LAW OF EVIDENCE

M A R WA M A S A N D A ( A D V O C AT E )
A S S I S TA N T L E C T U R E R
A G R I B U S I N E S S & R U R A L L AW
SOKOINE UNIVERITY OF AGRICULTURE
INTRODUCTION

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 INTRODUCTION

• The law of evidence refers to a set of rules which exclude

facts from the consideration of the fact finder.
• It refers to a set of opportunities for the skillful advocate who
can articulate an argument for the admissibility or
inadmissibility of facts which are helpful or harmful to her
client’s cause.
• Without evidence, there is no proof, burdens are not met, and
convictions, verdicts, or judgments are impossible.
• Evidence directs the tribunal, the jury, and the practitioners
advocating its content towards actions to be taken.

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 INTRODUCTION CONT…

• Evidence is what leads us to the truth; it is a piece of life, a fact, a real

tangible thing that elucidates a proposition.
• Evidence is derived from deductive reasoning, logical inference, and
supposition.
• Evidence law is the law’s substantive and procedural instructions for the
use of evidence.
• Evidentiary analysis is primarily a product of the mind and the manner in
which it relates to physical world.
• Evidence analysis deals with possibilities, probabilities, and predictable
events and circumstances.

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 INTRODUCTION CONT…

• Evidence collection, analysis, organization, and delivery are

intellectual activities directed toward a specific goal or end,
namely, the truth of the matter.
• In general, evidence is everything to be submitted to the
trier of fact, the court and the judge for the review,
inspection and possible ruling.
• The evidentiary array is limited only by the reality of the
physical world and the legal nuances that impact admission.

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 INTRODUCTION CONT…

• Evidence, however, is not always an accurate reflection of

reality.
• Its representation may be tainted or biased by the person
inspecting it.
• A trial cannot be a purely intellectual performance.
• One who understands evidence will perform investigative
functions more intelligently, communicate with witnesses
more effectively, and see flaws in an opponent case.

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 INTRODUCTION CONT…

• Before going to court, lawyers must be sure that the

evidence to be submitted to the trier of fact is good.
• Good in the sense that it has substantive, relevance,
purpose, and can pass the substantive and procedural
barriers involving admissibility.
• Therefore, evidence which is good accomplishes two major
ends; it will scale any barrier to admissibility, and it is
relevant and material without being too inflammatory.

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 FUNCTION OF COURTS

• The functions of Court of Justice are two fold:-

– To ascertain the existence or non existence of certain facts, and
– To apply the substantive law to the ascertained facts and to
declare the rights and liabilities of the parties.
• For this, the court has to collect, peruse, analyze and sift the
evidential material brought before it.
• The means whereby the court informs itself of the existence of
these facts is called EVIDENCE.

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 DEFINITION

• ‘Evidence’ is derived from the Latin term “Evidere” which

means – “to show clearly, to make plainly certain, to
ascertain, to prove”
• Taylor says – (functional description of court process)
– “The word ‘evidence’ includes all legal means,
exclusive of mere arguments, which tend to prove or
disprove any matter of fact, the truth of which is
submitted to judicial investigation.”

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 DEFINITION CONT…

• Classical exposition of Bentham –

– “Any matter of fact, the effect or tendency of which is to
produce in the mind a persuasion, affirmative or
disaffirmative of the existence of some other matter of fact.”
(comprehends both physical and psychological facts)
• Evidence may bear two meanings or refer to –
– MEANS – that tend to create a belief in the mind of judge;
and
– FINAL BELIEF – actually created in his mind, known as
PROOF.

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 STATUTORY DEFINITION

• Section 3 of The Evidence Act, Cap 6 R.E 2002

• "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.
• The law of evidence is part of the law of procedure, i.e. the
procedure court has to follow. This is expressed by saying that
it is law of the forum( or court) or the lex fori.
• The law of evidence is the same in civil and criminal
proceedings

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 OBJECT OF THE LAW OF EVIDENCE

• Ascertaining controverted questions of fact in judicial

proceedings.
• To prevent laxity in the admissibility of evidence.
• Cardinal principles of law of evidence:
– Evidence must be confined to the matter in issue.
– Hearsay evidence must not be admitted.
– Best evidence must be given in all cases.
– Facts judicially noticeable need not be proved. S. 58
– Facts admitted need not be proved. S. 60

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 THE LAW OF
EVIDENCE ACT

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 THE LAW OF EVIDENCE ACT

• The Law of Evidence Act, Cap 6 R.E. 2002 is the main law
which is used for evidentiary purposes in Tanzania mainland.
• The Act is not a locally developed statutory scheme. It was first
introduced to Tanzania during the British colonial period. The
Act is a direct descendant of the Indian Evidence Act, 1872
which codified mid-nineteenth century English Law.
• The Indian Evidence Act is the brainchild of Sir. James
Fitzjames Stephen. He believed in domination of the colonizer
over the colonized.

