kinds of Evidence and Glossary of some of the technical terms commonly Used:
Oral evidence: Means all statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under relation to matters of fact under inquiry. This
definition has been amended recently through the Written Laws (Miscellaneous Amendments)
Act, 2011. It now reads as follows:
“Oral Evidence”: Means all statements which the court permits or requires to be made before it
by witnesses, being physically present at the time of making the statement or by use of other
means of communication use of other means of communication including teleconference or
video conference in relation to matters of fact under inquiry. Thus it may be made: Orally, in
writing; or by signs and gestures.
Real evidence: Means material objects or physical things which may be presented to the court.
Opinion evidence: Evidence based on inferences (mental impressions) is, for the purpose of the
law of evidence, called opinion.
Documentary evidence: The phrase “documentary evidence” is defined by section 3(1) of the
Evidence Act [Cap 6 RE 2002] to mean “all documents produced as evidence before the court.”
It is evidence in a written form which includes conventional symbols that may be includes
conventional symbols that may be used to prove or disprove a certain fact in issue or relevant
fact. According to Elliot, Documentary evidence consists of documents produced for inspection
by the court.
Direct evidence: It is the testimony of a witness as to the existence or non existence of a fact or
fact in issue. It is opposed to circumstantial evidence. In relation to section 62 of the Act, it
means facts perceived by a witness by his or her own senses. In this sense, it does not exclude
circumstantial evidence.
Circumstantial evidence: It is a testimony of a witness to other facts (relevant facts) from which
the fact in issue may be inferred. It is evidence which tends to prove factum probandum
indirectly. It is also called “presumptive evidence.”
In the case of Makame Junedi Mwinyi v. SMZ [2000] TLR 455 at 463C-E, Tumaka D/CJ said:
“What is circumstantial evidence? Simply put, theses are circumstances in the form of evidence
which enable a court to reasonably infer or conclude the existence or non-existence of a fact in
issue or the guilt of an accused person…”
E.g. Suppose A is charged with the murder of B. At the trial, a witness (C) may give evidence on
behalf of the prosecution that he saw A stab B. Another witness (D), states that he saw A running
away from a place where B’s corpse A running away from a place where B’s corpse was found,
with a blood stained knife in his hand. The evidence given by witness (C) is direct while the one
given by witness (D) is “circumstantial.”
Hearsay evidence: Oral or written statements made by persons who are not parties and who are
not called as witnesses which are inadmissible to prove the truth of the matters stated. Sometimes
it is called unoriginal, derivative or indirect is called unoriginal, derivative or indirect evidence.
Original evidence: is the evidence of a witness who deposes to facts of his own knowledge.
Best evidence: the so-called best evidence rule precludes the production of inferior evidence if
the best evidence could be produced.
Inferior evidence: inferior evidence is that which suggests that better evidence might be
available, e.g. a copy of a document which suggests that somewhere the original exists, or a
description of an object by a witness when the object could be produced for inspection.
Primary and secondary evidence: The terms are used in relation to the documentary evidence.
Primary evidence of a document is its original whereas the secondary evidence refers to a copy
or oral explanation of a document. Section 64(1) of the Evidence Act provides thus, “Primary
evidence means the document itself produced for the inspection of the Court.” See section 65 on
the “secondary evidence.”
Corroborative evidence (corroboration): Although it has been said that “corroboration” is not a
technical term, but simply means “confirmation” or “support”, it remains the case that in order to
amount to “corroboration” evidence must emanate from a source independent of the witness to
be source independent of the witness to be corroborated and must implicate the accused in the
material particular.
In Makame Junedi Mwinyi v. SMZ [2000] TLR 455 at 463F, Tumaka, D/CJ remarked thus
“corroboration is simply independent evidence which supports or confirms as true, the principal
evidence.”

RELEVANCY AND ADMISSIBILITY

Lecture 5 15/12/2015 (Recap)
The Concept of Relevancy/ Relevance
(i) “Relevancy” defined
The word “relevancy/relevance” is not defined in the Act. Instead, the Act defines
another related word “relevant”. Section 3 of the Act defines the word “relevant” thus, of the Act
defines the word “relevant” thus, "relevant" in relation to one fact and another, means the one is
connected with the other in any of the ways referred to in the provisions of this Act relating to
the relevancy of facts.
• Relevancy is a relationship between one fact and another wherein, according to the rules
of logic and the common experience of men, the existence of the one renders probable the
existence or non-existence of the other. D.W. Elliot, (1987), Elliot and Phipson Manual
of the Law of Evidence, 12th ed., Sweet & Maxwell, London, p.10.
• A fact which is not actually in issue but it is in relationship with a fact in issue is a
relevant fact.
Relevancy is not a legal concept, being rather one of logic and common sense, but the law insists
on its presence, by ruling that all irrelevant facts are inadmissible.
In the English case of DPP v Kilbourne [1973] AC 729 at 759, the court had the following to say
as regards the term “relevancy”:
“Evidence is relevant if it is logically probative or dis-probative of some matter requires the
proof more or less probable.”
The word “probative” means having tendency of proof. Evidence is said to have probative value
if it tends to prove or disprove an issue. In other words, evidence is probative if it is sufficiently
useful to the court in deciding a certain matter in controversy.
Adrian Keane: “relevance is a question of degree determined, for most part, by common sense
and experience.”
Thus when one talks of relevancy/relevance, in the context of law of evidence, he or she is
simply context of law of evidence; he or she is simply referring to the logical connection or
relationship of facts. Nothing more, nothing less!
(ii)Fact Defined
From the above definition, relevancy is defined in terms of facts. But what does the term fact
mean?
The English academic and philosopher, Jeremy Bentham, classifies facts as either; Physical or
Psychological facts, (or, to use another terminology, internal or external)
Physical or external facts: are those which can be perceived by the senses externally.
Psychological or internal facts: are those which cannot be perceived by the senses.
In drafting the Indian Evidence Act 1872, the Select Committee had the following to state:
“All rights and liabilities are dependent upon and arise out of facts, and facts fall in two classes,
those which can, and those which cannot, be perceived by the senses. Of facts, which can be
perceived by the senses, it is superfluous to give examples. Of facts, which cannot be perceived
by the senses, intention cannot be perceived by the senses, intention, fraud, good faith, and
knowledge may be given as examples. But, each class of facts has, in common one element,
which entitle them to the name of a facts ─ they can be directly perceived either with or without
the intervention of senses.”
The Evidence Act thus defines “fact” in the way that reflects the above classification:
 Anything, state of things, or relation of things, capable of being perceived by the senses;
senses;
Any mental condition of which any person is conscious;
(iii)Fact in issue defined
Another closely related concept is a “fact in issue”. In simple words, it is a fact which is
asserted by one party but denied by the other. The Evidence Act defines “fact in issue” thus: “any
fact from which, either by itself or in connection with other facts, the existence, non-existence,
nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding,
necessarily follows.”
D.W. Elliot, (1987), Elliot and Phipson Manual of the Law of Evidence, 12thedn, Sweet &
Maxwell, London, p.10: “A fact in issue is one which is directly in contention between parties i.e.
one which the plaintiff (or prosecutor) must establish to win his case, or which the defendant
must establish to succeed in some defence which is open to him.” succeed in some defence
which is open to him.”
Illustration:
A is tried for the murder of B by beating him with a club with intention of causing his death. At
A’s trial the following facts are in issue:
• A’s beating B with the club;
• A’s causing B’s death by such beating;
• A’s intention to cause B’s death.
(iv)Principal and Evidentiary Facts
Tapper notes that if the law is to require all claims to be proved by direct evidence, then
many claims would fail for lack of proof. At some stage, resort almost always has to be had to
‘circumstantial evidence’ which may be defined as any fact (sometimes called an defined as any
fact (sometimes called an ‘evidentiary fact’, ‘factum probans’ or ‘fact relevant to an issue’) from
the existence of which the judge or jury may infer the existence of a fact in issue (sometimes
called a ‘principal fact’ or ‘factum probandum’).
Thus, the fact sought to be proved is called the ‘principal fact’ (or factum probandum).
But other facts which are proved in order to establish the factum probandum are called
“evidentiary facts” (factum probans) or collateral “evidentiary facts” (factum probans) or
collateral facts.
Conclusion
Relevancy thus, connotes connectivity of facts. This connectivity is largely governed by logic
and experience of human life.
 The Concept of Admissibility
The term “admissibility” is nowhere defined in the Act. It generally refers to the principles that
determine whether or not or particular fact or evidence may be received by the court or not.
Admissibility of facts is, for the large part, dependent on relevancy. Thus “relevancy” is the test
of admissibility. It means that in order for a certain fact to be admissible in evidence, it has to be
“relevant.”
Generally, for a fact to be admissible it has to be:
(i) Relevant
(ii) Declared relevant (admissible) by the law of evidence.
However, relevancy is not the only test of admissibility. Thus, not every relevant fact is
admissible in evidence.
Some facts which are admissible in evidence
Some facts which are relevant are excluded by the law. For instance, hearsay, evidence of
character, etc. are excluded by the law although they may be relevant to the fact in issue. These
facts are excluded on account of a certain policy or that they are remotely connected to the fact in
issue.
Other relevant facts excluded are privilege relating to official records Act, section 132,
information regarding commission of offences, section 133, professional communication, section
134.
Again, though admissibility is largely dependent on relevancy, sometimes the law
declares certain facts which are otherwise irrelevant as admissible. Such facts are admissible for
certain purpose.
Facts admissible under the following sections of the Evidence Act are irrelevant but are
admissible for certain purposes.
Section 11 (facts necessary to introduce the fact in issue); Section 13 (facts which are irrelevant
but become admissible for some purpose);
Section 14 (facts that may assist the court to determine quantum of damages);
Section 155 (Questions lawful in cross-examination); irrelevant questions may be asked and a
witness compelled to answer;
Section 164 (Impeaching the credit of a witness); irrelevant questions or facts may be adduced.
While “relevancy” is controlled by logic or human experience, “admissibility” is governed by
law. As it is stated in Sarkar, “What is legallyreceivable is admissible whether it is logically
probative or not. For all practical purposes ‘relevant’ [as used in the Indian Evidence Act, 1872]
means what is legally admissible in evidence. Evidence which is legally admissible should be
received by the court, unless there is any legal reason for its rejection. Again, if evidence is
admissible on one ground, it will not be rejected because on some other ground it would be
inadmissible[R v. Bond, 1906 2 KB 389, pp. 411,412, per Jelf, J].”

ADMISSIBILITY OF FACTS UNDER SECTION 7 OF THE ACT

Lecture 6 15/12/2015
Section 7 of the TE Act is a general provision on the admissibility of facts in the Act. It
provides that: ‘Subject to the provisions of any other law, evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in issue, and existence or non-
existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant,
and of no others.’
• This provision may be divided in three parts for ease of discussion.
1. subject to the provisions of any other law
2. evidence may be given in any suit or proceeding, of; (a) the existence or non
existence of every fact in issue, (b) the existence or non existence of such other facts
hereinafter declared relevant
3. and of no others.
1. “Subject to the provisions of any other law”
This phrase indicates that the Evidence Act is not exhaustive in so far as the law of evidence is
concerned. There could be other laws that regulate production of evidence in judicial or other
proceedings. E.g.:
(a) The Criminal Procedure Act, [Cap 20 RE 2002] regulates the order of production of
evidence.
(b) The Civil Procedure Code, [Cap 33 RE 2002] is another law that regulates some evidential
matters—the order of giving evidence, affidavits, discovery and inspection, framing of issues,
admissions, etc.
(c) Also section 8 of the Notaries Public and Commissioners for Oaths Act, [Cap 12 RE 2002]
regulates affidavits.
2. What sorts of facts are to be proved or evidence is to be given?
Part two of the section tries to answer this hugely important question. According to it
only two types of facts are to be given: (i) facts in issue, and (ii) other facts as declared relevant
by section 8 (ii) other facts as declared relevant by section 8 et sequente. Thus, all facts which
are directly in issue are admissible under section 7 of the Act but other facts which are collateral
to the facts in issue are admissible under section 8 of the Act et sequente.
2. “Of no others”
This means that section 7 excludes everything which is excluded by the purview of other
sections that follow in the Act. All evidence tendered must, therefore, be shown to be admissible
under this or some other of the provisions of sections that follow, or the provisions of sections
that follow, or provisions of some other statute, or one which will be enacted after this Act.
What is the object of section 7 of TEA?
The object of this section is to limit or restrict the scope of judicial investigation to certain
boundaries beyond which it cannot go.
The maxim Frustra probatur quod probatum non relevant (it would be frustrating and disgusting
to prove facts which are irrelevant).
General comments:
It should be remembered that the whole chapter one of the Evidence Act [Cap 6 RE 2002] is
dedicated to relevancy facts: including part one which is titled “General” together with
succeeding parts on admissions, confessions, statements by persons who cannot be called as
witnesses statements under special witnesses statements under special circumstances; extent to
which statement is to be proved; relevancy of judgments; relevancy of opinions of third persons;
and relevancy of character, are all concerned with relevancy of facts.
The use of the word “relevant” in the Act The word “relevant” is used in the Evidence Act in two
different senses: (i) one fact connected to another (i.e. relevant), (ii) admissible
Admissibility of a fact depends on whether it is declared to be relevant. For the reasons best
known to themselves the framers of the Indian Evidence Act 1872 deliberately decided not to
employ the term “admissible” but instead used the term “relevant.”
For instance, section 13 says “When facts not otherwise relevant (1) become relevant (2).”
The other way of stating this is “When facts not otherwise relevant become admissible.” Thus,
the word “relevant” (numbered 1) means connected (or relevant in the natural meaning of that
word) but the second one (numbered 2) means “admissible.”

RELEVANCY OF FACTS CONNECTED WITH THE FACT IN ISSUE

(Sections 8 ─ 18 of the Evidence Act, (Cap 6 RE [2002])
It was stated that section 7 is a general provision on the relevancy and admissibility. It
restricts facts admissible to (i) facts in issue, and (ii) relevant facts (collateral facts). The first
category is admissible under section 7. Sections 8 to 18 (and subsequent sections) deal with the
second category.
Sections 8 ─18 thus, deal with relevant facts or facts which are connected with the fact in
issue. They are called “collateral facts”, for they are connected with the fact in issue by way of
Induction.
 SECTION 8: RELEVANCY OF FACTS FORMING PART OF SAME TRANSACTION
This provision provides thus, ‘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.’
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or
the (C) (a bystander) at the beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact.
(b) A is accused of waging war against the Government of Tanzania by taking part in an
armed insurrection in which property is destroyed, troops are attacked and jails are
broken open. The occurrence of these facts is relevant, as forming part of the general
transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the subject out of which the libel arose, and forming part
of the correspondence in which it is contained, are relevant facts, though they do not
contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods
were delivered to several intermediate persons successively. Each delivery is a relevant
fact.
The Principle of Res Gestae
Evidence admissible under section 8 of the Act is what is known as “res gestae” under
the English law. The word “Res gestae” (singular) or “res gesta” (plural) is a Latin word which
means “things done.” Although the literal meaning of that term means “things done”, it is used in
the law of evidence to include “words spoken”.
It has been stated that: “Under the inclusionary common law doctrine of res gestae, a fact or a
statement of fact or opinion, which, is so closely associated in time, place and circumstances
with some act or event, which is in issue, that it can be said to form a part of the same transaction
as the act or event in issue, is itself admissible in evidence.”
Transaction
The law says that res gestae are facts closely related to the fact in issue as to “form part of the
same transaction”. What is a “transaction”?
Sir James Stephen, in Article 3 of his Digest of the Law of Evidence, defines a transaction in the
following words:
“A transaction is a group of facts connected together as to be referred to by a single legal
together as to be referred to by a single legal name, as a crime, a contract, a wrong, or any other
subject of inquiry which may be in issue.”
THUS: In order to determine whether facts form part of the same transaction, the following
aspects must be taken into account:
 (i) Proximity (i.e. nearness) of time,
(ii) unity of place,
(iii) community of purpose or design, and
(iv) Continuity of action.
Res gestae and hearsay evidence
Res gestae is taken to be an exception to the hearsay rule. As a general rule, hearsay evidence
(i.e. evidence which is not direct) is not admissible as per section 62 of the Act unless it falls
under one or more of the recognised exceptions to the rule. A statement made by a person at the
time when the fact in issue was in process may be produced by another person as res gestae in
evidence as an exception to the rule against hearsay. The case of Kamara (orSusu) v. R. (1950 –
56) ALR 309 cited below is a good elaboration of this point.
Rao states as follows: “The remarks made by persons other than the eye-witnesses could only be
hearsay, because they must have picked the news from others. Hearsay evidence of statement by
a bystander as to the occurrence would be admissible as a part of res gestae only, if it was made
at the time of the transaction was taking place, or so shortly before or after it, as to form part of
the same transaction. If the transaction has terminated when the statement was made, it would be
irrelevant. irrelevant. A statement made by a bystander shortly after the incident in relation to the
same transaction, would be admissible in evidence, provided, it is made in conditions of
involvement or pressure or is forced out of him by the excitement or emotion generated by the
event perceived by him ie by way of psychological reaction to the incident without there being
such interval of time as to permit reflection or concoction.”
Rationale
Lord Normand in Teper v. R. (1952)2 All ER 447 at 448, stated the following : “It [Res gestae]
appears to rest ultimately on two propositions — that human utterance is both a fact and a means
of communication, and fact and a means of communication, and human action may be so
interwoven with words that the significance of the action cannot be understood without the
correlative words and disassociation of the words from the action would impede discovery of
truth.”

Some decided Cases on Res Gestae

Teper v. R. [1952]2 All ER 447
“To qualify as res gestae, it is essential that the words sought to be proved, if not absolutely
contemporaneously with the act or event, at least should be so clearly associated with it that they
are part of the thing being done, and that they are part of the thing being done, and so an item or
part of the real evidence and not merely a reported statement….There must be unity of place,
time, purpose, design as qualifiers of contemporaneity of the transaction.”