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 ORGANIZATION OF THE ACT

• The Evidence Act has been organized along the following

three main categories:
– What facts could be admitted at trial
– What proof was necessary for each set of facts, and
– Who could produce information for this proof
• The Act is not applicable in Ward Tribunals and Primary
Courts

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 SPIRIT OF THE ACT

• Court of Appeal of Tanzania in Herman Henjewele

– “the provisions of the Law of Evidence, 1967 are
intended to provide guidance on how and what evidence
can be taken in judicial proceedings in order to prevent,
or at least to minimize, the chances of a miscarriage of
justice or the conviction of an innocent person. Without
the basic safeguards in the law of evidence a trial
tribunal can easily deteriorate into a kangaroo court”.

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RELEVANCE OF FACTS

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 RELEVANCY

• In laws of evidence, relevant facts could depict any set of closely

interrelated facts, to the extent that they rely on each other to
establish an event.
• These facts make the event more or less likely than it would be in
their absence. They are logically probative.
• All relevant facts may not be admissible (they may be ruled out due
to prejudice, paucity of time, confusion) but all admissible facts are
relevant.
• While relevancy is based on logic, admissibility only relies on
lawful pertinence. A fact could appear sensibly pertinent, however
may not be admissible in court.

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 RELEVANT EVIDENCE

• Relevant evidence is generally admissible and irrelevant

evidence is never admissible. Two leading principles on
relevance:
– That nothing is to be received which is not logically
probative of some matter requiring to be proved; and
– That everything which is thus probative should come in,
unless a clear ground of policy or law excludes it.
• Every fact which is legally relevant is logically relevant, but
every fact which is logically relevant is not necessarily legally
relevant.

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 RELEVANT EVIDENCE

• Samwel Mkika v R, Criminal Appeal No. 47 of 2001

(Unreported) at pp 11-13;
– “The test to be applied in considering whether evidence
should be admissible is whether it is relevant to the matter
in issue. If it is relevant, it is admissible and the court is not
concerned with how the evidence was obtained…”
– “No doubt in a criminal case the judge always has discretion
to disallow evidence if the strict rules of admissibility would
operate unfairly against the accused…”

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 RELEVANCE OF FACTS (S.7)

• Evidence may be given of facts in issue and relevant facts.

• Evidence may be given in any suit or proceeding of the 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.
• Illustration- A is tried for the murder of B by beating him with a
cub with the 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 cause B’s death.

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 RELEVANCY OF FACTS FORMING PART OF
SAME TRANSACTION (S.8)

• 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
• Principle RES GESTAE- This admits those facts the
admissibility of which comes under the technical expression
res gestae (i.e. the things done ,word spoken in the course of
transaction), but such facts must ‘form part of the same
transaction’.

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 RELEVANCY OF FACTS FORMING PART OF
SAME TRANSACTION

• Illustrations- A is accused of the murder of B by beating

him. Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or after is as to
form part of the transaction, is a relevant fact.

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 FACTS WHICH ARE OCCASION, CAUSE OR
EFFECT OF FACTS IN ISSUE (S.9)

• 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 opportunity for their occurrence or
transaction, are relevant.
• Illustrations
– The question is, whether A robbed B.
• The facts that, shortly before the robbery B went to a fair with money in his
possession, and that he showed it or mentioned the fact that he had it, to third
persons, are relevant.

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FACTS WHICH ARE OCCASION, CAUSE OR
EFFECT OF FACTS IN ISSUE

– 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.

– 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.

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 MOTIVE PREPARATION AND PREVIOUS OR
SUBSEQUENT CONDUCT (S.10)

• Any fact is relevant which shows or constitutes a motive or

preparation for any fact in issue or relevant fact.
• The conduct of any party, or of any agent to any party, to any
suit or proceeding, in reference to such suit or proceeding, or in
reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact,
and whether it was previous or subsequent thereto.

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 MOTIVE PREPARATION AND PREVIOUS OR
SUBSEQUENT CONDUCT

• Illustrations
– 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.
– 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.

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MOTIVE PREPARATION AND PREVIOUS OR
SUBSEQUENT CONDUCT

– 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 an
advocate in reference to making the will, and that he caused drafts or other
wills to be prepared of which he did not approve, are relevant.

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 FACTS NECESSARY TO EXPLAIN OR
INTRODUCE RELEVANT FACTS (S. 11)
• According to section 11 the following facts are relevant:
– Facts necessary to explain or introduce a fact in issue or relevant
fact,
– Facts which support or rebut an inference suggested by a fact in
issue or relevant fact,
– Facts which establish the identity of anything or person whose
identity is relevant,
– Facts which fix the time and place at which any fact in issue or
relevant fact happened,
– Facts which show the relationship of parties by whom any fact in
issue or relevant fact was transacted.

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 FACTS NECESSARY TO EXPLAIN OR
INTRODUCE RELEVANT FACTS
• Illustrations
– 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 8, as a 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 he
left home suddenly.

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 FACTS NECESSARY TO EXPLAIN OR
INTRODUCE RELEVANT FACTS

• 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

– 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 better
offer." The statement is a relevant fact as explanatory of
C's conduct which is relevant as a fact in issue.

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 CONSPIRACY (S. 12)

• 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 in reference to their common intention, after
the time when such intention was first entertained by any 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.