Rex v.Beddingfield (1879) 14 Cox CC 341

In this case a woman came out of a room entered by the accused a minute or two holding her cut
throat and said, “Oh aunt, see what Beddingfield has done to me”. Shortly thereafter she died. In
the trial of the accused this statement was sought to be introduced in evidence as part of res
gestae but introduced in evidence as part of res gestae but Cockburn, CJ refused. He gave
reasons for refusal to admit it in evidence when he said: “for it was not part of anything done, or
something said while something was being done, but something said after something done.”
Commentators and other judges have, however, criticised this decision saying that it applied the
doctrine of res gestae too strictly.
For instance, in Ratten v. R. [1972] AC 378 (PC), Lord Wilberfoce said, “though in a (PC), Lord
Wilberfoce said, “though in a historical sense the emergence of the victim could be described as
a different “res” from the cutting of the throat, there could hardly be a case where the words
carried more clearly the mark of spontaneity and intense involvement.”
Indeed, the statement in Beddingfield’s Case was so immediate in point of time (made after just
one minute or two) to the fact in issue and therefore it should have been admitted. admitted.
•What do you think? Was this decision correct in view of our law considering illustration (a)
above?

R. v. Premji Kurji (1940)7 EACA 58

In this case, the Counsel (Mr Ishmael) for the appellant (Premji Kurji) objected to admission of
evidence of one Jamnadas. The facts were that the appellant killed the deceased who was the
brother of Jamnadas. Before killing the deceased the appellant had wounded Jamnadas who was
working in his brother’s (deceased) shop. The deceased was in the godown of the shop nearby.
After wounding Jamnadas the accused is alleged to have said, "I have finished you and am going
to show your brother" or according to another witness, Tulsidas, "I am going to finish your
brother". Immediately afterwards the accused was seen at the go down standing over the
deceased dagger in hand.
Held: “the two occurrences are so closely interconnected that the wounding of the deceased's
brother must be regarded as part of the res gestae on the trial of the appellant for the murder of
the deceased.”
Thus: “when two acts of an accused are so interwoven as to form part of the same transaction it
is not proper to shut out evidence of one of the interwoven as to form part of the same
transaction it is not proper to shut out evidence of one of the acts even though it may involve
introducing evidence of the commission of another offence by the accused. The prosecution is
entitled to put forward their whole story, otherwise it may be quite impossible properly to
appreciate the nature of and reasons for the act in respect of which the accused is being charged.”

R. v. Christie (1914) AC 545

Christie was convicted of indecent assault of a small boy. The boy described the assault and
identified the prisoner but he was not questioned as to a previous identification nor was he cross-
examined. The boy’s mother then gave evidence that, shortly after the act gave evidence that,
shortly after the act alleged, she and the boy went towards the prisoner, and the boy said, “That is
him” describing the assault. Christie the said, “I am innocent.” Was this Resgestae?
• Held:
(i) The boy’s statement was so separated by time and circumstances from the actual commission
of the crime that it was not …. admissible as part of the res gestae.
(ii) The statement was admissible as part of an act of identification.

Kamara (or Susu) v. R. (1950 – 56) ALR 309

This is a Sierra Leonean case. The appellant was convicted of murder on the strength of evidence
of one person who heard the words uttered by the deceased while the crime was actually being
committed and another who actually being committed and another who heard her dying
declaration. On appeal to WACA (West Africa Court of Appeal) it was considered whether the
evidence was admissible.
The facts were that the witness heard this statement which was made by the deceased: “Sister
Posseh, although you are going, Susu is killing me.” The witness was scared; she did not return.
She ran away to narrate what she heard to other people. Later on, the deceased came out holding
her gut and cried before another witness: “my husband has killed me.” • Held: “In our opinion
the statement alleged by witness “In our opinion the statement alleged by witness Posseh, to have
been made by the deceased while the crime was actually being committed was admissible as part
of res gestae; and …. that the statement that she is alleged by the Town Chief to have made ─
“my husband has killed me” ─ was admissible as a dying declaration.”

O’Hara v. Central SMT Co. Ltd 1941 SC 363, 2nd Digest Supplement
In this case, which was a civil action, the event was injury to a passenger brought about by a
sudden swerve of the omnibus in which was travelling. The driver of the omnibus said in his
evidence that he was forced to swerve by a pedestrian who hurried across his path. Hearsay
evidence of what was said by a man on the pavement at the scene of the said by a man on the
pavement at the scene of the accident as soon as the injured party had been attended was held to
be admissible in corroboration of the driver’s accident. But what was said twelve minutes later
and away from the scene by the same man was held not part of res gestae.
Noor Md v. Imtiaz, A 1940, O.130 (Indian case)
It was stated that: “The declarations are admitted when they appear to have been made under the
immediate influence of some principal transaction, relevant to the issue and are so connected to
it. It should appear that they connected to it. It should appear that they were made without
premeditation or artifice and without a view to consequences, that they are the spontaneous
utterances and the natural result of the act they characterise or elucidate.”
Please read the following cases at your own time:
R. v. Premji Kurji (1940)7 EACA 58
RamadhaniIsmail v. The Crown, 7 Z.L.R. 36
R. v. Andrew [1987] 1 All ER 513 –this being a modern case where the House of Lords
discussed the doctrine of res gestae in detail [a must read case].
The following are thus conditions for Res Gestae application under Section.8:
(a)The Statement must explain, elucidate or characterise the incident in some manner. (See R.v.
Bedingfield (1879) 14 Cox C.C. 341) or R. v. Premji Kurji (1940) 7 EACA 58)
(b)The Statement must be spontaneous or contemporaneous, but not a mere narrative of a
completed past event. (See R. v. Christie [1914] AC 5450)
(c)The statement must be a statement of fact and not of (c) The statement must be a statement of
fact and not of opinion.
(d)The statement must have been made either by a participant in the act or by a person who has
himself witnessed the act.
(e)The statement made by the bystander would be relevant only if it is shown that he was present
at the time of the happening of the event and witnessed the same.

Case Studies
Omuroni v Uganda [2002]2 EA 531
AlleyAli and another v. R. [1973] LRT n. 43
Abdul Muganyizi v. R. [1980] TLR 263
ProtasJohn Kitogoleand Anotherv. R. [1992] TLR 51
Dhalayv. R. [1995-1998]1 EA 29
Nathaniel Mapunda and Benjamin Mapunda v. R. [2006] TLR 395
Ahamadi Chali v. R. [2006] TLR 313
R. v. Betram Mapunda and another [1999] TLR 1
R. v. Kerstin Cameron [2003] TLR 84

SECTION 9: FACTS WHICH ARE THE OCCASION, CAUSE OR EFFECT OF FACTS IN ISSUE

LECTURE 7 22/12/2015
Section 9 of the TEA, 1967 provides thus, ‘Facts which are the occasion, cause or 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 under which they happened, or which afforded
an opportunity for their occurrence or transactions, are relevant.’
Principally, the relevancy of facts is an issue required to be determined by human
experience. In principle, ‘what has been the effect of a particular cause and what has been the
constant cause of a particular effect in the past will be the same in future’.
Consider this Illustration:
The question is whether A murdered B. Marks on the ground, produced by a struggle at or near
the place where the murder was committed, are relevant facts. If human blood is found at the
scene of accident, it can be inferred that someone must have been injured. The bleeding is the
effect of the injury and the injury is the cause of the bleeding. In murder case or even in rape
case, for instance, marks found near or at the place of the scene of crime or the state of clothes
worn by the accused or the victim during the incident may, on account of the fact that a struggle
had ensued between the accused and the victim, are all relevant and admissible facts under
Section 9 of TEA as effect of a fact in issue.
Illustrations:
(a)The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a
trade fair with money in his possession, and that he showed it or mentioned the fact that he had
it, to third persons, are relevant.
(b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or
near the place where the murder was committed, are relevant facts.
(c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed
to poison, and habits of B, known to A, which afforded an opportunity for the administration of
poison, are relevant facts.

Scope of the section 9

Contrary to section 8, which deals with a narrow species of facts (i.e. facts which form
part of the same transaction), section 9 is wider in scope. It embraces a large area of facts and
tries to solve difficulties of section 8 in establishing what a particular fact forms a part of the
same transaction.
It admits facts which though do not form a part of the same transaction but are connected to the
fact in issue in the specified modes. These modes are:
(i) as being the occasion of the relevant facts;
(ii) as being their cause or effect;
(iii) as giving opportunity for its occurrence; and
(iv) as constituting the state of things under which it happened.
According to Sarkar, these modes of connection are actually different aspects of causation.
(i) As being the occasion of the relevant facts
Occasion is a “happening” or “event” which is connected to the fact in issue (robbery).
Illustration (a) above relates to this mode of connection. It says: The question is, whether A
connection. It says: The question is, whether A robbed B. The facts that, shortly before the
robbery, B went to a trade fair with money in his possession, and that he showed it or mentioned
the fact that he had it, to third persons, are relevant.

(ii) As being their cause or effect

These are facts that are the cause of the fact in issue or the effect of the fact in issue. Illustration
(b) above covers this mode.
In an Indian case, Sidik v. R, 1941 Kar 525, it was held that evidence that there were foot prints
at or near the scene of offence or that the foot-prints came from a particular place or led to a
particular place, is admissible.

(iii)As giving opportunity for its occurrence

Facts that show that a person had an opportunity to cause the fact in issue are relevant and
admissible under section 9. • Illustration (c) relates to this mode. Illustration (c) relates to this
mode. Read John Mgindi v. R. [1992] TLR 377.
As for “Exclusive Opportunity”: Consider that the question is whether A poisoned B.
•The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A,
which afforded an opportunity for the administration of poison, are relevant facts.
• It is clear that for a crime to be committed there must necessarily be an opportunity for the
culprit or any other person to commit it. By screening the number of people with such
opportunity to commit it the number becomes narrow. It is worth noting, however, that the
evidence of opportunity is not reliable on its own but can only stand with other pieces of
substantial evidence offered in court.
• “Exclusive opportunity” evidence, however may be unsafe to base conviction on it.
Consider the following story:
• X, a maid servant was left in the house alone on a Sunday and the rest of inmates had gone to
church for prayers. When they returned, they found some precious jewellery missing. They
suspected that she was the thief. Reporting the incident to the Police, X was arrested, charged
and the incident to the Police, X was arrested, charged and convicted on the basis that being left
alone was the exclusive opportunity she used to commit the crime. After serving her sentence
and upon release, X was walking down street for her shopping. Behind her came a gentleman
who tapped her on the shoulder and uttered this statement:
‘Oh! What a beautiful creature is this in nude”.
• X’s memory was triggered and she remembered that on the day when the precious jewellery
went missing, this man, being a butcher who used to supply meet to the house, had brought
minced meat and was directed to store it in the store room. It happened that this butcher had hid
in the house pretending that he had gone and without X’s notice, X had shut the door and
stripped naked looking to herself on a mirror and said to herself: ‘Oh! What a beautiful creature
is this in nude”.
• Thus, since there was none in the house at the time, it means that the butcher had heard this
remark and repeated it to her in the street on the material day. He must also have been the one
responsible for the theft. This shows that the evidence of “exclusive opportunity” is unsafe
evidence to base conviction on it.
(iv) As constituting the “state of things” under which it happened
The “state of things” refers to the condition of a thing in relation to the fact in issue. Illustration
(c) describes such a state. It stated: Illustration (c) describes such a state. It stated: The question
is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and
habits of B, known to A, which afforded an opportunity for the administration of poison, are
relevant facts.

Some Decided Cases

John Makindi v. R. [1961] EA 327
The appellant (Makindi) appealed against conviction and sentence for manslaughter of a small
boy, to whom he was in loco parentis relationship by beating him so severely that he diedIt was
established in evidence that the appellant had told the deceased, “As you made me to be
imprisoned, I will beat you until you die.” Evidence on the previous beatings of the deceased boy
the appellant was led by the prosecution. On appeal it was considered whether such evidence was
properly admitted.
• Held: The evidence was admissible under s.7 of the IEA (s.9 of T/Evidence Act) in explanation
and substantiation of the cause of death and also under s.8 and 14 of the IEA (s. 10 and 16 of the
Evidence Act) as showing the motive in the appellant for showing the motive in the appellant for
revenge on the deceased and appellant’s ill will towards him.
James Clifford Brabin and another v. R. (1947) 14 EACA 80
In this case the appellants were convicted of corrupt transactions. It was established in evidence
that the appellants had received Shs 1000/= as a bribe from one Kara. It was shown that the
appellants had previously shown that the appellants had previously (five months ago) received
bribe from the same Kara. Held: evidence of previous transactions was rightly admitted as
constituting part of the “state of things.”
Cases to Read include:
Rex v. Brabin [1947] 14 EACA 80
R. v John Makindi [1961] EA 327
R.v. Premji Kurji (1940) 7 EACA 58.

SECTION10: MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT

Section 10 of the Act provides as follows:

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.
(2)The conduct of any party, or of conduct any agent of any party, to any suit or proceeding, in
reference to such suit or proceeding or in reference to any fact in issue or relevant thereto in the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether against
whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by
any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
(3)When the conduct of any person is relevant, any statement made by him or in his presence and
hearing which affects such conduct is relevant.
(4) The word "conduct" in this section does not include statements, unless those statements
accompany and explain acts other than statements; but this provision shall not affect the
relevancy of statements under any other section of this Act.
Illustrations:
(a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered
C, and that B had tried to extort money from A by threatening to make his knowledge public, are
relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact
that, at the time when the bond was alleged to be made, B required money for a particular
purpose is relevant.
(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured
poison similar to that which was administered to B, is relevant.
(d) The question is, whether a certain document is the will of A. The facts that, not long before
the date of the alleged will, A made inquiry into matters to which the provisions of the alleged
will relate, that he consulted advocates in reference to making the will, and that he caused drafts
of other wills to be prepared of which he did not approve, are relevant.
(e) A is accused of a crime. The facts that, either before or at the time of, or after the alleged
crime, A provided evidence which would tend to give to the facts of the case an appearance
favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or
procured the absence of persons who might have been witnesses, or suborned persons to give
false witnesses, or suborned persons to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A's
presence “the police are coming to look for the man who robbed B," and that immediately
afterwards A ran away, are relevant.
(g) The question is, whether A owes B shillings 10,000. The facts that A asked C to lend him
money, and that D said to C in A's presence and hearing- "I advise you not to trust A, for he
owes B 10,000 shillings," and that A went away without making any answer, are relevant facts.
(h) The question is, whether A committed a crime. The fact that A absconded after receiving a
letter warning him that inquiry was being made for the criminal, and him that inquiry was being
made for the criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he
absconded, or was in possession of property or the proceeds of property acquired by the crime, or
attempted to conceal things which were or might have been used in committing it, are relevant.
(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the circumstances under which, and the terms in which,
the complaint was made, are relevant. The fact that, without making a complaint, The fact that,
without making a complaint, she said that she had been ravished is not relevant as conduct under
this section, though it may be relevant as a dying declaration under section 34 (a), or as
corroborative evidence under section 166.

The scope
This section essentially admits facts related to three things:
(i) Motive
(ii) preparation, and
(iii) conduct
(a) Antecedent (previous) to the fact in issue, or
(b) Subsequent to the fact in issue.

(i) Motive
Actions are done with a motive behind. This is a matter of common knowledge and logic. Motive
is a psychological fact. It is a fact which moves or prompts a man to do a particular act.
Motive should not be confused with an “intention” which means a desire to achieve a certain
result (or consciousness of the asct). While “intention” is a deliberate desire to achieve a certain
result, “motive” answers the question why one aims to achieve that result.
Intention is the prior knowledge of the act coupled with the desire to do it.
“Intention” is usually an ingredient of an offence while “motive” is not. Although motive is not
an ingredient of the offence its proof helps the court to come to a correct conclusion when there
is no direct evidence.
Note: It must be remembered lack of motive does not negate any offence for it is immaterial.
Consider the following:
• X walks along the street. He finds a starving kid, almost dying of kwashiorkor. He feels pity of
him and went into a supermarket where in he steals a loaf of bread and a bottle of milk and feeds
the starving street kid. In this example:
-The motive is to feed the kid. -The intention is to steal a loaf of bread and the bottle of milk.
• From criminal law point of view, intention is of importance and not the motive. It is the
intention that forms the necessary mens rea in such proceedings.
• In evidence, however, motive assumes importance. It is important for the prosecution to explain
the motive behind the commission of a particular crime. Sometimes it may not be easy to
establish motive since this is an internal matter within a person’s heart known better to himself
and to God.
The fact that the prosecution failed to establish the motive for the crime is not a bar to
conviction where other clear evidence points to the guilty of the accused. It has been repeatedly
pointed out by Courts that where the case of the prosecution has been proved beyond all
reasonable doubts on basis of the materials produced before the Court, the motive loses its
importance. But in a case which is based on circumstantial evidence, which is based on
circumstantial evidence, motive for committing the crime on the part of the accused assumes
greater importance. (See Tarseem Kumar vs Delhi Administration (18 August, 1994) available at
(http://indiankanoon.org/doc/197261555 / as accessed on 23/11/2015).
In the case of John Makindi v. R. [1961] EA 327 which has been cited above, it was
established in evidence that the appellant had told the deceased, “As you made me to be
imprisoned, I will beat you until you die.” This was held to be admissible under sections 8 and
14 of IEA 1872 (s 10 and 16 of the EA) as showing the motive in the appellant for revenge on the
deceased and appellant’s ill –will towards him.
Illustration (a) is an instance that shows motive.
(ii) Preparation
Preparation consists in devising or arranging the means or the measures necessary for the
commission of the offence. Preparation is to be distinguished from an “attempt”. Attempt to
commit the offence is a direct movement towards the commission after preparations are made..
Thus, the major difference between “preparation” and an “attempt” is that while preparation
consists in devising or arranging means necessary for the commission of an offence, while an
“attempt”, is the direct movement towards the commission after preparations are made.
Illustration (c) concerns preparation.