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 WHEN FACTS NOT OTHERWISE RELEVANT
BECOME RELEVANT (S.13)

• Facts not otherwise relevant, are relevant.

– if they are inconsistent with any fact in issue or relevant
fact e.g. plea of alibi;
– 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.

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 WHEN FACTS NOT OTHERWISE RELEVANT
BECOME RELEVANT

• Illustrations
– The question is, whether A committed a crime at
Morogoro on a certain day.
• The fact that, on that day, A was in Lindi, 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.

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 FACTS SHOWING EXISTENCE OF STATE OF
MIND OR OF BODY (S.16)
• Facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, rashness, ill-will or goodwill
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.
• Illustration-
– 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 tendering to show that he knew each and all of the
articles of which, he was in possession, to be stolen.

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 PREVIOUS HISTORY (S. 17)

• 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 occurrence, in
each of which the person doing the act was concerned, is
relevant.
• Illustrations
– 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.

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EXISTENCE OF COURSE OF BUSINESS WHEN
RELEVANT (S.18)
• 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
– The question is, whether a particular letter was dispatched.
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.
– The question is, whether a particular letter reached A. The
fact that, it was posted in due course, and was not returned
through the Dead Letter Office, are relevant.

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ADMISSION AND
CONFESSION

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 ADMISSION

• Admissions are defined in sec 19 as a statement, oral or

documentary (or contained in electronic form) which
suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons, and under the
circumstances, hereinafter mentioned. “
• Admission means conceding something against the person
making admission. That is why it is stated as a general rule,
that admission must be self harming; and because a person is
unlikely to make a statement which is self- harming, unless it
is true, evidence of such admissions is received in court.

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 ADMISSION

• An admission can either be made expressly or impliedly

• An implied admission can either be made through:
– Acquiescence. Silence when confronted with an allegation
that he or she would be expected to refute it were not true.
– Demeanor. His or her reaction when facts or questions or
allegations are put. How he or she behaves in a witness
box.
– Conduct
– Adoption

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 ADMISSION

• Sec 20 Admission by party to proceeding or his agent;

– In case of agent, expressly or impliedly authorized by
party concern.
– By suitor in representative character
– Party interested in subject matter,
– Persons from whom interest derived.
• If they are made during the continuance of the interest of
the persons making the statements

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 ADMISSION

• Section 21. Statements made by persons whose position or

liability it is necessary to prove as against any party to the
suit are admissions, if such statement would be relevant as
against such person in relation to such position or liability
in a suit brought by or against them, and if they are made
whilst the person making them occupies such position or is
subject to such liability.
• Section 22. Statement made by persons to whom a party to
the suit has expressly referred for information in reference
to a matter in dispute are admissions.”

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 DEFINING CONFESSION

• Is defined under section 3 (1) of the Evidence Act. In DPP v ACP

Abdallah Zombe & Others, Criminal Appeal No. 358 of 2013
(Unreported) CA quoted definitions from;
– The Oxford Advanced Learners Dictionary: “Say or admit,
often formally that one has done wrong, committed a crime.”
– Black Law Dictionary: “Is acknowledgment in express words
by the accused in criminal case of the truth of the main fact
charged or of some essential part of it.”
• So, in this context a confession is a voluntary admission of guilty
to an offence.

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 DEFINING CONFESSION

• Anyagu & Others v R (1968) EA 239 the then Court of Appeal for
East Africa observed;-
– “A statement is not a confession unless it is sufficient by itself
to justify the conviction of the person making it of the offence
with which he is tried.”
• “In order to establish whether the statement is a confession or
otherwise, the test always is that it must in the first place indicated
to have incriminated the maker with the offence charged as well.
In the absence of an incriminating factor, it falls short of a
confession; it is something else.” See DPP v ACP Abdallah
Zombe & Others (suppra)P. 35

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 TYPES OF CONFESSION

• Judicial confession
• Extrajudicial confession

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 EXTRA JUDICIAL CONFESSION

• Refers to confessions made before the commencement of a

trial either to a police officer or justice of peace, the onus of
proving that it was voluntary lies to the prosecution.
• An extra judicial confession freely and voluntarily made may
be proved as against that person.
• An extra judicial confession can be accepted without
corroboration if other evidence inspires confidence.
• An extra judicial confession by its very nature is rather a
weak type of evidence and requires appreciation with a great
deal of care and caution.

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 A VALID CONFESSION

• Voluntariness. Must be made in the exercise of a free choice

to speak or to be silent.
• Oppression. Must be free from any use of force or threat to
use force or psychological torture.
• Must not be induced by a person in authority e.g. a police
officer of a prosecutor.

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RETRACTED AND REPUDIATED CONFESSION

• A retracted confession occurs where the accused admits that

he or she has made the confession and then denies the truth
to what is stated therein.
• Repudiated confession is one which the accused person
avers that he never made.

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 VOLUNTARINESS OF CONFESSION

• Confession caused by inducement, threat or promise are

irrelevant in criminal proceedings.
• Michael John @ Mtei v R, Criminal Appeal No. 202 0f 2012
(Unreported)
– “In a criminal trial, therefore, the prosecution has a duty of
proving that; the accused, by his conduct, or words, made
a statement; and the statement or conduct amounting to a
confession was made freely and voluntarily. That standard
of proof, it must be pointed out, is that of proof beyond
reasonable doubt in both instances.”