(iii)Conduct
A conduct is the expression in outward behaviours of a person. It is, in other words, an external
behaviour of a person. However, conduct should be distinguished from “character” which is a
person’s estimation by others.
According to section 10 (2), conduct of the following persons is relevant:
(1) Parties to the suit or proceeding or their agents
(2) Persons, an offence against who is the subject of proceedings.
Conduct as stated by section 10 (2) is divided into two: antecedent and subsequent. • Illustrations
(d) and (e) are instances of antecedent conduct and illustrations (e) and (i) are instances of
subsequent conduct.
Section 10 (3) answers the question as to when silence could be regarded as a conduct. Silence
may in certain circumstances amount to conduct under that provision. Illustration (g) is an
instance of silence, which amounts to a conduct.
Subsection (4) of Section 10 states that the word “conducts” does not include statements. In this
respect, it has been noted partly that: “what this explanation means is that statements are not
admissible as conduct unless they accompany and explain acts other than statements. The
statements which accompany and explain acts other than statements are:
(1) Complaints
(2) Pointing out to the police the various places connected with commission of crime.”
Thus the difference between a bare statement and complaint is that to be a complaint the
statement must express some grievance. In this regard, Illustration (j) tries to explain the
distinction. That it is the complaint that is admissible as a conduct but not the statement that was
made to any other person.
In an Indian case, Raman v. Emperor, AIR 1921 Lah. 258, the accused was tried for rape of a
young widow called Nandoo. It was established that the 258, the accused was tried for rape of a
young widow called Nandoo. It was established that the accused caught Nandoo in the field
while she was returning home and then raped her. She then returned home and stood in one
corners of the house weeping. One of her relatives who was passing by heard her; he approached
her and questioned her why she was crying. She narrated the incident of rape and requested that
person to inform her father in–law.
The question was whether that statement could be regarded as a complaint so as to be brought
under section 8 of IEA [similar to s 10(4) of TEA]. It was argued that Nandoo only responded to a
question. It was held that where it appears that a person could have made such a complaint, even
without a have made such a complaint, even without a question being asked, particularly in this
case asking the person to inform her father in-law converted that into a complaint what would
have amounted to be a bare statement.
In another Indian case, Oueen v. Abdullah (1885)7 ILR All 385, it was held that any statement
can be admissible as conduct provided it is directly influenced by the fact in issue.
Read:
Idi Waziri v. R [1961] EA 146
Sewa Sigh Mandia v. R. [1966] E.A. 315
John Makindi v. R. [1961] E.A. 327
Mohammed Saeed Akrabi v. R. [1956] 23 EACA. 512
Dafas jur v. R. [1954] 21 EACA 352.

SECTION 11: FACTS EXPLAINING OR INTRODUCING FACT IN ISSUE

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
anything or fact, or which establish the identity of anything or person whose identity is relevant,
or fix the time or place at which any fact in issue or relevant fact happened or which show the
relation of parties by whom any such fact was transacted, are relevant so far as they are
necessary for that purpose.
Some Illustrations:
(a) The question is, whether a given document is the will of A. The state of A's property and of
his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be
libellous is A; B affirms that the matter alleged to be libellous is true. The position and relations
of the parties at the time when the libel was published may be relevant facts as introductory to
the facts in issue. The particulars of a dispute between A and B about a matter unconnected with
the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it
affected the relations between A and B.
(c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded
from his house, is relevant under section 10, as conduct subsequent to and affected by facts in
issue. The fact that at the time when he left home he had sudden and urgent business at the place
to which he went is relevant, as tending to explain the fact that is relevant, as tending to explain
the fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as they are
necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A's
service, says to A-"I am leaving you because B has made me a better offer." This statement is a
relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.
Principle
S.K. Sarkar & Ejaz Ahmed (p.148): “There are incidents which though not strictly constituting
the fact in issue, may be regarded as forming part of it, in the sense that they accompany, and
tend to explain, the main fact….”
Rao (p.856): There are many incidents, which, they may not strictly constitute a fact in issue,
may yet be regarded as forming part of it, in the sense that they accompany and tend to explain
the main facts, such as identity, names, dates, places and the description, circumstances and
relations of parties and other explanatory and introductory facts of a like nature.”
Scope
The scope of facts made relevant by this section may be classified as follows:
(i) Facts necessary to explain or introduce a fact in issue or relevant fact;
(ii) Facts which support or rebut an inference suggested by a fact in issue or relevant fact;
(iii) Facts which establish the identity of anything or person whose identity is relevant;
(iv) Facts which fix the time and place at which any fact in issue or relevant fact happened;
(v) Facts which show the relation of parties by whom any fact in issue or relevant fact was
transacted.
The five categories of facts are admissible, but not generally. They are relevant only, in so far as
they are necessary for the purpose indicated in each category.
(i) Facts necessary to explain or introduce a fact in issue or relevant fact
In giving evidence it is not practically possible to jump to the fact in issue. The court requires
certain introductory facts so as to have a correct and a proper understanding of the facts in fact in
issue. The court requires certain introductory facts so as to have a correct and a proper
understanding of the facts in issue.
Illustrations (a) and (b) are instances of facts that tend to introduce the fact in issue. The section
also admits facts which explain the fact in issue or relevant facts. Illustrations (d) and (e) show
facts which explain the fact in issue or relevant fact.
(ii) Facts which support or rebut an inference suggested by a fact in issue or relevant fact
Facts which support or rebut the inference suggested by the fact in issue or relevant fact are
relevant. Illustration (c) indicates fact facts that rebut the inference made by the fact in issue.
(iii) Facts which establish the identity of anything or person whose identity is relevant
Identity may be thought of as a quality of a person or thing, the quality of sameness with another
person or thing.

The provision deals with identification of (i) persons, and (ii) things.
Identity of a person may also mean peculiar features pertaining to him which distinguish that
person from others — height, his colour, sound, clothes, identifiable marks on the face, etc. face,
etc.
Similarly, identity of a thing may also denote peculiar features pertaining to it — its make, serial
number, and other distinctive marks.
Identity may be established in various ways and some of these include: identifications by
photographs, identification parade, identification by foot or boot notes [marks?], identification by
fingers, thumb or palm impressions, comparison of hand writing, and marks of blood, hair, or
fibre of clothes.
Identification parade is usually conducted by the Police in cases where identification of the
accused by the victim of crime or other person is important. The purpose of identification parade
is to confirm the evidence of a witness who claims to have identified the accused person.
The purpose of identification parade is twofold.
First, it is to enable the witnesses to satisfy themselves that the prisoner who they suspect is
really the one who was seen by them in connection with the commission of the crime.
Secondly it is to satisfy the investigating authorities that the suspect is the real person authorities
that the suspect is the real person whom the witness had seen in connection with the occurrence.
Note: It is to be observed that evidence resulting from an identification parade is only
corroborative but not substantive: Moses Charles Deo v R.[1987]TLR 134.
The rules regarding the procedure of conducting identification parades are not statutorily
provided although the CPA sanctions the Minister for Justice to enact such rules (See Section 62
of CPA).
The case of Rex v. Mwango Manaa (1936) 3 EACA 29 has been severally cited by courts in
Tanzania as an authority for the procedure of conducting an identification parade. Police General
Orders No 231 has also been affirmed by the Court of Appeal in this regard. Recently, the High
Court reproduced the provisions of the Police General Orders No 231 in R. v. XC- 7535 PC
Venance Mbuta [2002] TLR 48. See also: Tongeni Naata v R. [1991] TLR 54; Raymond Francis
v R. [1994] TLR 100.
In Hassan Juma Kanenyera and others v R. [1992] TLR 100, the Court of Appeal (Omar,
Ramadhani, Mnzavas JA) held that identification parade is useless and superfluous if the persons
put on the parade to be identified are known to the person who is to make the identification. is to
make the identification. Read the famous case of Waziri Amani v. R [1980] TLR 250.
(iv) Facts which fix the time and place at which any fact in issue or relevant fact happened
Facts which tend to show a place or time at which a certain event happened are admissible under
this provision. It is sometimes of the highest importance to fix accurately the exact time of the
occurrence of the event, and a difference of even a few minutes may be of vital importance. This
is so because accused persons often raise the defence of alibi. Thus, facts like post-office marks,
dates on written letters, stamps on documents, may assist the court to resolve disputes, etc.
Medical evidence is frequently used to resolve questions on time.
(v) Facts which show the relation of parties by whom any fact in issue or relevant fact was
transacted
Facts that establish the relation of the parties to a dispute are admissible under this section. In a
case of administration of estates, for instance, establishment of facts that the disputants are
establishment of facts that the disputants are brothers who are entitled to property, or that they
were the wives of a deceased man is vital. In a suit where a party wishes to dispute a contract on
account of lack of consent due to vitiating factors like undue influence, facts of their
relationships becomes important.

Case Studies
R. v. Mwango Manaa [1936] 18 EACA 29
Otieno and another v. R. [2006]1 EA 315
Mwabuja v. R. [2006]2 EA 229
Njiru and others v. R. [2002]1 EA 218
Kella and Another v. R. [1967] EA 809
Jackson s/o Mwakatoka & 2 Others v. R. [1990] TLR 17
Fadhili Gumbo @ Malota and three others v. R. [2006] TLR 50
Benson Kibaso Nyankoda @ Olembe Patroba Apiyo v. R. [1998] TLR 40
Mangi v.R. [2006] 1 EA 162.
Bhanbir s/o Versi and another v. R. [1969] HCD n. 243
Stanislasi @ Kanyambo c/o Kitambo v. R. [1942] 1 TLR 258
Joram Ntabova & Another v. R. [1980] TLR 282
Afrika Mwambogo v. R. [1984] TLR 240
Raymond Francis v. R. [1994] TLR 100
Shama and another v. Uganda [2002]2 EA 589
Eva Salingo and Others v. R. [1995] TLR 220
Olafu Wikechi v. R. [1995] TLR 185
Rajabu Khalifa and 3 Others v. R. [1994] TLR 129
Chambo Ramadhani v. R. [1985] TLR 178
Hassan Juma Kanenyera and Others v R. [1992] TLR 100
Waryoba Machage v. R. [1991] TLR 39
Mbushuu alias Dominic Mnyaroje and Another v. R. [1995] TLR 97.
Wellington Thuku Paul Mugo and Another v. R. [1966] EA 124.

SECTION 12: THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN

This provision states as follows;

‘Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of such
persons referring to or in execution or furtherance of their common in execution or furtherance
of their common intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of showing that any such
person was a party to it.’
Illustration:
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the
Government of Tanzania. The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Arusha for a like object, D persuaded persons to join the
conspiracy in Mwanza, E published writings advocating the object in view at Dar es Salaam, and
F transmitted from Morogoro to G at Dodoma the money which C from Morogoro to G at
Dodoma the money which C had collected at Arusha, and the contents of a letter written by H
giving an account of the conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them,
and although the persons by whom they were done were strangers to him, and although they may
have taken place before he joined the conspiracy or after he left it.
Principle
The above section is based on the “theory of implied agency”. This section lays down
that in prosecutions for conspiracy when concert and connexion between the persons charged
have been sufficiently established, the statements, acts or declarations of each conspirator, in
reference to their common intention are admissible as evidence against others. The principle is
substantially the same, as that, which regulates the relation of agent and principal. When various
persons conspire to commit an offence or actionable wrong (e.g. co-tort-feasor or other tort-
feasors), each makes the rest his agents to carry the plan into action.
Scope
This section has been interpreted as to admit the following facts:
(i) Reasonable ground to believe in the existence of a conspiracy must be shown as a
condition precedent to the admission as facts and declarations of a conspirator against
his and declarations of a conspirator against his fellow conspirators;
(ii) The connection as each of the accused with the conspiracy charged must then be
proved, i.e., that the persons charged were parties to it;
(iii) The acts, declarations, and writings of each conspirator in reference to the common
design or intention after the time when such intention was entertained by any of the
persons are admissible against each other as the others. And this is whether the acts
were done or the words were spoken in their done or the words were spoken in their
presence or absence, or before or after they entered into the combination, both
(a) For the purpose of proving the existence of the conspiracy, as also as showing
(b) The accused were parties to it.
“Common intention” signifies a common intention existing at a time when the thing was said,
done or written by the one of them.
In R. v. Blake (1844)6 Q.B.126 it was held that things done or said or written by a
conspirator after the conspiracy had been conspirator after the conspiracy had been carried into
effect or abandoned and the common intention was no longer operating, i.e., narrative of past
acts done in the actual course of carrying out the conspiracy, or statement, or confession, is not
admissible against a co-conspirator.
Ongodia and Erima v Uganda [1967] EA 137
The two appellants, who were captains in the Uganda Army, were convicted by the General
Court-Martial Court on the charges of conspiracy and improperly causing a false alarm. On
February 24, 1966, the two appellants arrived at the Officers’ Mess at appellants arrived at the
Officers’ Mess at Entebbe at about 2 pm. The first appellant Ongadia, in the presence of second
appellant Erima, informed Anguram and Guweddeko in the Mess that the war had broken out,
that the Army Headquarters at Mbuya had been surrounded and they had managed to escape.
Ongodia asked Anguram if he had the confidence in his platoon and on receiving an affirmative
reply, Ongondia asked Anguram to take his platoon to Baitabibiri on the Kampala/Entebbe Road
to set up a road block with the object of arresting the then Prime Minister, Dr Obote. Ongodia
added that other troops were advancing from Kampala and they would be arriving at any
moment. Erima remained silent throughout the conversation but nodded his head from time to
time. It was not established at what precise moment of the conversation he nodded his head.
Held (Court-Martial Appeal Court)
(i) Evidence was sufficient to justify the inference to justify the inference that the first
appellant Ongodia conspired with person or persons unknown to arrange for the road
block to arrest the Prime Minister and the finding on the first charge was confirmed.
(ii) Evidence was insufficient to establish that the second appellant was acting in concert
with the first appellant and a finding of not guilty was substituted.
Note: this decision indicates that in order for the accused persons to be said to have conspired, it
has to be proved that actually there was agreement among them. In this particular case, it was not
sufficiently so established.
The Court of Appeal of Kenya held in Asira v. R. [1986] KLR 227 that “Where a conspiracy is
reasonably believed to exist between two persons, then under section 10 of the Evidence Act
(Cap 80), the actions of one of them can be considered against the other for the purpose of
showing that there was a conspiracy and that that other was a party to it; but that aspect ceases to
exist after the conspiracy is not found to exist.”
Case Studies
J.L.M. Brown and Others v. R. [1957] EA 371
R. v. Gokaldas Kanji Karia (1949) 16 EACA 116
Ongodia andErima v Uganda [1967] EA 137
R. v. B.N. Patel and others [1957] E.A. 416 (K)
Stanley Msinga and Others [1951] 18 EACA 211
R. v. Blake (1844) 6 Q.B.126
Asira v. R. [1986] KLR 227.
 SECTION 13: WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT
This section provides as follows;
‘Facts not otherwise relevant are relevant– (a) if they are inconsistent with any fact in issue or
relevant fact; or (b) if by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.
Principle
As it was noted in the beginning of the course, the object of leading evidence in a trial is to prove
(establish) an alleged fact or disprove the same. This being the case, any fact which will tend to
do either of the two is relevant.

Scope
Section 13 of TEA states the general theory of relevancy and may be referred to as a residuary
relevancy and may be referred to as a residuary provision dealing with relevancy of facts. The
section commences with the following wording, “Facts not otherwise relevant are relevant”. It
means that facts which are not strictly legally relevant acquire relevancy by virtue of their
connection with the existence or non existence of other facts and become provable.
Under this provision facts that may be proved are:
(i) Facts which are inconsistent with the fact in issue or relevant fact; and
(ii) Facts which make existence or non existence of the fact in issue highly probable or
improbable.
But facts must bear a reasonable proximity to the fact in issue. Facts with some remote bearing
cannot be proved as such would negate the whole theory of relevancy. As once noted; one of the
object of the law of evidence is to restrict the investigations made by the court within the bounds
prescribed by general convenience. Thus not everything should be admissible into evidence.
This provision, as said, is a “residuary section” for it admits facts which would otherwise be
“irrelevant” under other provisions. It was feared that its wide scope could disturb the whole
theory of relevancy

Illustrations
(a) The question is whether A committed a crime at Kigoma on a certain day. The fact that, on
that day, A was at Mtwara is relevant. The fact that, near the time when the crime was
committed, A was at a distance from the place where it was committed, which would render it
highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime
must have been committed either by A, B, C or D. Every fact which shows that the crime could
have been committed by no one else and that it was not committed by B, C or D, is relevant.
 1. Inconsistent facts
Inconsistent facts refer evidence that has no connection with the fact in issue except by their
inconsistency which becomes the basis of their admission. The usual logic of the argument is that
a certain fact cannot co-exist with another. Illustration (a) demonstrates this argument. The
phrase “highly probable or improbable” under subsection (2) is very important. It shows the
degree of probability or improbability that is envisaged. It indicates the weight of evidence in
proving or disproving the fact is issue or relevant fact.
The following are the common cases of facts that may be inconsistent with the fact in issue:
The absence of a person charged (alibi),
The absence of the husband when the child was begotten (Non Access), begotten (Non Access),
Survival of the alleged deceased person after supposed time of death,
The commission of a crime by a third person,
Self-infliction of the harm alleged.