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 VOLUNTARILINESS OF CONFESSION

• Basing on the dictum of Crompton, J. in R v Leatham (1861),

30 L.J Q B.205 Also quoted in Samwel Mkika v R, Criminal
Appeal No. 47 of 2001 (Unreported) at pp 11-13;
– “It is right, however, that it should be stated that the rule
with regard to the admission of confession, whether it be
regarded as an exception to the general rule or not, is a rule
of law which their Lordships are not qualifying in any
degree whatsoever. The rule is that a confession can only
be admitted if it is voluntarily and therefore, one obtained
by threats or a promise held out by any person in authority
is not to be admitted.”

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 DIFFERENCES BETWEEN ADMISSION AND
CONFESSION

• Confession is a statement made by an accused person which

is sought to be proved against him in a criminal proceeding
to establish the commission of an offence by him; while an
admission usually relate to a civil transaction and comprises
all statement amounting to admission defined in sec 19.
• A confession which is deliberately and voluntarily made
may be adopted as conclusive in itself of the matter
confessed; an admission is not a conclusive proof of the
matter admitted, but may operate as an estoppel.

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 DIFFERENCES BETWEEN ADMISSION AND
CONFESSION

• A confession always goes against the person making it; an

admission may be used on behalf of the person making it
under the exceptions provided in sec 23.
• Confession of one of two or more accused jointly tried for
the same offence can be taken into consideration against the
co accused (sec33). But an admission by one or several
defendants in a suit is no evidence against another
defendants.
• Confession can be retracted but admission cannot be
retracted.

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 DIFFERENCES BETWEEN ADMISSION AND
CONFESSION

• Confession may be of both kinds i.e. oral or documentary

where an Admission is exculpatory.
• All confessions may be recognized as an admission but all
admissions are not confession.
• A confession must be made before the Judicial Magistrate
or in front of the court whereas admission may be made to
any person out side of the court.

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TYPES OF
EVIDENCE

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 TYPES OF EVIDENCE

• Oral and Direct evidence,

• Real evidence,
• Hearsay evidence,
• Circumstantial evidence,
• Corroborative evidence,
• Documentary evidence,
• Primary and secondary evidence,
• Expert Evidence,

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 ORAL & DIRECT EVIDENCE S. 61 &62

• The Act requires in oral evidence that a person who has actually
perceived something by that sense by which it is capable of
perception, should make the statement about it and no one else.
– If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
– If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
– If it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that
manner;

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 ORAL & DIRECT EVIDENCE S.62

 If it refers to an opinions or to the grounds in which that opinion

is held, it must be the evidence of the person who holds that
opinion on those grounds.
• Direct evidence is referred to sometimes as original evidence.
For example; A is charged with the murder of B by stabbing him.
C,D.E,F,G and H are witnesses. At the trial a witness C says he
saw A stab B. D says he heard B cry out that A was stabbing him.
E says that he saw A running with blood stained knife. F says he
saw A washing blood stained clothes. G, who is doctor says that
the knife found in A’s possession might be caused the wound. H
says he heard from C’s evidence is direct evidence

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 REAL EVIDENCE S. 62(2)

• It is covered under second proviso to Sec 62(2)

“Provided also that, If oral evidence refers to the
existence or condition of any material things other than a
document, the court may, if it thinks fit, require the
production of such material thing for its inspection.”
 For e.g. weapons, scar of wounds or other injury like loss
of leg or hand.

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 HEARSAY EVIDENCE

• The evidence of those who relate, not what they know

themselves, but what they have heard from others.
• As a general rule, hearsay evidence of a fact is not admissible.
Hearsay evidence is excluded under s.62 of Cap 6 which require
oral evidence to be direct (Best Evidence). According to Cross;
“Express or implied assertions of persons other than the
person who is testifying, and assertions in documents
produced to the court when no witness is testifying, are
inadmissible as evidence of the truth of that which was
asserted.”

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 HEARSAY EVIDENCE

• The reasons why hearsay evidence is not received as relevant

evidence are:
– The person giving such evidence does not feel any
responsibility. If he is concerned he has line of escape by
saying” I do not know, but so and so told me.”
– Truth is diluted and diminished with each repetition: and,
– If permitted, gives ample scope for playing fraud by
saying,” some one told me that..” It would be attaching
importance to a false rumor flying from one foul lip to
another..

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 HEARSAY EVIDENCE

• The rule against hearsay evidence has its exceptions,

provided for under section 34 and 35 of the Evidence Act. For
example, where;-
– The maker of statement cannot be found without undue
delay.
– The maker of statement is incapable of making evidence.
– The maker has acquired diplomatic privileges or
immunities.
– The maker is dead.

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 DYING DECLARATION

• A statement by a person who is conscious and knows that

death is imminent concerning what he or she believes to be
the cause or circumstances of death that can be introduced
into evidence during a trial in certain cases.
• In the law of evidence, the dying declaration is a testimony
that would normally be barred as hearsay but may
nonetheless be admitted as evidence in certain kinds of cases
because it constituted the last words of a dying person.
• A dying declaration is one of the exceptions to the hearsay
evidence. S.34(a) of Cap 6 R.E 2002

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 DYING DECLARATION

• Conditions for admissibility of a dying declaration

– The person who made declaration must be really dead.
– The alleged declaration must be that which was made by the
deceased person in its original form.
– The statement must refer to the cause of death or the
circumstances of his death or the transaction leading his death.
• In Tanzania, dying declaration is admissible in both civil and
criminal cases where the cause of death is an issue.

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 DYING DECLARATION

• Credibility of a dying declaration is the matter of discretion of

the court.
• The court may take into consideration the following factors;
– Capacity of a witness who seeks to submit dying
declaration to remember the chain of events during the
declaration.
– Consistence of the contents of the dying declaration with
other circumstances relating to death.
– Opportunity of a person adducing dying declaration to
identify the accused person.

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 DYING DECLARATION

• The court should warn itself before making its decision relying
on a dying declaration.
– In most cases it needs to be corroborated.
– If the crime occurred in dark place (Mid-night)-extra caution
may be taken by the court.
• See Hamisi Said Mchana v R [1984] TLR 319 (CA), R v
Mohamed Shedaffa and 3others [1984] TLR 95 (HC), Damian
Ferdinand Kiula & Charles v R [1992] TLR 16 (CA), Godson
Hemedi v R [1993] TLR 241 (CA)

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 CIRCUMSTANTIAL EVIDENCE

• Circumstantial evidence is evidence that relies on an

inference to connect it to a conclusion of fact, like a
fingerprint at the scene of the crime.
• Circumstantial evidence means the evidence of circumstances
and is sometimes referred to presumptive evidence:
• ‘A’ is charged with the murder of ‘B’. At the trial a witness
‘C’ , on behalf of the prosecution, gives evidence that he saw
‘A’ running away from the murder place, with blood stained
knife in his hand, evidence given by ‘C’ will be called
circumstantial evidence.

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 CIRCUMSTANTIAL EVIDENCE

• Circumstantial evidence need to be taken in caution and the

conclusion must be reached after assessing carefully each
circumstance.
• Evidence relied upon under circumstantial evidence must not
be capable of more than one interpretation. It must lead to only
one conclusion.
• Where the connection between the fact and the fact in issue is
broken, then circumstantial evidence cannot be relied upon.
• See Hamidu Mussa Thimotheo & another v R [1993] TLR 125
(CA) and Hassani Fadhili V R [1994] TLR 89 (CA)

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 CORROBORATIVE EVIDENCE

• Is evidence that tends to support a proposition that is

already supported by some initial evidence, therefore
confirming the proposition.
• Evidence which strengthens, adds to, or confirms already
existing evidence.
• Sec 165_Evidence tending to corroborate evidence of
relevant fact admissible.
• Section 166_Former statements of witness may be proved
to corroborate later testimony as to same fact

68
 CORROBORATIVE EVIDENCE

• A sees B hit by a car and run over. The car does not stop but
A notes the number He lodges a complaint to police. Police
arrests driver and put him for trial rash and negligent
driving A is the principle witness, when he gives oral
evidence but at the end, the complaint given by him to the
police, shown to him regarding accident and if he says yes,
it is marked as exhibit, it is corroborative evidence

69
 DOCUMENTARY EVIDENCE

• Documentary evidence is any evidence introduced at the trial

in the form of documents.
• A type of written proof that is offered at a trial to establish the
existence or non existence of a fact that is in dispute.
• Although this term is most widely understood to mean writings
on paper (such as an invoice, a contract or will), the term
actually includes any media by which information can be
preserved.
• Documentary evidence is defined in the Act as: all documents
produced as evidence before the court.

70
 DOCUMENTARY EVIDENCE

• The purpose of producing a document, is to rely upon the

truth of the statement contained therein.
• This involves, when the document is produced before the
court, the examination of three questions:
– Is the document genuine,
– What are its contents, and
– Are the statement in the document true?

71
 DOCUMENTARY EVIDENCE

• Documents are divided into two categories, public and private.

• According to section 83 of the Act, the following documents
are public documents:
– Documents forming the acts or records of the acts of the
president of URT, official bodies and tribunals, and public
officers.
– Public records kept in the United Republic of private
documents.
• According to section 84, all documents other than public
documents are private.

72
 PRIMARY EVIDENCE

• Contents of document may either be proved by primary or

secondary evidence. Section 63 of the Act
• Primary evidence refers to original materials that have not
been altered or distorted in any way.
• An authentic document or item that is offered as proof in a
lawsuit, as contrasted with a copy of, or substitute for, the
original.
• Primary evidence, more commonly known as best evidence
is the best available substantiation of an existence of an
object because it is an actual item.