Alibi
Alibi is a Latin term which means “elsewhere”. It is a plea by the accused person that
during the commission of the offence he was nowhere near the place where the crime was
committed. The facts that a person alleged to have committed a crime was elsewhere at the time
when the crime was committed are inconsistent with the fact in issue. If proved sufficiently alibi
is no doubt a sufficient answer to a charge but the experience has shown that it is usually for the
accused to prove it. Firstly, it is very difficult for the accused to prove such defence by
independent evidence. Secondly, it is difficult for the accused to be believed by the court for
such evidence is normally regarded with suspicion as a concoction
The evidentiary value of alibi evidence is strengthened if the alibi is set up at the earliest.
This is reflected in the law of criminal procedure. Section 194 (4) ─ (6) of the Criminal
Procedure Act, [Cap 20 RE 2002] addresses the procedure to be followed when an accused
wishes to rely on an alibi and an accused wishes to rely on an alibi and a notice thereof is
necessary. Similarly, under section 89 of the Criminal Procedure Act, 2004 (Zanzibar) a person
who wishes to rely on the defence of alibi must give notice to the court and prosecution before
the hearing of the case.
It is the duty of prosecution to disprove the defence of alibi set up by the accused. It was
so held the High Court of Uganda in Sakitoleko v Uganda [1967] E.A. 531 that: “It is a wrong
statement of the law that the burden of proving an alibi lies on the prisoner. It is the duty of a
Criminal Court to direct its mind properly to any alibi set up by a prisoner; and, it is only when
the court comes to the conclusion that only when the court comes to the conclusion that the alibi
is unsound that it would be entitled to reject it. As a general rule of law, the burden of proving
the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi
or something else. That burden always rests on the prosecution." See also: Semande v. Uganda
[1999]1 EA 321
No Access
If the facts are that a certain person had no access at all to do a certain thing then such facts are
highly inconsistent with the fact in issue. If, for instance, there is a dispute of paternity between
A (husband) and B (wife) over a child, and A states that at the time when B conceived he was
studying in Europe, then such facts are inconsistent to the fact issue. They make the fact
inconsistent to the fact issue. They make the fact in issue that A sired the child highly
improbable.

Survival of the alleged deceased

If a person is charged with a crime of, for instance, murder on a certain date, the fact that the
alleged deceased was seen alive after that date makes the fact in issue highly improbable.
Commission of a crime by third person
If A is charged with robbery of B on a certain date and time, but C confesses to have robbed B
on the same date and time, such evidence would be inconsistent with the fact in issue.
Self-inflicted harm
If a person is tried for murder of a certain person but later on found that person had, for instance,
taken poison the fact which is inconsistent with the fact in issue.
One author tells a story of a young girl who was accused of committing theft. Her father was
very enraged and a result he beat her severely. Subsequently, the girl died. The father and all
persons believed the death was on account of injuries of the beatings. The father made a
confession to the effect that he killed her daughter. Later, the post-mortem report showed that
there were several stripes of beatings on the body but the beatings on the body were not the cause
of death. The girl died due to poison which she had consumed.

2. Facts showing probabilities

Sometimes it is not easy to prove all facts in issue by direct evidence. Thus, courts
sometimes rely on probabilities. This provision thus admits facts which are not relevant but
become relevant when they make a fact in become relevant when they make a fact in issue or
relevant fact highly probable or improbable.
Case Studies
Raja v. Kaataria [1965] E.A. 362 (U)
M'bui v. Dyer [1967] E.A. 315 (K)
Muwanga v. Jiwani [1964] E.A. 171 (U)
R. v. Parbhudas (1874)11 BH CR 90
On Alibi, read:
Rashid Ally v. R. [1987] TLR 97
Godson Hemed v. R. [1993] TLR 241
Peter Matengo and Four Others v. R. [1994] TLR 112
Ali Salehe Msutu v R. [1980] TLR 1
Lusabanya Siyantem iv. R. [1980] TLR 275
Kibale v. Uganda [1999]1 EA 148

SECTION 14: FACTS THAT ENABLE THE COURT TO DETERMINE AMOUNT OF DAMAGES
ARE RELEVANT

This provision provides;

‘In suits in which damages are claimed, any fact which will enable the court to determine the
amount of damages which ought to be awarded is amount of damages which ought to be awarded
is relevant. Damages denote compensation or indemnity for a loss suffered by a person following
a tort or a breach of contract or breach of statutory duty.’
Section 14 admits into evidence any fact that assists the court in the course of determining the
amount (quantum) of damages which the court ought to award in a civil case. In such cases,
damages are pleaded as pecuniary compensation for the loss suffered on account of let’s say
breach of contract/ promise, reputation or enjoyment of property.
Principle
In suits in which damages are claimed, the amount of damages is a fact in issue which has to be
resolved by evidence.

Scope
This provision applies in civil proceedings where damages are claimed and the court is
confronted with an issue of “what amount or quantum of damages is to be awarded to the
plaintiff”? Such an issue rises at the end of proceedings when a case against has been established
against the Defendant and now the court seeks to measure the amount or and now the court seeks
to measure the amount or quantum of such damages.
Thus, in Saidi Kibwana and General Tyre E.A. Ltd v Rose Jumbe [1993] TLR 175, the
Court of Appeal held that in assessing damages in a case where a person is negligently killed by
a car, the court needs to consider loss of future earnings; pain and suffering, and loss of
expectation of life.

Some decided cases

In Raja v. Kataria and another [1965] EA 362, the Plaintiff’s husband had been negligently killed
by a lorry following a collision. The Plaintiff sued the Defendant for negligence for herself and
her children.
In assisting the court to award the correct amount of damages the following facts were adduced:
the salary of the deceased; his age before the death; his sound health which could enable him to
live about 15 years thereafter; the number of his him to live about 15 years thereafter; the
number of his defendants and costs incurred during his funeral.
Read:
Attorney General v. Roseleen Kombe (as Administratrix of the late Lt. Gen. Imran Hussein
Kombe) [2005] TLR 208 [Must Read]
Permanent Secretary (Establishments) and another v Hilal Hamed Rashid and 4 others [2005]
TLR 121

SECTION 15: FACTS AFFECTING EXISTENCE OF RIGHT OR CUSTOM

This provision provides thus, ‘Where the existence of any right or custom is in question, the
following facts are relevant– (a) any transaction by which the right or custom in question was
created, claimed, modified, recognised, question was created, claimed, modified, recognised,
asserted or denied, or which was inconsistent with its existence; (b) particular instances in which
the right or custom was claimed, recognised or exercised, or in which its exercise was disputed,
asserted or departed from.’
Illustration:
The question is whether A has a right to a fishery. A deed conferring the fishery on A's
ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father,
irreconcilable with the mortgage, A's father, irreconcilable with the mortgage, particular
instances in which A's father exercised the right, or in which the exercise of the right was
stopped by A's neighbours, are relevant facts.

Principle
This provision applies to cases that relate possession and especially the possession of real
rights, whether incorporeal, ancient water course, corporeal as a field, or road strip. In such
cases, every act of enjoyment or possession is a relevant act, since the right claimed is
constituted by an indefinite number of acts of user-exercised animo domini (intention to own or
possess).
Ownership may be proved by proof of possession; and that can be shown by particular
acts of enjoyment, these acts being the fractions of that sum total or enjoyment which
characterises dominium (ownership).

Scope
According to this section whenever there is a question as to the existence of any (1) right
or (2) custom, the following facts would be admissible:
(1) Transaction, by which the right or custom in question was created, claimed, modified,
recognised, asserted or denied, or which was inconsistent with its asserted or denied, or which
was inconsistent with its existence, and
(2) Particular instances in which the right or custom was claimed, recognised or exercised, or in
which its exercise was disputed, asserted or departed from.
Right:
The initial view was that the meaning of the word “right “as used in section 15 meant
public and incorporeal rights, such as right to ferries, right to roads, right to fisheries, etc.
However, a different view has been taken by Indian courts recently that the word “right” as used
in that provision is not confined to public used in that provision is not confined to public and
incorporeal rights but it includes private and other rights of ownership known to law. There is no
single case which has attempted to interpret this provision so far in Tanzania.
Custom:
A custom is used in the sense of a rule, which, in a particular district, community, class or
family, has, from long usage, obtained the force of law. There are different conditions which
have been associated with the acceptability of custom in associated with the acceptability of
custom in law. Custom must be: ancient, continued, unaltered or uninterrupted, uniform,
constant, peaceable and acquiesced in, reasonable, certain, compulsory but not optional, or
immoral.
Kinds of customs:
(i) Private; only governing a particular clan or family: e.g. as to the estate of a deceased member
of that family,
(b) General; those which govern a considerable number of classes of persons, and may include
trade customs of classes of persons, and may include trade customs i.e., those customs that
govern certain kind of trades e.g. A bag of cement is by custom weighing 50 kg (See, for
instance, Section 50 of TEA) or
(c) Public Customs; governing members of the public.
Case Law on customs;
Read Isidori Ndethinga v. Eugen Mangalili [1969] HCD n.186.

SECTION 16: FACTS SHOWING EXISTENCE OF STATE OF MIND, OR OF BODILY FEELING

This section states as follows:

(1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill will or good will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling is in issue or relevant.
(2) A fact relevant within the meaning of subsection (1) as (2) Afact relevant within the meaning
of subsection (1) as showing the existence of a relevant state of mind must show that the state of
mind exists, not generally, but in reference to the particular matter in question.
(3) Where, upon the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of subsection (1), the previous conviction of
such person shall also be a relevant fact.
Illustrations:
(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in
possession of a particular stolen article. The fact that, at the same time, he was in possession of
many other stolen articles is relevant, as tending to show that he knew each and all of the articles
of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time
when he person a counterfeit coin which, at the time when he delivered it, he knew to be
counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces
of counterfeit coin is relevant. The fact that A had been previously convicted of delivering to
another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.
(c) A sues B for damage done by a dog of B's which B knew to be ferocious. The facts that the
dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.
(d) The question is whether A, the acceptor of a bill of exchange, knew that the name of a payee
was fictitious. The fact that A had accepted other bills drawn in the same manner before they
could have been transmitted to him by the payee if the payee had been a real person, is relevant,
as showing that A knew that the payee was a fictitious person. knew that the payee was a
fictitious person.
(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.
The fact of previous publications by A respecting B, showing illwill on the part of A towards B
is relevant, as proving A's intention to harm B's reputation by the particular publication in
question. The facts that there was no previous quarrel between A and B, and that A repeated the
matter complained of as he heard it, are relevant, as showing that A did not intend to harm the
reputation of B.
(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being
induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A
represented C to be solvent, C was supposed to be solvent by his neighbours and by persons
dealing with him, is relevant, as showing that A made the representation in good faith. good
faith.
(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the
order of C, a contractor. A's defence is that B's contract was with C. The fact that A paid C for
the work in question is relevant, as proving that A did, in good faith, make over to C the
management of the work in question, so that C was in a position to contract with B on C's own
account, and not as agent for A.
(h) A is accused of the dishonest misappropriation of property which he had found, and the
question is whether, when he appropriated it, he believed in good faith that the real owner could
not be found. The fact that public notice of the loss of the property had been given in the place
where A was, is relevant, as showing that A did not in good faith believe that the real owner of
the property could not be found. The fact that A knew, or had reason to believe, that the notice
was given fraudulently by C, who had heard of the loss of the property and wished by C, who
had heard of the loss of the property and wished to set up a false claim to it, is relevant, as
showing that the fact that A knew of the notice did not disprove A's good faith.
(i) A is charged with shooting at B with intent to kill him, In order to show A's intent the fact of
A's having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to
B may be proved, as showing the intention of the letters.
k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their
feeling towards each other shortly before or after the alleged cruelty are relevant facts.
(l) The question is whether A's death was caused by poison. Statementsmade by A during his
illness as to his symptoms are relevant facts.
(m) The question is, what was the state of A's health at the time when an assurance on his life
was effected. Statements made by A as to the state of his health at or near the time in question
are as to the state of his health at or near the time in question are relevant facts.
(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use,
whereby A was injured. The fact that B's attention was drawn on other occasions to the defect of
that particular carriage is relevant. The fact that B was habitually negligent about the carriages
which he let to hire is irrelevant.
Principle
If the existence of a mental or bodily state or bodily feeling, as is assumed by the section, in
issue or relevant, it is clear that facts from which the existence such mental or bodily state or
bodily feeling may be inferred are also relevant Subsection (2) of section 16 rejects general facts
on the ground that the collateral matter is too remote, if indeed it is connected with the factum
probandum. This provision thus admits both physical and psychological facts. physical and
psychological facts.

Scope
Section 16 admits two sorts of facts showing the existence of any: (i) state of mind, and (ii) state
of body or bodily feeling.
Some decided cases in relation to section 16
JohnMakindi v. R. [1961] EA 327
In this case, it was partly established in evidence that the appellant had told the deceased, “As
you made me to be imprisoned, I will beat you until you die.” This was held to I will beat you
until you die.” This was held to be admissible under sections 8 and 14 of IEA 1872 (ss 10 and 16
of the EA) as showing the motive in the appellant for revenge on the deceased and appellant’s
ill–will towards him.
Tundugwav Coffee Marketing Board (1974) ALR (Commercial) 354
This is a Ugandan case. The plaintiff brought an action against the defendant to recover damages
for personal injuries sustained in the course of his duties as the defendant’s employee and caused
by the defendant’s negligence. The plaintiff and other workmen were doing a work which
included moving were doing a work which included moving sacks of coffee beans. The sacks
which were to be moved were standing in low stacks or lying scattered on the floor of the store.
Near the place to which sacks were being moved, other sacks, which the workmen were
instructed not to touch, were standing in a high stack
Some of the sacks in the high stack fell on the plaintiff thereby injuring him. There was no
evidence that anybody touched the high stack of sacks before it fell. The plaintiff alleged that
sacks in the high stack had fallen on a previous occasion injuring another workman and this
evidence was not contradicted. The plaintiff contended that the defendant was negligent.
Held (Nyamchoncho, J.); the doctrine of res ipsa loquitur is applied, and in the absence of any
explanation of why the stacks fell, the defendant’s negligence was the cause. The court observed
that the defendant’s failure to deny the allegation that the sacks had fallen on a previous occasion
was further ground on which the defendant could be found guilty of negligence.
Compare the underlined statements with illustrations (c) and (d) above.

R. v. Francis (1874) 12 Cox 612 at 616

In this old English case, the prisoner was indicted for endeavouring to obtain an advance from a
pawn-broker upon a ring by false pretence that it was diamond ring. Evidence was held to have
been properly admitted to show that two days before the admitted to show that two days before
the transaction in question, the prisoner had obtained an advance from a pawn-broker upon a
chain which he represented to be a gold chain, but which was not so.
Compare this case with illustrations (a) and (b).

SECTION 17: FACTS BEARING ON THE QUESTION WHETHER ACT WAS ACCIDENTAL OR
INTENTIONAL

Section 17 states that, ‘When there is a question whether an act was accidental or intentional, or
done with a particular knowledge or intention, the fact that such act formed part of a series of
similar occurrences, in each of which the person doing the act was concerned, is relevant .,
Illustrations:
(a) A is accused of burning down his house in order to (a) A is accused of burning down his
house in order to obtain money for which it is insured.
The facts that A lived in several houses successively each of which he insured, in each of which
a fire occurred, and after each of which fires A received payment from a different insurance
office, are relevant, as tending to show that the fires were not accidental.
(b) A is employed to receive money from the debtors of B. It is A's duty to make entries in a
book showing the amounts received by him. He makes an entry showing that on a particular
occasion he received less than he really did receive. The question is, whether this false entry was
accidental or intentional. • The facts that other entries made by A in the same book are false, and
that the false entry is in each case in favour of A, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit coin. • The question is, whether the
delivery of the coin was accidental. The facts that, soon before or soon after the delivery to B, A
delivered counterfeit coins to C, D and E are relevant, as showing that the delivery to B was not
accidental.
Principle
This section admits evidence which is known as “evidence of similar facts.” The
principle on which evidence of similar acts is admissible is, not to show, because the accused has
already committed some crimes, he would therefore, be likely to commit he would therefore, be
likely to commit another, but to establish the animus of the act, for which he is charged and rebut
by anticipation, the defence of ignorance, accident, mistake, or innocent state of mind. This
section is an application of the rule laid down in the preceding section (section 16).
In Boardman v. DPP [1974] 3 All ER 887 at 897, Lord Wilberforce stated the principle
on which similar fact evidence is admitted in these terms: “The basic principle must be that the
admission of similar fact evidence (of the kind now in question) is exceptional and requires a
strong degree of probative force. This probative force is derived from, if at all, from the
circumstance that the facts testified to by the several witnesses bear to each of other such a
striking similarity that they must, when judged by experience and common sense, either all be
true, or have arisen from a cause common to the witnesses or from pure coincidence. … I use the
words “a cause common to the witnesses” to include not only (as in R v Sims [1946]1 All ER
697; [1946] KB 531) the possibility that the witnesses may have invented a story in concert but
also that a similar story witnesses may have invented a story in concert but also that a similar
story may have arisen by a process of infection from media publicity or simply from fashion. In
the sexual field, and in others, this may be a real possibility; something much more than mere
similarity and absence of proved conspiracy is needed if this evidence is to be allowed. This is
well illustrated by Kilbourne’s case [1973] 1 All ER 440; [1973] AC 729 where the judge
excluded “intra-group” evidence because of the possibility as it appeared to him, of collaboration
between boys who knew each other well. This is, in my respectful opinion, the right course
rather than to admit the evidence unless a case of collaboration or concoction is made out.”