73
 PRIMARY EVIDENCE

• Section 64 defines primary evidence as the document itself

produced for inspection by the court.
• Section 64A provides for the admissibility of electronic evidence.
The admissibility and weight of electronic evidence shall be
determined in the manner prescribed under section 18 of the
Electronic Transaction Act, 2015.
• For the purpose of section 64A(3) defines electronic evidence to
include data stored in electronic form or electronic media or
retrieved from a computer system.
• According to section 66 documents must be proved by primary
evidence except as otherwise provided by the Act

74
 SECONDARY EVIDENCE

• A reproduction of, or substitute for, an original document or item

of proof that is offered to establish a particular issue in a legal
action.
• According to section 65, secondary evidence includes:
– Certified copies in accordance with the Evidence Act;
– Copies made from the original by mechanical process.
– Counterparts of documents as against the parties who did not
execute them;
– Oral accounts of the contents of a document given by some
person who has himself seen it.

75
 SECONDARY EVIDENCE

 Section 67 & 68 provides for conditions of admissibility

of secondary evidence

76
 OPINION EVIDENCE

• Opinion evidence refers to evidence of what the witness thinks,

believes, or infers in regard to the facts, as distinguished from
personal knowledge of the facts themselves.
• The rules of evidence ordinarily do not permit witness to
testify as to opinions or conclusions. Historically, the rule
against opinion is an offshoot of the hearsay rule.
• The general rule is that witnesses must state facts, not opinions
and the rationale for the rule is that if they are allowed to give
their opinions on ultimate issues, there is a serious danger that
the fact jury will be unduly influenced.

77
 OPINION EVIDENCE

• However, Lord Mansfield CJ in 1782 in Folkes v Chadd

formulated an exception to the general rule when he stated:
– “On certain matters, such as those of science or art, upon
which the court itself cannot form an opinion, special
study, skill or experience being required for the purpose,
“expert” witnesses may give evidence of their opinion.”
• If on the proven facts a judge or jury can form their own
conclusions without help, then the opinion of an expert is
unnecessary.
• Opinion evidence is also referred to as expert evidence

78
 OPINION EVIDENCE

• In Tanzania, expert witness is admissible under section 47 of the

Evidence Act.
• Lord Cooper in Davie v Edinburgh Magistrates described the duty
of the expert as follows:
– The duty of the expert is to furnish the judge or jury with the
necessary scientific criteria for testing the accuracy of their
conclusions.
– Neither the judge nor the jury is bound by the views of the
expert even if it is not contradicted.”
• Expert witness must be peritus, that is, a person who is skilled in
his field of knowledge.

79
 OPINION EVIDENCE

• For an opinion evidence to be admissible, the court need to

satisfy itself on the following questions;
– Is the witness skilled enough (peritus) to give such kind of
an evidence?
– Does he has adequate knowledge of the facts in issue?
• If these questions are determined that evidence is admissible.
• An expert witness should make it clear when a question or
issue falls outside his expertise.
• An expert witness should never assume the role of an advocate.

80
FACTS WHICH
NEED NOT BE
PROVED

81
 FACTS WHICH NEED NOT BE PROVED

• Generally speaking every fact on which a party relies must

be proved, either by oral or documentary evidence.
• However, there are three exceptions to this general rule, vis
– Facts judicially noticeable (sec 58)
– Facts admitted (sec 60), and
– Facts presumed by law e.g. (sec 88)
• None of these classes of facts need to be proved.

82
 FACTS JUDICIALY NOTICEABLE

• According to section 58 no fact which the court will take

judicial notice need to be proved.
• This section lays down that the judiciary noticeable fact
need not be proved by leading evidence.
• Judicial notice is the cognizance taken by the court itself
of certain matters which are so notorious or clearly
established that the evidence of their existence is deemed
unnecessary.

83
 FACTS JUDICIALY NOTICEABLE

• A judge may use his own knowledge of such matters, or

may consult appropriate books or documents, etc. he may
ask the parties to assist him.
• He may resort to any source of information which he finds
handy, and which he thinks helps him.
• He may obtain information even from a bystander.
• The judicial notice takes the place of proof and is of equal
force.

84
 FACTS JUDICIALY NOTICEABLE

• If the court is called upon by any person to take judicial

notice of any fact, it may refuse to do so, unless and until
such person produces any such book or document as it
may consider necessary to enable it to do so, sec. 59(3).
• The catalogue of facts to be judicially noticeable as given
in section 59 is not exhaustive but illustrative only.
• It is possible to enumerate everything under the sun which
is so notorious that it should be superfluous to prove it.

85
 FACTS ADMITTED

• What is admitted need not be proved, is the principle

underlying section 60.
• Admission may be made before a suit or during the trial.
• Section 19 deals with extra-judicial admissions, i.e. oral or
documentary admissions made to any person before the suit,
i.e. made out of the court, while, the present section deals with
judicial admissions, i.e. admissions during trial, either at or
before the hearing.
• This section normally relates to agreed statements of facts
made between both parties to save time and expense at a trial.

86
 FACTS ADMITTED

• A court has to try issues of fact on which the parties

disagree.
• An admission may be made at any time from the institution
of a suit or commencement of a case to its final disposal.
• It may be made in the course of disposition of a party either
before or after the settlement of issues, or in answer to
interrogatories or to a notice or in a written statement.
• Facts admitted expressly or impliedly need not to be
proved.