Scope
Like section 16, this section also deals with a state of mind but unlike section 16, which
is a bit wider, section 17 is narrow. It admits facts which solve the question whether a certain act
was intentional or accidental. It admits similar facts which are, in most cases, used to rebut the
defence of accident, mistake, ignorance, etc. When an act is repeated again and again, the chance
of it being accidental is reduced. Thus, for facts to be admitted under provision it must Thus, for
facts to be admitted under provision it must be shown that,
(i) There was a question whether an act was intentional or accidental, and
(ii) It must be proved that the particular act forms part of the series of similar occurrences.
Intention and accident
Intention in the context of criminal law is a state of mind of one who aims to bring about
a particular consequence.64An accident is an event that occurs without human design. In Fenton
v Thorley [1903] A.C. 443, it was held that “the word accident denotes or includes any
unexpected personal injury … from any unlooked-for mishap or occurrence”. … from any
unlooked-for mishap or occurrence”. As said, this section 17 admits facts that “form part of a
series of similar occurrences.” Such facts are provable when the issue whether an act was
“intentional or accidental.”
This was partly discussed in the English case of R. v. Harrison-Owen [1951] 2 All ER 726.
In this case, the appellant was a man of bad character, with many convictions of larceny,
housebreaking, and like offences. He was found in a house holding a bag which belonged to the
mistress of house which she had left out in a car. In that car there was a key to the house. The
appellant used the same key to let himself inside the house. On being discovered, he told some
cock and bull story that he was looking for lodgings. On his trial for burglary he gave evidence
that he had no recollection of entering gave evidence that he had no recollection of entering the
house and must have done so in a state of automatism. The judge then directed the Counsel in
these words, “I direct here that, in view of this defence that has been raised— that there was no
intention in the act from the start to finish, and that his presence in the house was purely
accidental — you can put the whole of his man’s history to him.”
On appeal it was held (Lord Goddard CJ): “If I may say so with all respect to the judge,
he confused intention and accident.” The question was not whether the act was intentional or
accidental but whether it was voluntary or involuntary (automatism). In the circumstance it was
not permissible to cross circumstance it was not permissible to cross-examine the appellant as to
his previous convictions.
How do sections 16 and 17 differ?
As it was said section 17 deals with facts bearing the question whether an act was intentional or
accidental. By inquiring whether an act was “intentional” indicates that this section deals with a
state of mind just like section 16. The ensuing question is how do these two sections differ?
Under section 16 all facts that establish state of mind or body or bodily feeling are admissible,
whereas under section 17 it is only one species of state of mind, namely intention, which is
allowed to be proved.
Facts relating to the state of body or bodily feeling are provable under section 16 but not under
section 17.

Case Studies
Stanislasi @ Kanyambo s/o Kitambo v. Rex (1942) TLR (R) 258
Nurat-Amin v. Emperor, AIR 1939 Cal. 335
Perkins v. Jaffrey (1915) 2 KB 702
Makin v. Attorney General for New South Wales [1894] AC 57
SECTION 18: RELEVANCY OF THE EXISTENCE OF COURSE OF BUSINESS
Section 18 provides thus, ‘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.’
Illustrations:
(a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary
course of business for all The facts that it was the ordinary course of business for all letters put in
a certain place to be carried to the post, and that particular letter was put in that place are
relevant.
(b) The question is, whether a particular letter reached A. The facts that it was posted in due
course, and was not returned through the Dead Letter Office, are relevant.
ORAL EVIDENCE & THE RULE AGAINST HEARSAY
Lecture 9 9/1/2016

Preliminary
We have initially noted that evidence may be given in judicial proceedings by three different
modes:
• By oral evidence,
• By documentary evidence or Circumstantial evidence and
• By real evidence
Oral Evidence
Section 61 of the Evidence Act [Cap 6 R.E. 2002] provides: “All facts, except the
contents of documents, may be proved by oral evidence.” The above provision codifies the
common law tradition that puts much emphasis on the tradition that puts much emphasis on the
attendance of witnesses to the court. This insistence is known as “orality.” It is to be
distinguished from the inquisitorial systems pertaining to continental Europe where the
insistence is always on the production of documents.
The reason for this policy is that jurors wanted to see the person who was giving
evidence. John Wigmore highlights on the practice of jurors in England, noting as follows: “The
jurors of the assize were certainly entitled to give a verdict based on the communications of
trustworthy neighbours. Glanvill makes it requisite, for the jurors' knowledge, 'that they should
have knowledge from their own view and hearing of the matter or through the words of their
fathers and through such words of persons whom they are bound to trust as worthy.'”
Section 3(1) of the Evidence Act as amended defines the phrase “oral evidence” to mean
“all statements which the court permits or requires to be made before it by witnesses, being
physically present at the time of making the statement or by use of other means of
communication including teleconference or communication including teleconference or video
conference, in relation to matters of fact under inquiry.”
Sakar: Oral evidence means testimony of living persons examined in the presence of the court or
commissioners appointed by the court.
Oral evidence does not always mean words falling from the lips of men. It may include
signs by a person who on account of some illness or physical injury is unable to speak. If they
are of sufficient understanding, deaf, dumb persons may also give evidence by signs through
interpretations or by writing, if they are literate (See: section 128 of the Evidence Act, Cap 6
[R.E. 2002]).
Should the witness be present?
Traditionally, oral evidence has always meant evidence given by a witness who is
physically present. The common law insistence on attendance of a witness was based on the trial
by jury (as jurors wanted to watch the demeanour), and demand for to watch the demeanour),
and demand for cross-examination. However, technological advancement which has been
achieved over the years has greatly changed the ways of life.
As of now oral evidence may be given by a witness who (i) actually or physically attends
the court, or (ii) who enters virtual appearance, that is, the one who appears by image or sound
through video conferencing or teleconferencing. The reasons for introduction of this mode of
giving evidence are,
(i) Witnesses who are physically and geographically remote from the court room and gives
evidence on videoconference due to costs or convenience, s. 70
(ii) Video conference is used in civil cases to take evidence from witnesses abroad
Videoconferencing has been availed of to take evidence from witnesses abroad who were
physically incapacitated or who for some other reason could not attend court.
(iii) It is easier to receive evidence from expert witnesses who are resident and practicing abroad.
(iv) In criminal cases, the use of video-conferencing in judicial proceedings was evolved as a
means of taking evidence from children and other vulnerable parties such as victims of sexual
assault to protect them from the physical presence of the accused in the court room and the risk
of intimidation.
(v) Currently, video conference is used in various countries to allow accused person to appear in
court while in custody or prison for certain types of pre-trial or preliminary court proceedings. It
is increasingly being used to allow a witness other than the accused with the leave of the court to
give evidence through the leave of the court to give evidence through a live link in criminal
proceedings.
(vi) Adjournment and appellate proceedings are also suitable for videoconferencing.

Challenges
(i) It is more difficult to determine the credibility of a remote witness than the credibility of a
witness appearing in court room. Because of the technological challenges, remote witness
testimony may be transforming the trial process into a be transforming the trial process into a
partisan event controlled not by the court but by lawyers and cameramen.
(ii)It is even more difficult to determine the credibility of a witness who is giving evidence
through teleconferencing
(iii) This mode of giving evidence takes away any chance for the accused person to face his
accuser, which is sometimes regarded as a right.
(iv) Court infrastructure in Tanzania does not support reception of remote witness testimony.
support reception of remote witness testimony.
(v) Frequent power outage in the country.
(vi) In Tanzanian context the technology may be expensive.
According to Section 62 of TEA, Oral Evidence must be Direct. That is to say;
(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw
it;
(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it;
(c) If it refers to a fact which could be perceived by any other sense, or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion or, as the case may be, who holds it on those
grounds: Provided that the opinions of experts expressed in any treatise commonly offered for
sale, and the grounds on which such opinions are held, may be proved by the production of such
the grounds on which such opinions are held, may be proved by the production of such treatise if
the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be
called as a witness without an amount of delay or expense which the court regards as
unreasonable.
If oral evidence refers to the existence or condition of any material thing other than a document,
the court may, if it thinks fit, require the production of such material thing for its inspection. (
s.62(2) of TEA).
Comments:
 This section admits both direct evidence as well as circumstantial evidence (presumptive
or inferential evidence). According to it, evidence is inferential evidence). According to it,
evidence is direct when it is given by a witness who perceived the facts by his or her own senses.
It refers to facts which could be seen, heard, touched, tasted or smelt ―the testimony of a
witness who saw it, heard it, touched it, tested it or smelt it . In other words, it must be the
testimony of a witness who perceived the facts through the medium of his own senses.
“In English law ‘direct evidence’ signifies evidence relating to the [main] fact is issue
(factum probandum) whereas the terms ‘circumstantial evidence’ and ‘indirect evidence’ signify
evidence relating only to relevant facts (facta probantia). However, under section 62 of TEA, the
expression ‘direct evidence’ is used in the sense of ‘original’ evidence as distinguished from
‘hearsay’ evidence, and it is not used in contradiction to ‘circumstantial’ or ‘presumptive’
evidence. The Evidence Act THUS, does not exclude ‘circumstantial’ evidence.”
Section 62 of TEA aims at rejection of evidence which is not direct, that is, what is known
as “Hearsay Evidence.”
Hearsay Evidence’s General Rule:
It is a fundamental rule of evidence at common law that hearsay is not admissible. This principle
is codified under section 62 of the Evidence Act, [Cap 6 RE 2002]. Within the scope of this rule
are included all statements, oral or written, the probative force of which depends either wholly or
in part on a third party not called to testify.
“The rule against hearsay is one of the oldest, most complex and most confusing of the
exclusionary rules of evidence. Lord Reid has said [in Myers v. DPP [1964]2 All ER 881 at 884;
[1965] AC 1001 at 1019] that ‘it is difficult to make any general statement about the law of
hearsay general statement about the law of hearsay which is entirely accurate’. One of the
reasons is that its definition, and the ambit of exceptions to it are unclear.” [Cited by Lord Russel
in R. v. McCay [1991]1 All ER 232 at 233].
Other related terms to the term Hearsay are: “unoriginal evidence’, “transmitted
evidence”, “second-hand evidence”, “secondary evidence of oral evidence”. Sarkar (14th ed. p.
931) defines hearsay as: “something which a witness before the court says that he heard from a
third party who is not called as that he heard from a third party who is not called as a witness and
the statement of that witness is inadmissible to prove the truth of the fact stated.” Phipson (7th
ed.): “Oral or written statements made by persons who are not parties and who are not called as
witnesses are inadmissible to prove the truth of the matters stated.”
The Privy Council said in Subramanian v. Public Prosecutor [1956]1 WLR 965 at 970:
defined it as: “Evidence of a statement made to witness by a person who is not himself called as
a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the
evidence is inadmissible when the object of the evidence is to establish the truth of what is
contained in the statement. It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement but the fact that it was made.” (See also: Ratten v. R.
[1971]3 All ER 801 at 804)
Thus, from the above quotations, it shows that a statement by witness about what he was
told by another per se is not hearsay. Whether or not the evidence will be hearsay depends on the
use that is made of them. In order to be adjudged as hearsay the statement must bear the
following general statement must bear the following general attributes.
(1) The statement must be made by a person who is not in court, and
(2) it must have been intended to be a proof of the truth of the facts asserted in the statement in
question.
Test to Distinguish between Direct and Hearsay: The test of distinguishing the two was stated in
an Indian case of Jagroop v Rex AIR 1952 All 276.
According to this case, the test to distinguish between hearsay and Direct is this: it is direct if,
between hearsay and Direct is this: it is direct if, to act upon it, the court has to rely upon only
the witness, whereas it is hearsay if it has to rely upon not the only the witness but some other
person. [Cited in Sir John Woodroffe and Syed Amir Ali, (2001), Law of Evidence, 17TH ed.,Vol.
II, Butterworths, New Delhi, p. 2799].

Some Decided Cases

Said Ali Dost Mohamed v. Emperor, AIR 1940 Pepsu 47.
This was a case of criminal trespass. A police officer gave evidence that he took the
police dogs to a place where the culprit was suspected to have climbed over a wall and, allowing
them to smell the place, took them to a group of people including the accused, and that one of the
dogs pointed to the accused. It and that one of the dogs pointed to the accused. It was held,: that
the behaviour of the dog could not be evidence in court, and that the evidence of the witness was
inadmissible as the fact that the smell of a certain person was the same that which the dog
pointed was a fact which might be in the knowledge of the dog and not in that of the witness.
Kigecha Njungav. R. [1965] EA 773
The appellant, driving a disguised car, was successfully chased by a Police car acting on
information received. Under the driver’s seat of the car was a sim. He was charged with the
offence of being armed by the day with the intent to commit a felony contrary to section 308(1)
(d) of the Penal Code. At the trial the Police witness gave evidence saying that he had been told
by a Police informer that there was a plot to use the disguised car for the that there was a plot to
use the disguised car for the purpose of an armed robbery but the informer was not called to give
evidence nor was his name revealed.
On appeal, Held:
(i) The trial magistrate had before him hearsay evidence of damaging nature and made no
attempt to disabuse his mind of it.
(ii) Without the hearsay evidence the court below could not have found the necessary intent to
commit a felony.
Haji Ibrahim v. R., 1975 LRT n 56
 The appellant was convicted of corrupt transactions. Before, he was tried for a different
criminal charge. He offered one goat to the magistrate so that he could decide in his favour. The
goat was taken to the magistrate by one Msafiri, but on the instructions of the appellant. The
police questioned Msafiri who told them that he was instructed by his employer (appellant) to
send a goat to the magistrate’s residence. This statement was presented in court by the police
without calling Msafiri to testify in in court by the police without calling Msafiri to testify in
person.
Held (Lugakingira, Ag J.):
(i) The testimony of a police witness about information supplied by a third party who is not
called as a witness is hearsay and inadmissible. [Citing Kigecha Njunga v R, (1965) EA 773;
Bugi Rioba v R. (1967) HCD n 68]
(ii) Conviction was upheld as there was another evidence that the goat was given corruptly.

R. v. Gibson (1887) 18 QBD 537

The accused was indicted for malicious wounding, by throwing a stone at the prosecutor
in the street. A woman going past, while pointing to the door of the accused’s house, told the
prosecutor, “The person who threw the stone went in there.” Shortly afterwards the accused was
arrested in his afterwards the accused was arrested in his house. He was convicted at quarter
sessions but the conviction was quashed on appeal. • Held (Coleridge, CJ): A statement made by
a person absent from the trial, which is repeated in evidence by a witness, is hearsay and
inadmissible, if it is tendered to prove the truth of what was stated.

Justification for Excluding Hearsay and Relevancy

It has been noted that “it [the law] cannot accept all [logically] relevant facts, because the
danger inherent in the admission of certain kinds of relevant facts would more than outweigh the
advantages of their reception. Accordingly, it is often necessary to take a mean of convenience in
judicial proceedings even though it leads to a fixed arbitrary rule, excluding one type of
testimony or another. Hearsay is the subject of one of these exclusionary rules. The law has to
take account of such things exclusionary rules. The law has to take account of such things as the
powers of observation of witnesses, the quality of their memories, the competence of their
knowledge. These factors demand that testimony which is to be received must be given by a
witness in open court, upon oath and subject to cross-examination. Hearsay does not satisfy these
conditions and so it is excluded.”
S.V.J. Rao, (2001), Sir John Woodroffe & Syed Amir Ali’s Law of Evidence, 17th edtn, New
Delhi, Butterworhs, p. 1326).

Hearsay and Best Evidence Rule

Many evidence law authors such as Stephen, Best and Taylor all connected the hearsay rule with
the best evidence rule which holds that only the best evidence available is admissible. The two
rules have neither common origin nor are they development of a common principle. The hearsay
rule is the result of a marking off the functions of witnesses from those of jurors, a development
which took place long before the crystallization of the best evidence rule.
The Basis of Exclusion
On principle hearsay evidence is rejected as it is untrustworthy for judicial purposes for various
reasons. In Teper v. R. [1952] 2 All ER 447 at 448, Lord Normand said, “The rule against
admission of hearsay evidence is fundamental. It is not the best evidence and it fundamental. It is
not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person
whose words are spoken to by another witness cannot be tested by cross-examination, and the
light which his demeanour would throw on his testimony is lost.”
Other reasons:
(i) The irresponsibility of the original declarant, for the evidence is not given on oath or under
personal responsibility,
(ii) It cannot be tested by cross-examination,
(iii) The court is denied the opportunity to observe the demeanour of the declarant.
(iv) Its reception encourages the substitution of weaker evidence for stronger proofs,
(v) Its tendency to protract legal investigation to an embarrassing and dangerous length,
(vi) Its intrinsic weakness,
(vii) Depreciation of truth in the process of repetition, and
(viii) The opportunities for fraud its admission would open.

EXCEPTIONS TO THE HEARSAY RULE

Although the law rejects hearsay evidence generally there are many exceptions to this
general rule. Hearsay evidence is admissible out of certain necessity. Where any testimony falls
within one of the recognized exceptions, within one of the recognized exceptions, that is, where
there are special circumstances which give a guarantee of trustworthiness to the testimony even
though it comes from a second source.
The exceptional cases include:
(i) Admissions and Confessions
Admissions (s. 19 ― 26 of the Evidence Act, Cap 6 RE 2002)
Confessions (s. 27 ― 33 of the Evidence Act, Cap 6 RE 2002)
(ii) Public documents s. 83― 87 of the Evidence Act, Cap 6 RE 2002
(iii) Admissibility of maps and drawings
(iv) Dying declarations: Section 34(a) of the Evidence Act, Cap 6 RE 2002.
(v) Statements by persons who cannot be called as witnesses •Sections 34 ― 35 of the Evidence
Act, Cap 6 RE 2002).
(vi) Res gestae; In Gentela Vijayavardhan Rao v. State of Andha Pradesh (1996) 6 SCC (Cri)
1290, it was held: “The principle of law embodied in s 6 of the Evidence Act is usually known as
the rule of res gestae recognised in English known as the rule of res gestae recognised in English
law.
(vii) Statements by mechanical devices E.g. documents produced by the Automated Teller
Machines (ATMS), but not of course those which result from information keyed in by a human
being or other agency.

ADMISSIONS AND CONFESSIONS

Lecture 10 26/1/2016
Dr. Nangela © 2015/16

Introduction
Admissions and confessions are admissible as exceptions to the rule against hearsay
evidence. These statements are admissible on the strength that they are based on the principle
that no person can make statement against his own interest unless it is true.
A. ADMISSIONS
Definition
According to the Black’s Law Dictionary, the term “admission” is defined as confessions,
concession or voluntary acknowledgment which is made by a party to the suit. These are
statements which are laid by the parties to a suit or by parties who are related by some ways to
the party to the suit.
Sarkar (14thedtn, at 261): an admission is concession or voluntary acknowledgment made by a
party or someone identified with him in legal interest of the existence of certain facts which are
in issue or relevant to an issue or in the case.
Section 19 of the Evidence Act, [Cap 6 RE 2002] defines the term “admission.” An admission is
a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant
fact and which is made by any of the persons and in the circumstances hereinafter mentioned.
Admissions are “statements”, which may be oral or documentary in accordance with
section 19. This means admission by conduct is excluded. Under English law admissions
include conduct of a party. In Bessela v. Stern (1877) 25 WR 561, in an action for breach of
promise of marriage, it is proved that the plaintiff said to the defendant, “You always promised
to marry me, and you don’t keep your word.” The defendant made no answer to this assertion,
but said he would give the plaintiff money to go away. His silence on the subject of marriage
was held to be an admission.
Principle of English Law: Silence may amount to an admission when it is natural to expect a
reply. But when circumstances are such that a reply cannot reasonably be expected, the party’s
silence in face of a charge or assertion will not amount to an admission. But, under the Evidence
Act conduct is admissible under section 10. Admission as defined by section 19 is restricted to
statements.
Admissions and Confessions ― Relationship
There is a close relationship between admissions and confessions:
•Both are concessions, acknowledgments,
• A confession is a species of which an •A confession is a species of which an admission is the
genus,
•All admissions are not confessions but all confessions are admissions,
•Both are evidence against interest.
Admissions and Confessions ― Differences
• Admissions are covered by sections 19 ― 26 of the Evidence Act, [Cap 6 RE 2002] whereas
Confessions are covered under sections 27― 33 of the Evidence Act, [Cap 6 RE 2002]. • A
confession indicates guilt, whereas an admission in a criminal case sometimes relates admission
in a criminal case sometimes relates to a relevant fact.
• Under the Evidence Act, [Cap 6 RE 2002] admissions are limited to statements (made oral or in
writing) but confessions are partly defined by section 3 to include conduct.
• Admissions are wide in scope as they cover both civil and criminal cases but confessions are
narrow in their scope as they apply to criminal cases only. However, under the English law
admissions are restricted to civil cases.
• Sarkar (14th ed., p. 264): the acid test which distinguishes a confession from an admission is
that where conviction can be based on the statement alone, it is a confession and where some
supplementary evidence is needed to authorize a conviction, then it is an admission.
• No statement that contains self exculpatory matter can amount to a confession, if the
exculpatory statement is one of fact which is if true would negative the offence alleged to be
confessed. Moreover, a confession must admit in terms the offence or at any rate substantially all
the facts which constitute the offence. An admission of a gravely incriminating fact is not of
itself a confession.
Read the following cases:
Copa v. R (1953) 20 EACA 318
Sebastian Swaiand others v. R, 1973 LRT n. 75
Bampamnyiki s/o Buhile v. R [1957] EA 473
Bampamnyiki s/o Buhile v. R [1957] EA 473
PakalaNarayanaSwami v. King Emperor [1939]1 All ER 397.
Scope of Application of Section 19- 22 tea
According to Sarkar (14th ed., at 261): it is not correct to say that admission is usually applied to
civil transactions, and those matters of fact in criminal cases, which do not involve criminal
intent. Thus Sections 19 to 22 of the TEA are not restricted to civil cases. They also apply to
criminal cases as well.

Kinds of Admissions
Admissions are ordinarily categorized into two: (1) judicial admissions, and (2) extrajudicial
admissions.
1. Judicial (formal) admissions:
They are formal admissions made by parties during the proceedings of the case. When
they are made they are binding on a party making them. They constitute a waiver of proof.
Formal admissions are admissible under section 60 of Evidence Act, [Cap 6 RE 2002]. They are
scattered in different pieces of legislation (for instance, see O8 r 3-5 of the Civil Procedure
Rules, 1stSchedule to the Civil Procedure Code, Cap 33 RE 2202]. See also O11 r 22 of the Civil
Procedure Rules (interrogatories). There is no evidence needed to prove such admissions that is
why the law is not much concerned itself with formal admissions
2. Extra- judicial (informal) admissions:
They are informal admissions not appearing in the record of the case. Unlike judicial
admissions they are binding only partially and not fully except in cases where they operate or
have the effect of estoppel in which case they are fully binding. Extra-judicial (or informal
admissions) are usually made in the course of casual conversation in ignorance of the possibility
of their being used in the future litigation.The law is concerned much with informal or extra-
judicial admissions.
Rationale for Admission of Admissions
Strictly speaking, evidence in the nature of admission is hearsay evidence. It is so
because it is used by one person who relies on what another said. • Admissions are received
because of life experience that human beings tend to say experience that human beings tend to
say good things about themselves and on that account it has to be believed to be true. Thus in
Slaterrie v. Pooley (1840)6 M & W 664, Parke B partly said: “… what a party himself admits to
be true, may reasonably presumed to be so.”
Admissions are usually made when a person is not under any fear or anticipation of any
legal proceedings.
Conditions for the admissibility of Admission
(i) Admission of which evidence is sought to be given must relate to the subject matter in issue,
(ii) Admission must be in the nature of self harming (against the interest of the maker) and not in
the nature of self-serving (in favour of the maker).
(iii) Admissions must be made by persons and in the circumstances mentioned under sections 20
― 22 of the Evidence Act, [Cap 6 RE 2002].
Who May Make Admission?
1. Parties to the suit or proceedings Section 20(1) of the Evidence Act, [Cap 6 RE 2002]
A party to the proceedings is usually identified A party to the proceedings is usually
identified by records or pleadings of the case. Thus, statements made by parties to the suit or
proceedings which suggest an inference to the fact in issue or relevant fact may be proved
against them as admissions.
2. Agents of the parties or persons expressly or impliedly authorised Section 20(1) of the
Evidence Act, [Cap 6 RE 2002]
An “agent” is a person who manages the affairs of another person called the “principal”.
The relationship between the two is a matter of substantive law. Who is an agent, the court may
decide depending on the particular circumstances. Sometimes an agent is a representative,
deputy, emissary, broker, attorney, etc.
Admissions of an agent made to third persons are receivable against his principal (1)
when the agent is expressly authorised to make them; (2) when the agent is authorised to
represent the principal in any business and the admissions are made in the ordinary course of
such business. course of such business. Thus, statements made by agents of the parties to the suit
or proceedings are binding on the parties to such suit or proceedings and may be proved against
him as admission.
Rationale:
The law ties the agent with the principal because it is said whoever puts another to work is
responsible for the deeds of that other person, and thus the agent’s statement may be used against
the principal.
In Kirkstall Brewery Co. v. Furness Railways Co. (1874) LR 9 QB 468, the Brewery Company
was suing the Railways Company for loss of luggage through Railways Company for loss of
luggage through negligence. The station master had made statement before the Police when on
inquiry to the effect that the Railway Company had the habit of losing passengers’ luggage.
Held: the statement was admissible as an admission against the Company.
3. Parties to suits suing or being sued in a representative character Section 20(1) of the
Evidence Act, [Cap 6 RE 2002]
A statement made by a person suing or being sued in a representative character may be
used against the person who is represented. For instance, Executor of a will can sue another
person on behalf of the beneficiary of the will. The statement made by the executor can be used
by one party to the case against the beneficiary. Executor can be used by one party to the case
against the beneficiary.
A trustee’s statement can be used against the beneficiary. In order for a statement to be
admission, it must have been made by a person at the time when he was acting under such
capacity. (See New’sTrustee v. Hunting [1897]1 QB 609).
4. Persons having proprietary or pecuniary interest in the subject matter of the proceedings
Section 20(3) (a) of the Evidence Act, [Cap 6 RE 2002]
For instance, the landlord has a proprietary interest in the leased land; the owner of a
interest in the leased land; the owner of a borrowed car, etc. Statements of such persons may be
used as admission against other persons in relation to the subject matter (property) in question.
For example a neighbour who is suing a tenant may use the statement of the landlord against the
tenant.
5. Parties from whom parties to the suit or proceeding derived their interest in the subject
matter of the suit Section 20(3) (b) of the Evidence Act, [Cap 6 RE 2002]
Illustration: If B inherited land from A, and the land is subject matter of dispute, C can use the
statement of A against B if there is a dispute statement of A against B if there is a dispute
between B and C. • In La Roche v. Armstrong [1922]1 KB 485, it was held that “I think it is true
that if a chattel is transferred, admissions made by transferor at the time of or prior to the
transfer, which qualify or affect the title are admissible in evidence against transferee.”
7. Persons expressly referred to by a party to the suit Section 22 of the Evidence Act, [Cap 6
RE 2002]
Illustration: There is dispute between A and B. A tells B to go to C to find a certain information
about a subject matter in dispute, information about a subject matter in dispute, the statement
made by C is admissible against A. • Rationale: when a party refers the second party to a third
party for information, the first party is presumed to undertake to adopt, as his own, the
information furnished by a third party.
GENERAL RULES ON ADMISSIONS
1. Admission is evidence against its maker (or interest)
Admissions are generally evidence against their makers and their representatives-in-
interest and cannot be proved in their favour. This rule is provided for under section 23. In
Kumar v. Singh AIR 1916 Pat 27, 39 IC 635, it was held where an execution of a mortgage deed
is admitted and the deed contains a definite admission by the executants regarding the passing of
consideration, the admission is evidence against the mortgagors and their representatives in
interest.
Exceptions
Section 23 also enumerates the exceptions to this general rule. Admission may be
evidence in favour of its maker in the following cases:
(i) If the statement was of such nature that, if the maker were dead, it would be admissible under
section 34 [Section 23(a) of the Evidence Act]. Section 34 deals with relevancy of statements by
persons who cannot be called as witnesses.
Illustration I:
A, the Captain of a ship, is tried for casting her away. Evidence is given to show that the ship
was taken out of her course. A produces a book kept by him in the ordinary course of his
business, showing ordinary course of his business, showing observations alleged to have been
taken out of her proper course. A may prove these statements, because they would be admissible
between third parties if he were dead under section 34 (b).
Illustration II:
A is accused of a crime committed by him in Mwanza. He produces a letter written by himself
and dated at Arusha on that day, and bearing Arusha post-mark of that day. Arusha post-mark of
that day. The statement in the date of the letter is admissible, because, if A were dead, it would
be admissible under section 34(b).
(ii) When admission consists of a statement of the existence of any state of mind or body,
relevant or in issue, made at or about the time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable [Section 23(b) of the Evidence Act].
There are three conditions to be fulfilled in order for this provision to be brought into operation:
(a) Such state of mind or body is in issue or relevant,
(b) The statement is made at or about the time when such state of mind or body existed,
(c) The statement was accompanied by conduct rendering its falsehood improbable.
Illustration I:
A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he
refused to sell them below their value. A may prove these statements, though they are
admissions, because they are explanatory of conduct influenced by fact in issue.
The statement made by A refusing to sell the goods below their market value although they are
in self-harming form are admissible because they are explanatory of the conduct influenced by
the facts in issue.
Illustration II:
A is accused of fraudulently having in his possession counterfeit coin which he knew to be
counterfeit. He offers to prove that he asked a skilful person to examine the coin, as he doubted
whether it was counterfeit or not, and that person did examine it and told him it was genuine. A
may prove these facts, though they are admissions, because they are explanatory of conduct
influenced by fact in issue. These facts may be proved by A as they explain and accompany his
state of mind rendering the falsehood of his statement improbable.
(iii) If the statement is relevant otherwise than as an admission. This means that if the admission
is admissible under other provisions of the Act, it cannot be shut out. [Section 23(c) of the
Evidence Act].
This exception admits admissions in the self-serving nature which might be admissible under a
different provision of the Evidence Act or other law.
2. Oral admissions as to the contents of a document are not admissible [section 24 of the Act]
Section 24 of the Evidence Act echoes the best evidence rule which holds that it is the
best evidence that must be offered in proof. According to section 66 of the Act which provides
that “Documents must be proved by provides that “Documents must be proved by primary
evidence except as otherwise provided in this Act.” As Taylor says, “the general rule is that the
contents of a written instrument which is capable of being produced must be produced by the
instrument itself and not by parole evidence.”
If a documentary statement is to be admitted as admission, the document itself has to be
produced.
Exceptions
(i) If it is allowed by the rules of evidence regarding secondary evidence [sections 63 to 75 of the
Evidence Act]. See section 65 (e) of the Act.
(ii) If there is a question to be resolved as to whether the document is genuine, then oral
statements may be made.
3. Admissions made without prejudice in civil cases
This rule is provided for under section 25 of the Evidence Act, [Cap 6 RE 2002]. It is
restricted to civil cases only. Generally, what the parties expressly agree or under some
circumstances that may be inferred so by the court, that certain information will so by the court,
that certain information will not be given in evidence, then such information cannot be given in
evidence even if it was in the form of admission. The common expression used is “without
prejudice.” It is used to show the intention not to be bound.
Sarkar (17th ed., at p.585): “The words “without prejudice” simply mean this: ‘I make you an
offer, if you do not accept it, this letter is not going to be used against me”[per James LJ] or
“they are tantamount to saying, I make you an offer which you may accept or not, as you like;
but if you do not accept it, my having made it, is to have no effect at all.”[per Mellish LJ in re
River Steamer Co., Mitchell’s Claim, LR 6 Ch App River Steamer Co., Mitchell’s Claim, LR 6
Ch App 822] Thus, generally, admissions made without prejudice are not admissible under
section 25.
Rationale: the law is trying to encourage people to negotiate without fear that whatever they say
might be used against them in legal proceedings.
4. Admissions are not conclusive proof, but may operate as estoppels
Section 26 ordains that admission is not conclusive proof of the matter admitted, though
it may in certain circumstances operate as estoppel.
Sarkar: admission is not conclusive unless it amounts to estoppel. It may be proved to be
amounts to estoppel. It may be proved to be wrong; but unless so proved, it is a very strong piece
of evidence against the maker thereof and is decisive of the matter though not conclusive. •
Estoppel (ss 123-126): rules which prevent a person from changing his position, who made the
other to believe a certain fact.
5. Admission must be taken “as a whole”
This principle is not codified in the Evidence Act but propounded by case law. •
Admission made by a person whether amounting to a confession or not cannot be split up and
part of it used against him. Admission must be used as a whole or not at all.
B. CONFESSIONS
Confessions are covered by sections 27 ― 33 of Evidence Act, Cap 6 RE 2002.
Confessions apply to criminal cases and thus narrower in scope whereas admissions cover both
civil and criminal cases and hence wider in scope. Confessions are evidence against interest and
not in favour of the maker.
Confessions made in the course of judicial proceedings are reliable evidence and hence the two
maxims:
(i) Confessio facta injudicio ominiprobatione major est (which means confession in judicial
proceedings is greater than any other proof)
(ii) Confessio facta injudicio est plena probatio (which means that a confession in judicial
proceedings is the absolute truth).
However, the experience has shown that people may sometimes falsely confess in order
implicate themselves for various reasons. Courts are thus supposed to be careful.
Confessions, though hearsay in nature, are admissible on the experience that human beings tend
to say good things about themselves and hence there is high probability that confessions are true.
Confessions are of two kinds: judicial and extrajudicial.
Judicial Confessions
Judicial confessions are made in the course of judicial proceedings. For judicial
confessions, see sections 282 and 283 of the Criminal Procedure Act, [Cap 20 RE 2002], which
relate to the plea of guilty.
Extra-judicial confessions are made out of the court. Describing the extra-judicial
confession, Rao (p.1350) states thus: “Extra-judicial confessions are those made by the party
elsewhere than before the magistrate or court. In short, extrajudicial confessions are those made
by a party to or before a private individual which includes even a judicial officer in his private
which includes even a judicial officer in his private capacity.” The extra-judicial which is
voluntarily made is a very strong piece of evidence.
The Supreme Court of India, in Kishore Chand v State of Himachal Pradesh, AIR 1990
SC 2140, commented thus on the extra-judicial confession:
“The unambiguous extra-judicial confession possesses high probative value force. As it is
emanates from the person who committed the crime and is admissible in evidence provided is
free from suspicion and suggestion of its falsity in its truth. The court has to look into the
surrounding circumstances and to find whether the extra-judicial confession is not inspired by
any improper or collateral consideration or circumvention of the law suggesting that it may not
be a true one. For this suggesting that it may not be a true one. For this purpose, all the relevant
facts, such as, the person to whom confession is made, the time and place of making it, the
circumstances in which it was made and finally the actual words used by the accused.”
The law of evidence is, however, much concerned with extra-judicial confessions than the
judicial ones.

Definition
Section 3(1) of the Evidence Act, [Cap 6 RE 2002] defines the term "confession" to mean
(a) words or conduct, or a combination of both words and conduct, from which, whether taken
alone or in conjunction with other facts proved, an inference may reasonably be drawn that the
person who said the words or did the act or acts constituting the conduct has committed an
offence; or
(b) A statement which admits in terms either an offence or substantially that the person making
the statement has substantially that the person making the statement has committed an offence;
or
(c) A statement containing an admission of all the ingredients of the offence with which its
maker is charged; or
(d) a statement containing affirmative declarations in which incriminating facts are admitted
from which, when taken alone or in conjunction with the other facts proved, an inference may
reasonably be drawn that the person making the statement has committed an offence.
Comments:
This definition was introduced by amendments effected in 1980. Before that year, there
was no definition of the term “confession” in the Act. It was suggested by the Judicial System
Review Commission. The Commission had noted that lack of definition was not a happy state of
the law and there were many conflicting decisions [See The Report by the Judicial System
Review Commission, 1977, pp. 26465]. 65].
Sir James Fitzjames Stephen made an attempt to define: “A confession is an admission
made at any time by a person charged with the crime stating or suggesting an inference that he
committed the crime.”[Stephen, Digest of Law of Evidence].
In Pakala Narayana Swami v. King Emperor [1939]1 All ER 397, the Privy Council
disapproved the definition by Sir James Stephen. Lord Atkin said that confession cannot be
construed mean a suggestion by a person accused of an offence that he committed the crime.
“No statement that contains self-exculpatory matter can amount to a confession, if the
exculpatory is of some fact which if true would negative the offence alleged to be confessed.
Moreover a confession must either in terms confessed. Moreover a confession must either in
terms the offence, or at any rate, substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a
confession, for example, an admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused the death would not be consistent with the
natural use of language to construe confession.”
The Court of Appeal of Tanzania in Mathei Haule v. R. [1992] TLR 148 endeavoured to
define “confession” in the following words: “Confession within the context of criminal law is
one which admits in terms the offence charged. It is which admits the entire essential charged. It
is which admits all the essential elements or ingredients of the offence. An admission of one or
only some of the ingredients of the offence is not sufficient.”