87
 FACTS ADMITTED

• One of the principal effect of admission is to shorten the litigation

just as the effect of res judicata (section 11 of the Civil Procedure
Code) is to give finality to litigation.
• Further, admissions which have been deliberately made for the
purposes of the suit whether in the pleadings or by agreement, will
act as estoppel to the admission of any evidence contradicting
them.
• Is section 60 applicable to criminal trials? The principle that
nothing need to be proved which admitted, is confined to civil
suits. Hence, every admission by the accused short of plea of
guilty does not weight against the accused.

88
BURDEN OF
PROOF

89
 BURDEN OF PROOF

• Whoever desires any court to give judgment as to any legal

right or liability dependent on the existence of facts which
he asserts, must prove that those facts exists. Sec 110(1).
• When a person is bound to prove the existence of any fact,
it is said that the burden of proof lies on that person. Sec
110 (2).
• The burden of proof in a suit or proceeding lies on that
person who would fail if no evidence at all were given on
either side. Section 111.

90
 BURDEN OF PROOF

• Section 110 is based on the rule, i.e., “incumbit probation qui

dicit, non qui negat” meaning “the burden of proving a fact
rests on the party who substantially asserts the affirmative of
the issue and not upon the party who denies it; for the negative
is usually incapable of proof.”
• This rule is derived from the Roman Law, and is supportable
not only upon grounds of fairness, but also upon that of greater
practical difficulty which is involved in proving a negative
than proving an affirmative.

91
 MEANING OF THE RULE

• The phrase burden of proof has three meanings

– The legal burden, the burden of establishing guilty. The
persuasive burden, the burden of proof as a matter of law
and pleading, the burden of establishing a case, whether by
preponderance of evidence or beyond a reasonable doubt.
– The evidential burden, the burden of proof in the sense of
adducing evidence.
– The burden of establishing the admissibility of evidence.

92
 BURDEN OF PROOF AND STANDARD OF
PROOF

• The phrase “burden of proof” is used to describe the duty

which lies on one or other of the parties either to establish
the case or to establish the facts upon a particular issue.
• The phrase “standard of proof” is used to describe the
degree to which the proof must be established.

93
 BURDEN OF PROOF AND STANDARD OF
PROOF

• Mohamed Haruna & Another v The Republic, Criminal

Appeal No. 25 of 2007 (Unreported) CA
– “Of course in cases of this nature the burden of proof
is always on the prosecution. The standard has always
been proof beyond reasonable doubt. It is trite law that
an accused person can only be convicted on the
strength of the prosecution case and not on the basis of
the weakness of his defense…”

94
 BURDEN OF PROOF AND ONUS OF PROOF

• The right to begin follows onus probandi. It assumes importance in

the early stage of the case.
• The question of onus of proof has greater force, where the question
is, which party is to begin.
• Burden of proof is used in three ways;
– To indicate the duty of bringing forward evidence in support of a
proposition at the beginning or latter.
– To make that of establishing a proposition as against all counter-
evidence, and
– An indiscriminate use in which it may mean either or both of the
others.

95
 BURDEN OF PROOF AND ONUS OF PROOF

• The elementary rule in section 110 is inflexible.

• In terms of section 112 the initial onus is always on the
plaintiff and if he discharges that onus and makes out a
case which entitles him to a relief, the onus shifts to the
defendant to prove those circumstances, if any, which
would disentitle the plaintiff to the same.

96
 BURDEN OF PROOF AND PRESUMPTION

• The law does not require that all facts should be strictly proved or
proved up to the hilt.
• The burden of proof is always lightened by presumptions,
admissions, and estoppels.
• The rules as to the burden of proof and those as to the presumptions
are closely allied; in fact the rules of burden of proof are no more
than statements of rebuttable presumptions of law.
• When a presumption operates in favour of a party, the burden of
proof is on the opponent; and when the burden of proof is laid by law
on a party, the presumption operates in favour of the opponent.

97
 BURDEN OF PROOF AND PRESUMPTION

• Two exceptions to the rule that the burden of proof is on the

party substantially asserting the affirmative
– Where a rebuttable presumption of law exists, or a
prima facie case has been proved, in favour of the party,
it lies upon his adversary to rebut it (sect 112, 113)
– Where the subject-matter of a party’s allegation
(whether affirmative or negative) is peculiar within the
knowledge of his opponent, it lies upon the latter to
rebut such allegation (see section 115)

98
 PROOVING FACT TO BE PROVED

• If the relevancy or admissibility of a fact depends upon

proof of some other fact, the burden of proving the latter
fact is on the party wishing to give evidence of the former
fact. See section 113
• Thus, the burden of proving the death of the declarant is on
the party who wishes to give in evidence a dying
declaration; and the burden of proving loss of a document is
on the party who wishes to give secondary evidence of the
contents of the document.

99
 CASES WITH EXCEPTIONS

• Section 114 provides for burden of proving that case of the

accused comes with exceptions.
• Joseph John Makune v The Republic [1986] TLR 44 at pg 49
(CA)
– “The cardinal principle of our criminal law is that the
burden is on the prosecution to prove its case; no duty is
cast on the accused to prove his innocence. There are few
well known exceptions to this principle, one example being
where the accused raises the defense of insanity in which
case he must prove it on the balance of probabilities…’

100
 CASES WITH EXCEPTIONS

• Section 114 applies only to criminal trials.