TO WHOM CAN CONFESSION BE MADE

The Evidence Act, [Cap 6 RE 2002] does not state exhaustively as to whom the
confession may be made. It merely mentions some categories of persons to whom confession
may be made. The tradition position of the may be made. The tradition position of the Law of
Evidence has always been that it is immaterial to whom confession may be made. In this respect
Rao quotes Phipson who says:
“It is in general immaterial to whom a voluntary confession has been made. Thus, a confession
made to a person in authority is admissible, if not induced by him, while one induced by, though
not made to him will be rejected. So statements made, or letters written, when in custody, by the
accused to the prosecutor, or to outside friends, where the letter was written after trial and
received on appeal, or to his wife, or statements made by the prisoner to his wife or even to
himself, or confidences to a fellow prisoner overheard by the police, or statements to solicitor,
are admissible, if independently proved. The confession of a third person cannot be used in a
prisoner’s favour.”
Thus, generally a confession can be made to any person provided that it is made voluntarily and
it is true.
READ:
R. v. Thompson [1893]2 QB 12
R. v. Robinson [1917] 2 KB 108
M. Rumping v. DPP [1964] AC 814
R. v. Gardner and Hanox (1915) 11 Cr App R. 265
Confession to a Police Officer
Under section 27(1) of the Act, a confession made voluntarily to a police officer is
admissible against its maker. “A police officer” is defined by section 3(1) of the Act to mean any
member of the Act to mean any member of the Police Force of or above the rank of corporal.
This definition thus excludes a police constable.
 The meaning of the phrase “police officer” was considered by the Court of Appeal of
Tanzania in Kennedy Owino Onyachi and others v R. , Court of Appeal of Tanzania, Criminal
Appeal No 125 of 2005 (judgment given in 22ndDecember 2009) (unreported). In short, the
question was whether the phrase “police officer” was confined to Tanzania Police officers or
could be extended to cover Kenyan police officers. After considering the meaning of “police
officer”, “force“97, and “the United Republic”, the court came to the conclusion that “the term
police officer for the purpose of section 27(1) of the Tanzania Evidence Act, Cap 6 means police
officer from the police force of the United Republic of Tanzania.”
The History
Before 1980, the law was that a confession made before a police officer was not
admissible. This was the position inherited from the Indian Evidence Act, 1872 (section 25)
which applied in Tanzania until 1967. Previously, section 27 of the Evidence Act, 1967 provided
thus: “no confession made to a police officer shall be proved against a person accused of an
offence.” The reason for this exclusion was that native police officers were regarded as brutal
and were thus likely to extract or extort confessions.
The Decision of Russel CJ (High Court of Tanganyika) in Rex v. Asmani
Mwakewambwa, 1 TLR (R) 119, expounds the reason for exclusion of confessions made to
police officers:
“In dealing with this question it is necessary to consider what is the object of section 25, which is
a special provision in the Indian Evidence Act and does not exist in the law of evidence of
England. The Report of the Indian Commissioners shows the reasons which prompted the
legislature to enact section 25. It is because the tendency of a native police officer who receives
an intimation of the occurrence of an offence of a serious character and who fails to discover the
perpetrator of the offence, to endeavour to secure himself against any of an offence of a serious
character and who fails to discover the perpetrator of the offence, to endeavour to secure himself
against any charge of supiness or neglect by getting up a case against parties whose
circumstances and character are such are likely to obtain accusation of the kind against them.
This is not infrequently done by extorting or fabricating false confessions; and when this step is
once taken, there is of course impunity of the real offenders, and a great encouragement to
crime.”
In Bampamiyaki s/o Buhile v. R. [1957] EA 473 at 477 the Court of Appeal for Eastern
Africa remarked that section 25 of the Indian Evidence Act, 1872 was enacted to “guard against
the danger of the police employing coercion or inducement in order to extract confession”. The
Judicial system Review Commission showed how this rule which they described as a “sweeping
exclusionary rule”, was quite unacceptable. It rejected confessions simply because they were
made rejected confessions simply because they were made to police officers. It used the case of
Alli v. R. [1971] EA 75 [also Mkareh v. R. (1971) HCD n. 74]. In that case, Mkareh, who was a
policeman, killed his wife in his house which was one of the houses in a police line alongside
Kilwa road in Dar es Salaam. He then called his neighbour, an off-duty police corporal and told
him: “I have killed, go in and see.”
The neighbour was then shown the dead body of the latter’s wife. The corporal was the
key witness at Mkareh’s trial. The defence Counsel objected to admission of evidence by the
corporal because he was a police officer. He cited section 27 of the Evidence Act, 1967. Georges,
CJ admitted the statement on two reasons: first, it did not amount to confession, and second, it
was made to a person who was not in the capacity of police officer, because the corporal was off
duty. The accused was convicted. On appeal the East Africa Court of Appeal, the decision was
reversed. First it held that the definition that the Chief Justice had given to confession was too
restrictive. And second, what the Chief Justice did was to interpolate the words “acting in his
capacity as such” after the words “police officer”, which in their view he was not entitled to do
so. To them the true test was: “was or was not the person to whom the statement was made a
police officer? If the answer is yes, the statement must be excluded. The conviction was quashed
and release of Mkareh was ordered.
The Commission was of the view this was a clear case of miscarriage of justice
occasioned by the law. It went on to make the following recommendation: “We are, accordingly,
of the considered view that the rule which now makes all confessions made to police officers by
persons accused of crime inadmissible in evidence should be modified. We would recommend
that the law should be amended so as to make voluntary confessions given to police officers of or
above the rank of police corporal be admissible in above the rank of police corporal be
admissible in evidence. We would recommend that the law provide in no uncertain terms that the
onus of proving any such confessions were obtained from the accused person voluntarily lies on
the prosecution. A confession will be held not to be voluntary if for instance it is induced by any
threat, promise or other prejudice held out by the investigating officer or any other person in
authority
“…We would recommend that the person the present law as to the discretion which a court has
in disregarding a confession, if its prejudicial effect outweighs its probative value, should
continue to apply. We finally recommend that the rule which requires repudiated or retracted
confessions to be corroborated should also continue in its present form. “To this end, we would
like to explain why we have selected only certain cadres of the police for the purpose of our
recommendation. We have not done this because we certain cadres of the police for the purpose
of our recommendation. We have not done this because we think police officers below the rank
of police corporal are less trustworthy and more likely to resort to use force in order to extract
confessions from accused persons or that no black sheep can be found among the senior ranks of
the police force. That is not our reason…”
Compare the provisions of section 27 with the above recommendations.
In Shihobe Seni v. R. [1992] TLR 330, the Court of Appeal agreed to the contention that
Court of Appeal agreed to the contention that a confession made to a member of peoples’ militia
was inadmissible because the law equates such a member to a police constable [section 3(1) of
the People’s Militia Laws (Miscellaneous Amendments) Act, 1989 (No 9)].
Confession to a Magistrate
Section 28 makes confessions which are made to a magistrate admissible. The term
“magistrate” is defined by the Magistrates’ Courts Act, [Cap 11 RE 2002]. The term
“magistrate” is defined by section 2 of the Magistrates’ Courts Act, [Cap 11 Re 2002] to mean a
primary court magistrate, a district court magistrate, or a resident magistrate and court
magistrate, or a resident magistrate and also includes civil magistrate and an honorary
magistrate. The above definition brings other two terms which call for definitions―“civil
magistrate” and “honorary magistrate.” They also defined by section 2 of the same Act.
“Civil magistrate” means a resident magistrate and such other magistrate as the Chief Justice
may appoint either generally or in respect of any proceeding or category of proceedings, to be a
civil magistrate.
“Honorary magistrate” means any person appointed under section 16 to be, or to perform the
functions of, a magistrate.
In recording confession under this section the magistrate would not be acting in judicial capacity
but in a different capacity. He is like the police officer and he would be required to give evidence
on that confession.
Confession to a Justice of the Peace
Justices of the peace are allowed to take confession under section 28 of the Evidence Act,
[Cap 6 RE 2002]. Section 59 of the Magistrates’ Courts Act, [Cap 11 RE 2002] provides thus, ‘A
confession made by a person in the custody of a police officer which is made in the of a police
officer which is made in the immediate presence of a justice of the peace assigned to a district
court house may be proved in evidence in the same manner and to the same extent as a
confession in the like circumstances in the immediate presence of a magistrate may be proved.’
Definition of the “justice of the peace” is far from being clear. The following persons are justices
of the peace:
(i) A specified officer [under s 51(1)]
(ii) A person appointed by the Minister[sect 51(2)]
(iii) A primary court magistrate [sect 58(1)],
Analysis of section 27
Section 27 of the Act is a mere reproduction of the recommendations made by the Judicial
System Review Commission. Two conditions under section 27(1) that attach to the statement
made to a police officer:
(i) Voluntarily made, and
(ii) By an accused person
Voluntariness of Confession
The word “voluntary” which is used under section 27(1) is not defined. But, it is defined
in an indirect way under section 27(3) which defines the word “involuntary.” Confession is
involuntary if it is induced by threat, promise or other prejudice. The question whether a
confession is voluntary or not is a question of fact. To “induce” means incentive, encouragement
or enticement. The question whether a confession is voluntary or not is always a question of fact
(Rao, p.1350).
Threat
It is an intimidation of some sort given by a police officer or other person in authority in order to
induce the accused to confess. In R. v. Thompson (1783)1 LEACH 291, the words, “You have
had better split and not suffer for all of them”, were held to be a threat. In R. v. Collier and
Morris (1848) 3 Cox CC 57, the statement, “it will be better to tell the truth as you will save the
shame of such warrant in your house”, was held to be a threat.

Promise
It is a certain assurance given by a police officer or a person in authority or any other person to
an accused person to induce him to confess. In R. v. Thompson (1989)2 QB 12, Cave, J held that
the statement that, “tell me where things are and I will be favourable to you” were held to be a
promise. In R. v. Boughton(1910) 6 Cr. App. R. 8, a police officer promised the prisoner, “if you
sign the admission there will be no prosecution.” This statement was held to be a promise.
Principle; an offer of some collateral convenience or advantage, unconnected with the result of
the prosecution, is not such an inducement as will render a confession inadmissible.

“Other prejudices”
The phrase “other prejudices” used in section 27(3) indicates that categories of prejudices are not
closed. In other words that provision is not exhaustive in so indicates that categories of
prejudices are not closed. In other words that provision is not exhaustive in so far as oppressive
matters which may induce untrue confession are concerned.
A person in authority
Section 27 (3) provides that an inducement may be caused by a police officer, any
member of the police force or any other “person in authority” that makes a confession
involuntary.
There is no definition in the Act of who is a person in authority. But is usually means
whoever involves in investigation, arrest, prosecution etc. Case law has tried to point out as to
who are persons in authority. In England the following persons have been held to be persons in
authority: magistrates, their clerks, coroners, police constables, warders and others having
custody of prisoners, searchers, prosecutors, their wives and attorneys.
In East Africa, the case of R. v. Kasule and others (1948)15 EACA 148, is the case in
which the question whether a local chief (Gombolola chief) was a person was a person in
authority came under focus. The three appellants were convicted of murder but their prosecution
depended on the statement that was made to the chief who had said, “Tell me how you killed
your father.” The Court held that the statement was a threat because the Chief was a person in
authority.
In Tanzania, there are also some decisions on the same point. In Shihobe Seni v. R.
[1992] TLR 330, the Court of Appeal of Tanzania, decided that a “village chairman” is a person
in authority under section 27 (3) of the Evidence Act, 1967 and that confession made to him is
involuntary if the court believes that it was induced by any threat, promise or other prejudice.
But, it actually found that the particular confession was not induced by threat, promise or other
prejudice.
In Masasila Mtoba v. R. [1982] TLR 131, Katiti, J held that a “ward secretary” was not
such a person in authority. But subsequently, in the case of Mayaya Ngolela v. R, CAT, Crim
App No 30 of 1990(unreported), the Court of Appeal held that a “village secretary” was a person
in authority, and that a “village chairman” was even more so. However, in this latter case,
admission was admitted because there was no evidence that it was induced by threat, promise or
other prejudice.

Who may induce a threat, promise or other prejudice?

The law and the effect of authorities seem to be that threat, promise or threat may be
induced by a police officer or any other person in authority. It seems the law does not associate
such an inducement with a person who has no sort of authority. The English case of R. v.
Gibbons (1823) 1 C & P 97, illustrates this point. On a charge of murder, a surgeon, Mr Cozens,
was called to prove confession made by the prisoner to him. He objected to giving evidence on
the ground that when the statement was made he was acting in the capacity of a surgeon. The
objection was however overruled. He said that he held out no threat promise or promise to the
prisoner, but a woman present said that she had told the prisoner to tell, and then the prisoner
confessed to the witness (the surgeon).
Held (Park, J); as no inducement had been held out by Mr Cozens, to whom the whom the
confession was made; and the only inducement had been held out by (as was alleged) by a
person having no sort of authority; must be presumed that the confession made was free and
voluntary.
Comments
If the promise had been held out by any person having any office or authority as the
prosecutor, constable, etc., the case would have been different; but here some person, having no
authority of any sort, officiously says, “You had better confess.” No confession follows: but
sometime afterwards, to no authority of any sort, officiously says, “You had better confess.” No
confession follows: but sometime afterwards, to another person (the witness), the prisoner,
without any inducement held out, confesses. They (the judges) had not the least doubt that the
present evidence was admissible.
Duty to prove that confession was voluntary
According to section 27 (2) of the Act, the onus of proving that confession sought to be produced
in court was voluntary lies on the prosecution side.

Rules Governing Admissibility of Confessions

The general principle is that confession is provable if it was made voluntarily. If it was
made to a police officer or any other person in authority then it is admissible if it was not
induced by threats, promise or other threats. Although the Court of Appeal has decided that the
requirement of voluntariness has exception it would appear that the Evidence Act, [Cap 6 RE
2002] provides some circumstances where a confession made be admissible despite the fact that
it was induced by threat, promise or other threat. Such circumstances are indicated in sections 29
to 32 of the Act.
1. Confession though induced by threat, promise or other prejudice is admissible unless the
inducement was likely to cause an untrue confession.
This is provided for under section 29. In Josephat Maziku v. R. [1992] TLR 227, Justice
Katiti said: “While it is trite law that the condition precedent for the admissibility of a confession
is its voluntariness, a confession is not automatically inadmissible simply because it resulted
from threats or promise; it is inadmissible only if the inducement or threat was of such a nature
as likely to cause untrue admission of guilt.” of such a nature as likely to cause untrue admission
of guilt.”
Thadei Mlomo and others v. R. [1995] TLR 187, interpreted this section. Ramadhani, JA
(as he then was) delivering the judgment of the Court said: “This section (section 29) appears to
encapsulate the principle in Tuwamoi’s case, that is, confession though made involuntarily is
admissible if it is true. This Court has held in Marcus Kisukuli v. R. (unreported) that section
29 cannot be used where there is actual torture. [But] here there was no proof of torture but only
threats thereof.”
A long thread of authorities, including the above cited cases, indicated that section 29
permits admission of involuntary confessions which are otherwise true. But the Court of Appeal
decided to revisit such cases and impliedly overruled them in RichardLubilo and Mohamed
Selemani [2003] TLR 149. The following are the authoritative statements of the Court: “The law
of this country is that in order for a confession to be admitted in evidence it must be voluntary.
The law places admitted in evidence it must be voluntary. The law places the onus of the
prosecution to prove affirmatively the voluntariness of any confession sought to be put in
evidence. That is a rule of procedure that emerges from the totality of sections 27 and 28 of the
Evidence Act as well as decided cases over the years. Except in the limited context of evidence
obtained in consequence of inadmissible confessions, there is no exception or qualification to the
rule.”
Section 29 does not qualify section 27 but it is complementary to it. What the section (i.e.
section 29 of the Evidence Act) does is to salvage otherwise voluntary confessions which would
be lost if every promise or threat were taken at face value and to exclude those confessions
which are in fact the product of promises and threats. If the court is of the opinion that the
promises and threats were not of such a nature and were not offered in such circumstances as to
operate on the mind of the accused, the confession is admissible. Such a confession not being a
product of threats or promises is a species of voluntary confessions.
The question whether or not the threat and promises have operated on the mind of the
accused is a subjective one and the Court will have to decide each case on its peculiar facts.
Some threats and promises may by their nature make no impression on some people. Should
such people go ahead and confess, they will be taken to do so out of their own free will and their
confessions will be admissible.
There is distinction between the truths or correctness of a confession and the truth of self-
incrimination by the accused. Section 29 is not concerned with the former but with the latter. A
confession may therefore be true, that is, a correct account of what took place, but it may be false
in the aspect of self-incrimination by the accused.
Where there is likelihood of an untrue admission being made, the confession has to be excluded
even if it is true in all other respects.
It is incorrect to say that involuntary confessions are admissible under section 29 when
they are true. Until the prosecution have established that the accused was unlikely to make untrue
admission of guilt, the truth of the statement matters for nothing.
Torture:
The Court of Appeal has taken a serious view about confessions resulting from torture. It
has held that such confessions must be rejected without consideration of whether they are true or
not. The most cited case, Marcus Kisukuli v R., Criminal Appeal Number 146 of 1993
(unreported), was the one in which this position was adopted by the Court. (See also Maona and
another v R., Criminal Appeal No 215 of 1992 (unreported)
In this respect, torture may be physical as well as mental. In a recent case, Janta Joseph
Komba and 3 others v. R. Court of Appeal (at Dar es Salaam), Criminal Appeal No 95 of 2006
(unreported), the Court of Appeal interpreted the provisions of section 50(1) of CPA which
limits the period of interview to four (4) hours. In this case the accused persons had been held in
custody well beyond the statutory period. The Court declared that illegal incarceration beyond
prescribed time amounts to “torture.” It held at page 10 of the judgment: “We agree with [the]
learned Counsel for the appellant that being in police custody for a period beyond the prescribed
period of period results in torture custody for a period beyond the prescribed period of period
results in torture either mental or otherwise. The legislature did limit the time within which a
suspect could be in police custody for investigative purposes and we believe that this was done
with sound reason.”
The rationale behind rejection of confessions obtained as a result of torture irrespective of
whether it is true or not is to discourage the Police and other persons in authority to indulge in
the practice of torture which is inhuman, degrading and unconstitutional.
2. Confession made after removal of impression caused by inducement
This is provided for in section 30. A confession made by a person who was induced by
threat or promise but then such inducement ceases and thereafter confesses, is admissible. The
law envisages some passage of time since the inducement was made and to be presumed that a
confession is not the result of that inducement.
In Josephat Maziku v. R. [1992] TLR 227, through interrogation by the Sungusungu, the
appellant confessed to have stolen lovre glasses. He was subsequently questioned by D/CPL
Benjamin (Tabora Police station) and confessed to have stolen the same. In his appeal, the
appellant contended that his confession to the Sungusungu was extracted by threats and with
violence.
 Justice Katiti said: “Where you have threats and confession far apart without a causal
connection, and no chance of such threats inducing confession, such confession should be taken
to be free of inducement, voluntary and admissible.”
“It is a principle of evidence that where a confession is, by reason of threat, involuntarily made,
and therefore inadmissible, a subsequent voluntary confession by the same maker is admissible,
if the effect of original torture, or threat, has before such subsequent confession, been or threat,
has before such subsequent confession, been dissipated and no longer the motive force behind
such subsequent confession.”
In Richard Lubilo and Mohamed Selemani [2003] TLR 149, the Court of Appeal noted
that “where the threats and promises are remote in point of time to the confession so as to have
had no influence on the mind of the accused such confession is admissible...”
In an English case, R. v. Smith [1959]2 QB 35, the first confession made by the accused,
a serving soldier, was rejected because it was made to his Regimental Sergeant Major (a person
in authority) who had threatened to keep a number of soldiers on parade until a confession was
forthcoming from one of them. However, when the treatment had ended, the accused made
further oral and written confessions to regular investigations officers, who presented no fear of
prejudice or hope of advantage. These latter confessions were admitted.
In another English case, Prouse v. DPP [1999] All ER (D) 748, it was held that where the
accused was at first improperly denied legal advice, but that impropriety was corrected before
the accused made his confession, it could not be said that the confession was caused by the
denial of legal advice and the confession was properly admitted.
3. Confession leading to discovery (Section 31 of the Act)
If the accused is induced by threat, threat, promise or other prejudice and thereby
confesses and such confession leads to a discovery of some fact or articles relevant to the case,
the confession would nevertheless be admissible.
In Ally Fundi v R. [1983] TLR 210, Samatta J (as he then was) attempted to interpret this
provision when he said: “Save as for the addition of the words "provided that", this “Save as for
the addition of the words "provided that", this section is in pari materia with its predecessor, s. 27
of the Indian Evidence Act, 1872, which was the subject of discussion in several cases.
In Kenyarithi s/o Mwangi (1956) 23 E.A.C.A. 422 a case originating from the Supreme
Court of Kenya, the Court of Appeal for Eastern Africa held that the section operated as
provision to section 24, 25 and 26 of the same Act, i.e., the Indian Evidence Act.
‘It seems to me that there is no reason for taking a different view with regard to s.31 of
the Evidence Act, 1967, when read in relation to s. 27, 28 and 29 of the same legislation before
the Evidence (Amendment) Act, 1980, came into force. If what I have just expressed is correct, it
follows that the confession allegedly made by Hassani Hokororo could, subject to the limitation
imposed by s.31 of the Evidence Act, be admitted in evidence. What is that limitation? The
answer would appear to be, that it is not the whole of the statement made by the accused in
consequence of which the fact is discovered which is admissible; it is only so much of the
statement which distinctly relates to the fact discovered. In other words the information and the
fact alleged to have been discovered should be connected with each other as cause and effect.
Any portion of the information which does not satisfy this test should be shut out of the case. It
should be pointed out, for the avoidance of doubt, I think, that the word "discovered" is used in
the section to mean physically discovered and not mentally discovered. The rationale behind the
section is that if a fact is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true, and accordingly can be safely
allowed to be given in evidence: see R. vTomu s/o Nuglombe (1943) 10 E.A.C.A. 54.’
4. Confession that is admissible does not become inadmissible because it was induced by
promise of secrecy, deception, or that he was drunk (Section 32 of the Act)
According to this section, confession may be admissible though it is obtained through: (i)
promise of secrecy, (ii) deception, (iii) while the accused was drunk, or (iv) made in answer to a
question which was not required to answer, or (v) made as a consequence of answering a
question for which he was not warned that he was not bound to answer. consequence of
answering a question for which he was not warned that he was not bound to answer. • This
section seems to widen the scope of illegalities that may be perpetrated on the accused person
and yet confession induced thereby may be admitted in evidence. It would that appear that this
Provision permits admission of evidence which is illegally obtatined.
Read the following:
1. In Kuruma v. The Queen [1955] AC 197 [also Kuruma s/o Kaniu v.Reginam [1955]1 All ER
236]
2. Shila s/o Mchomba v R (1968) HCD n 39
3. R. v Amiri s/o Rashidi (1968) HCD n 302
4. Section 169 of CPA [Cap 20 RE 2002]
5. Janta Joseph Komba and 3 others v R., Court of Appeal (At Dsm), Criminal Appeal No 95 of
2005 (unreported).
6. Tumaini Molel @ John Walker and others v R., Court of Appeal (at Arusha), Criminal Appeal
No 40 of 1999 (unreported)
Illegally Obtained Evidence
The provisions of sections 29 to 32 of the Evidence Act, [Cap 6 RE 2002], allow
reception of evidence which is technically obtained illegally. The Courts have never been
pleased with these provisions. The Court of Appeal of Tanzania has repeatedly cited its decision
in Kisukuli’s case that if the actual torture has been perpetrated then confession resulting there
from would be excluded. The idea behind that policy is that to admit such evidence would
encourage the police to torture accused persons in order to extract or extort confessions.
In the USA, the courts have taken a very strict stance of excluding any evidence that is
illegally obtained. In most cases they have rejected such evidence by invoking the so-called the
“exclusionary rule.” In Weeks v United States, 232 us 383(1914), it was held that evidence
obtained as result of an illegal search was inadmissible in federal criminal proceedings.
 The two great American judges, Oliver W. Holmes and Benjamin Cardozo, once debated
on the exclusionary rule. In People v. Defore (1926) 242 N.Y. 13, at 25: Cardozo J said:
“The question is whether protection for the individual would be gained at a disproportionate loss
of protection for society. On the one side is the social need that crime shall be repressed. On the
other hand, there is a social need that law should not be flouted by the insolence office. There are
dangers in any choice… We must hold it to be law (that the evidence is admissible) until those
organs of Government by which a change of policy is normally effected shall give notice to the
courts that the change has come to pass.”
Justice Holmes, on his part, took a different view. In Olmstead v. United States(1927)
277 US 438 at 470: “We must consider the two objects of desire, both of which we cannot have
and make up our minds which to choose. It is desirable that criminals should be detected and to
that end that all available evidence should be used. It is also desirable that the Government
should not itself foster and pay for other crimes when they are the means by which the evidence
is to be obtained. We have to choose and for my part I think it is a lesser evil that some criminals
should escape than the Government should play the ignoble part.”
Holmes’ view is the one which represents the judicial stance in America.
Confession Implicating Co-accused (Section 33 of the Act)
The confession of one accused person that touches another or others is admissible against
that another or other accused persons [S 33(1) of the Act]. At common law, it is fundamental
principle that confession is evidence against the maker of the confession only, and not any other
person implicated by it. This common law principle is reflected in sections 27(1) and 28 of the
Evidence Act. Both provisions partly provide that confession by a person “may be proved as
against that person.” Thus, section 33 is an exception to that principle insofar as it allows
confession of one person against another person with whom he is charged.
Section 33(2) codifies the principle which was propounded by case law that confession
by the co-accused person or accomplice would normally require corroboration if the person
implicated is to be convicted.
In Selemani Rashid and others v. R. [1981] TLR 252, the appellant and two others were
charged with and convicted of being in unlawful possession of Government trophy. The basis for
convicting the third of the appellants was a confession by a co-accused implicating him. On
appeal convictions of the first two appellants were upheld but that of the third was quashed.
• Held (Kisanga, J):
(i) As a matter of practice conviction should not be based solely on the confession of a co-
accused.
Rationale: He (co-accused) may for different motives, which are not apparent, decide to
implicate an innocent person. He may do so, for instance, out of an old grudge or some
misunderstanding or purely out of malice simply in order to get a company in sufferance. in
order to get a company in sufferance.
(ii) As a matter of practice accomplice evidence requires corroboration to support conviction.
(iii) Conviction of the third appellant cannot stand having been based on the confession of his co-
accused.
Why the Law Requires Corroboration in case of Confession of One Accused Person that
Implicates the Co-accused?
Confession by one accused person which implicates another accused is a species of
accomplice evidence. There is thus a need to briefly discuss on the evidence by an accomplice.
Section 142 of the Evidence Act, [Cap 6 RE 2002] provides:
‘An accomplice shall be a competent witness against an accused person; and conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.’
This section enacts that an accomplice may give evidence and a person can be convicted solely
on the evidence of an accomplice.
Who is an accomplice?
The Evidence Act does not define the term an “accomplice.” In Davies v. DPP [1954]
AC 378, Lord Simmonds, LC, had the following to say: “My Lords, I have tried to define the
term “accomplice”. The branch of the definition relevant to this case is that which covers
“particeps criminis” in the respect of the actual crime charged, whether as principals or
accessories before or after the fact.”
In Watete v. Uganda [2002]2 EA 395, the Court attempted to define the term
“accomplice.” It said, “A witness would be an accomplice if he participated as a • “A witness
would be an accomplice if he participated as a principal or an accessory in the commission of the
offence, and the evidence of an accomplice would not be relied on to convict without
corroboration.” Thus, an accomplice is generally a party to a crime. He is a witness who seeks to
give evidence against his own associate with whom they committed the offence together.

Repudiated and Retracted Confessions

The Evidence Act, [Cap 6 RE 2002] is silent on the repudiated and retracted confessions.
It often happens that the prosecution produces a statement made by an accused person out of
court to prove the charge. It is also very common for the accused persons to object to such
statements. They may do so by “repudiating” or “retracting” such statements.
The distinction between repudiated and retracted statements was made in the famous case
in East Africa, Tuwamoi v. Uganda [1967] EA 84. In this case, the East Africa Court of Appeal
after discussing different issues, it partly said at 88: “We now come to the distinction that has
been made over the years between a statement “retracted” and statement “repudiated”. The basic
difference is, of course, that a statement retracted occurs when the accused person admits that he
made the statement recorded but now seeks to recant, to take back what he said, generally on the
ground that he had been forced or induced to make the statement, in other words that the
statement was not a voluntary one. On the other hand a repudiated statement is one which the
accused person avers he never made.”
 Thus, a “retracted confession” is that one which the accused acknowledges that he made
it but it was untrue on account of prejudice perpetrated against him. On the other hand, a
“repudiated confession” is one which the accused totally denies to have made it; it is total
concoction of the police or however is concerned.
Resolution of a dispute over the disputed statement
When an accused retracts or repudiates a confession, which was sought to be produced by
the prosecution, this which was sought to be produced by the prosecution, this indicates a
dispute. The court has to resolve that dispute before proceeding to determine other matters. The
common practice is to conduct the so- called “trial within a trial” in order to determine whether
the confession was voluntarily made or even made at all. A similar procedure before a
subordinate court is called an “inquiry.”
High court
The procedure of the trial within a trial was stated by the Eastern Court of Appeal in the
case of Kinyori s/o Karuditu v. R. (1956) 23 EACA 480. The same Court reiterated the same
procedure in Ezekia v. R. [1972] EA 427. That procedure may be summarised as follows:
(i) If the defence is aware, before the commencement of the trial, that such an issue will arise; the
prosecution should be informed of that fact. Having been informed, the prosecution would
refrain from mentioning anything in relation to the statement in the presence of the assessors. the
assessors.
(ii) When the stage is reached at which the issue must be tried, the defence should mention to the
court that there is a point of law to be resolved and submit that the assessors be asked to retire
(withdraw from the court room). This must be done before any witness testifies in relation to the
statement. The insistence is that it should be quite early before any such witness goes to the
witness box.
(iii) The court will then order the lay members of the court (the gentlemen or/and ladies
assessors) to retire, i.e. to go out of the court and stay at a distance long enough not to hear or
even see anything in the courtroom.
(iv) After the departure of the assessors, the prosecution (upon whom the burden to prove the
statement lies) will call its witnesses including, of course, the person to whom the statement was
made, the interpreter (if any) and any other person . acquainted with the fact in issue. These
witnesses would be examined-in-chief in a normal way, and then the defence will cross-examine
them. (See Sect. 27(2) TEA.1967
(v) The accused has the right to give evidence or to make a statement from the dock, and to call
witnesses, whose evidence will be limited to the issue of the dock, and to call witnesses, whose
evidence will be limited to the issue of the admissibility of the statement. The accused and his
witnesses (if any) will be cross-examined by the prosecution on the issue of admissibility of the
statement and never on the general issue in the main trial.
(vi) Having heard both sides of the case, the judge will then make a ruling either to admit the
statement or to exclude it, and pronounce that ruling to the parties.
(vii) After the ruling, the lay members of the court (the assessors) would be called back to retake
their seats in the courtroom and the main trial would then resume.
If the statement is admitted, witnesses who had been called during the trial within trial
will have to give evidence for the second time but this time before the assessors. The effect of
authorities is that this procedure is applicable to the High Court but not in subordinate courts. In
subordinate courts, a procedure called “an inquiry” is applicable (Masasila s/o Mtoba v. R.
[1982] TLR 131].

Subordinate Court
The procedure of conducting inquiries in subordinate courts was recently stated by the
Court of Appeal in the case of Seleman Abdallah and 2 others v. R., Criminal Appeal No 384
of 2008 (unreported). The court partly held: “…since the end result of a trial within a trial and
an inquiry is the same, we are of the considered opinion that the procedure (modus operandi) to
be followed by a subordinate court in determining the voluntariness of such statement should be
the same. So, the procedure of conducting a trial within a trial which is normally conducted in
High Court where it sits with assessors should also be applicable in subordinate courts when
conducting an inquiry, save that portion pertaining to retirement and recalling of assessors.”
Evidentiary Value of Retracted and Repudiated Confession
Confession of a person is a good proof against him and he may be convicted solely on it.
In Taylor on Evidence, 11th Ed., at p. 584 (cited in Tuwamoi’s case, at p.90), it is said: • “Indeed
all reflecting men are now generally agreed that deliberate and voluntary confessions of guilt, if
clearly proved, are among the most effectual proofs in law, their value depending on the sound
presumption that a rational being will not make admissions prejudicial to his interest and safety
unless by the promptings of truth and conscience.” But, when confession is retracted or
repudiated its evidentiary value depreciates. It cannot, generally, be the basis of conviction
unless it is believed to be true.
In Emperor v. Shambhu and another, ILR (1932), 54 All 350, Sir Grimwood Mears, CJ,
said: “The evidentiary value of a retracted confession is very little and it is a rule practice, also a
rule of prudence, that it is not safe to act on a retracted confession of an accused person unless it
is corroborated in material particulars.”
Thus, in the leading case of Tuwamoi v. Uganda [1967] EA 84, the Court noted: “We
would like to summarise the position thus ― a trial court should accept any confession which
has been retracted or repudiated with caution, and must before founding a conviction on such a
confession be fully satisfied that in all the circumstances of the case that the confession is true.
The same standard of proof is required in all cases and usually the court will only act on the
confession if and usually the court will only act on the confession if corroborated in some
material particular by independent evidence accepted by the court. But corroboration is not
necessary in law and the court may act on a confession alone if it is fully satisfied after
considering all the material points and surrounding circumstances that the confession cannot but
be true.”
This principle has been accepted and followed by courts in Tanzania even after the demise of the
East Africa Court of Appeal in 1977.
 In Ali Saleh Msutu v. R. [1980] TLR 1, it was argued for appellant at his trial that since
he denied making the statement sought to be admitted as a confession, such confession must be
treated as repudiated thus requiring corroboration to support conviction. Held (Nyalali, CJ,
delivering the judgment of the court):
Extra judicial statement by an accused amounted to a confession, but since the accused denied
making it, it must be regarded in law as repudiated confession.
A repudiated confession, though as a matter of law can support conviction, generally requires
corroboration as a matter of prudence.
Read:
Hamisi Athumani and two others v. R. [1993] TLR 110
HatibuGandhi (Captain Hatty McGhee) and others v. R. [1996] TLR 12