• The cardinal principle that the accused is entitled to get the
benefit of reasonable doubt stands unaffected by section
114.
• There being the presumption of innocence in favour of the
accused, as a general rule, the onus of proving his guilty
lies on the prosecution even if proof of negative is involved.

101
PRESUMPTION OF LAW AND PRESUMPTION
OF FACT

• Difference between presumption of law and presumption of

fact;
– Whereas in the case of presumption of fact a discretion
more or less extensive, as to drawing the inference is
vested in the tribunal, in the case of presumption of law,
the law peremptorily requires a certain inference to be
made whenever the fact appear which it assumes as the
basis of that inference.

102
PRESUMPTION OF LAW AND PRESUMPTION
OF FACT

– As presumptions of law are, in reality, rules of law, and

part of the law itself, the court may draw the inference
whenever the requisite facts are before it; while
presumptions of fact, however obvious, being
inferences of facts, could not, at common law, be made
without the intervention of the jury.

103
 COMPETENCY,
C O M P E L L A BI L I T Y
AND PRIVILEGE
O F WI T N E SS E S

104
 COMPETENCY OF WITNESSES

• A witness is competent if he may lawfully be called to give

evidence. Such person is expected to be conversant with the
facts of the case.
• A potential witness must be able to understand questions posed
and give rational answers to the same.
• All persons shall be competent to testify unless the court finds
that they cannot due to tender age, old age, disease, insanity
etc, are unable to understand questions or cannot give rational
answers them. Section 127 (1)
• The responsibility to determine competency lies with the court.

105
 CHILD WITNESS

• Section 127(2) EA children of tender age are competent to contract

unless they are prevented from understanding the questions or giving
rational answers
• Section 127 (2) examination of a child before giving evidence,
whether he understands the nature of the oath?
• When he does not understand the nature of the oath, the court must
determine two points
– Whether the child possesses sufficient intelligence to justify
reception of the evidence
– The child understands the duty of speaking truth
• Finding on the two points must be recorded.

106
 PERSON OF UNSOUND MIND

• A person of unsound mind is competent if he understands the

nature of the questions put to him and capable of giving rational
answers, section 127 (6).
• The term disease of mind applies to idiocy and lunacy.
• Under normal circumstances an idiot can never become rational
but a lunatic can entirely recover or have some lucid moments.
• In R v Hill (1851) a patient of a lunatic asylum who had a clear
understanding of the obligation of an oath, was held competent
to give evidence for the Crown on a charge of murder.

107
 DUMB WITNESS

• A witness who is unable to speak may give his evidence by

writing or by any other manner e.g. by signs and such evidence
shall be taken as oral evidence. Section 128
• Questions to be asked by the court:
– Whether he possesses prerequisite amount of intelligence
– Whether he understands the nature of the oath
• Section 128 does not mention those witnesses who are both
dumb and deaf.
• Salum v R (1951) The general position is that such evidence
may be admitted at the discretion of the court

108
 MARRIED PERSONS

• Husband and wife are competent witnesses against each other

but they are not compellable witnesses. Sec 130 (1)
• This privilege has two exceptions
– A person charged is charged with an offence under chapter
XV of the Penal Code or under the Law of Marriage Act
– The person charged is charged in respect of an act or
omission affecting the person or property of the wife or
husband, or any of the wives of a polygamous marriage, of
that person or the children of either of them.
• Spouse must be warned. Sec 130 (3)

109
 ACCOMPLICE

• Means any person who, either as a principal or as an accessory

has been associated with another person in the commission of
any offence.
• An accomplice is a competent witness and a conviction is not
wrong simply because it is based on uncorroborated testimony
of an accomplice. Sec 142
• The rule in Davis v DPP is that evidence of an accomplice is
admissible, but the court must warn itself of the danger of
convicting on such evidence unless corroborated and if this
warning is omitted a conviction may be quashed. This rule,
although a rule of practice, now has force of a rule of law.

110
 ACCOMPLICE

• DPP v ACP Abdallah Zombe & Others, Criminal Appeal

No. 358 of 2013 (Unreported) CA
– “We fully subscribed and find as correct the observation
made by the High Court that the evidence of a co-
accused given on oath and on the defense implicating
other accused should be treated as evidence of an
accomplice. Such evidence, owing to its inherent
danger, requires corroboration as a matter of a well
established practice but not in law as provided under s.
142 of the Evidence Act, Cap 6. R.E of 2002.”

111
 HOSTILE WITNESS

• A hostile witness is the one who in his manner of giving

evidence show that he does not desire to give the truth and that
he had been gained over by the adverse party.
• When a party discovers the witness is giving evidence against
the party who called him he may be treated as a hostile witness
and the party may be allowed to cross-examine the witness.
• Evidence of a hostile witness is not to be rejected either in
whole or in part. The whole of the evidence must go to the
court’s record. It is for the court to decide, but it should always
be received with great caution.

112